text:
    Willie Harold JOHNSON and Mary Lou Johnson, his wife, Appellants, v. Danny Eugene KNIGHT, Appellee.
    Nos. 81-208, 81-1522.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Coral Gables, and Philip J. Cole, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

By these consolidated appeals we are called upon to determine whether a trial court correctly awarded custody of a child born out of wedlock to his natural father and whether the trial court erred in appointing the natural father as the guardian of the minor child’s property. Facts giving rise to this case are best set out in the order of the trial court appointing the natural father as the guardian of the property of said child. The order reads in part as follows:

FINDINGS OF FACTS
“DANNY EUGENE KNIGHT is the natural father of a four (4) year old minor child named DANNY EUGENE KNIGHT, II. The Child’s mother, Yvonne Johnson, was killed when a Greyhound bus in which she was riding plunged off the Sunshine Skyway Bridge into Tampa Bay, Florida. The grandfather, WILLIE HAROLD JOHNSON, is the father of Yvonne Johnson and the grandfather of the minor child. Pursuant to the grandfather’s Petition, he was appointed as the guardian of the person of the Estate of Yvonne Johnson.
Prior to the grandfather’s filing of the Petition for Appointment of the Guardian, DANNY EUGENE KNIGHT, the father herein, told WILLIE HAROLD JOHNSON and his counsel that he had no intention of giving up his child and intended to do everything possible to protect his child’s interests. Not only knowing of the existence of the child’s natural father, but also knowing of his express intent to care for the child and the affairs of the child the grandfather and his attorney nonetheless filed a Petition for Appointment as Guardian which Petition (concealed)[] the existence of the natural father and did not give notice to him of the proceedings for the appointment of a guardian of the person and property of his minor son. In re: The Guardianship of Danny Eugene Knight, II, Case No. 80-4651 and In re: Estate of Yvonne Johnson, Case No. 80-4296.
The lower court, unaware of the existence of the father, who by law is the natural guardian of his son, (F.S. § 744.-301) entered an Order, Ex-parte, appointing WILLIE HAROLD JOHNSON Guardian of the Property and Person of DANNY EUGENE KNIGHT, II and Personal Representative of the Estate of Yvonne Johnson. Upon learning of the fact that the grandfather had been appointed guardian of his son, DANNY EUGENE KNIGHT filed a Petition to remove WILLIE HAROLD JOHNSON as Guardian of his minor son and Personal Representative of his minor son’s deceased mother.
The Court finds that DANNY EUGENE KNIGHT is the natural father of the minor child DANNY EUGENE KNIGHT, II. The mother named the child after the father and is it recognized in the community that he is the father of the child. The deceased’s parents acknowledged that he is the father and his parenthood has never been disputed.
The Court finds and the evidence clearly shows that DANNY EUGENE KNIGHT, the father, has not abandoned the child at any time from birth to the present. On the contrary, the father has consistently held himself out to the general public as the father. He went with the deceased to the obstetrician when she first became pregnant; he went with her to the hospital when she delivered the baby; he brought Yvonne Johnson and their son home from the hospital. In his capacity as rental clerk and assistant manager of the Pine Crest Estates, the father DANNY EUGENE KNIGHT arranged for the deceased and her family (consisting of her mother, father and three (3) brothers) to obtain a three (3) bedroom unit in this project so he could be in close proximity. The father has paid for the son’s medical bills, clothing and other necessities, and while the mother was alive, he gave her money for food and clothing for the child. The father attended school functions with his son and has taken him and the deceased mother to visit his family out of the State and on other vacations.
The Court finds that DANNY EUGENE KNIGHT is a reputable, hardworking sensitive person who loves his child and desires to raise the child now that the mother died. The Court finds that there was evidence of love and affection between the decedent mother, the father of the child, and the child.
As the facts in the instant case clearly demonstrate, there was no evidence of the father’s unfitness to serve as guardian since the appointment of the guardian was done ex-parte and without notice to the father. The failure to disclose in the Petition for Appointment as Guardian the existence of the father and to provide the father with notice of the proceeding was in clear violation of the law. F.S. § 744.-337 provides as follows:
“(2) When the petition alleges that the incapacity is minority and the petitioner is not the parent and the parents of the minor are living, reasonable notice of the hearing shall be given to them. When a parent applies for appointment as guardian of his minor child, no notice is necessary unless the other parent is living and refuses to consent to the appointment.”

F.S. § 744.334 provides:

“Petition for appointment of guardian; contents, — Every petition for the appointment of a guardian shall be verified by the petitioner and shall contain statements, to the best of petitioner’s knowledge and belief, showing the name, age, residence, and post-office address of the alleged incompetent; the nature of his incapacity; the type of guardianship desired; the approximate value and description of his property; the residence and post-office address of the petitioner; the names and addresses of the next of kin of the incompetent, if known to the petitioner.”
The Court finds that the failure to comply with these statutory requirements is grounds for removing the guardian under F.S. § 744.474(1).
It is uncontroverted that the grandfather and his attorneys knew of the existence of the child’s father and the father’s desire to do everything necessary to protect his child’s interests.
In the instant case, DANNY EUGENE KNIGHT, as father and natural guardian of the minor child, is entitled to the court-appointed office of guardian of the property of the minor child. Absent an affirmative showing that the father is not a fit and proper person to hold the office, he is entitled to be appointed guardian of the property of his son.
The Court finds that the child’s grandfather, WILLIE HAROLD JOHNSON, is a good person as well as his wife; but nonetheless, under the law they stand secondarily for appointment as administrator and guardian in this case, and as long as the father is fully fit, he must be appointed, and it would be improper for the Court not to do so.
The Court is also aware that there is now pending in the Family Division of the Circuit Court, Case No. 80-8925, a Petition for Custody of the minor child filed by the father. In an effort to avoid the traumatic emotional impact upon the four year old minor child by changing the guardianship of the person as it now stands from the grandfather to the father, the Court will allow the child to stay with grandparents until a determination is made as to who should have permanent custody of the child in the above cited case.
Also, the father is entitled to be appointed as the administrator of the Estate of Yvonne Johnson under the statutory law of this State. F.S. § 733.301(2) provides that preference in granting letters of administration in intestate estates is for the heir nearest in degree to the deceased. The heir nearest in degree to the deceased, Yvonne Johnson, is her son, DANNY EUGENE KNIGHT, II, See F.S. § 733.201(18) [731.201(18)] and § 732.103. When the heir nearest in degree is incompetent due to minority as is DANNY EUGENE KNIGHT, II, then the guardian has statutory preference to administer the estate. F.S. § 733.301(3) and see also In re: Estate of Phillips, 190 So.2d 15 (Fla. 4th DCA, 1966). In the instant case, the father, DANNY EUGENE KNIGHT, as the natural guardian of the minor child who is the sole heir at law of his mother’s estate is also entitled to the court appointed office of administrator of the Estate of Yvonne Johnson.”

Following the entry of this order the custody proceeding was held and custody was awarded to the natural father, these appeals ensued. The primary thrust of appellant’s argument is that it was necessary for the natural father to bring a judicial proceeding to establish his paternity pursuant to the recent Supreme Court case of Kendrick v. Everheart, 390 So.2d 53 (Fla.1980) and that until such time as a judicial determination was made that the appellee was the natural father of the minor, the trial court could not consider the question of guardianship. We disagree.

All parties conceded and the trial court found that the appellee had always held himself out to be and was recognized by all concerned as being the natural father of the minor. When the question of parent-ship is not in conflict, there is no need for the natural father to resort to judicial proceedings. We further find that the evidence before the several trial judges amply supports the finding that the natural father is a fit and proper person to have the custody of the child and therefore the award of custody based on this finding will not be disturbed. Behn v. Timmons, 345 So.2d 388 (Fla. 1st DCA 1977); Besade v. Besade, 312 So.2d 484 (Fla. 3d DCA 1975); In Re Vermevlen’s Petition, 114 So.2d 192 (Fla. 1st DCA 1959).

Therefore, for the reasons above stated, the orders under review be and the same are hereby affirmed.

      . The Court on rehearing amended these findings by striking “concealed” and substituting “failed to mention or disclose”.

      . Proceeding for custody was heard by a different trial judge than that which determined the guardianship question, but, the parties stipulated that the judge determining custody could consider the evidence taken in the guardianship proceeding.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rafael LEON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2245.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti A. Roth-enberg, Asst. Atty. Gen., Miami, for appel-lee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Pressley v. State, 395 So.2d 1175 (Fla. 3d DCA 1981); Knight v. State, 392 So.2d 337 (Fla. 3d DCA 1981); Rodriguez v. State, 379 So.2d 657 (Fla. 3d DCA 1980).


author: JORGENSON, Judge.

text:
    Cindy COLEMAN, Appellant, v. Joseph MACKEY, Appellee.
    No. 82-147.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Melvin A. Rubin, Miami, for appellant.
    Charles F. Atwood, III, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

In an action to determine paternity and child support the trial court found the defendant to be the father of the plaintiff’s child and awarded child support in the statutory minimum amount of $40.00 per month, pursuant to section 742.041, Florida Statutes (1979). Mackey, the father, is employed, earns a gross income of $480.00 per week and owns real estate valued at $38,-000.00, with a $16,000.00 mortgage and net equity of $19,000.00. Coleman, the mother, receives $195.00 per month in public assistance for herself and her two other children. Mackey requested the trial court to take judicial notice of his $300.00 per week child support obligation which occurred as a result of an unrelated dissolution of marriage proceeding.

We reverse the award of child support because it is so grossly low as to shock the conscience of this court. See Mahoney v. Mahoney, 380 So.2d 497 (Fla. 2d DCA 1980). We also find error in the trial court’s not ordering child support retroactive to the date of birth. The mother has met her burden of showing a clear abuse of discretion by the trial judge. Id. The criteria to be considered in awarding child support are the child’s needs and the parent’s ability to pay. Davis v. Davis, 371 So.2d 591 (Fla. 2d DCA 1979). There can be no question that a child on public assistance at the time of his birth has the need for child support from the putative father. The rights of an illegitimate child must be considered on an equal basis with the rights of a legitimate child to receive child support. State Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979); Shinall v. Pergeorelis, 325 So.2d 431 (Fla. 1st DCA 1976).

We note in passing that once the trial court has fixed an appropriate amount for child support retroactive to the date of birth the appellee’s circumstances may have changed sufficiently to justify Mackey’s bringing to the attention of the trial court presiding over the unrelated dissolution the existence of new circumstances.

Reversed and remanded.


text:
    ACCO, INC., and Travelers Insurance Company, Appellants, v. Ronald E. KOZAK, Appellee.
    Nos. 82-212, 82-2161.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    George, Hartz, Burt & Lundeen, Miami, Amy Shield Levine, Boca Raton, for appellants.
    Schwartz, Klein, Steinhardt & Weiss and Jay Weiss, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Green v. Sansom, 41 Fla. 94, 25 So. 332 (1899); W.W. Gay Mechanical Contractors, Inc. v. Gale, 284 So.2d 455 (Fla. 1st DCA 1973).


text:
    Phyllis MASUCCI and Jose Miguel Echeverria, Appellants, v. The STATE of Florida, Appellee.
    Nos. 82-251, 82-252.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Diller & Schmukler, New York City, Roy E. Black and Frank Funci, Miami, for appellants.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979).


author: BASKIN, Judge.

text:
    George W. GOODMAN and Paula Goodman, his wife, Appellants, v. Moreno HABIF, Trustee, and Blue Seas, Inc., a Florida corporation, Appellees.
    No. 82-611.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.

      Fuller & Feingold and Laurence Fein-gold, Miami Beach, for appellants.
    Murray B. Weil, Jr., Miami Beach, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We reverse the trial court’s dismissal of appellants’ second amended complaint seeking to terminate a lease. The complaint stated a cause of action under the terms of the lease which required the lessee to deposit specified amounts in an escrow account, to pay taxes and to be responsible for reasonable attorneys’ fees in the event of default and court action.

On a motion to dismiss, the trial court’s function is to determine whether the complaint states a cause of action. Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973). Unless affirmative defenses appear on the face of the complaint, they may not be considered. Vaswani v. Ganobsek, 402 So.2d 1350 (Fla. 4th DCA 1981). Estoppel is an affirmative defense which must be pleaded and proved before relief can be granted. Phoenix Insurance Co. v. McQueen, 286 So.2d 570 (Fla. 1st DCA 1973).

Accordingly, we reverse the Final Order of Dismissal of the complaint and counterclaim and remand for further proceedings consistent with this opinion.

HENDRY, J., dissents.


text:
    Edward R. LOPEZ, Appellant, v. Alida Jayne LOPEZ, Appellee.
    No. 82-814.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Riskin & Dishowitz and Martin Dishow-itz, Hollywood, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. In Re Marriage of McDade, 359 So.2d 38 (Fla. 2d DCA 1978); Carlsen v. Carlsen, 346 So.2d 132 (Fla. 2d DCA 1977); White v. White, 249 So.2d 729 (Fla. 2d DCA 1971); Fla.R.Civ.P. 1.140(b).


author: FERGUSON, Judge. OWEN, WILLIAM C., Jr., Associate Judge,

text:
    Frank Brantley DICE, Appellant, v. James W. CAMERON, Personal Representative of the Estate of Jessie M. Dice, Kimberlee M. Dice and Lisa K. Dice, Appellees.
    No. 82-844.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    James A. Baccus, Miami, for appellant.
    Wiener & Walton, Coral Gables, Roger H. Edwards, South Miami, and Herbert A. Warren, Miami, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   FERGUSON, Judge.

Where one of the beneficiaries under a will took an appeal from an order of the court approving the Personal Representative’s recommended distribution of the estate, it was not error to require the posting of a supersedeas bond equal to the amount in controversy plus 15%. Fla.R.App.P. 9.310.

The estate has a value of over $300,-000. Appellant’s share under the proposed distribution is $33,692.19. He claims by the appeal that he has been short-changed $39,-784.61 — the amount in controversy. Although we agree with appellant that the order approving the proposed distribution is not an “order solely for payment of money” which would call into play the mandatory provision contained in section (b) of the rule, but is an order appealed from which calls into play the discretionary section (a), appellant has failed to make a clear showing that the court abused its discretion in requiring a bond. See Hodge v. Jacksonville Terminal Company, 234 So.2d 645 (Fla.1970).

The fact that the contested funds are in custody of a stakeholder does not require a different result. Cf. Dixon v. Dixon, 184 So.2d 478 (Fla. 2d DCA 1966) [appealing party in a case involving distribution of insurance proceeds which had been paid into court registry could stay judgment upon posting of a supersedeas bond]. The purpose of a supersedeas bond is to insure payment of the full amount of the order including costs, interests, fees, damages for delay and use, if the review is dismissed or order affirmed. Fla.R.App.P. 9.310(c)(2). In this case the assets of the estate, consisting entirely of cash, are in the custody of a personal representative, who, because not required by the will, is not bonded — a fact which the trial court might have considered in requiring a good and sufficient bond.

Affirmed.

OWEN, WILLIAM C., Jr., Associate Judge,

dissenting:

I agree that the order for which a stay was sought is not an “order solely for payment of money,” and hence the general discretionary provision of Rule 9.310(a) would apply. I think that on the facts of this case an abuse of discretion is shown.

The Personal Representative held estate assets consisting of $301,076.59 in cash. The petition for discharge proposed to distribute to appellant as his share of the estate the sum of $33,692.19. Appellant filed objections to the proposed distribution, claiming entitlement to an additional $39,-784.61. It is the court’s order overruling those objections and authorizing the personal representative to make distribution in accordance with the proposed schedule from which appellant took his appeal and which he sought to have the court stay. On appellant’s motion for stay, the court (as did the parties) recognized that the amount in controversy was the additional $39,784.61 claimed by appellant, and consequently set the amount of the supersedeas bond at 115% of that sum.

I think the cases of Bernstein v. Bernstein, 43 So.2d 356 (Fla.1949); Cerrito v. Kovitch, 406 So.2d 125 (Fla. 4th DCA 1981); Mosar Developers, Inc. v. Creech & Wilson, Inc., 404 So.2d 118 (Fla. 4th DCA 1981); and Fidelity and Deposit Co. of Maryland v. Atlantic National Bank of Jacksonville, 234 So.2d 736 (Fla. 3d DCA 1970), if not controlling precedent, are at least instructive as to the proper amount of bond in this case. The purpose of a supersedeas bond is to protect the party adversely affected against the consequences of the stay. Bernstein v. Bernstein, supra, at 358. The bond set in this case not only has included an allowance for interest and costs (the 15% factor), but also has (in effect) required appellant to bond (at 100%) the Personal Representative’s ultimate liability with respect to the $39,784.61 which is in controversy. Since neither the Testatrix nor the court felt it necessary to require a bond of the Personal Representative, it strikes me as an abuse of discretion for the court now to require appellant, as a condition to a stay of the order authorizing distribution, to post a bond which (in effect) assures that the Personal Representative will, upon final resolution of the appeal, faithfully discharge his fiduciary responsibility.

I would vacate the order setting superse-deas bond and remand for the purpose of setting bond in such amount and upon such conditions as would protect the parties adversely affected against the consequences of the stay, together with their taxable costs, taking into consideration any sums likely to be earned by the funds while held by the Personal Representative pending final disposition of the appeal.

      . Rule 9.310. STAY PENDING REVIEW
      (a) Application. Except as provided by general law and in section (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief. A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.
      (b) Exceptions.
      (1) Money Judgments. When the order is solely for the payment of money, a stay pending review is automatic, without the necessity of motion or order, on posting of a good and sufficient bond equal to the amount ordered to be paid, plus 15% thereof. If the liability of a party is less than the entire amount ordered to be paid, the bond required for that party shall be equal to the amount of such liability, plus 15%. Multiple parties having common liability may file a bond in the amount of the common liability plus 15%.

      . The order appealed, styled “Order Overruling Objections to Final Accounting,” overruled appellant’s objections to the Personal Representative’s final accounting and proposed distribution, and authorized the Personal Representative to distribute the estate assets in accordance with the proposed schedule. It was not a money judgment and only involved the payment of money because, fortuitously, the estate assets to be distributed by the Personal Representative were at that point completely liquidated. But if it were, it is not the appellant who is obligated to pay — it is a third party, the Personal Representative, who is obligated to pay, and thus under the clear language of Rule 9.310(b)(1) appellant would be entitled to a stay without any bond since his liability is zero, and 115% of zero is still zero.

      . I would assume that, despite the stay, only this sum has been retained by the Personal Representative and the remainder of the assets have been distributed to the beneficiaries in such a manner that each has received the least amount which would be received irrespective of the outcome of the appeal.

      . We are informed by appellant’s motion for review that estate assets are invested and earning interest in a money market fund,


author: FERGUSON, Judge.

text:
    Nettie SPRINGER, Appellant, v. ARTHUR OF CEDARHURST, INC., and Ken’s Waxing Service, Appellees.
    No. 82-1080.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Jan. 25, 1983.
    Muroff, Mileston & Milestone, and Melvin Muroff, Hallandale, for appellant.
    Underwood, Gillis, Karcher, Reinert, Valle & Casuso and Thomas R. Trompeter, Miami, for appellees.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant, who was eighty-one years old at the time of this accident, slipped and fell while a patron in appellee’s place of business; she suffered a broken hip which required surgery and extended hospitalization. After trial, a jury returned its verdict on a printed form which read, essentially:

1. Was there negligence on the part of the Defendant? Yes.
2. Was there negligence on the part of the Plaintiff? Yes.
3. What percentage of negligence should be charged to the Plaintiff and to the Defendant?
Plaintiff 90%.
Defendant 10%.
TOTAL RESPONSIBILITY OF ALL PARTIES MUST BE 100%
4. What is the total amount of damages sustained by Plaintiff and caused by the accident?
Total damages of Plaintiff $225.000
In determining the total amount of damages, do not make any reduction because of the negligence, if any, of Plaintiff. If you have found Plaintiff negligent in any degree, the Court in entering Judgment will reduce the total amount of damages (100%) by an appropriate amount.
SO SAY WE ALL this 1st DAY OF December, 1981.
/s/ John J. Malloy
FOREMAN OR FOREWOMAN

After completing the printed portion of the special verdict form, the jury, in disregard of the last instruction on the form, calculated and wrote in the amount of damages due to plaintiff consistent with the total amount of damages and the percentage of fault attributable to both parties:

“According to our interpretation of question number four, we, the jury, decide to award the Plaintiff $22,500.00, notwithstanding the percentages in question number three.”

The jury was then polled and they each acknowledged the verdict as theirs. The court inquired whether there were any motions before discharge of the jury, to which, counsel for the appellee asked that the jury be again polled as to the total amount of damages sustained. Each of the jurors again indicated that the total amount of damages was $225,000. Ruling that the written portion of the verdict was inconsistent with the instructions, the court then gave the jury a second verdict form and sent them back into the jury room. After a short period the jurors returned with the new verdict form which found total damages of $22,500, upon which Final Judgment was entered, and from which this appeal is brought.

We agree with appellant that the jury’s first verdict was clear and consistent. The handwritten addendum merely made a correct calculation, precisely what the trial judge would have done subsequently. It is no basis for discarding an otherwise consistent and unambiguous verdict that the jury, in order to make clear its intentions, did more than it was required to do. There was no confusion from the face of the verdict or the ensuing colloquy; it began when the trial judge rejected the first verdict, which confusion was obviously a result of the rejection. See Schumer v. Becker, 389 So.2d 282 (Fla. 3d DCA 1980) (where jury’s decision was clearly stated in the verdict, an inquiry which went beyond polling the jury suggested that the decision was incorrect and caused confusion, therefore, original verdict would be reinstated).

Reversed and remanded with instruction to enter judgment based on the original verdict.


text:
    Charles Curtis VON HORN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1857.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Jan. 24, 1983.
    Charles Curtis Von Horn, in pro. per.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    Roger Lee HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2580.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Roger Lee Harris, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. See Mitchell v. State, 381 So.2d 760 (Fla. 5th DCA 1980).


text:
    Gregory ISOM, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-2610.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Gregory Isom, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: DOWNEY, Judge.

text:
    Daniel M. NOVAK, as Personal Representative for Beverly Ann Novak, Appellant, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. 81-869.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 1983.
    M. Daniel Hughes of Chappell, Brandt & Gore, P.A., Fort Lauderdale, for appellant.
    Clark J. Cochran, Jr., of Hainline, Billing & Cochran, P.A., Fort Lauderdale, for ap-pellee.
   DOWNEY, Judge.

The issue in this case is whether the injuries and eventual death of Beverly Ann Novak arose out of the ownership, maintenance or use of an automobile so as to entitle her personal representative to personal injury protection benefits as provided in the insurance policy issued by appellee. The trial judge held the injuries and death did not arise out of the ownership, maintenance or use of the automobile and awarded appellee a summary final judgment.

The bizarre factual background is undisputed. Beverly Ann Novak lived at home with her parents. As she was about to drive away from the house one morning, a stranger, Robert Lee Endicott, approached her car and asked for a ride. When Beverly refused, Endicott pulled out a pistol and shot her in the face, dragged her out of the car, and fled in the vehicle. Several months later Beverly died from the injuries. Beverly’s father, as personal representative of her estate, filed a claim with appellee for personal injury protection benefits contained in a policy which covered the automobile in question. When the claim was denied, this suit was instituted. The trial court granted a summary final judgment for appellee on the ground that the decedent’s injuries did not arise out of the ownership, maintenance, or use of the automobile because there was insufficient causal connection between the use of the vehicle and the attack. We hold the trial judge’s analysis was incorrect and thus we reverse.

In a plethora of cases throughout the country, courts have attempted to define or describe the meaning of the standard insurance clause providing coverage for accidents arising out of the ownership, maintenance, or use of a motor vehicle. However, this elusive phrase continues to be the focal point of litigation because of the myriad factual situations to which it must be applied. Numerous Florida cases have construed the clause in question but, as several of the cases have noted, no clear uniformity exists as to the meaning to be ascribed to these terms.

It is quite well established that the term “arising out of” is broader in scope than the words “caused by”; the term is understood to mean “originating from,” “having its origin in,” “growing out of,” or “flowing from.” While some causal relationship or nexus must exist between the ownership, maintenance or use of the vehicle and the injury, a direct proximate causal relationship in the strict legal sense is not required. However, since there is such a disparity in the judicial constructions arrived at in the various cases, it hardly seems productive to embark upon a tedious analysis of the factual situations presented in all types of cases. For example, one case held that a passenger bitten by a dog being transported in the car sustained an injury arising out of the use of the vehicle, while another court held that a passenger who was beaten up by a fellow passenger did not receive an injury arising out of the use of the vehicle. A personal injury caused by a beer mug thrown from a moving car was determined to be an injury arising out of the use of the vehicle, but another court held that an injury to an occupant of a vehicle which went out of control because of a bottle thrown from another moving car was not an injury arising out of the latter vehicle’s use. As a final example, a person whose hand was smashed by a boat and trailer connected to the car while he was trying to disconnect the taillight wires was held to be covered because the accident arose out of the use of the vehicle, while an owner who was injured as he entered his car by an unknown assailant lurking in the back seat and later dumped out of the car while unconscious was held not to be covered. No doubt, in some measure the disparity in construction is due to the type of contract in which the phrase is used. Some cases are construing Exclusions in Homeowners policies, while others are dealing with liability policies extending coverage. Be that as it may, we believe that restricting our study to the various assault cases which have involved a construction of the clause in question will prove most productive in the resolution of this case.

Generally, the cases involving an assault on or by an occupant in a motor vehicle hold that the injury does not arise out of the ownership, maintenance, or use of the vehicle. The common thread running through many of these cases is that the vehicle is the mere situs of the attack which could as well have occurred anywhere; that there is no causal relationship between the assault and the use of the vehicle. Thus, in Sabatinelli v. Travelers Insurance Company, 369 Mass. 674, 341 N.E.2d 880 (1976), the driver of a car stopped the car, loaded his gun and shot an unknown pedestrian who was walking along the street. The court held the accident did not arise out of the ownership, maintenance, or use of the car because the conduct that caused the injury was unrelated to the use of the vehicle. A similar conclusion was arrived at by the Supreme Court of North Carolina in Nationwide Mutual Insurance Company v. Knight, 34 N.C.App. 96, 237 S.E.2d 341 (1977). There, the driver of an automobile, chasing another vehicle, shot at the front vehicle and wounded an occupant. Once again, the court held that the shooting had no causal connection to the use of the automobile. In Love v. Farmers Insurance Group, 588 P.2d 364, 121 Ariz. 71, (Ariz.Ct.App.1978), two assailants abducted a vehicle owner in his car. While one assailant drove the other administered a fatal beating to the owner with a metal candelabrum found in the car. Although the claimant argued that using some instrument from the car to administer the beating created the needed nexus, the court held there was no coverage because there was no causal relationship between the injury and the ownership, maintenance, or use of the vehicle.

