text:
    Stephen MUSS and the Estate of Alexander Muss, d/b/a Seacoast Towers North, Seacoast Towers Miami Beach, Inc., a New York corporation, Appellants, v. A. H. BLAKE, Property Appraiser of Dade County, Florida, Harry L. Coe, Director of the Department of Revenue, Appellees.
    No. 81-1445.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied July 19, 1982.

      Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellants.
    Robert A. Ginsburg and Vicki J. Jay, Miami, for appellees.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.) Associate Judge.
   PER CURIAM.

We affirm the final judgment in favor of the appellees, which reinstated the Dade County Property Appraiser’s assessment for the 1978 tax year on Seacoast Towers North, an apartment building owned by the appellant-taxpayers. The Property Appraiser, as the initiator of the de novo proceeding in the Circuit Court, see Section 194.032(6)(a)2, Florida Statutes (1977), satisfied his burden of showing that his preliminary assessment was made in substantial compliance with Section 193.011, Florida Statutes (1977); the taxpayers failed to satisfy their burden to overcome the presumptive correctness of the Property Appraiser’s assessment by showing that there was no reasonable hypothesis to support the Property Appraiser’s assessment; and the reduced valuation made by the Property Appraisal Adjustment Board, as the trial court impliedly and presciently determined, constituted no evidence in the de novo proceeding of the property’s value. Bystrom v. Equitable Life Assurance Society of the United States, 416 So.2d 1133 (Fla. 3d DCA 1982).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles MINTON and Vernon Minton, Appellants, v. Fred SHAW, Carl Brown and William Percelle, Appellees.
    No. 80-1148.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Rehearing Denied July 21, 1982.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Sam Bloom, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

The defendants Charles and Vernon Min-ton in a malicious prosecution action brought below appeal from an adverse final judgment entered upon a jury verdict and a subsequently entered adverse cost judgment. We find no reversible error in the points presented on appeal and affirm.

The central point on appeal concerns the ruling of the trial court in admitting in evidence, over objection, at trial certain testimony which is claimed to be a settlement offer. We have carefully and meticulously examined the authorities cited by both parties in their briefs and have further conducted extensive independent research of our own. In all, we have been cited to no authority and have found none which supports the proposition that the disputed evidence in this case was, in fact, a settlement offer and, therefore, inadmissible at trial; we decline to be the first court to so hold.

Without dispute, the defendants herein, through their private counsel, stated that they would “drop” criminal charges against the plaintiffs, an act which they were unauthorized to do, if the plaintiffs would sign a general release on claims which had not been made or discussed by anyone. We cannot view this statement as a routine offer to settle the instant action and, therefore, on that ground inadmissible because (a) such action was, at that time, neither pending nor contemplated, and (b) the defendants were, in any event, entirely unauthorized to make such a statement as only the state attorney may “drop” or nolle prosse a criminal case. In the Interest of S.R.P., 397 So.2d 1052 (Fla. 4th DCA 1981); State v. Braden, 375 So.2d 49 (Fla. 2d DCA 1979). We have no occasion, however, to address any other objections which might be made to the admissibility of the disputed statement as same were never made below or in this court; we hold only that the said statement was not barred from evidence as being a settlement offer.

The defendants also complain about certain comments made by plaintiffs’ counsel in his final argument to the jury. This point seems to be, in part, a restatement of its first point on appeal as part of the comments attacked refer to the above disputed evidence. Beyond that, however, we believe the point otherwise presents no reversible error. LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA), cert. denied, 359 So.2d 1216 (Fla.1978); Nelson v. Reliance Insurance Co., 368 So.2d 361, 362 (Fla. 4th DCA 1978).

Affirmed.


author: PER CURIAM. NESBITT, Judge

text:
    YOUNG, STERN & TANNENBAUM, P. A., a Florida professional association, Petitioner, v. Gerald SMITH, Respondent.
    No. 81-1511.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Rehearing Denied July 21, 1982.

      Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for petitioner.
    Robert A. Geiss, Miami, for respondent.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Petitioner seeks common law certiorari as authorized pursuant to Florida Rule of Appellate Procedure 9.100(c) to quash a protective order shielding the defendant’s counsel of record from deposition. The protective order was granted on the basis that there was an attorney/client privilege with respect to a written settlement agreement in the underlying law suit. We grant certio-rari and quash the protective order.

Common law certiorari may be granted if there has been a departure from the essential requirements of law in such a way as to cause a material injury throughout the proceedings that cannot be adequately remedied by appeal. Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981); Travelers Indemnity Gompany v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980); Allstate Insurance Company v. Shupack, 335 So.2d 620 (Fla. 3d DCA 1976). The order entered by the trial court precludes the taking of any deposition of Robert A. Geiss, defendant’s attorney. Such an order, under these circumstances, is overly broad and departs from the essential requirements of law. Frantz, Travelers, Allstate, supra. Only those communications which actually fall under the attorney/client privilege are protected. Seeba v. Bowden, 86 So.2d 432, 434 (Fla.1956); Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So.2d 1002 (Fla. 4th DCA 1981); Section 90.502(4)(d), Florida Statutes (1979).

We are cognizant of the conflict on this issue. The Fourth District receded from Gold Coast Raceway, Inc. v. Ehrenfeld, supra, in United States Fidelity & Guaranty Company v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981) and certified a conflict with the Fifth District’s holding in Travelers, supra. We believe that Gold Coast was correctly decided and reject the rationale of Graham, supra. We recognize that our decision today is in direct conflict with United States Fidelity & Guaranty Company v. Graham, supra.

The petition for writ of certiorari is granted; the protective order is quashed; and the cause is remanded for further proceedings.

NESBITT, Judge

(dissenting):

The circumstances surrounding the taking of the attorney’s deposition in this case so closely parallel those present in United States Fidelity and Guaranty Company v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981) that for the reasons expressed [therein], I would hold that there is a lack of showing of a material injury not remediable by way of plenary appeal. Additionally, an order protecting the attorney-client privilege, as opposed to an order denying the privilege, does not constitute a departure from the essential requirements of law. Consequently, I would deny certiorari.


text:
    W. L. POTTER, Appellant, v. Harrel F. BOLDEN, Appellee.
    No. YY-267.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Rehearing Denied July 22, 1982.
    Gary M. Ketchum and James C. Conner, Jr., Tallahassee, for appellants.
    Guyte P. McCord, III, of Spector, Tunni-cliff & McCord, Tallahassee, for appellees.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

In this Liberty County election case, the decisive issue is whether the trial court may invalidate all 361 absentee ballots cast in the election on the conclusion that fraud and illegality were so pervasive as to taint the entire absentee voting procedure when (1) the fraud and other illegal activities in connection with the absentee ballots were on the part of individuals who were neither candidates nor election officials, (2) the court specifically found only 47 of the 361 absentee ballots to be invalid, and (3) the number of invalid ballots was insufficient to affect the results of the election. We think not, and reverse.

In the second primary election for Liberty County School Board held October 5, 1978, appellee, Harrel F. Bolden, received 18 votes more than appellant, W. L. Potter, on the precinct machine count. However, when the 361 absentee ballots were counted and added to the machine totals, Potter had defeated Bolden by 99 votes.

Bolden (together with two other candidates) brought this action to contest the election, pursuant to § 102.168, Fla.Stat. (1977). At trial, plaintiffs presented testimony from approximately 75 witnesses who testified concerning widespread practices of absentee voting irregularities, including vote buying and other pervasive and conspicuously corrupt election practices. On this evidence, the court made the following findings and conclusions:

Forty-six witnesses testified candidly that they voted absentee ballots in this election and admitted they had been paid monetary consideration for their vote; many had no idea who they voted for nor even bothered to mark their own ballot. One party marked the absentee ballot of her son under her belief that she had the authority under a “power of attorney” which authorized her to vote although he was stationed overseas in the Armed Forces. A number of the same witnesses appearing on the “bought ballots” were also noted to be subscribing witnesses on a number of other absentee ballots. All in all, the witnesses painted a picture of promiscuous vote buying and other conduct on the part of certain individuals indicating intentional wrongdoing and gross negligence, all of which adversely affected the integrity of the election.
Boardman v. Esteva, 323 So.2d 259 (Fla.1976), outlined the factors to be considered in weighing the seriousness of irregularities occurring in elections:
“(a) the presence or absence of fraud, gross negligence, or intentional wrongdoing;
(b) whether there has been substantial compliance with the essential requirements of the absentee voting laws; and
(c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election.”
When measured against the above criteria, it is apparent that this election held in Liberty County falls woefully short of constituting a free expression of the electorate of that County.
“The general rule is that where the number of invalid absentee ballots is more than enough to change the result of the election, then the election shall be determined solely upon the basis of machine vote.” Frank v. State ex rel Turk, 160 Fla. 394, 35 So.2d 10 (1948) [sic]; Boardman v. Esteva, supra.
.... [T]he fraud and illegal activities on the part of certain individuals were so conspicuously corrupt and pervasive that it has tainted the entire absentee voting procedure in this election. All absentee votes should be invalidated and none counted in this election. This is a harsh judgment but none the less is indicated. See Lopez v. Holleman, [219 Miss. 822] 69 So.2d 903 (Miss.1954). Having thrown out all absentee ballots, the winners of the election are determined solely by the precinct machine votes. The tabulation of this vote shows all Plaintiffs to be winners in their respective races.
The individual Defendants are not charged with being personally responsible directly or indirectly, with the fraudulent practices alleged to have occurred in the election and there was no evidence suggesting they were involved. No doubt exists but that most of the questionable electioneering practice was the work of overzealous supporters trying to get their candidate elected.

