author: PEARSON, DANIEL S., Judge.

text:
    Morris WIMPEY et ux., Appellants, v. Gabriel A. SANCHEZ, M.D., et al., Appellees.
    No. 79-1621.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Rehearing Denied Sept. 4, 1980.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellants.
    Preddy, Kutner & Hardy and John A. Thompson, Jr., Miami, for appellees.
    Before SCHWARTZ, NESBITT and PEARSON, DANIEL S., JJ.
   PEARSON, DANIEL S., Judge.

Morris Wimpey and his wife, Elsa, appeal from a final judgment dismissing their actions for damages arising out of the alleged improper performance of a bilateral vasectomy upon Morris which, in part, resulted in the unanticipated pregnancy of Elsa and, thereafter, in a necessary termination of that pregnancy. The final judgment of dismissal was based upon the trial court’s determination that the applicable statute of limitations, Section 95.11(4)(b), Florida Statutes (1977), barred the Wim-peys’ claims. That section provides in pertinent part:

“[A]n action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence . . . .”

The Wimpeys filed their circuit court actions on July 7,1977. The pertinent allegations of the Wimpeys’ complaint are these: on August 29,1974, Dr. Sanchez negligently performed a vasectomy on Morris Wimpey; beginning the following day, August 30, 1974, