author: DANIEL S. PEARSON, Judge. BARKDULL, Judge,

text:
    AMERICAN FIDELITY FIRE INSURANCE COMPANY, Appellant, v. WOODY’S ELECTRIC SERVICE, INC., Appellee.
    No. 80-2198.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 11, 1982.
    James F. Comander, Miami, for appellant.
    Tittle, Tittle & Beckmeyer, Tavernier, and Gus H. Crowell, Miami, for appellee.
    Before BARKDULL, BASKIN and PEARSON, DANIEL, JJ.
   DANIEL S. PEARSON, Judge.

American Fidelity Fire Insurance Company, the plaintiff below, was a subrogee of Design Construction Corporation, a general contractor. American Fidelity, having paid delay damages to a school board under a performance bond posted for Design, sought to recover these damages from Woody’s Electric Service, Inc. The gist of its complaint was that Design was delayed in completing the school board construction project because of delay by Woody’s in performing its subcontract with Design.

Because of Woody’s obstinate and prolonged refusal to make discovery, the trial court struck Woody’s pleadings, entered a default against it, twice refused to set the default aside, and proceeded to conduct a non-jury trial, ostensibly on the sole issue of the plaintiff’s damages.

With the case in this posture, Woody’s liability for the delay was established. The only defense which remained open to it was that Design was not damaged by the delay. Yet, over the plaintiff’s objection, the trial court allowed Woody’s to interpose the defense that it did not cause the delay and, finding that defense to have been established, entered judgment for Woody’s.

The unqualified default as to liability encompassed more than a finding that the defendant breached the contract. Liability includes not only that the contract was breached, but, as well, that the damages, if any, arising from the breach were caused by the defendant. If, as here, the breach of the contract is the defendant’s delay in performance, the defendant cannot be heard to say that it was the delay of another that caused the damage. To permit this defense erroneously makes causation an aspect of damages, not liability. Harless v. Kuhn, 403 So.2d 423, 425 (Fla.1981) (England, J., dissenting).

Since the record indisputably reflects that American Fidelity proved damages caused by the delay, for which Woody’s as a result of the default was liable, we reverse and remand with directions to enter judgment for American Fidelity in the amount proved, plus any costs, interest and fees to which it may be entitled. Finding no merit in Woody’s cross-appeal from the trial court’s refusal to set aside the default, we affirm the cross-appeal.

Reversed and remanded with directions as to the appeal; affirmed as to the cross-appeal.

BARKDULL, Judge,

dissenting.

I respectfully dissent. The trial judge found that “All of those damages that you [the plaintiff] are suing for may not be as a result of the Defendant. You know, not per se because of the default. I mean, you have to prove what damages you suffered.” I find no error in this ruling.

A default only makes a defendant responsible for all damages for which he is legally responsible or, to say in another way, a defaulted defendant is only responsible for those damages which were foreseeable or were proximately caused by his breach. See: Robbins v. Thompson, 291 So.2d 225 (Fla. 4th DCA 1974); Grappell v. Lauderdale River Park Estates, Inc., 126 So.2d 574 (Fla.3d DCA 1961); Russ v. Gilbert, 19 Fla. 54 (1882); Watson v. Seat, 8 Fla. 446 (1859): 19 Fla.Jur., Judgments and Decrees, §§ 307, 309; 47 Am.Jur.2d, Judgments, §§ 1186, 1187.

The ruling of the trial judge is also supported by the recent decision of the Supreme Court of Florida, reported as Harless v. Kuhn, 403 So.2d 423 (Fla.1981), which approved a trial judge exercising discretion after entering a default for failure to make discovery (the same situation as in the instant case), permitting a defaulted defendant to show that he was not solely responsible for the plaintiff’s damages. A trial judge can be right for the wrong reasons. Jones v. Weaver, 374 So.2d 1175 (Fla. 1st DCA 1979); Alls v. 7-Eleven Food Stores, Inc., 366 So.2d 484 (Fla.3d DCA 1979); Direct Oil Corporation v. Brown, 178 So.2d 13 (Fla.1965); 3 Fla.Jur.2d, Appellate Review, § 296. And, appellate cases are to be determined on the law at the time of the appellate decision. Melick v. Melick, 393 So.2d 1186 (Fla. 1st DCA 1981); Zobac v. Southeastern Hospital District of Palm Beach County, 382 So.2d 829 (Fla. 4th DCA 1980); Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978); Weissman v. State Farm Mutual Automobile Insurance Company, 349 So.2d 749 (Fla.3d DCA 1977).

Therefore, I would affirm the action of the trial judge in the instant case either under the principles announced in Harless v. Kuhn, supra, or under the other authorities cited herein.

      . Woody’s defense, ostensibly on the issue of damages, was that the delay was caused by other subcontractors on the job. Over plaintiffs objection, the court permitted the cross-examination of the plaintiffs witness “as to in fact whether Woody’s was the sole cause of the delay or whether delay was caused by others” (R. 393); overruled plaintiffs objection to the questions, “What other sub-contractors besides Woody’s Electric were working on this job in the period from August 1, 1977, through November 30, 1977, the period you are claiming this twelve thousand dollar damages?” (R. 396); and “Were there any other subcontractors who caused you any losses on this job?” (R. 433). Woody’s openly avowed that its intent was to show other causes of delay (R. 452) and that “[We] should be able to inquire ... as to other items which may have caused the delay such as his monetary problems and things other subcontractors did as well” (R. 458); and “I have a right to prove that other people caused that delay” (R. 460).

      . The final judgment recited, in pertinent part: “On the evidence presented the Court finds that the plaintiff failed to prove that the defendant was responsible and liable for the damages claimed by the plaintiff.”

      . There is absolutely no indication in the record that the trial court, in the exercise of its discretion, imposed a less stringent punishment than full and complete default. Compare Harless v. Kuhn, 403 So.2d 423 (Fla.1981) (holding that the co-defendant/insurer against which a default had not been entered would be allowed to assert the affirmative defense of comparative negligence on behalf of the defaulted insured). In the present case the trial court simply came to a legal conclusion that causation was not included in liability. .That ruling, as plaintiffs counsel noted, was not harmless:
      “The problem was that when I reviewed the complaint and the posture that Your Honor put us in, I asked myself the question, Did the Court not strike the pleadings? What additional proof would I have to offer? I came up with the answer of actually none; and frankly, that lulled us into a false sense of s'ecurity since the pleadings had been struck a year ago and if we had known, that was the effect of it at that time and we would have probably taken different actions and obtained different discovery due to people’s recollection and et cetera. That is the bottom line question. If the pleadings had not been struck, what additional proof would I be required to offer; and basically, it is nothing. I am having to put on the same case now as if Your Honor had not struck the pleadings.” (R. 423).
      In Harless, there was no claim of prejudice, nor could there have been, because the insurer, against which no default had been entered and which was free to assert a comparative negligence defense, was a party until voluntarily dismissed by the plaintiff on the morning of trial. Thus, the plaintiff was on notice that comparative negligence would be an issue at trial, absent the plaintiffs action in voluntarily dismissing the insurer.

      .The dissent in Harless points out that comparative negligence is legally an aspect of liability, not damages. The Harless majority takes no issue with that proposition. Instead, the majority decision rests on a determination that the trial court receded from imposing the sanction of complete default liability. Because such a determination cannot be made here, see n. 2 supra, the majority opinion in Harless is distinguishable. The facts of the present case inescapably bring into play the concern expressed in the Harless dissent.
      Our view that causation is an aspect of liability is unaffected by the inapposite decision in Garcia v. Delsardo, 378 So.2d 1249 (Fla.3d DCA 1980). There this court held (Judge Schwartz dissenting) that the threshold amount under the no fault law was an aspect of damages, not liability, so as to permit a defaulted defendant to contest that issue.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    Karen GROH and The Farmers Reliance Insurance Company of New Jersey, a foreign corporation, Appellants, v. J. Robb HASENCAMP, as Guardian of the Property of Phillip E. Groh, III, a minor, Appellee.
    No. 81-41.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 15, 1982.

      Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and H. Clay Roberts, Miami, for appellee.

      Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   HENDRY, Judge.

Appellants Karen Groh and Farmers Reliance Insurance Company appeal from a final judgment entered by the trial court pursuant to a jury verdict awarding Phillip Groh, III $32,000 in damages for personal injuries.

The incident giving rise to this lawsuit occurred when Phillip Groh, III (Phillip) was kicked by a horse which belonged to his half-sister Karen Groh. The horse, “Dandy”, was stabled on five acres of land owned by Phillip’s father, Phillip Groh, Jr. (Phil), and Phil’s former wife Lorraine. Lorraine operated a nursery on part of the property, and Phil, as president of Utilities Service Corporation of America, operated a kennel on another part. Karen, daughter of Phil and Lorraine, received permission from both parents to keep horses on the property, although Phil claimed he later told Karen to remove the horses. The pasture area where the horses were allowed to roam was surrounded by a wire fence which could be electrified to give off a shock if touched. On June 25, 1976, Phillip, then two and a half years old, ran toward the enclosed pasture, crawled beneath the uncharged fence, and was kicked by Dandy. Phil and his current wife Linda filed suit against Karen and her insurer, Farmer’s Reliance, on behalf of their injured son, alleging that Karen had maintained her horse on Phil’s property against his wishes knowing that said horse had a dangerous and vicious nature. At trial, appellants’ motion for directed verdict was denied and the jury returned special verdict interrogatories finding that the horse was on the property without permission and that Karen was negligent. The court entered final judgment for appellee and denied appellants’ motion for judgment notwithstanding the verdict.

Appellants contend on this appeal that denial of their motions for directed verdict and judgment notwithstanding the verdict was erroneous because the evidence was insufficient as a matter of law to sustain an action for either trespass or negligence. We agree and reverse with directions to enter judgment for appellants.

We first address that portion of the verdict which found that Dandy was on the property without permission.

Pursuant to a dissolution of marriage decree, Phil and Lorraine each held an equal undivided half interest in the property subject to partition. Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356 (1945); Wilburn v. Wilburn, 143 So.2d 518 (Fla.2d DCA 1962). An attempt was made at trial to show that Phil and Lorraine had, by oral agreement, partitioned the property, but the evidence did not clearly establish this fact, and formal partition of the property was not accomplished until after the accident. As co-owners, Phil and Lorraine were each entitled to equal use, benefit and possession of the whole. McCormick v. McCormick, 220 So.2d 654 (Fla. 4th DCA 1969). Lorraine thus had the authority individually to consent to stabling of the horse on the property and the record demonstrates that such consent was indeed given.

The evidence would also appear to support a finding of implied consent by Phil on the basis of custom, usage or conduct in that Dandy and Karen’s other horse remained on the property with Phil’s knowledge after his express consent was purportedly withdrawn. See Florida Publishing Company v. Fletcher, 340 So.2d 914 (Fla.1976), cert. denied, 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245 (1977); Boston Manufacturers Mut. Ins. Co. v. Fornalski, 234 So.2d 386 (Fla. 4th DCA), cert. denied, 238 So.2d 426 (Fla.1970). Whether implied consent existed need not be resolved, however, because as we have pointed out, Dandy was on the property by express consent of Lorraine Groh. Inasmuch as consent is an absolute defense to an action for trespass, Florida Publishing Company v. Fletcher, supra, no issue of material fact existed, and this basis for liability should not have been submitted to the jury.

We also find merit in appellants’ second contention, that the evidence was insufficient to sustain a negligence action. The basis for a finding of negligence in this case would have to be predicated either on Karen’s ownership of the horse or the breach of a legal duty owed to Phillip. The well-settled rule of law with respect to owners or keepers of domestic animals is:

The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and in so far as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them.

Loftin v. McCrainie, 47 So.2d 298, 301 (Fla.1950). Accord, Rodriguez v. Newby, 131 Ga.App. 651, 206 S.E.2d 585 (Ct.App.1974); Williams v. Pohlman, 146 Ind.App. 523, 257 N.E.2d 329 (Ct.App.1970); Ewing v. Prince, 425 S.W.2d 732 (Ky.1968); Finneran v. Wood, 249 Md. 643, 241 A.2d 579 (1968) and cases cited; Buchholz v. Shapiro, 48 A.D.2d 694, 368 N.Y.S.2d 46 (App.Div.1975). See generally, Annot. 85 A.L.R.2d 1161, 1163 (1962).

Horses are domestic animals and presumed not to be vicious or dangerous, Moessinger v. Johnson, 292 So.2d 606 (Fla. 2d DCA 1974), so the above standard is applicable sub judice. Here, the record does not reveal any facts which would indicate any prior vicious conduct by Dandy or Karen’s knowledge thereof. Accordingly, liability in this case could not rest solely upon Karen’s ownership of the horse.

We next examine whether the verdict is sustainable on the breach of some duty Karen owed to Phillip.

Although evidence was adduced at trial to show that on the morning of the accident Karen had placed Dandy into the pasture without turning on the fence charger, this omission cannot serve as the basis for a determination of negligence since there is no statute or decisional law in Florida requiring that a fence around a horse pasture be electrically charged and that the charge be maintained at all times when the horse is present. In addition, the testimony at trial indicated that the fence charger was installed for the express purpose of keeping the horses in, not children out. As there was no duty on Karen’s part to either install or maintain an electrical charge on the fence, failure to turn it on the day of the accident is not actionable.

Appellee also sought to predicate liability on the alleged violation of a zoning ordinance. Evidence was introduced at trial to show that the presence of the horses on the property was a violation of the applicable zoning ordinance, EU-M, half acre residential estates. The zoning provision makes no reference to horses or other domestic animals for that matter, but the chief zoning inspector for Dade County testified that keeping a horse in an EU-M zone would be a violation of the code. Prior to deliberation, the jury was instructed that violation of a zoning ordinance is evidence of negligence.

Assuming, arguendo, that the ordinance prohibits horses and applies to Karen Groh (since she neither owned nor possessed the property), evidence of negligence standing alone is insufficient to allow recovery. To demonstrate actionable negligence, a party relying on violation of a statute or ordinance must establish that (1) he is of the class the legislation was intended to protect, (2) that he suffered injury of the type the statute was designed to prevent, and (3) that the violation of the statute was the proximate cause of his injury. deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978). We find as a matter of law that appellee failed to satisfy even the first two requirements on the basis that (1) the zoning ordinance was promulgated for the protection of the public in general rather than a particular class of persons, see generally, Richardson v. Fountain, 154 So.2d 709 (Fla.2d DCA), cert. denied, 157 So.2d 818 (Fla.1963); and (2) injury from kicking horses was obviously not the type of harm the zoning ordinance was passed to prevent. Thus, violation of the ordinance, without more, would not support the judgment.

We conclude that the record was insufficient as a matter of law to sustain an action for either trespass or negligence. Accordingly, this cause is reversed and remanded with directions to enter judgment for appellants.

Reversed and remanded with directions.

      . In addition to Dandy, Karen’s horse Abdul, and Phillip’s pony Buckets were kept at the property.

      . Prior to trial J. Robb Hasencamp, as guardian of the property of Phillip Groh, III, was substituted as party plaintiff.

      . Our disposition of this issue renders unnecessary any consideration of appellants’ alternative argument, that no action could be maintained for trespass since suit was brought in the name of J. Robb Hasencamp, who was neither owner nor in possession of the property.

      . The zoning inspector also testified with respect to the “grandfather” clause in the code, by which pre-existing property uses were allowed to continue after adoption of the code. There was evidence that the Groh’s ownership of the property and stabling of horses pre-dated the effective date of the code, indicating that such use of the property may be grandfathered in.


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Robert Lee TAVEL, Appellee.
    No. 81-428.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 11, 1982.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellee.

      Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The defendant was given a pre-Villery sentence of three years in the state prison to be followed by two years probation. He was released after serving only two years and two months of the three year term. In the order now under review, the trial court rejected the state’s position that the defendant was “on parole” for the remaining ten months and began the probationary term only at the conclusion of the full three years. Instead, it held that the two years of probation commenced upon Tavel’s release and accordingly dismissed as untimely an application to revoke his probation which was commenced more than two years later, although within five years of the original sentence. See Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978). We agree with that conclusion and affirm. See Section 947.24, Florida Statutes (1977); Villery v. Florida Parole and Probation Commission, 396 So.2d 1107, 1111 (Fla.1981); but cf. Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).

Affirmed.

      . Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).


author: FERGUSON, Judge.

text:
    Larry WATSON and Bunice Watson, Appellants, v. Irving PESKOE, Appellee.
    No. 81-611.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 12, 1982.
    Michael R. Fishman, Miami, for appellants.

      Irving Peskoe, Homestead, in pro. per.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

Plaintiffs Larry Watson and his wife Bunice Watson appeal from a final judgment dismissing their complaint for willful failure to comply with an order of the court requiring the production of certain documents. The sole issue on this appeal is whether the trial court abused its discretion in striking plaintiffs’ pleadings and dismissing the complaint with prejudice.

On November 15, 1979, plaintiffs/appellants commenced this action against appel-lee-seller for specific performance of a contract to sell property. After the contract had been executed between appellee as seller and appellants as well as Robert and Sharon Martin as joint purchasers, the purchasers were permitted to take possession awaiting a closing. As a condition of pre-closing possession, plaintiffs were to maintain the property and pay taxes until the closing date which would be within sixty days. By terms of the contract the purchasers were to make a deposit of $625.00 with the seller to hold a fifteen-year purchase money mortgage. Appellee-seller defended on the grounds that (1) though the contract called for a closing to take place within sixty days the appellants were still in possession fourteen months later with no date set for closing, (2) the appellants had unilaterally altered the contract to exclude the Martins as joint purchasers, the effect of which was to nullify the contract.

During the month of August, 1980 the court granted appellee leave to file an amended answer and counter-claim. In the answer and counter-claim defendant alleged that plaintiffs had retained possession of the premises over defendants’ objections for eighteen months without properly maintaining the property and without paying rent or taxes. It further alleged that plaintiffs had been illegally operating a business out of the residential property.

On November 21, 1980, appellee served a “Notice of Taking Deposition Duces Te-cum” on plaintiffs. The plaintiffs appeared for deposition on December 9, 1980 but refused to produce the requested documents. By motion filed December 17, 1980 appel-lees sought “appropriate relief for refusal of plaintiffs to make discovery” asserting that on three separate occasions spanning seven months there was a refusal to make unequivocal admissions, a single refusal to produce documents, and a refusal to answer questions at a deposition. On December 23, 1980 the court interpreted the notice for deposition duces tecum as a notice to produce and held that appellee was entitled to the documents. It further ordered that they be produced by 5:00 p. m. on January 2, 1981. Appellants subsequently filed a formal response to the request for production asserting that all the documents sought were “irrelevant, immaterial, inadmissible as evidence at trial, and not reasonably calculated to lead to admissible evidence.”

On appellants’ notice that the case was ready for trial, the court set trial for the week of March 30, 1981. Appellee filed a sworn motion on January 5, 1981 again seeking sanctions against appellants for failure to produce documents which were the subject of the earlier court ruling. In the motion it was alleged that appellants, members of the armed forces, had acknowledged in a December 15, 1980 deposition that they would be physically moving outside of the United States before the end of the year and that they had no documents to produce. It also averred that the appellants continued to forcibly retain appellee’s property, using the single family residence for commercial storage.

Appellee’s second motion for sanctions was set for January 16, 1981 but continued to January 19,1981 on motion of appellants. The court heard the motion and appellants’ renewed objections. The objections were again overruled and appellants instructed to produce the documents by February 9, 1981. On February 6, 1981 appellants filed a motion for extension of time of one month to comply and set the motion for hearing on February 24, 1981. On February 19, 1981 the court heard appellee’s third motion for sanctions against appellants for failure to produce and on February 20,1981 entered its order striking appellants’ pleadings and entering judgment for appellee on a finding that appellants’ failure to comply with its orders to produce was willful.

Appellants contend that an order striking pleadings pursuant to Rule 1.380(b)(2)(C), Florida Rules of Civil Procedure is a harsh remedy to be applied only where willful noncompliance with the court’s order is shown by the record and that there is nothing in this record to substantiate such a finding.

We agree that the striking of pleadings or entering a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances. Hart v. Weaver, 364 So.2d 524 (Fla.2d DCA 1978). A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1970), as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness, Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971).

The cases affirming the striking of pleadings as a sanction are few. But each case must be evaluated on its own facts and in some cases such sanctions have been justified. Luca v. Largo Diversified, Inc., 396 So.2d 1228 (Fla.2d DCA 1981) (defendant failed three times to appear for deposition); Pinakatt v. Mercy Hospital, Inc., 394 So.2d 441 (Fla.3d DCA 1981) (plaintiff failed to comply with discovery order requiring her to disclose names of present and former employers); Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980) (defendant for six months totally failed to comply with discovery order); E. Z. E., Inc. v. Little River Bank & Trust Co., 300 So.2d 43 (Fla. 4th DCA 1974) (defendant unreasonably delayed answering interrogatories for eight months and then failed to abide by stipulation providing that interrogatories would be answered by certain date); Riley v. Gustinger, 235 So.2d 364 (Fla.3d DCA 1970) (defendant failed to file answers after two extensions and additional ten-day extension); Warriner v. Ferraro, 177 So.2d 723 (Fla.3d DCA 1965), cert. denied, 188 So.2d 319 (Fla.1966), cert. denied, 385 U.S. 995, 87 S.Ct. 610, 17 L.Ed.2d 454 (1966) (plaintiff, claiming oversight, failed to comply with order to furnish defendants the names of witnesses to be called against defendants).

Whether to impose the sanction of dismissal is within the sound discretion of the trial court. W G. C., Inc. v. The Man Co., 360 So.2d 1152 (Fla.3d DCA 1978). The exercise of this discretion will not be disturbed absent a clear showing of abuse. Harless v. Kuhn, 403 So.2d 423 (Fla.1981); Hart v. Weaver, supra. Having examined the record and the briefs we find no abuse of discretion.

Affirmed.


author: PER CURIAM.

text:
    Elliot L. MILLER, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, a corporation organized and existing under the laws of the United States of America, Appellees.
    No. 81-991.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 15, 1982.

      Elliot L. Miller, Miami Beach, for appellant.
    Swann & Haddock, and Brian D. Hill, Orlando, for appellees.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Elliot Miller appeals from trial court orders of April 9, 1981 and April 28, 1981 requiring Miller to pay plaintiff/appellee $3,500.00 in attorney’s fees in compliance with a court order of January 29,1981. We affirm upon a finding that appellant in arguing that the court erred in determining the amount of attorney’s fees owed fails to state a valid ground for noncompliance with a court order. Appellant failed to timely file a notice of appeal from the order of January 29, 1981. Appellant may not now circumvent the Rules of Appellate Procedure and, some ninety-seven days after the final court order as to the amount of fees owed, argue the merits of that decision by filing a notice of appeal from a post-judgment order of compliance. See, e.g., Blount v. Hansen, 116 So.2d 250 (Fla. 2d DCA 1959), appeal dismissed, 133 So.2d 73 (Fla.1961); Alderman v. Puritan Dairy, Inc., 145 Fla. 292, 199 So. 44 (1940); Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980); Fla.R.App.P. 9.110(b).

Affirmed.


author: MOORE, Judge.

text:
    Peter M. LAPOLATO, Trustee, Appellant, v. Ralph E. BAKER, Jr., et al., Appellees.
    No. 79-594.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 19, 1982.

      Walter M. Meginniss of Crary, Buchanan & Meginniss, Stuart, for appellant.
    Michael J. Ryan of Ryan, Ryan & Fitzgerald, North Palm Beach, for appellees.
   MOORE, Judge.

The appellant, seller, appeals a final judgment awarding specific performance of a sales contract for a residential lot to appel-lees, buyers. We find that the buyers failed to prove a sufficient tender of the purchase price and reverse.

The seller and the buyers, acting on the advice of their respective attorneys who do not represent the parties on appeal, negotiated a deposit receipt contract which provided for a closing fifteen (15) days after delivery of an abstract. The seller, as trustee, owned a parcel of land consisting of sixteen (16) lots pursuant to an unrecorded plat for which the seller had received preliminary approval from the Town of Se-walls Point. In a special clause the contract further provided:

“Seller to grant easement for right-of-way from Sewalls Point Road to the property. Seller to construct roads and sewer lines as shown in the unrecorded Plat of Satin Leaf Subdivision, said Plat is incorporated by reference herein, within one year from the date of this contract at no cost to Buyers; it is specifically agreed by the parties that this provision shall survive the closing and transfer of title. Contingent on Buyers obtaining satisfactory percolation test. The Buyers will sign Plat upon presentation by Peter Lapilato. Subject to approval of Plat by Sewalls Point.”

The buyers deposited with the seller’s attorney $7,000 of the $70,000 purchase price. The contract described the property by metes and bounds as well as by reference to Lot 16 of the unrecorded plat.

In order to obtain the Town’s final approval of the plat the seller was required to provide the roads, the sewer, and the water lines as indicated on the plat consistent with the specifications contained in the Town’s Ordinance No. 64. The entire parcel owned by the seller was encumbered with a mortgage in favor of a local banking institution. The seller could not make the necessary improvements without additional financing. Furthermore, all of the parties, including their attorneys and the attorney for the Town, labored under the impression that Ordinance No. 64 prohibited a conveyance of the property until final approval by the Town and recordation of the plat. It was of no small consequence to the attorneys that, in their opinion, the execution of a conveyance in violation of the ordinance constituted a misdemeanor subject to imprisonment and/or a fine of $100.

The seller contended that closing was contingent upon plat approval and recordation. He testified that he did not believe title was to pass until after the Town approved the plat of Satin Leaf Subdivision and he also asserted that he was to use the buyers’ money to construct the necessary improvements for final plat approval. In contrast, Dr. Baker, one of the buyers, testified that he never discussed with the seller anything except the price of the lot.

After delivery of the abstract as required by the contract, the buyers’ institutional lender, from whom the buyers had obtained a mortgage commitment for the balance of the purchase price, refused to supply the funds for the purchase because the conveyance would not comply with Ordinance No. 64, i.e., by reference to a recorded plat. Thus, the parties found themselves in a “Catch-22” situation. In short, the buyers, including their lender, were faced with the dilemma of protecting their investment of $70,000, while at the same time attempting to consummate the transaction in accordance with the contract as written, the Town’s ordinance, and the seller’s need for the buyers’ money to comply with the ordinance. The Town rejected an attempted solution which included a conveyance of the property by reference to the unrecorded plat. The seller thereupon returned the buyers’ deposit. After another attempt to resolve the dilemma, and a rejection of the new solution by the seller, the buyers filed this suit for specific performance.

We find this case controlled by our decision in Glave v. Brandlein, 196 So.2d 780 (Fla.4th DCA 1967). In that case, upon facts similar to those here, we said:

As a condition precedent to specific performance the seeking purchaser must either pay the contract sum; tender it; establish that he is ready, able and willing to do so; or establish that he has been excused from so doing.

196 So.2d at 781. It is clear that the buyers never met this condition precedent and therefore were not entitled to a judgment of specific performance.

The record plainly reveals that the funds with which the buyers intended to purchase the property were to be supplied by an institutional lender. It is also clear that this lender would not release any funds until the land was properly platted and recorded pursuant to Sewalls Point Ordinance No. 64. Since the requirements of this ordinance were never met, the buyers were never in a position to either pay, tender or establish that they were ready, willing and able to pay the purchase price.

For the foregoing reasons the finding of the lower court was erroneous and is REVERSED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge. BERANEK, Judge,

text:
    Richard MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-671.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 13, 1982.

      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mark Horn and Sharon Stedman, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was convicted on five counts of violating Section 713.34, Florida Statutes (1979), and sentenced to six months incarceration followed by a total of fourteen and one-half years of probation. One of the conditions of probation was that restitution be made to the various victims of his defalcations, amounting to over $30,000. We have considered all of appellant’s points on appeal and find no error demonstrated except as to the restitution provision of the order of probation.