Boardman v. Esteva, 323 So.2d 259 (Fla.1976), cited in the trial court’s final judgment, is the latest expression of the Supreme Court on the effect of irregularities in the absentee voting procedure. The trial court correctly recognized the general rule stated in Boardman, that where the number of invalid absentee ballots is more than enough to change the result of the election, then the election shall be determined solely upon the basis of the machine vote. The logical corollary of this general rule is simply that where the number of invalid absentee ballots is not sufficient to change the result of the election, all absentee ballots do not have to be invalidated. Referring only to the Bolden-Potter race, it is clear that the 47 absentee ballots which the court specifically found to be invalid would not have changed the result of the election.

Appellee argues that in addition to the 46 “bought” ballots and the one invalid ballot marked by a mother for her son in the Armed Forces, five other ballots were “likely bought,” 70 others were witnessed by the same persons who had witnessed the “bought” ballots and 10 others were witnessed by individuals who had no contact whatever with the respective voters. Accepting this argument as a fair summarization of the evidence relating to these additional absentee ballots, we think it apparent that the trial court found it sufficient, at most, only to raise a strong suspicion concerning their validity, since he failed to find specifically that any of them were invalid. Granted the evidence of the malodorous election activities described in the final judgment may have caused the trial court to sense intuitively the pervasive nature of the corruption although unable to identify with specificity the precise number of additional invalid ballots. But we think that neither intuition nor suspicion is a valid basis upon which to disenfranchise the voters who cast the other 314 absentee ballots.

We hold that before all absentee ballots cast in a single-county election may be declared invalid, there must be a specific finding of invalidity as to a sufficient number of ballots more than enough to change the result of the election. Absent such an objective standard, the existence of any evidence of absentee voting corruption would permit a trial court’s subjective finding (of pervasive corruption tainting the entire absentee voting procedure) to become unassailable on appellate review.

The trial court cited Lopez v. Holleman, 219 Miss. 822, 69 So.2d 903 (1954), upon which appellee also relies. The cited case is clearly distinguishable in that it involved fraud on the part of the election officials, the very guardians of the ballot box. That such presented a case different from where there were irregularities in the conduct of the election or fraud by a candidate or outside conspirators, was expressly recognized in the Lopez opinion.

While the foregoing is dispositive of this case, we have nonetheless examined appellant’s remaining points and have found them severally to be without merit.

The judgment of ouster of appellant, W. L. Potter, is reversed, and upon remand judgment shall be entered declaring W. L. Potter entitled to the office to which he was duly elected.

Reversed and remanded.

MILLS, J., concurs.

WENTWORTH, J., dissents without opinion.

      . This appeal is concerned only with the Bol-den-Potter election contest.


author: BARKDULL, Judge.

text:
    ACE FORMAL WEAR, INC., Appellant, v. BAKER PROTECTIVE SERVICE, INC., A Delaware corporation, Appellee.
    No. 81-1017.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied July 23, 1982.
    Levine, Reckson, Reed & Geiger and Mark A. Marder, Miami, for appellant.
    Ligman, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, for appel-lee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BARKDULL, Judge.

Ace Formal Wear entered into a contract with Wells Fargo Alarm Service, a division of Baker, for the installation of an alarm system. After the system had been installed, the store was burglarized by persons who gained access through a rear window which had not been wired even though the wiring of that window was required by the contract.

Ace sued Baker, claiming breach of contract and negligence. Baker answered and asserted the following exculpatory or limitation clause in the contract:

D. It is understood that Wells Fargo is not an insurer; that insurance shall be obtained by Subscriber, if any is desired; that the sums payable hereunder to Wells Fargo by Subscriber are based upon the value of services offered and the scope of liability undertaken and such sums are not related to the value of property belonging to Subscriber or to others located on Subscriber’s premises. Subscriber does not seek indemnity by this agreement from Wells Fargo against any damages or losses caused by hazards to Subscriber’s property. Wells Fargo makes no warranty, expressed or implied, that the systems it installs or the services it furnishes will avert or prevent occurrences, or the consequences therefrom, which the systems and services are designed to detect. Subscriber agrees that Wells Fargo shall not be liable for any of Subscriber’s losses or damages, irrespective of origin, to person or to property, whether directly or indirectly caused by performance or nonperformance of obligations imposed by this contract or by negligent acts or omissions of Wells Fargo, its agents or employees. The Subscriber does hereby waive and release any rights of recovery against Wells Fargo that it may have hereunder. It is agreed that if Wells Fargo should be found liable for any losses or damages attributable to a failure of systems or services in any respect, its liability shall not exceed the sum of $50.00 and Subscriber’s sole remedy at law or in equity shall be the right to recover a sum within such limit.

The trial court granted a summary judgment in favor of Baker upon the authority of L. Laria & Sons, Inc. v. Alarmtec International Corporation, 384 So.2d 947 (Fla. 4th DCA 1980). We affirm.

The parties were at liberty to contract as they pleased. The agreement in the instant case clearly indicated that Baker was not to be the insurer; that Ace had the responsibility of securing burglary insurance; that Baker was merely installing equipment for a nominal amount of money, and they assumed no liability above the figure set in the contract of $50.00.

Similar contracts have been upheld in other jurisdictions, Foont-Freedenfeld Corp. v. Electro-Protective Corp., 126 N.J.Super. 254, 314 A.2d 69 (1973); Florence v. Merchants Central Alarm Co., 73 A.D.2d 869, 423 N.Y.S.2d 663 (1980); Schepps v. American District Telegraph Co. of Texas, 286 S.W.2d 684 (Tex.Civ.App.1955); Vallance & Co. v. DeAnda, 595 S.W.2d 587 (Tex.Civ. App.1980). See also Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (1977), which was expressly relied upon in the Luria opinion, supra.

Counsel for the appellant has attempted to argue unconscionability in this court, but the record fails to disclose that an issue as to unconscionability was ever made in the trial court. Moore Meats, Inc. v. Strawn, 313 So.2d 660 (Fla.1975); Gulf Life Ins. Co. v. Ferguson, 59 So.2d 371 (Fla.1952); Fla.R.Civ.P. 1.100(a).

We also find the safety deposit box cases, which are single purpose contracts, not to be applicable in the instant case, Sniff en v. Century National Bank of Broward, 375 So.2d 892 (Fla. 4th DCA 1979), or that the theory behind these cases was properly made an issue by the pleadings.

Therefore, for the reasons stated, the final summary judgment under review be and the same is hereby affirmed.

      . No error has been preserved as to whether or not the trial court should have awarded the appellant at least $50.00 and we do not address this issue.


author: SCHWARTZ, Judge-

text:
    Derrick JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1322.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Piken & Snyder and Barry M. Snyder, North Miami, for appellant.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge-

We reverse the conviction under review because the trial court was in manifest error in denying the defendant’s motion for new trial based on newly discovered evidence. It clearly appeared that the directly exculpatory testimony of two separate additional witnesses both would probably have changed the result of the trial, at which the evidence against Jackson, while legally sufficient, was highly dubious and uncertain, Fla.R.Crim.P. 3.600(a)(3); Jones v. State, 233 So.2d 432 (Fla. 3d DCA 1970), and, of less significance, was not previously discoverable in the exercise of reasonable diligence. See Webb v. State, 336 So.2d 416 (Fla. 2d DCA 1976); Jones v. State, supra. Even were the latter technically not the case, the due diligence requirement is not an inflexible one. Gaither v. Anderson, 103 Fla. 1190, 135 So. 840, 139 So. 587 (1932). On this record, we conclude that the achievement of the ends of justice — which is the paramount, indeed the exclusive interest which concerns us — requires that a jury hear the witnesses in question before the defendant may be convicted and imprisoned for the crime with which he is charged. Hence, that new trial must be afforded him. Jones v. State, supra; Hanson v. State, 187 So.2d 54 (Fla. 3d DCA 1966).

Reversed.

      . We specifically note our total disapproval of the trial court’s at best presumptuous ruling denying Jackson bond pending appeal because, in part, there were no “fairly debatable” grounds for reversal. This ruling was shortly thereafter reversed by this court on i eview under Fla.R.App.P. 9.140(e)(4).


text:
    Ronald R. FIELDSTONE and Linda Fieldstone, Appellants, v. Choi CHUNG and Sunny Chung, Appellees.
    Nos. 81-1750, 81-1791.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied July 19, 1982.
    Fieldstone, Oliver, Kluger, Sumberg & Mondre and David W. Trench, Miami, for appellants.
    Walters, Costanzo, Miller & Russell and Nancy J. Cliff, Miami, for appellees.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BARKDULL, Judge.

The Fieldstones, as sellers, and the Chungs, as purchasers, entered into a contract for the purchase and sale of a residence for a total price of $165,000.00, among other things, the contract and its addendum provided as follows:

1. Purchasers shall immediately apply for, and make every diligent effort to qualify for and obtain at Purchaser’s expense, a Mortgage Commitment from any lending institution in an amount of at least $132,000. at the current prevailing rate of Interest. Purchasers shall be granted a period of 30 days to obtain this Mortgage Commitment. In the event this Mortgage Commitment cannot be obtained by Purchasers after expending every diligent effort within 45 days, then all monies on deposit shall be returned to Purchasers, and all Parties released of all obligations; and, this agreement terminated.
2. In the event that Purchasers do not qualify for the full amount of $132,000. then Sellers agree to take back a second mortgage securing an amount of up to $15,000. which amount shall bear interest of the rate of 12% (twelve percent) per annum, payable based upon a 10 year amortization with a two year balloon payment. Accordingly, if Purchasers qualify for a first mortgage of at least $117,000. then Purchasers shall be obligated and be bound by this contract.