If the facts of the present case were similar to the various cases referred to, we would not hesitate to find no coverage and affirm the trial judge. However, the shooting in this case was motivated by and a direct result of the assailant’s request to ride in the vehicle and the victim’s refusal. Endicott’s attempted use of the vehicle and the driver’s refusal prompted the conduct which caused the injury. It must be remembered that we are not looking for a proximate causal relationship in the resolution of this case; rather the inquiry should be whether the attack upon the decedent arose out of, or flowed from, the use of the vehicle. The answer seems rather clear to us that the decedent’s refusal to allow Endi-cott to ride in the car, which she was operating, demonstrates a sufficient nexus to meet the requirements of the rule requiring a causal relationship. Therefore, we hold that PIP coverage was available for the accident in question. We have found only one case that would seem to conflict with our rationale distinguishing the present case from the general run of assault cases on this subject. That case is O’Key v. State Farm Mutual Auto. Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (Mich.Ct.App.1979). There, the victim was sitting in his car with the motor running, waiting for his brother when suddenly a stranger opened the door, pointed a gun at the victim, and mumbled something like, “let’s go home.” The victim put the car in reverse and accelerated. As the assailant was being flung away from the car, he fired several shots, one of which hit the victim. In finding no coverage, the court cited a previous Michigan case, which held:

“[Wjhile the automobile need not be the proximate cause of the injury, there still must be a casual connection between the injury sustained and the ownership, maintenance or use of the automobile and which casual connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.” O’Key, 280 N.W.2d at 585.

The O’Key court then stated:

Applying this test to the case at bar leads us to conclude that the injuries sustained by plaintiff did not arise out of the ownership, operation, maintenance or use of the automobile. Although plaintiff was an occupant of an automobile at the time he sustained the injury, this is not a controlling consideration in resolving this issue. The automobile was not the instrumentality of the injury. Rather, its role in this matter was incidental. Plaintiff’s occupancy of the car was a fortuity, in no way connected with the assault. Nor is an assault by an armed assailant upon the driver of a car the type of conduct that is “reasonably identifiable” with the use of a car. Since the injury in this case did not arise out of the ownership, operation, maintenance or use of the car, the trial judge properly granted defendant’s motion for summary judgment in this case. O’Key, 280 N.W.2d at 585.

We would distinguish the O’Key case on several bases. We do not understand that the automobile must be the instrumentality of the injury nor do we believe the type of conduct which causes the injury must be foreseeably identifiable with the normal use of the vehicle.

Accordingly, we reverse the judgment appealed from and remand the cause for further proceedings.

LETTS, C.J., and BERANEK, J., concur.

      . O’Dwyer v. Manchester Insurance Company, 303 So.2d 347 (Fla. 3d DCA 1974); Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974).

      . Indiana Insurance Co. v. Winston, 377 So.2d 718 (Fla. 4th DCA 1979); St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973); Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976).

      . Auto-Owners Ins. v. Pridgen, 339 So.2d 1164 (Fla. 2d DCA 1976); Watson v. Watson, 326 So.2d at 48; National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971); 12 Couch On Insurance 2d, §§ 45, 56.

      . National Indemnity Co. v. Carbo, 248 So.2d at 238.

      . Green Bus Lines, Inc. v. Ocean Accident & Guar. Corp., 257 App.Div. 851, 12 N.Y.S.2d 420 (N.Y.App.Div.1939).

      . Valdes v. Smalley, 303 So.2d at 342.

      . St. Paul Fire & Marine Ins. Co. v. Thomas, 273 So.2d at 117.

      . Auto-Owners Ins. v. Pridgen, 339 So.2d at 1164.

      . Reynolds v. Allstate Ins. Co., 400 So.2d 496 (Fla. 5th DCA 1981).

      . 8D Appleman, Insurance Law & Practice, § 5173.45.

      . Reynolds v. Allstate, 400 So.2d at 496; Love v. Farmers Ins. Group, 588 P.2d at 364; Okey v. State Farm Mutual Automobile Ins. Co., 89 Mich.App. 526, 280 N.W.2d 583 (1979); Stonewall Ins. Co. v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979).


author:
WALDEN, Judge.
      DELL, Judge, concurring specially:

text:
    John BROWN, Trustee, Rafael Queral, Joseph Manuel Unanue and Edward Abril Lamarque, Appellants, v. GARDENS BY THE SEA SOUTH CONDOMINIUM ASSOCIATION, Jorge Echarte, J.L. Echarte & Sons, Inc., and Peggy Cummins, Trustee, et al., Appellees.
    No. 81-1292.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 1983.

      Thomas R. Tatum and Christine Petersen Tatum of Buck & Tatum, Fort Lauderdale, for appellants.
    Harry G. Carratt of Morgan, Carratt and O’Connor, P.A., Fort Lauderdale, for appel-lee, Gardens By The Sea South Condominium Ass’n.
   WALDEN, Judge.

This appeal challenges the denial of appellants’ claim for attorney fees in the trial court. We hold that such denial was error and reverse.

The base litigation involved the validity of a long term condominium recreation lease. Appellants, defendants in the trial court, prevailed.

Appellants did not plead their entitlement to attorney fees in their answer and affirmative defenses. The matter of attorney fees was first raised in the appellants’ formal pleadings when after judgment they filed their verified motion for attorney fees.

It is axiomatic that attorney fees may be allowed only where authorized by statute or contract. We feel that appellants qualify under either or both avenues.

CONTRACT ENTITLEMENT

The lease which was critically involved in this litigation provided:

XVI. G. If at any time, by reason of the failure of the Lessee to keep and perform any covenant or agreement which under the terms of this Lease the Lessee is bound and obligated to keep and perform, it becomes necessary for Lessor to employ an attorney to protect the rights and interests of the Lessor in the demised premises, or to enforce the terms and provisions of this Lease, or proceed under it in any particular, then in any of such events, the Lessee will owe and will pay unto Lessor all costs of court and reasonable attorney’s fees incurred or expended by the Lessor in taking such actions. (emphasis supplied)

Although appellants prevailed in the litigation in chief, the trial court denied their motion for attorney fees, saying:

The court is unable to agree that the intention to claim attorneys’ fees may substitute for claiming attorneys’ fees; or that it was the intention of paragraph XVI G in the long term lease that the landlord is entitled to attorneys' fees whenever it is necessary to protect its interests. Even if it were, attorneys’ fees were not requested in defendants’ pleadings.

In our opinion it cannot be seriously contended that appellants were not entitled to an award of attorney fees under the all encompassing terms of paragraph XVI G of the lease and we, therefore, choose not to plumb that aspect or extend this opinion on that account.

As we view it, and as the parties largely argue, the dispositive issue is the effect of appellants failure to initially plead their entitlement to fees.

The overwhelming bulk of the cases hold that it is necessary to request attorney fees in the parties’ basic pleadings when claiming under a contract. An exception is Marrero v. Cavero, 400 So.2d 802 (Fla. 3d DCA 1981) where it was stated:

Defendants’ entitlement to an attorney’s fee based on a contract in evidence was not defeated by failure to plead for same as they presented the issue before the trial court by timely motion made after judgment for the defendants — although it would have been better practice for the defendants to have pled for said attorney’s fees in their answer.

Conversely, it is not necessary to so plead entitlement when claiming under a statute. See, for example, Ocala Music & Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980).

Everyone agrees, regardless of route, that it would be indeed better practice to plead entitlement to attorney fees in a party’s initial pleading.

Upon reflection we can not originate or find a rationale that meaningfully supports the distinction made by the courts between the necessity for pleading entitlement when based on contract vs. statute. We would prefer that the treatment be made uniform, one way or the other. However, mindful of our limited office and the authorities that have long maintained the distinction, we leave such resolution, if it is to be done, to the Supreme Court.

Assuming that the case law requires the claim to be pleaded, in this case, in the appellants’ answer and affirmative defenses, and accepting that appellants did not do so, we opine that such failure here was not fatal to their claim based upon these special considerations:

A.There was a colloquy between court and counsel at pre-trial conference as follows:

MR. TATUM: Judge, are we going to decide attorney’s fees during the trial? Are we going to go ahead and put that testimony on?
THE COURT: It’s up to you.
MR. JOSEPHS: It seems to me that— what I propose is that we resolve that at a later time because it may not be necessary to get into it.
MR. TATUM: That’s one group of experts that we wouldn’t have to even retain until we see who comes out — who is the prevailing party, Your Honor.
MR. SMITH: I have no objection to doing that.
MR. TATUM: It might save everybody some time.
THE COURT: Jurisdiction will be retained to consider the award of attorney’s fees.

B. Appellees’ pre-trial statement listed as an issue, “24. Are any of the parties entitled to the recovery of attorney fees and, if so, in what amount.”

C. In the final judgment the trial court expressly retained jurisdiction with respect to:

(b) The determination of the entitlement of Defendants for attorney fees and legal expenses pursuant to the provisions of the Long Term Lease, Condominium Documents and applicable Florida law.

D. Thereafter, as stated, appellants filed their Verified Motion for Attorneys’ Fees and Costs. Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that the claims and ultimate facts supporting same must be alleged. The reason for the rule is to appraise the other party of the nature of the contentions that he will be called upon to meet, and to enable the court to decide whether same are sufficient. See generally 25 FlaJur. Pleadings § 3, 8, and 42.