Ordinarily a defendant is not required to object to conditions of probation in order to preserve them for appellate review. Coulson v. State, 342 So.2d 1042 (Fla. 4th DCA 1977). The right to appeal an order of probation is found in Section 924.-06(2), Florida Statutes (1979), and in Florida Appellate Rule 9.140(b)(1)(B). It is noteworthy that none of the judicial acts which are appealable under the statute or the rule requires an objection in the trial court in order to preserve the right to appellate review.

Regardless of the general rule regarding objections to probation conditions, a condition requiring restitution is treated somewhat differently in that notice and an opportunity to be heard must be given a defendant before restitution can be mandated. Fresneda v. State, 347 So.2d 1021 (Fla.1977). Following Fresneda the cases have consistently required such notice. However, recognizing that in many cases involving restitution there will be no controversy about the amount thereof and thus no compelling reason for notice, the Second District Court of Appeal has suggested a modified Fresneda rule, which we believe recognizes the practicalities of the situation and adequately protects the defendant. In Goodson v. State, 400 So.2d 791, 793 (Fla. 2d DCA 1981), that court stated:

The important objective of notice is to afford a defendant a meaningful opportunity to be heard before being required to pay money to the victim of his offense. In many cases a defendant will have no objection to restitution being imposed as one of the conditions of his probation. In these instances the court’s failure to provide notice should not make the order of restitution subject to reversal. Where, however, a defendant has not been furnished prior notice, and he objects to the court requiring restitution as a condition of his probation, he must be given an opportunity to be heard. This, of course, carries with it a requirement that the defendant be given a reasonable time to prepare.
Accordingly, we hold that a trial judge may notify the defendant prior to the sentencing hearing that restitution is a possibility. If he does so, and affords the defendant an opportunity to be heard, this would be sufficient compliance with the requirements of Fresneda. If, on the other hand, a trial judge does not furnish the defendant notice prior to the sentencing hearing and the defendant objects or otherwise contests the order of restitution, the trial judge must suspend the hearing for a reasonable time and allow the defendant to be heard on issues relevant to restitution.
In this case, Goodson was not denied an opportunity to be heard. Rather, he chose to silently accept the court’s resolution of the questions concerning the amount of restitution and his ability to pay that amount. Under these circumstances, the trial court’s order of restitution will not be reversed merely because the trial court did not furnish advance notice that restitution may be imposed as a condition of probation.

We adopt that holding of the Second District but will apply the rule only prospectively to cases in which the order of probation is entered after the date of this decision.

In the present case no notice was given appellant and he contends on appeal that he does not know how the trial court arrived at the amount of restitution required. Accordingly, we believe the ends of justice would be best served by remanding the causé to the trial court so that court may afford appellant a hearing before it enters a condition relative to restitution.

AFFIRMED and remanded with directions.

HURLEY, J., concurs.

BERANEK, J., dissents, with opinion.

BERANEK, Judge,

dissenting:

Although I certainly agree with adoption of the rules set out in Goodson v. State, 400 So.2d 791 (Fla. 2d DCA 1981), I see no reason not to apply the Goodson precedent in the instant case. Thus, although I agree with the majority, I would go further and conclude that resentencing was unnecessary. I thus respectfully dissent.


text:
    David Alan RUBIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-757.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 27, 1982.
    Charles W. Musgrove, and J. Ralph Ma-bie, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Rubin appeals his conviction on eight counts of sexual battery. Among the grounds alleged as error is, the claim that his motion to sever was erroneously denied by the trial court. We agree and reverse.

Appellant was tried on eight counts of sexual battery perpetrated against four different victims on three different occasions. Prior to trial, appellant moved to sever certain counts of his indictment, which pertained to alleged events occurring on October 21, 1979, from others which related to offenses allegedly committed on February 23, 1979, and yet others which allegedly occurred on June 9, 1979. The trial court denied this motion and the case proceeded to trial, culminating in appellant’s conviction on all counts.

Appellant contends that the denial of his motion to sever constitutes reversible error. We are bound to agree. This case is directly controlled by the Florida Supreme Court’s decision in Paul v. State, 385 So.2d 1371 (Fla.1980) which adopted as its opinion the dissent of Judge Smith in Paul v. State, 365 So.2d 1063, 1065-1067 (Fla. 1st DCA 1979). This decision makes clear that Rule 3.150, Florida Rules of Criminal Procedure, mandates severance, upon proper' motion, where criminal charges are:

[b]ased on similar but separate episodes, separated in time, which are “connected” only by similar circumstances and the accused’s alleged guilt in both or all instances.

365 So.2d at 1065-1066.

It is clear that the situation discussed by Judge Smith is present here. The crimes with which appellant was charged, while all factually similar, comprised three distinct episodes, each separated by a considerable length of time. Therefore, the motion to sever should have been granted. Further, the prejudice to appellant resulting from the trial court’s denial of his motion is “conclusively presumed.” Macklin v. State, 395 So.2d 1219 (Fla. 3d DCA 1981).

Therefore, this case is reversed and remanded for retrial consistent with this opinion.

REVERSED AND REMANDED, with directions.

LETTS, C. J., and DOWNEY, J., concur.


text:
    Robert MORGAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-1546.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 21, 1982.

      Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Robert Morgan, Jr. was convicted of two counts of armed robbery and one count of battery, and was sentenced accordingly. The armed robbery counts involve only one individual in one incident, although some money was taken that belonged to the individual and additional money was taken which was under the custody and control of that individual but which was owned by his employer. Under such circumstances there is only one robbery. Hearn v. State, 55 So.2d 559 (Fla.1951).

We therefore affirm one of the convictions for armed robbery and the battery conviction. The second robbery conviction is stricken, the sentence is vacated and the cause is remanded for resentencing.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR RESEN-TENCING.

LETTS, C. J., and HERSEY and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Warren V. PICILLO, Sr., and Selina Picillo, Appellants, v. W. Edward WOOD, in his capacity as Director of the Rhode Island Department of Environmental Management, et al., Appellees.
    No. 80-1967.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 27, 1982.
    Bernard A. Jackvony of Sciarretta, ■Jackvony & Buresh, P.A., Fort Lauderdale, for appellants.

      Robert A. Ware and William C. Davell, of English, McCaughan & O’Bryan, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

Appellee, W. Edward Wood, as Director of the Rhode Island Department of Environmental Management, and other State of Rhode Island officials commenced this litigation by filing a complaint in the circuit court, in a single count, to domesticate a judgment obtained in the Superior Court of Rhode Island.

The Rhode Island judgment found that appellants, Warren V. Picillo and Selina Picillo, had created a public and private nuisance by dumping and burying chemicals on their property in Rhode Island, which created a health hazard to the community. The judgment authorized the appellees to remove said dangerous chemicals from the property at the expense of the Picillos. All property owned by the Picillos within or without the State of Rhode Island was purportedly encumbered by said judgment to satisfy the ultimate amount found to be due. The Picillos were also enjoined from conveying or encumbering any of their property whether it was within or without the State of Rhode Island.

During the course of the litigation appel-lees learned the Picillos had conveyed certain property in Broward County to a trust for the benefit of themselves and their relatives. Accordingly, appellees, after obtaining the approval of the circuit court, amended the complaint by adding a second count, which sought to have the aforesaid conveyance set aside as fraudulent in view of the strictures contained in the Rhode Island judgment. Thereafter, the trial court entered a “SUMMARY FINAL JUDGMENT AS TO COUNT I OF PLAINTIFF’S AMENDED COMPLAINT.” In material part that summary judgment ordered that the Rhode Island judgment “is hereby incorporated as a Florida [judgment] as to all provisions contained therein.” That summary judgment is the subject of this appeal.

In the course of our study of the case we have concluded that we do not have jurisdiction to reach the merits of the appeal. The two counts, of the complaint are so interrelated that a piecemeal appeal will not lie. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974). So closely connected are these two counts that Count II actually relies on the validity of Count I for its viability.

Accordingly, this appeal is dismissed for lack of jurisdiction.

MOORE, J., and BARKETT, ROSEMARY, Associate Judge, concur.


text:
    Howard Wesley GREEN and Runnell Wayne Green, Appellants, v. STATE of Florida, Appellee.
    No. 81-1378.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1981.
    Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and sentence of the trial court. However, court costs may not be imposed upon an insolvent defendant. Cox v. State, 334 So.2d 568 (Fla.1976); Brown v. State, 400 So.2d 510 (Fla.2d DCA 1981).

We therefore strike that portion of the order imposing court costs of $1,000. As amended the judgment and sentence are AFFIRMED.

OTT, A. C. J., and RYDER and DANA-HY, JJ., concur.


author: SHIVERS, Judge.

text:
    Charles A. REESE, Appellant, v. SEWELL HARDWARE COMPANY, INC., and Liberty Mutual Insurance Company, Appellees.
    No. AB-71.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 12, 1982.
    Robert R. Johnson of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Patrick J. Malone of Beisler & Wells, West Palm Beach, for appellees.
   SHIVERS, Judge.

Reese, claimant in this worker’s compensation action, appeals a deputy commissioner’s order which denied his requests for an increase in his compensation rate and for penalties on past due compensation. We reverse on both points.

After paying Reese temporary total disability for a number of months, the carrier began reducing the amount of compensation to reimburse itself for alleged overpay-ments. This overage had occurred, the carrier stated, because the employer was continuing to pay group insurance premiums on Reese’s behalf, resulting in a duplication of benefits.