The Chungs made several loan applications to various lending institutions but were unable to secure a loan commitment any larger than $110,400.00, because of the appraisal on the house or their income would not service a loan for a greater amount than $110,400.00. The plaintiffs instituted suit, claiming the right to retain one-half the $11,000.00 deposit posted under the contract and/or damages for breach of contract. After depositions disclosed that, among other things, the Chungs may have had a greater income than reported on some of their loan applications, the trial court entered a final summary judgment for the Chungs, returning to them the $11,000.00 deposit and awarded them $5,444.00 as attorney’s fees pursuant to Section 57.105, Florida Statutes (1978).

This appeal ensued. The Field-stones urge error in both awards. We agree. We are not able to say on this record that the trial court could, as a matter of law, hold that the Chungs used “every diligent effort” to secure the minimum loan commitment required by the terms of the agreement and remove this question from a trier of fact. Normally, the question of the use of due diligence is a question of fact. Allington Towers North, Inc. v. Teich, 345 So.2d 745 (Fla. 4th DCA 1977); Beekay Realty Corp. v. Cayre, 256 So.2d 539 (Fla. 3d DCA 1972). As to the attorney’s fees, the final summary judgment being reversed, this award will likewise be set aside. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982).

Therefore, the final summary judgment and the order awarding attorney’s fees are both reversed and the matter returned to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded, with directions.


author: PER CURIAM. HENDRY, Judge

text:
    PUBLIX SUPER MARKETS, INC., a Florida corporation, Appellant, v. Ronald J. DEAN, Appellee. Ronald J. DEAN, Appellant, v. PUBLIX SUPER MARKETS, INC., a Florida corporation, Appellee.
    Nos. 81-1806, 81-1850 and 81-1632.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied July 20, 1982.

      Alley & Alley and Robert D. Hall, Jr., Tampa, for Publix Super Markets.
    Pelzner, Schwedock, Finkelstein & Klaus-ner and Robert D. Klausner, Miami, for Ronald J. Dean.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

The order under review which approved a cause of action for wrongful discharge of an employment contract under section 440.-205, Florida Statutes (1979), is reversed upon the reasoning found in Judge Ervin’s dissent in Piezo Technology and Professional Administrators, Inc. v. Smith, 413 So.2d 121 (Fla. 1st DCA 1982).

Judge Ervin’s analysis of the legislative history of this section clearly indicates an intention not to create a private right for breach of an employment contract.

Therefore we decline to follow the majority opinion in Piezo Technology and Professional Administrators, Inc. v. Smith, supra, and align ourselves with the dissent.

The order under review reinstating count I for wrongful discharge be and the same is hereby reversed with directions to dismiss the complaint.

Reversed and remanded with directions.

HENDRY, Judge

(dissenting):

I respectfully dissent. I would follow the majority opinion of our sister court in Piezo Technology and Professional Administrators, Inc. v. Smith, 413 So.2d 121 (Fla. 1st DCA 1982), and affirm reinstatement of count I of the complaint.


author: THOMPSON, Judge. JOANOS, Judge,

text:
    STATE of Florida, Appellant, v. Ernie CLARK, Appellee.
    No. AH-264.
    District Court of Appeal of Florida, First District.
    June 11, 1982.
    Rehearing Denied July 19, 1982.

      David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellant.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellee.
   THOMPSON, Judge.

The state appeals a final order contending the trial court erred in dismissing an information. We agree, although not for the reasons asserted by the state, and reverse.

The defendant was charged by information with unlawfully entering or remaining in a structure, “with the intent to commit the offense of Theft therein, or [of entering] through a window at about 4:45 A.M. stealthily without the occupant’s consent with intent to commit some offense, contrary to Sections 810.07 and 810.02, Florida Statutes.” This information was drafted in one count with an alternative allegation instead of being drafted in two separate counts. At a pretrial hearing the defendant apparently moved to strike the alternative allegation of stealthy entry without the occupant’s consent with intent to commit some offense therein. Relying on Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981), defendant argued that § 810.07, Fla.Stat. is not a substantive offense and relates merely to the proof of intent to commit any offense. Such an allegation therefore does not meet the requirement that a specific offense be alleged to properly charge the defendant with burglary. In opposition to this motion, the state relied on State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980) which by dicta indicated that an allegation relating to stealth and lack of consent is a sufficient substitute for an allegation of intent to commit a specific crime.

The trial judge orally announced at the conclusion of the hearing that he would grant the defendant’s motion to strike the alternative allegation of stealthy entry in its entirety. However, the trial judge’s subsequent written order dismissed the entire information which properly charged the defendant with burglary by unlawfully entering or remaining in a structure, with intent to commit the offense of theft therein. We approve the decision in Rozier and would find no error in striking the alternative language relating to stealthy entry in the information. However, it was error to dismiss the entire information when one alternative allegation properly charged the defendant with burglary.

Reversed and remanded for further proceedings consistent with this opinion.

LARRY G. SMITH, J., concurs.

JOANOS, J., concurs in part and dissents in part.

JOANOS, Judge,

concurring in part and dissenting in part.

I join the majority in their determination that the trial judge erred in dismissing the information.

However, I disagree and dissent from the majority’s approval of Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981). I believe that for the reasons expressed in their opinion, the Fourth District Court of Appeal set forth the correct interpretation of the requirements for pleading burglary in State v. Fields, 390 So.2d 128, 131 (Fla. 4th DCA 1980) when they wrote:

Therefore, in order to comply with the “general to particular” rule of pleading and yet give force and effect to Section 810.07, we hold that in alleging the crime of burglary, the state must either list the specific crime intended to be committed within the structure, or, alternatively, allege that an offense was intended to be committed therein in that the entry was gained stealthily and without consent of the owner or occupant. By either mode of pleading, the defendant would be sufficiently notified in the accusatory pleading of the crime brought by the state to which he must respond.


author: FERGUSON, Judge.

text:
    Nieves Miriam SANCHEZ and Evelio Sanchez, Appellants. v. Lewis Edwin MARTIN and Travelers Insurance Company, Appellees.
    No. 81-2391.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied July 20, 1982.
    Pepe & Nemire, Coral Gables, for appellants.
    Henderson & Willing and Linda Koenigs-berg, Miami, for appellees.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Evelio and Nieves Sanchez, husband and wife, appeal from a Final Summary Judgment entered on their complaint for damages. This appeal challenges the trial court’s determination that the action was barred by res judicata and/or collateral es-toppel.

The pertinent facts are as follows: On June 16, 1980 an automobile owned and operated by Martin collided with an automobile owned by Evelio and Nieves Sanchez, being operated by Nieves. Martin successfully sued Nieves in the county court and recovered damages and costs of $1,012.19. Several months later Evelio and Nieves Sanchez brought a Circuit Court action against Martin for personal injuries suffered in the same accident of June 16, 1980. On Martin’s affirmative defenses of res judicata and collateral estoppel, supported by an unopposed affidavit reciting the factual finding that Nieves had been determined 100% at fault in the first action, the Circuit Court entered summary judgment for Martin.

Appellant contends (1) Nieves’s cause of action had not matured at the time Martin’s suit was filed in the county court because she had not reached “maximum medical improvement” therefore waiver or estoppel should not apply and, (2) Evelio was not a party to the first action so there was no requirement to counterclaim and for the same reason collateral estoppel and res judi-cata have no application.

As to the claim of Nieves Sanchez we affirm the trial court’s determination that res judicata is a bar. A judgment on the merits in a former suit between the same parties on the same cause of action by a court of competent jurisdiction operates as an estoppel. Mabson v. Christ, 104 Fla. 606, 140 So. 671 (1932). The dispositive issue of fault was litigated as between Martin and Nieves Sanchez adverse to Nieves, rendering moot the question whether her claim had matured.

We consider briefly appellants second point. Evelio’s claim is derivative in nature, founded on his relationship as husband of Nieves or otherwise stated, Evelio has an interest in the litigation only in privity, thus if the wife’s claim is defeated, the derivative claim of the spouse also falls. Gates v. Foley, 247 So.2d 40 (Fla.1971); Habelow v. Travelers Insurance Company, 389 So.2d 218 (Fla. 5th DCA 1980); see Davis v. Asbell, 328 So.2d 204 (Fla. 1st DCA 1976) (a judicial determination of liability in favor of husband in the primary action is binding upon the subordinate action for loss of consortium).

Affirmed.


author: PER CURIAM. LARRY G. SMITH, Judge,

text:
    Thomas R. SPENCER, Sr., Receiver, and Estero Woods Village, a retirement community owned and operated by Christian Mutual Foundation, Appellants, v. Gerald A. LEWIS, Comptroller, and Florida Department of Revenue, Appellees.
    No. AC-38.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    John K. Aurell and Janet R. Studley of Holland & Knight, Tallahassee, and Pavese, Shields, Garner, Haverfield, Kluttz & Cott-rell, Fort Myers, for appellants.
    Jim Smith, Atty. Gen., and John Browdy, III, Asst. Atty. Gen., Tallahassee, for appel-lees.
   PER CURIAM.

Appellants seek review of a final order of the comptroller denying appellants’ request for refund of certain intangible and documentary stamp taxes paid in connection with a real estate transaction. Appellants claim that since the sale of the property was at the order of the circuit court through an appointed receiver the sale amounted to state action and is thus exempt from documentary stamp taxes under Florida Statute § 201.24, and is exempt from intangible tax under Florida Statute § 199.072(l)(a). Alternatively, appellants argue that as a non-profit charitable institution Christian Mutual Foundation is exempt from intangible taxes under Florida Statute § 199.072(2)(a).