It is manifest from the foregoing outline of events that appellees and the trial court at all pertinent times knew, recognized and acquiesced, without objection or suggestion of surprise, prejudice or disaccommodation, that appellants were claiming fees and the contract basis for that claim. Moreover, the recognition at pre-trial conference by all involved, including the court, of appellants’ claim is a legitimate basis for a finding of waiver or estoppel as concerns appellants’ failure to plead. It is fair to speculate that had the appellees or the court expressed any surprise or discontent with the notion that appellants were seeking fees, then certainly appellants would have been galvanized into formally amending and pleading their entitlement. As matters stood, appellants were affirmatively lulled into believing that their claim was known, alive, and that same would be adjudicated. Based on these facts, appellees should not be heard or permitted to now object to appellants’ failure to formally plead. (They had filed a motion to strike appellants’ verified motion for attorney fees solely on the grounds that appellants had not claimed such fees in their pleadings.)

We hold that the trial court should have adjudicated appellants’ contractual claim for attorney fees upon the basis that the claim was before the court by consent or waiver, entered judgment, and then entertained a motion to amend the pleadings to conform with the evidence under Florida Rule of Civil Procedure 1.190(b). See generally, Florida Rules of Civil Procedure 1.190(a) and (e) which reflect the liberality with which amendments are to be allowed.

STATUTORY ENTITLEMENT

As earlier recited, it is not necessary to plead entitlement to statutory attorney fees. Appellants sought fees under the provisions of Section 501.2105, Florida Statutes (1981). Appellants’ motion for fees only mentioned their right per contract. However their memoranda in support adequately made the statutory claim which the court did correctly consider in light of the pre-trial stipulation and reservation of jurisdiction previously mentioned. See Mainlands of Tamarac, etc. v. Morris, 388 So.2d 226 (Fla. 2d DCA 1980).

It was pointed out that Count VII of the appellees’ amended complaint was brought pursuant to the provisions of Section 501.201, et seq., Florida Statutes (1981) and that there, too, the appellants prevailed. Appellants’ statutory claim was rejected because Count VII did not concern a “consumer transaction.” We deem this reasoned rejection to be error and reverse.

An examination of appellee’s amended complaint, count VII entitled, “Deceptive and Unfair Trade Practices,” reveals that it was grounded specifically upon the provisions of Section 501.201, Florida Statutes (1981) and appellees claimed for themselves attorney fees thereunder. As to Count VII, the appellants prevailed as the trial court found, among other things, — “the sale of real estate is not included in the definition of “consumer transaction” in Chapter 501, Florida Statutes; therefore, the act is not applicable to the sale of condominium units by the developer.” The trial court then carried this ruling forward in its consideration of appellants’ claim for fees under Section 501.2105, Florida Statutes (1981) by in effect saying they couldn’t be awarded attorney fees under this chapter since he had ruled contrary to appellees’ contention that there was a consumer transaction. In other words, heads I win, tails you lose.

We reverse upon authority of Rustic Village, Inc. v. Friedman, 417 So.2d 305 (Fla. 3d DCA 1982). In fairness we call attention to the fact that this opinion was issued after entry of the appealed order. In the Rustic Village case, a successful defendant was denied attorney fees in an action brought, as here, under Section 501.2105, Florida Statutes (1981). The court held, “that where a plaintiff brings a claim under the act, an attorney’s fee is to be allowed a prevailing defendant even though the trial judge holds that the cause of action is not one contemplated by the act.” Moreover,

The plaintiff, as appellee, attempts to support the order appealed on the basis that once the trial court had found the Act “inapplicable,” it could not then utilize the Act for the purpose of granting the prevailing defendant an attorney’s fee. It is apparent that this is not the case since the Act was applied in the action. It is simply that after being applied, it did not produce a remedy for this plaintiff. To some degree, such is the result in every case where a defendant prevails. The plaintiff, having invoked the Act, is liable for an attorney’s fee because he did not prevail. Cf. Falovitch v. Gunn and Gunn Construction Company, 348 So.2d 560 (Fla. 3d DCA 1977).

Reversed and remanded with instructions to allow appellants an attorney fee either by contract or statute.

GLICKSTEIN, J., concurs.

DELL, J., concurs specially with opinion.

DELL, Judge, concurring specially:

I concur in the result reached by the majority because of the unusual circumstances of this case. However, I am compelled to point out that the cases relied upon by the Court in Marrero v. Cavero, supra, involve claims for attorneys fees under a statute. Miami Lincoln Mercury, Inc. v. Kramer, 399 So.2d 1003 (Fla. 3d DCA 1981) upheld appellant’s entitlement to attorneys fees in an action brought under Section 817.41(6), Florida Statutes (1979) and Ocala Music and Marine Center v. Caldwell, 389 So.2d 222 (Fla. 5th DCA 1980) permitted the award of attorneys fees to a prevailing party in an action brought under Section 501.210, Florida Statutes (1977).


text:
    Thomas V. KEARNS, Jr., as Personal Representative of the Estate of Margaret Jedlicka, Appellant/Cross-Appellee, v. Marie VAHEY, Appellee/Cross-Appellant.
    No. 81-1985.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 1983.
    Arthur C. Koski of Koski, Mateer, Gillespie & Allison, P.A., Boca Raton, for appellant/ cross-appellee.
    Fred A. Harrison, Jr., of Fred A. Harrison, Jr., P.A., South Miami, for appel-lee/cross-appellant.
   PER CURIAM.

Having considered this appeal on the merits, it is hereby dismissed by virtue of appellant’s having accepted the benefits of the final judgment. See, McMullen v. Fort Pierce Financing and Construction Company, 146 So. 567 (Fla.1933). The cross-appeal has also been considered and found to be without merit. The judgment is thus affirmed.

AFFIRMED.

BERANEK and WALDEN, JJ., and OWEN, WILLIAM G, Jr. (Retired), Associate Judge, concur;


author: DELL, Judge.

text:
    Allen R. GREENWALD and Jill F. Greenwald, his wife, Appellants, v. TRIPLE D PROPERTIES, INC., a Florida corporation; Canfla, Inc., a Florida corporation; and Florida National Bank of Miami, a national banking corporation, Appellees.
    No. 82-282.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 1983.

      Gisela Cardonne and John R. Allison, III of Keith, Mack, Lewis & Allison, Miami, for appellants.
    Randolph Braccialarghe and Gary A. Dumas of English, McCaughan & O’Bryan, Fort Lauderdale, for appellees.
   DELL, Judge.

The Greenwalds appeal the dismissal with prejudice of their second amended foreclosure complaint against Triple D Properties, Inc. (Triple D), Canfla, Inc. (Canfla), and Florida National Bank of Miami (Bank). We affirm.

In 1978, appellants became third mortgagees on real property owned by Triple D. On March 9, 1981, appellants assigned the third mortgage to the Bank. The Bank recorded the assignment the next day. After appellants assigned this third mortgage they filed a complaint to foreclose it based on Triple D’s failure to timely pay second mortgages on various parcels of the property encumbered by the third mortgage. Triple D moved to dismiss the foreclosure complaint for failure to join the Bank as an indispensable party and because appellants had no right to bring the foreclosure action since they had relinquished this right to the Bank by assignment. Appellants responded to the motion to dismiss by filing appellant Allen Greenwald’s affidavit wherein he stated that the original assignment to the Bank did not transfer appellants’ control and authority over the mortgage because appellants had obtained a reassignment of the mortgage from the Bank. Following a hearing, the trial court granted Triple D’s motion to dismiss with leave to amend.

Appellants amended their complaint and alleged that the Bank had only a security interest in the mortgage, that appellants retained all of their rights, including the right to accelerate and foreclose during the period of assignment and that appellants had received a reassignment of mortgage from the Bank. Triple D moved to dismiss the amended complaint on three grounds: the conflict between appellants’ amended allegations of their rights to accelerate and foreclose the mortgage and the express terms of the assignments attached as exhibits to the amended complaint; the failure to allege a continuing default at the time of reassignment on September 1, 1981; and the failure to allege an actual default under the second mortgages as a prerequisite to foreclosure of appellants’ third mortgage. The trial court dismissed the amended complaint with leave to amend.

Appellants’ second amended complaint added the Bank as a defendant and alleged that “Triple D’s default continued subsequent to June 9, 1981,” the date of the original foreclosure complaint. Triple D moved to dismiss the second amended complaint on the same grounds presented in its motion to dismiss the amended complaint. The trial court dismissed the second amended complaint with prejudice and this appeal followed.

Appellants contend that the second amended complaint did state a cause of action for foreclosure sufficient to survive a motion to dismiss, that they are the real parties in interest and that they properly accelerated the mortgage. We affirm the dismissal of the second amended complaint for failure to allege that the default continued after reassignment.

In order to withstand a motion to dismiss for failure to state a cause of action, a complaint need only state ultimate facts sufficient to indicate the existence of a cause of action. Hammonds v. Buckeye Cellulose Corporation, 285 So.2d 7 (Fla.1973). Appellants allege that notwithstanding their assignment to the Bank, they retained the right to accelerate and foreclose based on a default occurring during the assignment to the Bank. This allegation conflicts with the unqualified language of that assignment, which appellants attached as an exhibit to both the amended and second amended complaint. As this Court has stated:

When there is an inconsistency between the general allegations of material fact in the complaint and the specific facts revealed by the exhibit, and they have the effect of neutralizing each other, the pleading is rendered objectionable. Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736 (Fla. 3d DCA 1971), cert. den., 252 So.2d 797 (Fla.1971); Padgett v. First Federal Savings and Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979).

Schweitzer v. Seaman, 383 So.2d 1175, 1178 (Fla. 4th DCA 1980). The second amended complaint stood subject to dismissal based on the clear, unconditional wording of the assignment to the Bank. On its face, the assignment terminated appellants’ right to accelerate and foreclose during the period of assignment. The second amended complaint failed to allege any default existing after appellants reacquired the right to accelerate on September 1, 1981.

We do not find an abuse of discretion in the dismissal of the second amended complaint without leave to amend. After the dismissal of their amended complaint with leave to amend, appellants were on notice that they should allege a continuing default after the date of reassignment of the mortgage. Appellants either could not or would not do so. Therefore, the trial court properly entered a dismissal with prejudice. As we affirm the trial court’s action on this point, we need not discuss appellants’ other arguments.

Accordingly, we affirm the final order of dismissal with prejudice.

AFFIRMED.

LETTS, C.J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    Richard E. BURCH, Appellant, v. Alice Kristi BURCH, Appellee.
    No. 82-1141.
    District Court of Appeal of Florida, Fourth District.
    Jan. 5, 1983.

      James M. Tuthill of Christiansen, Jacknin & Tuthill, Palm Beach, for appellant.
    Michael B. Small of Small, Oakes, Berris, Clark & Kohl, Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant, husband, Richard E. Burch, seeks review of non-final orders entered by the trial court denying husband’s motion to dismiss the petition brought by appellee, wife, Alice Kristi Burch, seeking to establish a New York judgment for child custody and support in Florida for purposes of modification.

The parties acquired a final divorce decree in New York on September 10, 1979, with a temporary child custody and support order for the parties’ three children, which was intermittently modified over the years. The most recent New York modification, dated December 3,1981, indicated “that the matter will come on for review in March, 1982.”

In December of 1979, wife had moved to Florida with the three children. She filed a complaint on February 25,1982, to establish the New York judgment as a Florida judgment in order to modify the custody and increase the support. Service was made upon husband by the Sheriff of Washington County, New York, on March 2,1982. Wife filed an affidavit under the Child Custody Jurisdiction Act on March 9,1982, asserting her physical custody of the three children at her Florida residence since December of 1979. Husband responded by special appearance on March 26, 1982, with a motion to dismiss this action for lack of jurisdiction. Husband maintains that he is a New York resident and that he has never resided, conducted business, nor owned property in Florida.

The trial court denied the motion to dismiss upon authority of Section 61.-1308(1)(a)(1) and (b)(1) and (2), Florida Statutes (1981), and several cited cases.

Undoubtedly, the trial court had jurisdiction over the question of child custody (but not the question of child support, Section 61.1306(2), Florida Statutes (1981)) under the facts of this case. However, the question presented is whether the court should have exercised that jurisdiction.

Section 61.1314(1), Florida Statutes (1981), provides:

A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

This section of the statute is of the very essence of the Act. As the Third District Court of Appeal said in Trujillo v. Trujillo, 378 So.2d 812, 814 (Fla. 3d DCA 1980):

The salutary purpose of the Act is to avoid jurisdictional competition and conflicts; promote cooperation of the courts; assure that litigation concerning child custody ordinarily takes place in the state in which the child has the closest connection; discourage controversies and abductions; avoid relitigation of child custody decisions; and facilitate enforcement of child custody decrees. [Footnote omitted.]

Thus, a Florida court will generally hold that, where jurisdiction is being maintained in the court of another state, deference should be given to that court and the Florida court will not exercise its jurisdiction. Wheeler v. Wheeler, 383 So.2d 655 (Fla. 2d DCA 1980); Hanson v. Hanson, 379 So.2d 967 (Fla. 1st DCA 1980); Trujillo v. Trujillo, supra. Of course, if the court of the other state stays the proceeding before it because Florida is a more appropriate forum, then the Florida court can properly proceed. Furthermore, in the spirit of cooperation so that there will be no jurisdictional conflicts, the statute provides for the Florida court to communicate with the other court “to the end that the issue may be litigated in the more appropriate forum and that information be exchanged .... ” § 61.1314(3), Fla.Stat. (1981).

The last order of modification was entered by the New York court on December 3, 1981, and it provided “That the matter will come on for review in March 1982.” Thus, when appellee filed her complaint in Florida to establish and modify the foreign judgment, the matter was still pending in the New York courts. Under these circumstances we hold the trial court should not have exercised jurisdiction nor denied appellant’s motion to dismiss.

Accordingly, the order of, May 3, 1982, denying the motion to dismiss, is reversed and the cause is remanded with directions to determine if the cause is still pending in the New York courts and, if so, to dismiss this cause.

REVERSED AND REMANDED with directions.

GLICKSTEIN and WALDEN, JJ., concur.


author: DAUKSCH, Judge. ORFINGER, Chief Judge,

text:
    E.A.W., a minor, etc., et al., Appellants, v. ORLANDO REGIONAL MEDICAL CENTER, INC., etc., et al., Appellees.
    No. 81-1475.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.

      Franklin T. Walden, of Massey, Alper & Walden, P.A., Altamonte Springs, for appellants.
    Toby S. Monaco, of Dell, Graham, Will-cox, Barber, Henderson, Monaco & Cates, P.A., Gainesville, for appellee, Shands Teaching Hosp. and Clinics, Inc.
    No appearance for appellee, Orlando Regional Medical Center, Inc.
    No appearance for appellee, The Florida Patient’s Compensation Fund.
   DAUKSCH, Judge.

This is an appeal from a non-final order in a medical malpractice case. The order severs two causes of action alleged in two counts in a single complaint and transfers one count to another venue.

Orlando Regional Medical Center, Inc. operates a hospital in Orange County and is accused in Count I of the complaint of solely causing the injury to the plaintiff.

Shands Teaching Hospital and Clinics, Inc. operates a hospital in Alachua County and is accused in Count II of solely causing the same injury, by the same method at the same time as Count I alleges Orlando Regional Medical Center, Inc. did so.

The complaint does not allege that the two hospitals are jointly liable or that one or the other of them is liable and the plaintiff is uncertain as to which defendant should be held accountable. Had the plaintiff so alleged then we would agree with the assertion that Highland Insurance Co. v. Walker Memorial Sanitarium and Benevolent Assoc., 225 So.2d 572 (Fla. 2d DCA 1969) applies.

In Highland it was alleged that two different surgeries were performed on the plaintiff and that one or both of the surgeries caused one or more of the defendants to be liable for alleged injuries. But the plaintiff here has not done as the plaintiff in Highland did. Here the plaintiff alleges, essentially, that each hospital “allow(ed) a warm and/or hot object to come in contact with” a finger and ultimately, as a result of that conduct the finger had to be amputated. Apparently, the plaintiff is trying to hold each of two defendants guilty for one act. He has not alleged that both defendants caused the injury and he has not joined two defendants to account for the one injury. This plaintiff has filed two separate and distinct, albeit worded exactly the same, lawsuits in the two counts of the same complaint.

The trial judge severed the count against the Alachua County defendant and transferred that suit to that county. We affirm that order because each defendant has the right to be sued in its resident county. Section 47.021, Florida Statutes (1981), has no applicability here because there is not one cause of action alleged against two defendants in this case. Instead, as we have said, there are two causes of action alleged against the two defendants.

AFFIRMED.

COBB, J., concurs.

ORFINGER, C.J., dissents with opinion.

ORFINGER, Chief Judge,

dissenting:

I would reverse the order on the authority of Highland Insurance Company v. Walker Memorial Sanitarium and Benevolent Association, 225 So.2d 572 (Fla. 2d DCA 1969). Only one injury is alleged here, not two, for which either, neither or both defendants could be liable and for which only one recovery should be permitted, if at all. One trial, not two, is all that is required to determine which, if any, of the defendants are liable. Since both defendants are properly joined, venue is proper where either resides.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Douglas HULSE, Appellant, v. BLUE CROSS/BLUE SHIELD OF FLORIDA, INC., Appellee.
    No. 81-1508.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    Bryan C. Hugo, Longwood, for appellant.
    Larry J. Townsend of Maguire, Voorhis & Wells, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a judgment in accordance with a motion for directed verdict. The question of appellee’s liability on a health insurance policy purchased by appellant was submitted to the jury which was unable to reach a verdict. The court then entered judgment in accordance with the motion for a directed verdict.

Appellant applied for a policy on November 15, 1979, and paid the first premium. Blue Cross assigned December 1, 1979, as the effective date. No health examination was required.

Two provisions of the policy concern us here. Under Section 6, titled “Waiting Periods for Pre-existing and Other Conditions,” is the following:

Except for the following specific conditions, services or benefits, your coverage will begin on the effective date printed on the front of this contract.
* # * * * #
B. In addition, you will not be eligible to receive benefits for one year following the effective date of your coverage for treatment of any pre-existing condition or illness. A condition is pre-existing if it existed on or before the effective date of your coverage, and you were aware of its symptoms, even if the condition had not been specifically diagnosed.
# * * * ifc ♦
And, under section 8, titled “Exclusions”: Benefits will not be provided for:
* * * * * *
P. Services during the first two (2) years of coverage for any condition or mental or physical handicap which first manifested itself prior to the effective date of this contract, (emphasis added)

Appellant, a jet pilot, was required to obtain a physical examination every six months. He was examined and obtained a 1st Class medical certificate on November 20, 1979. As part of the examination, an EKG was performed necessitating the placement of eiectrodes around his neck. There were no adverse findings of abnormality as to his neck and apparently the Doctor noticed nothing unusual. On November 25, 1979, appellant flew to New York and Cincinnati, returning on November 30, 1979. The next day, December 1, 1979, while shaving he noticed a lump under the right side of his chin. He consulted a Doctor on December 3,1979, who diagnosed the condition as a cyst. Upon its removal, it was discovered to be cancer and would necessitate surgical removal of one-half of his thyroid gland. That surgery took place at Shands Teaching Hospital in January, 1980.

Appellant made a claim for benefits under the Blue Cross policy. Blue Cross denied coverage on the basis that the condition existed prior to the effective date of the policy.

When a judgment based on a directed verdict is appealed, this court must read the evidence in a light most favorable to the party against whom the verdict is directed, resolving every conflict and inference for that party. Only if the reviewing court concludes that a trier of fact could not have reasonably differed as to the establishment of a material fact or inference and the moving party was entitled to a judgment as a matter of law, can the court affirm the judgment. McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA 1981).

The parties do not dispute that if the claimant was aware of the condition or if a condition manifested itself before the effective date of coverage, then benefits are properly denied to the claimant. The definitions of pre-existing conditions contained in the application and policy are not identical. The application defines a condition as pre-existing as: “Health conditions which you may presently have.” In section 7, the policy defines it: “[I]f it existed on or before the effective date of coverage and you were aware of its symptoms.” Section 8 of the policy states, “[Wjhich first manifested itself prior to the effective date of this contract.”

The definitions are clearly ambiguous within the policy itself. Where a policy is capable of two constructions, the court should adopt the construction favorable to the insured. Continental Casualty Company v. Gold, 194 So.2d 272 (Fla.1967); Zautner v. Liberty Mutual Insurance Co., 382 So.2d 106 (Fla. 3d DCA 1980). The rule of liberal construction is particularly applied to avoid forfeiture or to limit the effect of exception to or limitations upon coverage. J. Appleman, Insurance Law & Practice § 7438 (1976).

There is no dispute that the policy became effective on December 1, 1979. Therefore, if appellant did not discover the existence of the tumor and was not otherwise aware of its symptoms until December, coverage should be afforded by the policy.

There was, however, a factual dispute as to when appellant first discovered the existence of the tumor and called the doctor. Appellant contended he discovered it on December 1, 1979. The doctor said he thought his office had been called by appellant before December 1. The resolution of this factual dispute was for the jüry, not the court.

We therefore REVERSE the order granting the motion for a directed verdict and REMAND for trial.

ORFINGER, C.J., and COBB, J., concur.


author: DAUKSCH, Judge.

text:
    Winzer Leon THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1538.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction in a burglary case. The question appellant asks for us to decide is an interesting one: can a witness’ credibility be impeached by eliciting testimony from him, or otherwise proving, that he had once pleaded guilty to a crime although adjudication of guilt had been withheld and he had been put on probation. Or, can the word “conviction” mean a finding of guilt, without an adjudication? It is without question that an adjudication of guilt would be a “conviction.” But can “conviction” also mean an order placing a person on probation?

As interesting as the question is and as much as we may want to discuss and decide it we cannot because the record reflects the appellant failed to preserve the alleged error by making a timely objection. Appellant did file a motion in limine to have the court prevent the prosecutor from bringing out the fact that he had entered a plea of guilty and had been put on probation in another case. But at trial, appellant failed to object to the introduction of testimony regarding the entry of the plea so he failed to preserve the alleged error for our review. Swan v. Florida Farm Bureau Insurance Company, 404 So.2d 802 (Fla. 5th DCA 1981); Crespo v. State, 379 So.2d 191 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1111 (Fla.1981).

Appellant also complains about the court permitting the prosecutor to ask him during cross-examination about the nature of the charges to which he had pleaded guilty. A general objection to that question was made but no specific objection, setting out the grounds for the objection, was presented to the court so, again, appellant failed to preserve the alleged error for the record and our review. In order for us to fault a trial judge and overturn a judgment it must be shown that a specific and proper objection to the alleged inadmissible evidence is made and ruled upon, unless the error is “fundamental error.” Castor v. State, 365 So.2d 701 (Fla.1978); Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981).

AFFIRMED.

ORFINGER, C.J., and COBB, J., concur.


author: ORFINGER, Chief Judge.

text:
    Christopher M. SECKINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1651.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Chief Judge.

In instructing the jury on the definition of battery, the trial court gave the standard jury instruction which defines battery as the intentional touching or striking of the victim by the defendant against the victim’s will. The court rejected appellant’s request that the instruction also advise the jury that an accidental or unintentional touching does not constitute battery.

We cannot hold the trial court in error for refusing to give the converse of the legal definition of battery. Refusal to give charges which are covered by charges given is not ground for reversal where the error is harmless, Jarrell v. State, 135 Fla. 736, 185 So. 873 (1939), and the court properly advised the jury, many times, that they must find an intentional touching to find appellant guilty of battery. However, the trial court was in error when it ruled, in response to appellant’s request, that appellant could not argue to the jury that an accidental or unintentional touching did not constitute battery. Even though it is not the prerogative of an attorney in his closing arguments to instruct the jury on the law, it is entirely appropriate for an attorney to relate the applicable law to the facts of the case. In the instant case, counsel had every right to point out to the jury in his closing arguments that an accidental touching was not the same as an intentional one. One of the purposes of closing arguments is to give the attorneys the opportunity to tie together for the jury the law and the facts so that the jury can give the proper legal weight to the evidence in reaching its verdict. See, Taylor v. State, 330 So.2d 91 (Fla. 1st DCA 1976).

However, even though the trial court erred, we find the error to be harmless, because counsel did, in fact, argue to the jury that the touching by appellant was an accident and was not intentional. § 59.041, Fla.Stat. (1981).

The judgment of conviction is

AFFIRMED.

DAUKSCH and COBB, JJ., concur.


author: COBB, Judge.

text:
    FLORIDA FRUIT & VEGETABLE SELF-INSURERS FUND, Appellant, v. ROLLING MEADOW RANCH, INC., Appellee.
    No. 82-318.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.

      Robert W. Morrison of Maxwell W. Wells, Jr., P.A., Orlando, for appellant.
    Ashby L. Camp of Cooper & Rissman, P.A., Orlando, for appellee.
   COBB, Judge.

Florida Fruit & Vegetable Association Self-Insurers Fund (Fund) filed a complaint against Rolling Meadows Ranch, Inc. (Ranch) on May 14, 1980, seeking damages for failure to pay worker’s compensation coverage premiums. In a non-jury trial, the lower court granted Ranch’s motion for an involuntary dismissal made at the close of Fund’s case in chief. Fund appeals from the adverse final judgment thereafter entered. The issue is whether the lower court erred by granting Ranch’s motion; we hold it did and reverse.

To prevail against a defendant’s motion for involuntary dismissal, a plaintiff must have established a prima facie case. Tillman v. Baskin, 260 So.2d 509 (Fla.1972). Ranch argues that the only evidence of an express offer and acceptance presented to the lower court was a written document, which it claims is an unenforceable contract because of its indefiniteness as to obligation and price. In the order granting Ranch’s motion for involuntary dismissal, the lower court concluded that the written agreement between the parties was too indefinite to be an enforceable contract. The document indicated Ranch’s acceptance into the Fund and its agreement to pay premiums. Admittedly, the term “premium” was not specifically defined in the written agreement. However, the record reveals, inter alia, testimony presented by Fund that a Ranch executive received information regarding the method of determining premiums; that Ranch made some premium payments; and that Ranch employees submitted claims, which claims were paid.

The lower court should have looked beyond the document to the conduct of the parties for an interpretation of the term “premium.” The Florida Supreme Court discussed this principle of contract interpretation in Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 302 So.2d 404, 407 (Fla.1974), wherein it quoted from Shouse v. Doane, 39 Fla. 95, 21 So. 807, 810 (Fla.1897):

Where the terms of a written agreement are in any respect doubtful or uncertain, or if the contract contains no provisions on a given point or if it fails to define with certainty the duties of the parties with respect to a particular matter or in a given emergency, and the parties to it have by their own conduct, placed a construction upon it which is reasonable, such construction will be adopted by the court, upon the principle that it is the duty of the court to give effect to the intention of the parties where it is not wholly at variance with the correct legal interpretation of the terms of the contract.

The court then stated:

The courts should be extremely hesitant to hold a contract void for indefiniteness, particularly when one party has performed under the contract and allowed the other party to obtain the benefit of his performance.

302 So.2d at 408.

Applying these principles of contract interpretation to the instant case, we conclude that Fund presented sufficient evidence to give meaning to the apparent ambiguity of the term “premium” in the written agreement so as to establish a prima facie showing of an enforceable contract. Accordingly, we reverse the lower court’s order granting Ranch’s motion for involuntary dismissal and remand this case for further proceedings.

REVERSED and REMANDED.

SHARP, J., and SMITH, C. McFERRIN, Associate Judge, concur.

      . Ranch owns and operates a citrus and ranching business. Fund is an association qualified as a self-insurers group under Chapter 440, Florida Statutes (1981).


author: SHARP, Judge.

text:
    James A. LAMB, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Dump-All, Inc., Appellees.
    No. 82-403.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    Larry Morgan, of Greater Orlando Area Legal Services, Inc., Orlando, for appellant.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee, Unemployment Appeals Com’n.
    No appearance for appellee, Dump-All, Inc.
   SHARP, Judge.

This is an appeal from the Florida Unemployment Appeals Commission’s determination that Lamb is not entitled to receive unemployment compensation because he was fired by his employer for misconduct. Because we do not think Lamb’s conduct as disclosed by the record falls within the definition of misconduct under the Florida Unemployment Compensation Law, we reverse. Swope v. Florida Industrial Commission Unemployment Compensation Board of Review, 159 So.2d 653 (Fla. 3d DCA 1963).

Lamb was a truck driver for Dump-All, Inc., a refuse company. Dump-All had strict rules for attendance. If an employee failed to appear for work or call in prior to an absence, he was subject to immediate dismissal. Lamb spent the weekend of October 2, 1981, moving into his new home. Unforeseen problems required Lamb to remain at his new home on Monday, October 5, 1981, and he was not able to call his employer because his telephone was in transfer at that time. Because Lamb did not report to work as scheduled on that Monday, Dump-All immediately terminated Lamb’s employment.

The record shows that this was the first and only time Lamb had failed to appear for work without calling his employer. The circumstances of his move and his explanation for not telephoning make his argument plausible that his breach of the employer’s rules was less than deliberate and willful. Further, the employer did not controvert Lamb's explanations, and it was apparently not harmed by Lamb’s absence on October 5, 1981. In our opinion the actions for which Lamb was fired do not amount to a willful and wanton disregard of his employer’s rules, and as such they do not constitute misconduct warranting a disallowance of unemployment benefits. Erber v. Federal Express Corporation, 409 So.2d 522 (Fla. 5th DCA 1982); Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3d DCA 1963).

REVERSED.

COBB, J., and SMITH C. McFERRIN, Associate Judge, concur.

      . Misconduct is defined under the Unemployment Compensation Law as:
      (a) Conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
      (b) Carelessness and negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer.
      §§ 443.036(24)(a) & (b), Fla.Stat. (1981).


text:
    STATE-WIDE CONSTRUCTION, INC., a Florida corporation, Petitioner, v. Claude M. DOWDA and Donald N. Cooper, Respondents.
    No. 82-1199.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    Robert G. Murrell, of Robert G. Murrell & Sons, Orlando, for petitioner.
    R.L. Russell, of Van Den Berg, Gay & Burke, P.A., Orlando, for respondents.
   SHARP, Judge.

State-Wide Construction, Inc. petitions this court for a writ of certiorari to review the trial court’s discharge of petitioner’s lis pendens filed in the public records against real property located in Orange County, Florida. The lis pendens was filed pursuant to section 48.23(1), Florida Statutes (1981), in connection with petitioner’s efforts to foreclose a mechanic’s lien based on a recorded claim of lien on the property pursuant to section 713.22, Florida Statutes (1981). Petitioner argues it may lose its lien rights or priority status against the real property because of intervening parties’ interests during the litigation. The damages suffered by the error of the lower court in discharging the lis pendens could not be corrected by an appeal from the final judgment. We agree and grant the writ.

The record presented to us shows no proper basis for the discharge of the lis pendens. The respondents argue the lis pendens must fall because the lower court dismissed the foreclosure suit. However, this ground has been superseded by this court’s reversal of the dismissal. State-Wide Construction, Inc. v. Dowda, 418 So.2d 1238 (Fla. 5th DCA 1982).

Respondents further argue the dismissal was proper because the mechanic’s lien was “transferred” from the real property to a surety bond pursuant to section 713.24(1), Florida Statutes (1981), three weeks before petitioner filed its suit. However, the order appealed stated it was based on affidavits of the respondents — not the alleged bond. The bond was apparently never offered or produced in the lower court. Respondents filed as part of their appendix in this proceeding an uncertified copy of the clerk’s certificate of transfer allegedly proving the existence of the bond. But since this evidence and this ground was not offered to nor considered by the lower court, it cannot be considered by us on appeal. As petitioner points out, it has never had an opportunity to challenge the bond as to the correctness of its form or sufficiency of the amount.

For the reasons stated, we grant the writ of certiorari and we quash the discharge of the lis pendens.

CERTIORARI GRANTED; DISCHARGE QUASHED.

ORFINGER, C.J., and DAUKSCH, J., concur.

      . (l)(a) No action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is, containing the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected and a statement of the relief sought as to the property.
      (b) The filing for record of such notice of lis pendens shall constitute a bar to the enforcement against the property described in said notice of lis pendens of all liens including but not limited to federal tax liens and levies, unrecorded at the time of filing for record such notice of lis pendens unless the holder of any such unrecorded lien shall intervene in such proceedings within 20 days after the filing and recording of said notice of lis pendens, and if the holder of any such unrecorded lien does not intervene in the proceedings, and if such proceedings are prosecuted to a judicial sale of the property described in said notice of lis pendens, the said property shall be forever discharged from all such unrecorded liens. In the event said notice of lis pendens is discharged by order of the court, the same shall not in any way affect the validity of any unrecorded lien.
      § 48.23(1), Fla.Stat. (1981).

        . Cooper Village, Inc. v. Moretti, 383 So.2d 705 (Fla. 4th DCA 1980); Hallmark Mfg. Inc. v. Lujack Constr. Co., Inc., 372 So.2d 520 (Fla. 4th DCA 1979); Santini Bros., Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976).

      . Any lien claimed under part I may be transferred, by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by either:
      # * # * * *
      (b) Filing in the clerk’s office a bond executed as surety by a surety licensed to do business in this state ....
      § 713.24(1), Fla.Stat. (1981).

      . Cf. Mackey v. McLarty, 138 Fla. 632, 189 So. 832 (1939) (a reviewing court may not consider questions based on assumptions not supported by the record).


text:
    ROBERT GRANOFF CORPORATION, a Texas corporation, Appellant/Cross Appellee, v. UNITED FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SARASOTA, FLORIDA, etc., Appellee, and McCaughan Mortgage Company, Inc., a Florida corporation, Appellee/Cross Appellant.
    No. 82-1458.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.

      Robert E. Frost of Rano, Cauvel & Johnson, P.A., Deland, for appellant/cross appel-lee.
    William P. McCaughan, Coral Gables, for appellee/cross appellant.
    No appearance for appellee.
   ON MOTION TO DISMISS

ORFINGER, Chief Judge.

Appellee/Cross Appellant moves to dismiss this appeal on the ground that it is taken from a non-appealable, non-final order. The order appealed from finally dismissed three counts of a five-count complaint. The remaining counts refer to another defendant and do not involve McCau-ghan. By dismissing the counts in question here, defendant McCaughan Mortgage Company is dismissed from the action, so as to McCaughan, the order appealed from is final and appealable. See Niesz v.6R.P. Morgan Building Company, Inc., 401 So.2d 822 (Fla. 5th DCA 1981); Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So.2d 1152 (Fla. 1st DCA 1978). Cf. One Thousand Oaks, Inc., v. Dade Savings & Loan Association, 417 So.2d 1135 (Fla. 5th DCA 1982).

Motion to dismiss is DENIED.

DAUKSCH and COBB, JJ., concur.


author: BOARDMAN, Judge.

text:
    C.W.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 81-2601.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

We affirm the trial court’s placement of appellant in a community control program but remand for correction of the order of adjudication.

Appellant was charged with sexual battery of a victim eleven years of age or younger, pursuant to Section 794.011(2), Florida Statutes. Appellant challenged the propriety of prosecuting him under this statute because his victim was eleven and a half years old at the time of the offense. The trial court correctly ruled that section 794.011(2) was applicable here. Hansen v. State, 421 So.2d 504 (Fla.1982).

The order states in one place that the trial court had found that appellant had committed sexual battery and in the next paragraph that appellant “did ... attempt to commit sexual battery.” (Emphasis supplied.) It is clear that the first statement is a clerical error since, at appellant’s adjudicatory hearing, the trial court directed a verdict in favor of appellant on the charge of sexual battery and ultimately found him guilty of attempted sexual battery. The order must be corrected so that it is internally consistent and conforms to the trial court’s oral pronouncement.

Accordingly, the disposition of appellant’s case is affirmed, but the cause is remanded for correction of the order.

OTT, C.J., and DANAHY, J., concur.