Reese then filed a request for an increase in his compensation rate, arguing that the insurance premiums should be included in determining the rate. Reese also argued that his vested pension benefits should be included, and he sought appropriate penalties. The deputy correctly determined that both the insurance premiums and the pension benefits should be included in Reese’s average weekly wage. On appeal, the carrier does not dispute this finding. However, the deputy concluded that the compensation rate should not be increased by the insurance payments. He also held that no penalties should be assessed.

The ruling on Reese’s compensation rate must be reversed because of the mandatory language of Section 440.15(2)(a), Florida Statutes (1977) that “60 percent of the average weekly wages shall be paid to the employee” during the period of temporary total disability. The carrier has not directed us to any authority which would empower a deputy to fashion the remedy ordered in this case.

We must also reverse on the issue of penalties because the record contains no evidence to excuse the carrier’s failure to make timely payments at the proper compensation rate. At hearing, the carrier did not dispute its failure to pay appropriate compensation based upon Reese’s pension benefits; instead, the carrier’s attorney informed the deputy, and now represents to this court, that the pension calculations were so complicated that it required a delay of two years to determine the compensation rate. On remand, the deputy is instructed to compute and award the appropriate penalty for the carrier’s failure to timely pay compensations based upon the pension benefits. In light of this opinion, the deputy should consider whether the carrier’s failure to pay benefits based on the insurance premiums was excusable and, if not, he should award an appropriate penalty.

Accordingly, this cause is reversed and remanded.

ROBERT P. SMITH, Jr., C. J., and MILLS, J., concur.


text:
    Willie PLANT, Appellant, v. STATE of Florida, Appellee.
    No. AC-361.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 12, 1982.

      Michael E. Allen, Public Defender, and Nancy Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Just before 2 a. m. on the morning of November 20, 1980, two black men held up a gas station in the Jacksonville suburb of Arlington. Within 30 seconds of the robbers’ leaving, the police were notified to be on the lookout for two black men. Although no auto was mentioned the robbery matched the modus operandi of several recent robberies in the Arlington area in which the robbers fled in a blue medium sized sedan. Upon receiving the bolo, and aware of the previous robberies, Officer Mundy positioned his patrol car where he could see all traffic coming off the Arlington Expressway into the Jacksonville downtown area. This was the logical escape route and was lightly traveled at the time. As the bolo was improved by the additional information that one robber had worn a brown shirt Mundy observed a blue 1976 Volare coming from Arlington. He saw that the passenger was wearing a brown shirt. Both the passenger and driver were black males.

As Mundy started to follow the Volare the driver attempted flight. After a half mile chase the Volare stopped. The driver started away on foot, halting when ordered to by Mundy, who had drawn his revolver. The passenger also started away and was stopped. Both were confined to the patrol car and read their rights. Mundy was informed by radio that the stolen items were a white trash bag of cigarette cartons and a brown paper bag of money. A white trash bag of cigarette cartons was visible through the car window. A brown bag was under the seat although visible. Mundy entered the car and opened the brown bag, finding money in the proper denominations. The two men were then taken to the crime scene where they were identified by the station attendant. They were then formally arrested.

Plant, the driver and owner of the car and the appellant here, moved to suppress the cigarettes, money, identification, and a subsequent confession as products of an unlawful stop, which motion was denied. He also challenged the confession as involuntary but waived that issue later, Brown v. State, 376 So.2d 382 (Fla.1979); Wood v. State, 399 So.2d 108 (Fla. 1st DCA 1981). Plant, unlike his co-defendant, Thomas, pled nolo reserving the right to appeal the suppression issue.

The issue here is whether there was probable cause for the stopping of the automobile by Officer Mundy. The appellant relies on our decision in L.T.S. v. State, 391 So.2d 695 (Fla. 1st DCA 1980). That case is distinguished by the facts that this auto fit a known pattern of similar robberies, the lightness of the traffic in the case sub judi-ce and the logic of the expressway as an escape route. Cf. Franklin v. State, 374 So.2d 1151 (Fla.3rd DCA 1979). Upon consideration of all the facts we are of the opinion that Officer Mundy had probable cause to stop this automobile. His activity on this night strikes us as good police work.

The judgment and sentence are AFFIRMED.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Larry Donald RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-1098.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.

      Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This appeal raises the question of whether the Florida Supreme Court’s decision in Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), applies to a sentence imposed under the Youthful Offender Act.

The state charged appellant with burglary. After plea negotiations, he pled guilty to the charge, and the court sentenced him under the terms of the Youthful Offender Act, chapter 958, Florida Statutes (1979), to four years imprisonment in a youthful offender institution followed by one year of probation.

Appellant argues that his sentence is illegal under Villery because his incarceration is for a term which exceeds one year followed by probation. We disagree. Villery’s proscription of incarceration which equals or exceeds one year as part of a split sentence alternative applies only to the sentencing techniques of sections 948.01(4) and 948.03(2), Florida Statutes (1979). The Villery court found that such incarceration could not have' been contemplated by the legislature in enacting those sections because it could require the concurrent operation of parole and probation for the same offense.

Appellant’s split sentence, however, is valid under the statutory scheme of the Youthful Offender Act. Section 958.05(2), Florida Statutes (1979), provides that:

(2) The court may commit the youthful offender to the custody of the department for a period not to exceed 6 years. The sentence of the court shall specify a period of not more than the first 4 years to be served by imprisonment and a period of not more than 2 years .to be served in a community control program. The defendant shall serve the sentence of the court unless sooner released as provided by law.

Clearly, the sentence is within the express parameters of the section. Moreover, it will create none of the problems of overlapping parole and probation examined in Villery because the Youthful Offender Act in essence combines the concepts of probation and parole in its community control program. See § 958.10, Fla.Stat. (1979).

AFFIRMED.

OTT and SCHOONOVER, JJ., concur.

      . Since the trial judge referred to the Youthful Offender Act, we construe his imposition of probation to mean that appellant is to be placed in a community control program, which is the designation used by the act for supervision after incarceration.


text:
    Irene HANCOCK, Jennie Leben, Frank Morgan, Dan Poleminos, Ina Perry, Ella Heidelback, and Oscar Kvaas, Appellants, v. Robert WILKINSON, State of Florida, Department of Health and Rehabilitative Services, Appellees.
    No. 81-1547.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    James W. Kelly of Accorsi & Kelly, P.A., Avon Park, for appellants.
    Anthony N. DeLuccia, Jr., Fort Myers, for appellees.
   GRIMES, Acting Chief Judge.

In this appeal from a nonfinal order, we are called upon to determine the proper venue for a suit against a state agency. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A).

Appellant Ina Perry owns and operates a boarding home in Sebring. The other appellants are residents of the home. They filed a complaint in the Circuit Court for Highlands County against the Department of Health and Rehabilitative Services and one of its employees, Robert Wilkinson, seeking an injunction and compensatory and punitive damages for what they contended was harassment by the Department which amounted to a violation of their constitutional rights. In support of this contention, they alleged that the Department attempted to remove several residents from the boarding home and that Mr. Wilkinson threatened Mrs. Perry after a court enjoined the removal of the residents. They further alleged that the Department had made an unreasonable number of inspections of the home, was attempting to dissuade people from using it, and had publicly described it as a problem home. Finally, the appellant-residents asserted that employees of the Department had made body searches of them without their consent or other legal authority. The Department moved to dismiss the complaint, arguing, among other things, that it could be sued only in Leon County where its headquarters were located. After a hearing, the court entered an order treating the motion to dismiss as a motion for change of venue and transferring the case to the Circuit Court for Leon County.

Appellants concede that generally an agency of the state has a common law right to be sued in the county of its headquarters. Florida Public Service Commission v. Triple “A” Enterprises, Inc., 387 So.2d 940 (Fla.1980). However, they contend that the exception to this rule, known as the sword-wielder doctrine, is applicable to the present case and that therefore venue was properly in Highlands County. We agree.

The sword-wielder doctrine comes into play in those cases where a plaintiff is seeking direct judicial protection from an agency’s unlawful invasion of a constitutional right and the agency’s action has taken place, is occurring, or is threatened in the county where the suit is filed. Florida Public Service Commission v. Triple “A” Enterprises, Inc.; Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977). As this court explained it in Department of Revenue v. First Federal Savings & Loan Association, 256 So.2d 524, 526 (Fla.2d DCA 1971),

The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter and whether the plaintiff’s action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on. On the other hand if plaintiff is the prime mover in the premises against a passive or dormant state or state agency then venue lies properly in the county wherein the state or the agency maintains its official headquarters.

Here, the allegations of appellants’ complaint plainly reflect an attempt on their part to shield themselves against what they claim are unconstitutional blows which the Department has directed towards them in Highlands County. This is exactly the type of case for which the sword-wielder doctrine was formulated.

We reverse the order of the trial judge and return the case to the Circuit Court for Highlands County for further proceedings.

OTT and SCHOONOVER, JJ., concur.


text:
    FULFORD VAN & STORAGE and Monarch Insurance Co., Appellants, v. Keith MOBLEY, Appellee.
    No. AB-87.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    Rehearing Denied Jan. 12, 1982.
    Douglas Edward Daze of Haas, Boehm, Brown & Rigdon, P.A., Orlando, for appellants.

      Steven Burrage of Robert D. Melton, P. A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED. Claimant’s motion for award of attorney’s fees is GRANTED in the amount of $2,500, which shall include the fee awarded in paragraph 4 of the ordér appealed.

ROBERT P. SMITH, Jr., C. J., and MILLS and SHIVERS, JJ., concur.


text:
    Annette CORBITT, and her husband, Bobby Corbitt, Appellants, v. CITY OF BONIFAY, Appellee. Lucille HOLLEY, and her husband, Whitson M. Holley, Appellants, v. CITY OF BONIFAY, Appellee.
    Nos. AD-254, AD-449.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    Michel L. Stone of Urquhart & Pittman, P. A., Panama City, for appellants.
    James B. Fensom of Barron, Redding, Boggs, Hughes & Fite, P. A., Panama City, for appellee.
   PER CURIAM.

Appellants/plaintiffs appeal summary judgments entered in favor of appellee/de-fendant in consolidated lawsuits arising out of an automobile accident. We reverse. The record discloses numerous issues of material fact which preclude summary disposition of these cases. Holl v. Talcott, 191 So.2d 40 (Fla.1966); McKay v. Motley, 343 So.2d 668 (Fla. 2nd DCA 1977).

REVERSED and REMANDED for proceedings consistent with this opinion,

ERVIN, BOOTH and THOMPSON, JJ., concur.


text:
    REC CENTERS, INC. and Burnrose Corporation, Appellants, v. James J. SHAUGHNESSY, et al., Appellees.
    No. 80-584.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Rehearing Denied Jan. 14, 1982.

      Eugene L. Heinrich of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellants.
    Alan S. Becker of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for ap-pellees.
   PER CURIAM.

The lessors of a recreation lease, the defendants below, appeal from a final judgment in favor of the plaintiff class of condominium unit owners, the lessees. We affirm in part and reverse in part.

The lease in question is a 99 year lease of recreation center property at Park South Condominium in Broward County. All of the condominium unit owners are required to be lessees under the lease. Paragraph 4(b) of the lease provides:

(b) In the event that the United States Dollar should ever be officially devalued by the United States Government or replaced by a regular specie of a lesser value, then and in that event the rental to be paid by the Lessee to the Lessor or any purchase price to be paid to the Lessor by the Lessee shall be increased in proportion to said devaluation so that the rental to be paid to the Lessor or the purchase price of the property covered by this lease to be paid to the Lessor shall be the same in terms of actual value as the United States Dollar was on January 1, 1967.

In 1973, the Congress officially devalued the dollar and the lessor correspondingly increased the amount of rent, effective December 1,1973. This increased each lessee’s rental obligation by various amounts ranging between $2.00 and $3.00 per month. The lessees brought a class action in March, 1976, seeking declaratory and monetary relief against the lessors for the purportedly wrongful increase of rental payments. Specifically, they alleged that paragraph 4(b), supra, violates the “Gold Clause Resolution” passed by Congress in 1933. That resolution states in pertinent part:

(a) Every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts. Any such provision contained in any law authorizing obligations to be issued by or under authority of the United States, is hereby repealed, but the repeal of any such provision shall not invalidate any other provision or authority contained in such law.
(b) As used in this section, the term “obligation” means an obligation (including every obligation of and to the United States, excepting currency) payable in money of the United States; and the term “coin or currency” means coin or currency of the United States, including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations.

31 U.S.C.A. § 463 (1976).

The lessor, Rec Centers, Inc., moved to dismiss the complaint, and upon the failure of the lessees to amend the complaint, the trial court entered a final order of dismissal on September 27,1976. This court reversed that order stating:

It is the position of the appellees that the escalation provision is merely an indexing device used to preserve the lessor’s relative purchasing power on his investment, and that it has no relationship, whatsoever to the “Gold Clause.” In their brief they state, “The only standard to which the rent is to be adjusted is the actual (or purchasing) value of the United States dollar on January 1, 1967. It is to be measured by the amount of goods and services commanded by a 1967 dollar.” We seriously doubt that the effect of an increase in rent based upon an official devaluation of the United States dollar will produce the anticipated result. Nevertheless, the standard by which the rent is to be adjusted under the escalation provision is not the actual or purchasing value of the dollar on January 1, 1967 but, rather, solely the percentage by which the United States government may officially devalue the dollar. The question remains whether or not the' “Gold Clause” is, or could be, applicable to the challenged provision. If so, the complaint stated a cause of action and it was error to dismiss it.
Devaluation of currency is an economic tool utilized by governments in the complicated mechanisms of international monetary policies. One noted author defines devaluation as occurring when gold officially goes up in price relative to a specific currency, as from $21.00 an ounce to $35.00 an ounce. Samuelson, Economics, pg. 627 (8th Edition, 1970). If this definition is a currently proper one and if it is that which was contemplated by the parties to the escalation clause involved herein, then the increase in future rental payments would be based upon an amount of money measured by gold, or by a particular kind of coin or currency, to wit: a currency based upon the amount of gold that that currency will purchase.
The appellants have alleged in their complaint that the escalation clause contained in their lease violates the Joint Resolution of Congress of June 5, 1933. Whether that clause is one which, by definition and in the contemplation of the parties, (1) requires payment in gold, or (2) requires payment in a particular kind of coin or currency, or (3) requires payment in money of the United States measured by gold or by a particular kind of coin or currency can only be determined upon appropriate proof and appellants should have the opportunity to present that proof.

Shaughnessy v. Rec Centers, Inc., 361 So.2d 807, 808-809 (Fla. 4th DCA 1978).

The case eventually proceeded to non-jury trial. The court heard expert testimony of four economists. Three economists testified on behalf of the lessors and one on behalf of the plaintiff-lessees. Although the experts expressed some disagreement concerning the definition and identifiable characteristics of a “gold clause,” all were in substantial agreement as to the meaning of “official devaluation of the dollar.” Essentially, the economists testified that regardless of the actual, market value of gold, official devaluation occurs when the United States Government assigns an increased value to the official price of gold in terms of United States dollars.

The pleadings, stipulated facts and extensive testimony indicated that the official devaluation of the United States dollar is the only event which can trigger a rent increase under paragraph 4(b) of the lease. Accordingly, the trial court made the following findings:

1. Official devaluation of the United States dollar is the only way rent can be increased under the lease, and the actions of the lessors in raising rent in response to the official devaluation in 1973 supports the conclusion that such was the contemplation of the parties; and
2. The definition of official devaluation given by the Fourth District (“gold officially goes up in price relative to a specific currency”) is a currently proper one.
Therefore, it follows that Paragraph 4(b) of the Lease calls for increases in future rentals based upon an amount of money measured by gold and is a prohibited “gold clause” violative of the Joint Resolution.

Consequently, the trial court entered a final judgment in favor of the lessees which declares paragraph 4(b) of the lease agreement to be “null, void and unenforceable,” awards monetary relief, and enjoins the collection of further rents under that provision of the lease.

We affirm this portion of the trial court’s order. The lessees presented the appropriate proof according to our decision in Shaughnessy v. Rec Centers, Inc., supra, that the parties intended that paragraph 4(b) authorize an increase in rental payments upon official devaluation of the United States dollar and that official devaluation is based on the official value of gold. The lease, therefore, requires payment of the rental obligations in an amount of dollars that is measured by gold. The “Gold Clause Resolution” prohibits such a provision.

The final judgment further provides that the monetary relief awarded to the plaintiff class be held in trust for the benefit of all past and present condominium unit owners and, after payment of costs and attorneys fees, the remainder of the monetary fund be disbursed to each past or present unit owner in the amount of money they overpaid during the time that they owned their units. The judgment also states that any money undisbursed after a reasonable length of time, upon appropriate motion, is to be returned to the defendants, the lessors.

The lessors contend that the trial court improperly computed the damages. The plaintiff class consists of “all present unit owners” of the condominiums. The amount of damages, however, was computed on the basis that a 11 of the present unit owners were owners since December, 1973, the time of the increase in rent. Many of the present owners acquired their units after December, 1973. In essence, the judgment, therefore, awards relief for overpayment by past unit owners. These past unit owners, however, are not members of the plaintiff class.

The lessors also question the propriety of creating a general damages fund by setting a money judgment as a maximum figure and then providing that if the maximum is not found due, the balance would be returned to the judgment debtor. .The issue of whether a trial court may create a general damages fund for the purpose of reimbursing members of a plaintiff class has only recently been addressed by a Florida court in Holley v. City of Naples, 371 So.2d 501 (Fla. 2d DCA 1979). In that case, the plaintiff brought a class action on behalf of himself and all other persons who had been issued illegal parking tickets since January 1, 1973. The trial court found that the plaintiff, Mr. Holley, was entitled to recover monetary damages and that the class action was proper. The trial court, however, denied generalized monetary relief to the class because the members of the class were unascertainable. The Second District Court of Appeal reversed, stating:

This case appears to be of first impression in Florida, but we are persuaded by the reasoning in Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732 (1967) that so long as the existence of an ascertainable class has been shown, there is no need to be able to identify the individual members of the class to determine the issues affecting the class. The trial court can determine the total amount of fines paid on the illegal parking citations and enter judgment. After judgment each individual member of the class must prove his or her identity and the amount paid on the illegal parking citation in order to recover.

Applying the reasoning of Holley to the present case, it appears that the trial court acted properly in attempting to create a damages fund equal to the total amount of improper assessments paid by the plaintiff class. The problem, however, is that the trial court failed in its attempt by compelling the lessors to place certain amounts in the damages fund which were not properly recoverable by any member of the plaintiff class. Some of the former unit owners who paid overassessments, which were included in the computation of damages, are not members of the plaintiff class. Thus, at least a portion of the damages fund is non-collectible by anyone in the present class.