We are not persuaded by appellants’ argument that because the transfer was made by a court-appointed receiver appellants are entitled to the exemptions the legislature has seen fit to grant to the State. Florida Statute § 199.072(l)(a) provides that property owned by the State or any political subdivision or municipality thereof is exempt from intangible taxes. Florida Statute § 201.24 exempts any obligations to pay money issued by a municipality, political subdivision, or agency of the State from the imposition of documentary stamp taxes. In the present case, the property was transferred from Michigan Baptist Foundation to Christian Mutual Foundation, both private corporations. The documentary stamp taxes were imposed upon notes reflecting an obligation of Christian Mutual Foundation to pay money. The transfer was not made for the benefit of the State. Appellants are not entitled to a refund under these provisions of Florida law.

However, we find appellants are entitled to a refund for the intangible taxes paid in that appellants were exempt from those taxes as a non-profit charitable institution. Appellees never contested the charitable status of the appellant corporation. No factual issue as to appellants’ charitable status was raised in the order denying the request for a refund. Accordingly, we hold that appellees cannot raise on appeal the insufficiency of the proof presented as to appellants’ charitable status.

Intangible personal property owned by non-profit charitable institutions is exempt from the tax imposed by Chapter 199. Section 199.072(2)(a), Florida Statutes (1979). Although the tax imposed was technically related to the notes being given to the former creditors of Michigan Baptist Foundation, which were secured by the mortgage being recorded, the tax amounted to an indirect tax upon a tax-exempt entity. See, Lewis v. The Florida Bar, 372 So.2d 1121 (Fla.1979). Accordingly, the portion of the order denying a refund for the intangible tax collected pursuant to Chapter 199, Florida Statutes is reversed; the order is affirmed in all other respects.

AFFIRMED in part and REVERSED in part. REMANDED for proceedings consistent with this opinion.

BOOTH and SHIVERS, JJ., concur.

LARRY G. SMITH, J., dissents with opinion.

LARRY G. SMITH, Judge,

dissenting with opinion.

I disagree with the majority’s application of Lewis v. The Florida Bar, 372 So.2d 1121 (Fla.1979), to the present controversy. The Lewis decision is bottomed upon the tax immune status of the Florida Bar as an arm of the judicial branch of government. Here, the party challenging the tax assessment is not a tax immune body. As a charitable institution, The Christian Mutual Foundation is taxable to the same extent as any other person or entity, except as specifically exempt by law from the payment of a tax. The exemption provision applying to charitable institutions is that found in Section 199.072(2)(a):

199.072 Exemptions.—
******
(2)(a) There shall also be exempt from the tax imposed by this chapter intangible personal property owned by nonprofit religious, nonprofit educational, or nonprofit charitable institutions. (Emphasis supplied)

Although under the peculiar circumstances presented here appellant has in fact paid the intangible tax,1 see no basis for application of the exemption statute because under no process of logic or reasoning can it be said that appellant owned the property upon which the tax was imposed. The notes and mortgages securing them were clearly “owned” by the holders of the notes and mortgages, Barnett Banks Trust Company, or the bank as trustee for the creditors of Michigan Baptist Foundation.

Accordingly, I would affirm the order appealed.

      . Article VII, Section 3(a), Florida Constitution, provides in part: “. .. Such portions of property as are used predominantly for ... charitable purposes may be exempted by general law from taxation.”

      . The intangible personal property tax is a tax on the property itself, Section 199.032(2), Florida Statutes (1979), and is assessed against the owner of the property, Section 199.052, but payment is required as a prerequisite to the recording of the mortgage securing the note, Section 199.052(7)(a), (c). In order for appellant to complete the purchase in accordance with the order of the circuit court the documents had to be recorded, and these recording expenses were borne by appellant since, according to appellant, there was “no other person or party who could or would pay them.”


author: LARRY G. SMITH, Judge.

text:
    Jerry WESTLEY, Appellant, v. STATE of Florida, Appellee.
    No. AF-500.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    Rehearing Denied July 19, 1982.
    Michael Allen, Public Defender, Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

Appellant, who was convicted of second degree murder, appeals his judgment of conviction and sentence on the grounds: (1) that the trial court erred in allowing Detective Parmenter to read appellant’s post-arrest statement made to him, after the written version of appellant’s oral statement had been admitted into evidence, and after the detective had testified, in detail, as to the contents of the statement as he recalled them; and (2) that the trial court erred in overruling appellant’s objections and in failing to grant appellant’s motion for mistrial based upon allegedly improper and prejudicial final argument by the prosecuting attorney. We affirm.

Detective Parmenter testified that following his arrest appellant admitted having possession of the knife which was recovered at the scene of the homicide, but that he had tripped over a loose shoelace and fell into the deceased, and did not know that he had stabbed him until the next morning when he was told that the victim had died. This statement was written down by the detective as appellant made it orally. It was then corrected and signed by appellant. At trial, following a proffer during which the court found the statement to be voluntary, the prosecutor asked the detective to relate to the jury his recollection of the contents of appellant’s statement. He did so, reciting the statement virtually verbatim. The prosecutor then offered the statement into evidence, and it was admitted. Upon the prosecutor’s request that the witness read the statement to the jury, defense counsel objected on the grounds that the reading of the statement would be repetitious. The trial judge overruled the objection, stating, “[wjhen he was reciting the contents of the statement earlier, it was from recollection or memory, and now that statement is in evidence. I will permit Detective Parmenter to read verbatim the statement that was made.” Appellant contends that the trial court abused its discretion by allowing the prosecutor to introduce, over objection, the repetitious and cumulative evidence regarding appellant’s statement, with the resulting prejudice that the minds of the jurors were indelibly etched with the details contained in the statement. Although no case law directly in point is cited, appellant contends that Section 90.403, Florida Evidence Code, prohibits the “needless presentation of cumulative evidence.”

We agree with appellant’s argument that the triple presentation of his statement was overly repetitious. We note, however, that Section 90.403 provides, in part:

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

As this court noted in Smith v. State, 404 So.2d 167 (Fla. 1st DCA 1981), the approach expressed in Section 90.403 is in agreement with the Federal Rules of Evidence and federal case law. Committee notes to federal rule 403 explain: “ ‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” We agree with the state’s contention that appellant’s statement was not worded so as to evoke a particularly emotional response from the listener or reader, or to suggest to the jury any other improper basis for its decision. There is no contention that the witness’s recitation of the statement was inaccurately or misleadingly presented, nor did appellant request a mistrial or curative instruction on this issue. See, generally, Clark v. State, 363 So.2d 331 (Fla.1978).

As to the second point, appellant contends that the prosecutor’s closing argument went beyond permissible bounds in reference to the non-necessity for proof of a motive for the killing, and reference to certain inferences concerning possible defenses to the killing as “smoke screens.” At a sidebar conference following defense counsel’s objections to these remarks, the trial judge stated that he felt the prosecutor’s use of the phrase “smoke screen” was directed to defense counsel’s argument, rather than intended to convey any impression of improper motives or tactics of defense counsel. We conclude that this argument was similar to those in Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973), and Simpson v. State, 352 So.2d 125 (Fla. 1st DCA 1977), which were held harmless. The trial judge heard the remarks, the tone and manner in which they were uttered, and did not consider the argument pejorative. We agree that the comments were not such as to “cast aspersions on the motives and tactics of defense counsel,” or otherwise prejudice appellant’s right to a fair trial. Appellant has failed to demonstrate an abuse of the trial court’s discretion in overruling the objection to the remarks, and denying a mistrial. However, we warn, as we did in Cochran and Simpson, that the prosecutor’s indulgence in improper argument is a perilous practice.

The judgment of conviction and sentence for the offense are AFFIRMED.

JOANOS and THOMPSON, JJ., concur.

      . When defense counsel objected the second time, the trial judge sustained the objection to the prosecutor’s reference to other crimes in his argument that if lack of motive were a defense, a person could commit other crimes without a motive (such as stabbing someone), and go unpunished.


author: JOANOS, Judge.

text:
    BREVARD COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Appellant, v. BREVARD COUNTY SHERIFF’S DEPARTMENT, and Florida Public Employees Relations Commission, Appellees.
    No. AG-268.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    Gene “Hal” Johnson, Tallahassee, for appellant.
    Catherine A. Riley, Titusville, for appel-lees.
    Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Sheriffs Ass’n, amicus curiae.
   JOANOS, Judge.

The Brevard County Police Benevolent Association, Inc., (Association) appeals from a final order of the Florida Public Employees Relations Commission finding that the Brevard County Sheriff’s Department had not violated Chapter 447, Part II, Florida Statutes, because the deputy sheriffs of the Brevard County Sheriff’s Department are not public employees within the meaning of the statute.

The Association urges on appeal that the Commission’s decision violates the equal protection clause of the United States Constitution and the basic rights and provisions of the Florida Constitution. The phrasing of the specific question on appeal reveals the flaw in the Association’s position: “Whether the deputy sheriffs of the Bre-vard County Sheriff’s Department enjoy the constitutional right to bargain collectively guaranteed every person/employee of this State by Article I, Section 6 of the Constitution of Florida.” Article I, Section 6 speaks only of employees, not persons, and does not, therefore, have applicability to persons who are not defined as employees. The Florida Supreme Court has already held that appointed deputy sheriffs are not “employees” within the meaning of Chapter 447, rather they are “officers.” Murphy v. Mack, 358 So.2d 822 (Fla.1978). This determination was not based simply on the statute, but was an interpretation of common law. In so ruling, the court stated that the deputies’ status, having arisen out of common law, could be changed by explicit provision in state statutes or appropriate local government law. See, e.g., Ison v. Zimmerman, 372 So.2d 431 (Fla.1979), and Escambia County Sheriffs Department v. Florida Police Benevolent Association, Inc., 376 So.2d 435 (Fla. 1st DCA 1979). The Association has not urged in this case that the employees it represents have been brought within the ambit of Chapter 447 by state or local enactment. In the final analysis, it asks us to overrule a prior determination of the Florida Supreme Court. This we cannot do.

Accordingly, the final order of the Public Employees Relations Commission is AFFIRMED.

LARRY G. SMITH and THOMPSON, JJ., concur.


text:
    Robert Lee REED, Appellant, v. STATE of Florida, Appellee.
    No. AH-73.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    Rehearing Denied July 23, 1982.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We remand for correction of appellant Robert Lee Reed’s sentence to reflect credit for time served in county jail pursuant to Section 921.161(1), Florida Statutes. Appellant’s remaining points on appeal are without merit.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: HENDRY, Judge.

text:
    Ludwig Nicholas LADAS, III, Appellant, v. AETNA INSURANCE COMPANY and Ernest Carl Moczik, Appellees.
    No. 81-1635.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Rehearing Denied July 20, 1982.

      Floyd, Pearson, Stewart, Richman, Greer & Weil and James B. Tilghman, Jr., Miami, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and JORGENSON, JJ.
   HENDRY, Judge.

Appellant Ladas, plaintiff below, seeks review of an adverse final judgment which determined that Aetna was not liable for personal injuries inflicted upon him by Aet-na’s insured.

This action began when Ladas, a police officer, filed suit against Aetna’s insured, Ernest Moczik, to recover for injuries from an assault and battery which Moczik committed upon him while he attempted to issue Moczik a traffic citation. When La-das discovered prior to trial that Moczik had a personal excess liability policy with Aet-na, he amended his complaint to join Aetna as a party defendant. The Aetna policy provides coverage for “personal injury,” meaning:

“(1) bodily injury, sickness, disease, disability, shock, mental anguish and mental injury;
(2) false arrest, false imprisonment, wrongful entry or eviction, wrongful detention, malicious prosecution or humiliation; and
(3) libel, slander, defamation of character or invasion of rights of privacy, including death resulting therefrom, sustained by any person.”

Aetna denied coverage and refused to defend the action on the basis of an intentional tort exclusion in the policy which states that coverage shall not apply “to any act committed by or at the direction of the insured with intent to cause personal injury or property damage.” Ladas and Moczik then reached a settlement in which Moczik agreed to entry of a judgment against him in the amount of $175,000 for compensatory damages, Ladas agreed to drop a punitive damage claim and assert his judgment against Aetna, and Moczik would remain liable for the judgment if Ladas were unsuccessful against Aetna.

A final judgment was entered for Ladas based on the settlement. In supplemental proceedings, Aetna raised as affirmative defenses the intentional tort exclusion in the policy, the fact that the policy was an “excess” policy, and claimed that the settlement was entered into collusively and in bad faith. On the basis of the pleadings and the policy, the trial court determined that no coverage existed for the intentional tort of assault and battery and entered judgment without reaching the other issues.

The central issue presented is whether the provision in Aetna’s policy excluding coverage for acts intended to cause personal injury precludes coverage for assault and battery even though the insuring provisions of the policy afford coverage for other intentional torts. We hold that the intentional tort exclusion in the policy precludes coverage for assault and battery where, as here, the allegations in the underlying complaint indicate that the insured’s actions were intended to cause harm. Accordingly, we affirm the judgment below.

In reaching this conclusion, we are guided by the reasoning in Federal Insurance Co. v. Applestein, 377 So.2d 229 (Fla. 3d DCA 1979). In Applestein, this court denied insurance coverage for libel and slander on the basis of an identical exclusion clause in an analogous policy, despite the fact that libel and slander were specifically covered under the insuring provisions of the policy. The holding in Applestein was premised on the fact that the allegations in the complaint claimed that the defamatory comments about the plaintiff were made “with malice” and in a specific “attempt to discredit” the plaintiff. Thus, despite the general term providing protection for libel, slander, and the like, the allegations in the complaint were held to negate coverage by conclusively establishing that the exclusionary endorsement applied. Federal Insurance Co. v. Applestein, supra, at 231. Accord Continental Casualty Co. v. Schaubel, 380 So.2d 483 (Fla. 3d DCA), cert. denied, 389 So.2d 1114 (Fla.1980).

Similarly, the allegations of Ladas’ complaint state that Moczik “maliciously, intentionally and without provocation or consent, violently struck plaintiff....” Ladas’ own allegations thus indicate that the insured’s actions fell clearly within the exclusion contained in Aetna’s policy, and coverage was properly denied. Federal Insurance Co. v. Applestein, supra; Darragh v. Brock, 366 So.2d 801 (Fla. 1st DCA 1979); see also Draffen v. Allstate Insurance Co., 407 So.2d 1063 (Fla. 2d DCA 1981); Continental Casualty Co. v. Schaubel, supra; West Building Materials, Inc. v. Allstate Insurance Co., 363 So.2d 398 (Fla. 1st DCA 1978); Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla. 2d DCA 1974). Ladas’ reliance on Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977), as support for his claim is clearly misplaced. The St. Paul policy in Hartford, which the court held afforded coverage for the assault and battery in that case, did not provide a specific exclusion, as here, for damages which are intentionally caused by the insured. Hartford Fire Insurance Co. v. Spreen, supra, at 652.

The final judgment under review denying coverage is affirmed. Our disposition of this case makes it unnecessary to reach the other issue raised.

Affirmed.

      . The Applestein policy provided coverage for “personal injury” which “includes, but is not limited to:
      (1) bodily injury, sickness, disease, disability, shock, mental anguish and mental injury;
      (2) false arrest, false imprisonment, wrongful entry or eviction, wrongful detention, malicious prosecution or humiliation; and
      (3) libel, slander, defamation of character or invasion of rights of privacy; including death resulting therefrom, sustained by any person.”
      The policy also contained an exclusion, identical to the Aetna policy, which stated that the personal injury coverage
      “shall not apply ... to any act committed by or at the direction of the insured with intent to cause personal injury or property damage-”

        Federal Insurance Co. v. Applestein, supra, at 230.

      . Additional support for this holding derives from the fact that unlike the broader coverage provision in Applestein, where “personal injury includes, but is not limited to” the intentional torts listed therein, the Aetna policy provides that personal injury is limited to the enumerated torts (“personal injury means ”). As assault and battery is not one of the specified torts in Aetna’s policy, we are unable to accept Ladas’ contention that the coverage and exclusion provisions conflict. The two provisions are entirely consistent in light of the “intent” requirement of the exclusion. See, e.g., Employers Commercial Union Insurance Co. of America v. Kottmeier, 323 So.2d 605, 607 (Fla. 2d DCA 1975) (slanderous statement may be made without the specific intent to harm).


text:
    Edward GALLAGHER, Appellant, v. COMMERCIAL SALES AND WAREHOUSING, INC., Appellee.
    No. 81-2615.
    District Court of Appeal of Florida, Third District.
    June 22, 1982.
    Rehearing Denied July 23, 1982.
    Spiegelman & Spiegelman and Richard M. Gale, Miami, for appellant.
    Rash, Katzen, Kay & Pintado and Stephen H. Rash, South Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957); Martino v. Florida Insurance Guarantee Association, 383 So.2d 942, 943 (Fla. 3d DCA 1980); Palm Corporation v. 183rd Street Theatre Corporation, 344 So.2d 252 (Fla. 3d DCA 1977); Awenire College for Women v. G. B. D., Inc., 240 So.2d 191 (Fla. 4th DCA 1970).


author: HURLEY, Judge.

text:
    Patricia JORDAN and Walter Jordan, her husband, Appellants, v. Margaret B. GROWNEY, Appellee.
    No. 81-692.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1982.
    Rehearing Denied July 23, 1982.
    Martha C. Warner of Warner, Fox & Seeley, Stuart, for appellants.
    No brief filed on behalf of appellee.
   HURLEY, Judge.

This appeal challenges a final judgment quieting title to property in favor of the appellee, Growney. We reverse because ap-pellee failed to meet the requisite burden of demonstrating that the conveyance in question did not constitute self-dealing by a fiduciary.

Appellee, Margaret Growney, is an attorney licensed to practice in Florida. Her mother-in-law, Irene McKeown, died in 1963 and bequeathed a life estate in her waterfront home and property to her brothers, Charles and Thomas McKeown. The remainder interest in the property was left to Mrs. McKeown’s two grandchildren who are Margaret Growney’s daughters. In 1965 Mrs. Growney, as her children’s guardian, agreed to sell the remainder interest to Charles and Thomas McKeown for approximately $46,000. This agreement met with court approval and a quitclaim deed was executed and recorded.

In 1968 Mrs. Growney prepared a second deed conveying the property from Charles and Thomas McKeown to herself. This deed, purportedly executed in May of 1968, was not filed until April 29,1975. The deed recites the sum of $1.00 as consideration for the conveyance of property.

Charles McKeown died in July 1968. Charles’ interest in the property passed by intestacy to his brother, Thomas, who thereafter continued to live in the house. In September of 1968, Thomas executed a quitclaim deed to the property naming himself and appellant/Patricia Jordan, his stepdaughter, as joint tenants with rights of survivorship. This quitclaim deed was duly recorded on January 17, 1969.

On April 26, 1975, Thomas suffered a debilitating stroke which left him partially paralyzed and unable to talk. Three days later, Margaret Growney filed the 1968 deed which she had prepared and which conveyed the property to herself. After Thomas McKeown’s death, Margaret Grow-ney, relying on the 1968 deed, filed suit to quiet title in herself. Patricia Jordan counterclaimed under the 1969 deed which named her as a joint tenant with the right of survivorship.

Though the appellant argues with some force that there is evidence of forgery of Charles’ signature to the 1968 deed and that the deed was an invalid gift, we believe the dispositive aspect to this case is the fiduciary relationship which existed between Margaret Growney and her uncles-by-marriage. In interrogatories and at trial Margaret' Growney admitted that an at-tomey/client relationship existed between herself and Charles and Thomas McKeown.

In Florida, an attorney who self-deals with a client must demonstrate that the transaction was as beneficial to the client as if conducted at arm’s length between strangers. Bolles v. O’Brien, 63 Fla. 342, 59 So. 133 (1912). “The whole burden of establishing by clear and convincing evidence the fairness of an agreement purporting to convey a property right from a client to his attorney, and that it was made upon full and adequate consideration, is cast upon the attorney.” Id, 59 So. at 134. See also, Gerlach v. Donnelly, 98 So.2d 493 (Fla.1957); Abstract and Title Corp. v. Cochran, 414 So.2d 284 (Fla. 4th DCA 1982).

In the case at bar, the appellee failed to meet the required standard of proof. In view of the fact that the remainder interest in the property was valued at $46,000 only three years before, the $1.00 sum recited as consideration for the transfer is patently inadequate. Moreover, this inadequacy was not explained at trial. Added to this we have the seven year delay in recording the 1968 deed, Thomas McKeown’s continued dominion over the property, plus his 1969 deed naming the appellant as his joint tenant. These facts raise additional questions about the parties’ intent in executing the 1968 deed and the adequacy of their representation in that transaction.

On appeal we have viewed the evidence in the light most favorable to the appellee and have given her the benefit of all inferences that can reasonably be drawn therefrom. Nonetheless, the record fails to demonstrate that appellee observed the strictures imposed by the attorney/client relationship in the preparation and execution of the 1968 deed. Accordingly, we reverse the final judgment and remand with instructions to enter a final judgment quieting title to the property in favor of the appellant.

Reversed and Remanded with instructions.

DOWNEY and HERSEY, JJ., concur.


author: WIGGINTON, Judge.

text:
    SOUTHERN FREIGHTWAYS and Florida Farm Bureau, Appellants, v. Ralph REED, Appellee.
    No. AI-136.
    District Court of Appeal of Florida, First District.
    June 28, 1982.
    Rehearing Denied July 23, 1982.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P. A., Orlando, for appellants.
    Irvin A. Meyers of Meyers, Mooney, Adler & Hammond, P. A., Orlando, for ap-pellee.
   WIGGINTON, Judge.

In this appeal from a workers' compensation order, the carrier advances several theories to support its argument that the deputy commissioner improperly awarded wage loss benefits. We agree in part and reverse with directions that the deputy revisit his determination of wage loss.

Clearly, the wage loss award was improper insofar as it awarded benefits after Reed left the employ of Southern Freightways. This portion of the award apparently was predicated on the employer’s allegedly wrongful firing of Reed, an act that would be prohibited by Section 440.205, Florida Statutes (1979) if it came “by reason of” Reed’s claim for compensation. However, Reed did not establish, and significantly, the deputy did not find, a relationship between the claim and the termination of employment.

Absent a connection to workers’ compensation matters, an employer’s ill-motivated firing of an employee cannot be recompensed under Chapter 440. Therefore, the order must be reversed insofar as it awarded wage loss benefits, after Southern Freightways and Reed ended their employer-employee relationship on June 18, 1981, based on the allegedly improper firing.

Similarly, the deputy, in awarding wage loss benefits prior to June 18, did not find a causal connection between Reed’s work-related impairment and his wage loss. See Section 440.15(3)(b)2. The order gives the impression that this part of the wage loss award was also predicated upon the employer’s allegedly wrongful firing of Reed. However, the order is ambiguous on this point. Accordingly, we remand for the deputy’s determination of/whether a causal connection exists betweeh Reed’s work-related impairment and his wage loss while working for Southern Freightways. Should the deputy find a causal connection, he may properly enter a wage loss award.

The carrier’s other arguments are without merit and need not be addressed.

Reversed and remanded.

BOOTH and WENTWORTH, JJ., concur.


text:
    Edward S. QUEST, et al., Appellants, v. Leon JOSEPH, etc., et al., Appellees.
    No. 78-2090.
    District Court of Appeal of Florida, Third District.
    June 28, 1982.
    Magill & Reid and Edward L. Magill, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Hawkesworth & Schmick, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL, HENDRY, SCHWARTZ, NESBIÍT, BASKIN and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court, 392 So.2d 256 (Fla.App.) was entered on January 7, 1981 affirming the judgment of the Circuit Court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment, 414 So.2d 1063 (Fla.) filed April 29, 1982, and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on January 7, 1981 is withdrawn, the judgment of this court filed January 7, 1981 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Cost allowed shall be taxed in the trial court (Rule 9.400a, Florida Rule of Appellate Procedure.)


author: ORFINGER, Judge.

text:
    Pamela GIACHETTI, Appellant, v. Robin GIACHETTI, Appellee.
    No. 81-818.
    District Court of Appeal of Florida, Fifth District.
    June 30, 1982.

      Ford & Minkoff, P.A., Tavares, for appellant.
    Richard H. Langley, Clermont, for appel-lee.
   ORFINGER, Judge.

The trial court found that appellant’s proposed removal of her children from Florida to Alaska would totally impair appellee’s rights of visitation with his children, and prohibited removal of the children from the state. The mother appeals. We affirm.

Appellant/wife was granted custody of the parties’ two minor daughters, now eight and five years old, by a 1977 divorce decree. Appellant has since remarried, and has a third child, age 2. Appellant’s new husband is a carpenter, and in April of 1981, he moved to Alaska because of what he considered to be better employment opportunities. Both appellant and her new husband have relatives in Alaska. Appellant planned to join her husband when the school year ended.

Upon learning of the intended move, the former husband filed a petition for modification of the judgment of dissolution, seeking a change of custody to himself, and requesting an order prohibiting appellant from removing the children from this state. After hearing evidence, the trial court found that the non-custodial parent (appel-lee) had maintained a good father/child relationship with his minor children; that to allow the wife to take the children to Alaska would “totally eradicate and make any further semblence of a father/child relationship impossible”; that to allow the wife to remove the children to Alaska would be completely contrary to the provision of the final judgment which provides that:

“The parties shall use all reasonable efforts to maintain free access and to create a feeling of affection between themselves and the minor children. Neither should do anything to hamper the natural development of the children’s love and respect to the other party.”

and that there was no evidence that such move would be in the best interest of the minor children. Finding also that there was no evidence that a change of custody would be in the children’s best interest, he denied the father’s petition for change of custody, but prohibited the removal of the children’s residence from the state without an order of the court.

Appellant contends that the trial court improperly modified the final judgment when it prohibited the removal of the children from the state, because no pleadings requested such modification, and, appellant says, the trial court has no authority to modify a final judgment unless the issue of modification is presented to it in an appropriate proceeding and each party is given an opportunity to be heard on the issue, relying on Cortina v. Cortina, 98 So.2d 334 (Fla.1957). However, we do not view the requirement that the children remain in the state as a “modification” of the original judgment.

Inherent in the visitation privileges granted to a non-custodial spouse by a judgment of dissolution is a command to the custodial spouse that such visitation privileges should not be unreasonably hampered, hindered or destroyed. What circumstances or conditions unreasonably hamper or destroy visitation privileges will vary from case to case, and because, by the very nature of the subject matter there are very few absolutes, the trial court must be allowed wide latitude in determining how the visitation rights of the parties are to be enforced.

Here, while the final judgment did not explicitly prohibit a change of residence, it did require that the parties maintain free access with the children and that nothing be done to hamper the natural development of the children’s love and respect for both parents. The children of this marriage were ages eight and five. The trial court had discretion to determine, under the circumstances of this case, that removal of the children from the state would impair, impede and destroy the non-custodial parent’s right of free access to his children and would hamper the natural development of the children’s love and respect for their father, thus violating the terms of the final judgment, and we cannot hold him in error for so finding. Thus, rather than viewing appellee’s request (to enjoin the change of residence) as a request to modify the judgment, we view it as a request to enjoin the violation by the custodial parent of the terms of the final judgment, and this issue was clearly before the trial judge. Therefore, it was not necessary that the father make a showing of change of circumstances and best interest of the children such as would be required if he were seeking a modification of the judgment on this issue.

We recognize the rule that unless there is a residence restriction imposed on the custodial parent in the judgment of dissolution, the custodial parent may freely make such change. See, e.g., McCrillis v. McCrillis, 147 So.2d 584 (Fla. 2d DCA 1962). However, it has been recognized that courts are empowered to restrict the movement of divorced parents upon a showing that such movement will violate the terms of a final judgment by interfering with the visitation rights accorded to the non-custodial parent. Scheiner v. Schemer, 336 So.2d 406 (Fla. 3d DCA 1976); Foss v. Foss, 392 So.2d 606 (Fla. 3d DCA 1981). We hold that the quoted language of this final judgment does implicitly impose a restriction on such movement, and that the trial court was not in error in finding that the proposed move to Alaska would violate that restriction.

The custodial parent is not without remedy. She has the right to seek a modification of the custody provisions of the final judgment if she can satisfy the traditional requirements applicable to such a proceeding — a showing of a substantial or material change of circumstances and that the requested modification would be in the best interest of the children. Stricklin v. Stricklin, 383 So.2d 1183 (Fla. 5th DCA 1980). Perhaps with this in mind, the trial court found that “none of the evidence has shown that it would be in the best interests [sic] of the children to allow a move to Alaska and effectively terminate the natural father’s visitation.” In fairness to the appellant, however, it appears that any such issues were developed in connection with the father’s petition for modification of custody, which was denied. The appellant should have the right, should she so desire, to petition for modification of the custody award to permit the move to Alaska, and this opinion is without prejudice to her right to present such petition to the trial court.