By examining the lessors’ records of rental payments and totalling only those increased rents paid- by the members of the plaintiff class, a more accurate computation of the total possible damages could have been made. Accordingly, we remand this aspect of the final judgment to the trial court for a proper computation of the damages fund based only on the amount of improper assessments paid by members of the plaintiff class. Each member of the plaintiff class then has the burden of coming forward and demonstrating the amount of his or her unlawful rental payment.

The lessors also contend that the final judgment improperly requires the lessors to pay attorneys fees without any statutory or contractual authority for such an award against the lessors. This issue is not ripe for review by this court. The final judgment explicitly reserves jurisdiction to determine at a later time the source and amount of attorneys fees. We, therefore, cannot consider this question until the trial court enters a ruling.

As to the other issues raised by the lessors and discussed above, however, we affirm in part, reverse in part, and remand „ for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED AND REMANDED in part.

MOORE and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.

      . Section 4(c) of Public Law 95-147, 91 Stat. 1227 of October 28, 1977, provides that the “Gold Clause Resolution” shall not apply to obligations issued on or after October 28, 1977. The obligation here was created prior to October 28, 1977.

      . See the following cases cited in Shaughnessy v. Rec Centers, Inc., supra, for a general discussion explaining the rationale of the “Gold Clause Resolution”:

        Norman v. Baltimore and Ohio Railroad, Co., 294 U.S. 240, 55 S.Ct. 407, 79 L.Ed. 885 (1935); Holyoke Water Power Co. v. American Writing Paper Co., Inc., 300 U.S. 324, 57 S.Ct. 485, 81 L.Ed. 678 (1937); Guaranty Trust Co. of New York v. Henwood, 307 U.S. 247, 59 S.Ct. 847, 83 L.Ed. 1266 (1939); Avery v. J. L. Hudson Company, 17 Mich. App. 491, 169 N.W.2d 666 (1969); Aztec Properties, Inc. v. Union Planters National Bank of Memphis, 530 S.W.2d 756 (Tenn. 1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2175, 48 L.Ed.2d 799 (1976); Equitable Life Assurance Society of the United States v. Grosvenor, 426 F.Supp. 67 (W.D.Tenn.1976), affirmed, 582 F.2d 1279 (6th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979).
      The reasoning of these cases, although factually distinguishable, has aided this court in applying 31 U.S.C.A. § 463 to the present case.

      . The lessees’ argument that members of the plaintiff class were entitled to recover overas-sessments paid by their predecessor unit owners on an “assignment of lease” theory is without merit.


author:
PER CURIAM.
      LETTS, Chief Justice,

text:
    TRADEWINDS OF POMPANO ASSOCIATION, INC., a Florida Corporation not for profit, individually and as representative of a class; Richard Thompson and Ruby Thompson, his wife, individually and as representatives of a class; Roger Capettini, individually and as representative of a class; David Davis and Miriam Davis, his wife, individually and as representatives of a class, Appellants, v. Stewart S. ROSENTHAL, as Trustee of the Lawrence W. Urbanek Revocable Living Trust No. 1; William Gundlach, as Trustee; Lawrence Urbanek; William A. Johnson, as Trustee of the Johnson-Hill Trust, Appellees.
    No. 80-1036.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Rehearing Denied Jan. 25, 1982.
    Mark B. Schorr of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for appellants.
    Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from a non-final order disbursing recreational lease rental deposits from the registry of the court. The trial court determined that Section 718.401(4), Florida Statutes (1979), which requires such deposits, is unconstitutional. We affirm by holding that Section 718.401(4) is unconstitutional as applied to the facts of this case.

The appellants, The Tradewinds of Pompano Association, Inc. and several unit owners, commenced suit against the original lessor and the present lessors of a condominium recreational lease contending that the lease was unenforceable for various reasons. Pursuant to Section 718.401(4), the appellants deposited certain of the unit owners’ rents into the registry of the court. The lessors moved for an order directing the clerk to disburse the deposits to them, and further, directing the clerk not to accept any additional deposits. After a hearing, the court, finding Section 718.401(4) unconstitutional, granted the motion. .This appeal followed.

All of the parties agree that the Florida Supreme Court declared Section 718.401(4) unconstitutional as an impermissible impairment of the obligation of contract, at least with respect to contracts in existence on the effective date of the legislation. Pomponio v. Claridge of Pompano Condominium, 378 So.2d 774 (Fla.1980). The appellants contend that some of the unit owners’ individual leases were executed after October 1, 1974, the alleged effective date of the predecessor of Section 718.401(4), and that the legislation, therefore, applies to their obligations. The appellees contend that the lease came into existence prior to October 1, 1974. According to the Pomponio decision, therefore, Section 718.401(4) would constitute an unconstitutional, impairment of the obligation of contract created by the lease.

A master lease, attached to the declaration of condominium, was recorded in the Official Records of Broward County on April 30, 1974. This set the stage for the sale of the condominium units. As each unit was sold, the buyer was required to execute the master lease and a short form lease. Only the short form lease was recorded thereafter in the official records.

We hold that the recording of the declaration of condominium and the master lease established the rights and obligations of the lessors. Presumably, some sales were made and recorded prior to October 1, 1974, because the notice of rent deposits was limited to that class of owners who had executed short form leases after October 1. Nevertheless, the fact that some of the unit owners became parties to the lease after October 1 does not alter the existence of the lease and the lessors’ obligations before that date. Consequently, because the lease existed prior to the effective date of Section 718.401(4), Pomponio dictates a finding that under these facts the application of the statute is unconstitutional as impairing the contract rights of the lessors.

Accordingly, we affirm the order disbursing the rental deposits from the registry of the court. In view of our narrow holding, it is unnecessary to discuss the other arguments raised by the parties.

MOORE and HERSEY, JJ., concur.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Justice,

concurring specially:

I concur in conclusion only and would comment that I am surprised that the record as presented contained no copy of the declaration of condominium.

      . 718.401(4)(a) In any action by the lessor to enforce a lien for rent payable or in any action by the association or a unit owner with respect to the obligations of the lessee or the lessor under the lease, the unit owner or the association may raise any issue or interpose any de1 fenses, legal or equitable, that he or it may ' have with respect to the lessor’s obligations under the lease. If the unit owner or the assor ciation initiates any action or interposes any defense other than payment of rent under the lease, the unit owner or the association shall, upon service of process upon the lessor, pay into the registry of the court any allegedly accrued rent and the rent which accrues during the pendency of the proceeding, when due. If the unit owner or the association fails to pay the rent into the registry of the court, it shall constitute an absolute waiver of the unit owner’s or association’s defenses other than pay-' ment, and the lessor shall be entitled to default. The unit owner or the association shall notify the lessor of any deposits. When the unit owner or the association has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement for all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after an evidentiary hearing, may award all or part of the funds on deposit to the lessor for such purpose. The court shall require the lessor to post bond or other security, as a condition to the release of funds from the registry, when the value of the leased land and improvements, apart from the lease itself, is inadequate to fully secure the sum of existing encumbrances on the leased property and the amounts released from the court registry.


text:
    Edwina ROSSI, Appellant, v. Ralph S. MADISON, Mary Louise Madison, Division of Beverage of the Department of Business Regulations of the State of Florida and 4245 Corporation, Appellees.
    No. 80-1346.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Rehearing Denied Jan. 21, 1982.
    Curtin R. Coleman of Coleman, Leonard & Morrison, Fort Lauderdale, and Anthony G. Balasso of Miller, Zachman & Balasso, P. A., Pompano Beach, for appellant.
    Marvin D. Michaels of the Law Offices of Greenfield & Duval, North Miami, for ap-pellee-4245 Corp.
   DOWNEY, Judge.

Edwina Rossi has perfected this appeal from a final judgment entered after trial by the court in her suit for declaratory and injunctive relief.

Rossi, as lessor, and Ralph and Mary Madison, as lessees, entered into a lease contract in November 1972 for a term of five years, wherein Rossi demised certain premises to the Madisons for use as a tavern and restaurant. The lease provided that the Madisons would procure a beverage license authorizing the sale of beer and intoxicating liquor. The license was to remain with the premises and in the event of default or termination of the lease the Mad-isons were to assign the license to Rossi.

In April, 1975, the Madisons contracted to sell the liquor license involved to appellee, 4245 Corporation, for the sum of $62,500 for use at premises other than those leased from Rossi. Rossi got wind of this proposed sale and on July 15,1975, her attorneys sent a letter to the State Beverage Department, with copies to the Madisons, 4245 Corporation, Frank J. Grillo, President of said corporation, and others. The letter informed its reader that counsel represented Rossi, the owner of the premises involved in the lease referred to above. Counsel stated that Rossi had “a claim against the liquor license under a certain lease agreement” and requested the Beverage Department to stay any transfer of the license until the matter could be resolved. Shortly thereafter, on July 18, 1975, Rossi filed this suit.

The record indicates that the Beverage Department had approved the transfer of the license on July 11,1975. In anticipation of closing Mary Lou Madison and Frank Grillo entered into a handwritten escrow agreement, dated July 18, 1975, wherein (a) the purchase price for the license and (b) the closing documents were to be placed in escrow with lawyers for the respective parties to the agreement. This agreement reflects that its execution was deemed necessary “in view of certain claims of lien pending against the liquor license and transfer herein. . . . ” On that same day 4245 Corporation entered into another escrow agreement with the owner of premises which 4245 intended to buy and house the liquor license in question. That agreement contained, among others, the following .recitations:

WHEREAS, as part of the closing of the transaction between Buyer [4245 Corp.] and Seller, a certain 4 COP Alcb-holic Beverage License was to be issued to the Buyer from a transaction, not related to the Sales Agreement hereinbefore referred to; and
WHEREAS, the Buyer has encountered difficulties in obtaining the issuance of said 4 COP Alcoholic Beverage License; ....

On July 28, 1975, or shortly thereafter, the Beverage Department transferred the liquor license previously held by the Madi-sons to 4245 Corporation.

Rossi commenced this suit on July 18, 1975, against the Madisons, 4245 Corporation, The State Beverage Department, and the two lawyers who were acting as escrow agents of the liquor license and proceeds of the sale thereof. The complaint" sought: declaratory relief as to Rossi’s rights, an injunction against the Beverage Department and the Madisons to prevent them from transferring the license, an order requiring 4245 Corporation to return .the license to Rossi if it had already been transferred to 4245, a restraining order against the two lawyer escrow agents, and a judgment for damages against all defendants except the escrow agents in the event the transfer had been concluded.

Final judgment was entered in favor of Rossi and against the Madisons for $62,500 (the sum the Madisons received for the license). However, the trial court awarded Rossi no relief against 4245 Corporation, apparently because it found that 4245 was a bona fide purchaser of the license. Rossi was dissatisfied with the final judgment and has filed this appeal.

The points on appeal question a) the trial court’s finding that 4245 Corporation was a bona fide purchaser, and b) the trial court’s tacit approval of the Beverage Department’s transfer of the license to 4245 after Rossi had put the Department on notice of her claim.

We are convinced the trial court misinterpreted the evidence as it bears upon 4245 Corporation’s status as a bona fide purchaser of the license. The record simply does not support the conclusion that 4245 was not on notice of Rossi’s claim. While the sale of said license by the Madisons was in progress, but before any closing, Rossi put all parties on notice by her counsel’s letter of July 15, 1975, that she claimed an interest in said license under a lease agreement. After receipt of said letter 4245 Corporation closed, in escrow, both the purchase of the liquor license and the new premises where the license was to be used. The proceeds of the closings were to be held in escrow because Rossi’s claim against the license caused difficulty in obtaining its transfer. We conclude that 4245 Corporation elected to proceed with the purchase of the license in the face of Rossi’s claim that she had an interest therein under a lease. Under these circumstances the trial court should have found that 4245 Corporation was not a bona fide purchaser and the court should have entered judgment against 4245 Corporation and the Madisons, jointly and severally for $62,500.

The trial court entered judgment against the Madisons for $62,500 and no appeal has been taken on behalf of the Madisons. Accordingly, we reverse the portion of the judgment of June 18,1980, that denied Ros-si any relief against 4245 Corporation and we remand the cause with directions that the court enter judgment for $62,500 in favor of Rossi and against 4245 Corporation so that Rossi may obtain satisfaction of her award of $62,500 from the Madisons or from 4245 Corporation.

REVERSED AND REMANDED with directions.

MOORE, J., and BARKETT, ROSEMARY, Associate Judge, concur.


text:
    Charles H. WOOTEN, Appellant/Cross-Appellee, v. Helen WOOTEN, Appellee/Cross-Appellant.
    No. 80-1988.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Rehearing Denied Jan. 22, 1982.
    Manuel A. Cuadrado of Cuadrado & Sos-by, P. A., Miami, for appellant/cross-appel-lee.
    Joel M. Weissman of Law Offices of Ronald Sales, P.A., West Palm Beach, for appel-lee/ cross-appellant.
   PER CURIAM.

This is an appeal from a final judgment which enforced a property settlement agreement previously entered into by the parties and incorporated into their final judgment of dissolution of marriage. Under the terms of the agreement, title to the marital home was conveyed to the wife and the husband was to make the mortgage payments thereon. The issue presented is whether, under the terms of the agreement, the husband must continue to pay an amount equal to the regular mortgage payments on the marital home after it was sold by the wife. Under the circumstances of this case and the agreement in question, we believe the trial court properly found that the husband was so obligated, and we therefore affirm. See Salsman v. Salsman, 360 So.2d 54 (Fla. 1st DCA 1978); Horton v. Horton, 330 So.2d 69 (Fla. 1st DCA 1976).

AFFIRMED.

LETTS, C. J., and MOORE and BERA-NEK, JJ., concur.


text:
    AMERICAN REALTY CO., a partnership organized and existing under the laws of the State of Ohio, Appellant, v. Edward S. GWIN and Jeanette A. Gwin, Ocean Sounds Land Company, a partnership organized and existing under the laws of the State of Florida, and John D. Brown, Appellees.
    No. 81-747.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Rehearing Denied Jan. 18, 1982.
    Thomas R. Tatum and James P. Murphy of Buck & Tatum, P. A., Fort Lauderdale, for appellant.
    George H. Aslanian, Jr., Watson, Hubert & Clark, Fort Lauderdale, for appellees.
   MOORE, Judge.

American Realty Co., a non-resident partnership, appeals from a non-final order denying its motion to quash service of process. We find that the Florida “long arm” statute, Section 48.193, Florida Statutes (1979), does not authorize service of process upon American Realty because American Realty lacks sufficient contacts within the State of Florida. We, therefore, reverse.

Edward and Jeanette Gwin, residents of Michigan, filed a complaint against American Realty seeking specific performance of agreements for the purchase of real property located in Florida and Ohio. A summons was served on John D. Brown, a partner of American Realty. American Realty filed a motion to dismiss and quash service of process which the lower court denied. American Realty appealed that order and this court reversed. American Realty Company v. Gwin, 374 So.2d 643 (Fla. 4th DCA 1979).

The plaintiffs filed an amended complaint which alleged in part:

3. The Defendant American Realty Company is a partnership organized and existing under the laws of the State of Ohio engaged '.in business in the State of Florida.
******
6. [Pjlaintiff Edward S. Gwin and his daughter Barbara J. Taylor entered into an agreement with American Realty Company . . . for the purchase of two parcels of real estate located in ... Ohio....
7. [Pjlaintiff Edward S. Gwin and his daughter Barbara J. Taylor entered into an agreement with John D. Brown for the purchase of real property located in Broward County, Florida. . ..
******
9. [P]laintiff Edward S. Gwin and his daughter Barbara J. Taylor were to purchase the Ohio property . . . and the Ohio property was to then be exchanged for the Florida property.. . .
10. John D. Brown is a partner in American Realty' Company and controls the actions of American Realty Company with respect to the agreements referred to in paragraphs six and seven above.
11. The agreement referred to in paragraphs six and seven were essentially between the same people and principals and were intended to be performed simultaneously and constitute a single transaction.
12. Subsequent to the agreements referred to in paragraphs six and seven above, Barbara J. Taylor assigned all her right, title and interest in the agreements referred to in paragraphs six and seven above to Jeanette A. Gwin.

The agreements were attached to the complaint. The agreement for the plaintiffs’ purchase of the Florida property from John D. Brown was contingent upon consummation of American Realty’s sale to the plaintiffs of the Ohio real estate. The agreement between American Realty and the plaintiffs was contingent upon the plaintiffs’ approval of the condominium document of the Florida real estate which was the subject of the agreement between John D. Brown and the plaintiffs.

A summons was again served on John D. Brown. American Realty then filed a motion to quash service of process.

John D. Brown executed an affidavit which stated that American Realty has never engaged in business, owned real property, or maintained an office, employees or records in Florida. He also stated that none of the dealings between the plaintiffs and American Realty involved any Florida contacts by American Realty.

The plaintiffs filed a counter-affidavit stating that American Realty engaged in business in Florida by entering into the agreement to sell the Ohio property with full knowledge that the agreement was part of a purchase/trade transaction for the plaintiffs to acquire the Florida property.

The trial court denied the motion to quash service of process. This appeal followed.

The allegations and proof offered in the amended complaint and counter-affidavit provide insufficient jurisdictional facts to justify application of the “long arm” statute. Section 48.193 sets forth the acts within Florida subjecting persons to jurisdiction of the courts of this State. The plaintiffs assert that Section 48.193(l)(a) provides the basis for personal jurisdiction over American Realty. That section states:

Acts subjecting persons to jurisdiction of courts of state.—
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in the state.

American Realty’s involvement in the purchase/trade transaction consisted solely of entering into a contract in Ohio with Michigan residents to sell Ohio property. The cause of action against American Realty did not arise out of any business conduct by American Realty in Florida. Consequently, American Realty did not engage in business or a business venture in Florida under the “long arm” statute. American Realty’s agreement with the plaintiffs to sell the Ohio property was separate from John D. Brown’s agreement with the plaintiffs to exchange the Florida property. John D. Brown’s activities in Florida were in his individual capacity and not as an agent of American Realty. American Realty’s sole connection with Florida in the purchase/trade transaction was the contingency of condominium document approval in Florida mentioned in American Realty’s contract with the plaintiffs to sell the Ohio property. This is insufficient to constitute engaging in business or a business venture in Florida.

Accordingly, the Florida “long arm” statute does not provide for personal jurisdiction over American Realty in this case. The order denying its motion to quash service of process is reversed.

HERSEY and HURLEY, JJ., concur.