The order appealed from is AFFIRMED.

COBB and COWART, JJ., concur.

      . There was some discussion before the trial court to the effect that the father’s visitation privileges could be converted to summer visitations, with the children flying to Florida, and then returning to Alaska. While the high cost of such travel might not be of any moment to a family of great wealth, the same could not be said of the parties hereto, who are only of moderate means.


text:
    Ulysses JONES, Appellant, v. STATE of Florida, Appellee.
    No. 81-873.
    District Court of Appeal of Florida, Fifth District.
    June 30, 1982.
    James B. Gibson, Public Defender and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982) [1982 F.L.W. 820].

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


author: DAUKSCH, Chief Judge.

text:
    FLORIDA BOARD OF REGENTS, Appellant, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellee.
    No. 81-931.
    District Court of Appeal of Florida, Fifth District.
    June 30, 1982.

      John D. Mahaffey, Jr., of Mahaffey & Baker, P.A., Orlando, for appellant.
    Carol E. Donahue, of Baker & Hostetler, Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a summary judgment in an insurance contract case. The appellant seeks to hold the appellee responsible under a payment and performance bond for alleged latent defects which were first noticed after the statute of limitations for suit under the bond had expired. Because the statute of limitations had obviously expired, the trial court entered the summary judgment. Section 255.05, Florida Statutes (1965), is the applicable statute of limitations.

We affirm the summary judgment not only because the lawsuit was not filed until after the statute of limitations had run but also because the payment and performance bond did not insure against the risks described in this suit. A payment and performance bond is an agreement to protect the owner of a building from two particular defaults by a builder. The payment portion of the bond contains the insurer’s undertaking to guarantee that all subcontractors and materialmen will be paid and the performance part of the bond guarantees that the contract to build the building (or road, or utility transmission lines, etc.) will be fully performed. When the architect certifies the building is substantially completed, and the owner accepts the building, then the contractor is deemed to have fully performed and any lawsuit which could be brought against the surety under the bond must be brought within one year, according to the statute. See Miller v. Knob Construction Company, 368 So.2d 891 (Fla. 2d DCA 1979).

As we said earlier, the bond in this case would not cover the claims made by the appellant even if suit had been brought within the one year limitation period. The appellant claims there were latent defects in the materials and workmanship which were discovered after the architect had certified substantial completion and after the statute of limitations had run. The appellant contends that the appellee, the surety under the performance bond, is liable for payment because of those defects. We disagree. Once the building is completed, or as we have said using the words of art in the construction industry, “substantially completed,” then the surety under the performance bond is relieved of any further responsibility. The purpose of a performance bond is “to ensure the physical completion of the work upon default,” Guin & Hunt, Inc. v. Hughes Supply, Inc., 385 So.2d 842 (Fla. 4th DCA 1976), and to insure against any losses which the owner may suffer if performance default occurs.

Thus, the appellant’s lawsuit against the surety must fail for two reasons: (1) because the latent defects complained of were not covered by the bond once the owner accepted the building after the architect certified substantial completion, and (2) because the statute of limitations had run.

AFFIRMED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . 255.05. Bond of contractor constructing public buildings; suit by materialmen, etc.
      (1) Any person entering into a formal contract with the state, any county of said state, or any city in said state, or any political subdivision thereof, or other public authority, for the construction of any public building, or the prosecution and completion of any public work or for repairs upon any public building, or public work, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor shall promptly make payments to all persons supplying him labor, material and supplies, used directly or indirectly by the said contractor, or subcontractors, in the prosecution of the work provided for in said contract; and any person, making application therefor, and furnishing affidavit to the treasurer of the state, or any city, county, political subdivision, or other public authority, having charge of said work, that labor, material or supplies for the prosecution of such work has been supplied by him, and payment for which has not been made, shall be furnished with certified copy of said contract and bond, upon which, said person, supplying such labor, material or supplies shall have a right of action, and may bring suit in the name of the state, or the city, county, or political subdivision, prosecuting said work, for his use and benefit, against said contractor, and sureties, and to prosecute the same to final judgment and execution; provided, that such action, and its prosecution, shall not involve the state, any county, city or other political subdivisions, in any expense.
      (2) Any person supplying labor, material or supplies used directly or indirectly in the prosecution of the work to any subcontractor and who has not received payment therefor, shall, within ninety days after performance of the labor or after complete delivery of materials and supplies, deliver to the contractor written notice of the performance of such labor or delivery of such materials and supplies and the nonpayment therefor, and no action or suit for such labor or for such materials and supplies may be instituted or prosecuted against the contractor unless such notice has been given. No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the performance of the labor or completion of delivery of the materials and supplies. (emphasis added).


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

text:
    Raymond RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 81-1127.
    District Court of Appeal of Florida, Fifth District.
    June 30, 1982.

      James C. Weart, P. A., Sanford, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a judgment and sentence for possession of cannabis entered pursuant to his plea of no contest. Appellant argues that the information which led to his arrest and the seizure of the cannabis was improperly obtained through electronic recording devices and therefore the trial court erred in denying his motion to suppress. We disagree and AFFIRM.

As an initial matter, the state argues that this appeal is not properly before this court because the record fails to show a stipulation or finding by the court that the motion to suppress was dispositive of the case.

In Brown v. State, 376 So.2d 382 (Fla.1979), the supreme court held that a defendant could take an appeal from a judgment entered upon a conditional plea of nolo con-tendere only where the reserved issue was legally dispositive of the case. Brown has been interpreted as holding that in cases charging only possession (as is the case here), orders denying the suppression of contraband will be presumptively disposi-tive for purposes of appeal. Sommers v. State, 404 So.2d 366, 369 n.2 (Fla. 2d DCA 1981). The cases cited by the state are distinguishable as they do not involve the suppression of contraband for which the defendant was charged with possession. See Cantrell v. State, 403 So.2d 977 (Fla.1981) (defendants charged with violation of the Florida RICO Act); Campbell v. State, 386 So.2d 629 (Fla. 6th DCA 1980) (defendant charged with robbery). And, while the Second District Court of Appeal has intimated that the refusal to suppress contraband might not be dispositive in all instances, the record here does not indicate that the undercover agents, appellant’s co-defendants, or other witnesses were available to testify against appellant or that the state had additional available evidence upon which appellant might be convicted. Therefore, we shall proceed to the merits of the matter.

Appellant was involved in the sale of the marijuana to two undercover agents in the parking lot of a shopping center. One of the agents was wearing an electronic listening device which transmitted the conversations to other officers stationed nearby who monitored and recorded the entire transaction. This action was pursuant to section 934.03(2)(c), Florida Statutes (1981), which provides as follows:

It is lawful under this chapter for a law enforcement officer or a person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

Appellant argues that this section is unconstitutional as an attempt by the legislature to circumvent the requirements of Ar-tide I, section 12 of the Florida Constitution. In support of his contention, appellant relies on the Florida Supreme Court’s recent decision in State v. Sarmiento, 397 So.2d 643 (Fla.1981).

In Sarmiento, the court concluded that it was unlawful for police to monitor and record, without a warrant, conversations conducted in a defendant’s home between himself and an undercover police officer. The court held that such conduct violated Article I, section 12 of the Florida Constitution, which prohibits the unreasonable interception of private communications. The court further held that to the extent that section 934.03(2)(c), authorizes the “warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable.” (emphasis in original) Id. at 645.

Sarmiento has been interpreted as affirming the constitutionality of section 934.-03(2)(c) except insofar as it authorizes a warrantless interception of a private conversation conducted in the home. Hurst v. State, 409 So.2d 1059 (Fla. 1st DCA 1982). Sarmiento has not been expanded beyond the perimeters of the defendant’s home or its functional equivalent. See, e.g., Hurst (Sarmiento not applicable to conversations overheard in defendant’s truck); Morningstar v. State, 405 So.2d 778 (Fla. 4th DCA 1981), appeal docketed, Fla.Sup.Ct. No. 61,-488, (Sarmiento not applicable to conversations in defendant’s place of business); Pad-gett v. State, 404 So.2d 151 (Fla. 1st DCA 1981) (motel room not functional equivalent of home for purposes of Sarmiento); Pittman v. State, 397 So.2d 1205 (Fla. 1st DCA 1981) (Sarmiento not controlling when conversations took place in a restaurant, an outdoor rural setting and defendant’s truck).

While questions regarding the scope of Sarmiento remain, the plain language in the case and the emphasis on the sanctity of the home indicate that the decision is limited to the interception of conversations emanating from the defendant’s home. Here, the conversations took place in a parking lot. There is no evidence that any conversations took place in an enclosed or secluded area or that appellant took any measures to insure his privacy. As was noted above, conversations in a restaurant, outdoors, or in a defendant’s truck do not invoke the same expectation of privacy as conversations emanating from one’s home. Hurst; Pittman. We now hold that the considerations governing Sarmiento are not applicable here.

AFFIRMED.

ORFINGER and COWART, JJ., concur.

      . Sommers v. State, 404 So.2d at 369, n. 2.

      . In Sommers, the court outlined the appropriate procedure for acceptance of a conditional nolo plea:
      Accordingly, we perceive that in the ordinary case when a defendant seeks to plead nolo contendere with the reservation of the right to appeal an issue, his attorney will have some burden to show that the issue is actually dispositive, though a mere reference to the nature of the case, such as possession of contraband, may sometimes suffice for this purpose. If the state attorney believes that the issue is not dispositive, he should then explain to the court the additional available evidence upon which the defendant might be convicted. At this point, the court should make a determination of whether the issue is dispositive and decide whether to accept the plea, (emphasis added)
      404 So.2d at 369.

      . Article I, section 12 of the Florida Constitution provides as follows:

        The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence, (emphasis added)

      . See Morningstar v. State, 405 So.2d at 782.

      .We have some difficulty in concluding that a conversation, simply because one party to it expects it to be private, is therefore a “private” conversation, which is constitutionally protected under Article 1, section 12, of the Florida Constitution. It can be logically argued that only those conversations which all parties reasonably expect to be private are protected from interception. Where one party can testify to the conversation, the recording does nothing more than corroborate the accuracy of his statements and conversely inhibits the defendant’s opportunity for misstatement should he elect to testify. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed. 462 (1963). However, obviously Sarmiento did not so reason. We have therefore limited Sarmiento to its facts, that is, to conversations emanating from the home of the accused, a “constitutionally protected area.”


author: COWART, Judge.

text:
    Cleo PALMER, Appellant, v. Robert PALMER, etc., et al, Appellees.
    No. 82-67.
    District Court of Appeal of Florida, Fifth District.
    June 30, 1982.
    Tompkins A. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellant.
    No appearance for appellees.
   COWART, Judge.

We dismiss this appeal of an order granting a motion to set aside a default and vacating the default because that order is neither an appealable final judgment nor an appealable non-final order. See Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980).

DISMISSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: GLICKSTEIN, Judge.

text:
    Eddie Moses CHEATEM a/k/a Eddie Moses Cheatham, Appellant, v. STATE of Florida, Appellee.
    No. 80-270.
    District Court of Appeal of Florida, Fourth District.
    June 30, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was charged with carrying a concealed firearm. Upon denial of his motion to suppress, he pleaded nolo contendere to the charge, reserving his right to appeal the court’s ruling. The trial court withheld adjudication and placed appellant on probation for three years. This appeal followed. We affirm.

In May of 1979 Officer Tozzie of the Wilton Manors Police Department observed that the vehicle appellant operated did not display a plainly visible license plate or a valid, unexpired inspection certificate. Both are required by sections 316.605 and 316.610, Florida Statutes (Supp.1978), respectively. The officer followed appellant out of the Wilton Manors city limits into the City of Oakland Park where he stopped appellant. While appellant ostensibly was looking for his vehicle registration, the officer observed him pushing a towel down between the console and the front seats. Concerned for his own safety, the officer asked appellant to step out from, and to the rear of, the vehicle. The officer then looked underneath the towel and found a .357 Magnum.

Appellant first contends that the fruits of the search should be suppressed because the officer acted outside his territorial jurisdiction without legal authority. We disagree.

Sub-sections one and two of section 901.-25, Florida Statutes (Supp.1978), authorize an officer to arrest a person outside his jurisdiction when in fresh pursuit. Fresh pursuit is defined in sub-section one as follows:

The term “fresh pursuit” as used in this act shall include fresh pursuit as defined by the common law and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. It shall also include the pursuit of a person who has violated a city ordinance or committed a misdemeanor. (Emphasis added).

Under this statute, the State needed to show that the pursuit of appellant was justified by one of the specifically enumerated categories. Of course, no felony is involved here and the common law definition of fresh pursuit applies only to felony cases. Moreover, appellant did not commit a misdemeanor, even though he did disobey certain traffic laws. He, however, did violate Ordinance No. 349 of the City of Wilton Manors, which adopted the “Florida Uniform Traffic Control Law,” chapter 316, Florida Statutes (1971). The ordinance was in effect on the date of appellant’s arrest.

We also disagree with appellant’s second contention that the warrantless search that followed the stop was improper. In Stevens v. State, 354 So.2d 110, 111 (Fla. 3d DCA 1978), while appellant was checking his driver’s license, he “was observed making motions toward an object wrapped in a towel and concealed in the front seat.” Such facts reasonably justified conducting a search. Similarly, in Brown v. State, 358 So.2d 596, 599 (Fla. 2d DCA 1978), the search was upheld when the occupant of the vehicle “shoved his hand under the armrest as if to conceal or retrieve something.”

AFFIRMED.

DOWNEY, J., and PEARSON, DANIEL S., Associate Judge, concur.

      . Carson v. Pape, 15 Wis.2d 300, 112 N.W.2d 693 (1961); Gattus v. State, 204 Md. 589, 105 A.2d 661 (1954); Black’s Law Dictionary 600 (5th ed. 1979).

      . When section 901.25 was amended in 1978 by the Florida Legislature, violations of sections 316.605 and 316.610 were deemed to be infractions by section 316.655(1), Florida Statutes (1977). In turn, an infraction was defined in section 318.13(3), Florida Statutes (1977), as:
      a noncriminal violation which is not punishable by incarceration and for which there is no right to a trial by jury or a right to court appointed counsel.
      Section 318.13, Florida Statutes (1974), was part of the Florida Uniform Disposition of Traffic Infractions Act enacted by the Legislature in 1974. In the same year, section 316.026, which subsequently became section 316.655, was also enacted.

      .Appellant points out that when the city adopted chapter 316, the relevant statutes were sections 316.284 and 316.285; and that when the Legislature renumbered the sections to 316.605 and 316.610 respectively, the city made no corresponding adoptive ordinance. Had there been a substantive change in these sections, we may have considered the failure of the city to adopt chapter 316 as it then existed “or as hereinafter amended.” The mere renumbering of the sections did not warrant such consideration.


author: LETTS, Chief Judge.

text:
    David C. GALBREATH, personal representative of the Estate of Valerie Galbreath, deceased, Appellant, v. Cyril Michael SHORTLE, Appellee.
    No. 81-308.
    District Court of Appeal of Florida, Fourth District.
    June 30, 1982.
    Robert J. Cousins and Richard T. Woulfe of Bunnell & Denman, P.A., Fort Lauder-dale, for appellant.
    Clark J. Cochran, Jr., of Hainline, Billing & Cochran, P.A., and Nancy Little Hoff-mann of Law Offices of Nancy Little Hoff-mann, P.A., Fort Lauderdale, for appellee.
   LETTS, Chief Judge.

In 1979, a vehicle driven by a Fort Laud-erdale police officer in the course of his employment collided with an automobile driven by the deceased. On October 3, 1980, the deceased’s estate filed suit against the City and its employee alleging negligent operation of the vehicle. A motion to dismiss on behalf of the employee was granted predicated on the amendment to Section 768.28(9) effective July 1, 1980 which amendment limits such suits to occasions on which an officer acts in bad faith, with malicious purpose, or exhibits wanton and wilful disregard of human rights. We reverse.

Without protracted discussion, we believe this case is governed by the Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981) which determined that the amendment to the statute should not be retroactively applied. The prior version of this statute, in effect on the date of the accident, permitted causes of action based on negligence. It is true this particular law suit had not yet been filed on the effective date of the amendment and that does represent a factual distinction from the above cited Knowles case. However, we are of the opinion that the date of the accident controls. See Bryant v. School Board of Duval County, Fla., 399 So.2d 417 (Fla. 1st DCA 1981).

REVERSED AND REMANDED.

GLICKSTEIN, J. and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


author: PER CURIAM.

text:
    MEDICAL PERSONNEL POOL, INC., and R. P. Hewitt, & Associates of Florida, Inc., Appellants, v. Rita EADY and Gil Eady, and Omar Lewis, Allstate Insurance Company, and Mark Rene Taldot, Appellees.
    No. 81-1400.
    District Court of Appeal of Florida, Fourth District.
    June 30, 1982.
    Stephen W. Bazinsky of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellants.
    Robert J. Compton, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from an order for equitable distribution pursuant to section 440.-39(3)(a), Florida Statutes (1975). We reverse.

The parties agreed the employer and its self-insured servicing agent had paid benefits to appellee Rita Eady totaling $10,-372.90. The record shows appellee settled her claim against the third party tort-feasor for $22,500; that the latter’s insurance coverage was $100,000; and that appellee was a passenger in one of the vehicles involved in the accident, making comparative negligence inapplicable. The only evidence before the trial court was the testimony of the attorney who had represented the third party tort-feasor and his carrier. The attorney testified on direct and cross-examination that the value of appellee’s claim was between $17,500 and $20,000 and that it would have cost more than $2,500 to try the case, thus resulting in the $22,500 settlement. The trial court awarded equitable distribution of $1,000 based on “the length of delay by the Employer and the various appeals.”

The order did not comply with the statute. Appellee received the full value of the damages she sustained and neither of the two statutory exceptions was present. Appellants were clearly entitled to fifty percent of the benefits paid. Accordingly, we reverse and remand with direction to order equitable distribution in accordance herewith.

LETTS, C. J., GLICKSTEIN, J., and OWEN, WILLIAM C., Jr., (retired) Associate Judge, concur.

      . Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover 50 percent of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee.


text:
    Gene FULLER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-156.
    District Court of Appeal of Florida, First District.
    July 1, 1982.
    Ronald D. Combs, Gainesville, for appellant.
    Catherine L. Dickson, Asst. Gen. Counsel, Tallahassee, FPPC, for appellee.
   PER CURIAM.

Appellant appeals the Florida Parole and Probation Commission’s order setting his presumptive parole release date, contending that the Commission, in fixing his presumptive parole release date, erred in not crediting him with the proper amount of time served in county jail and in increasing his presumptive parole release date in the absence of any new information after his administrative appeal was filed. The Commission admits that appellant should receive the relief sought. Therefore, we reverse and remand the case to the Commission for corrective action, giving appellant credit for 65 days served in county jail and removing 22 months aggravation from appellant’s presumptive parole release date.

McCORD, SHIVERS and WIGGINTON, JJ., concur.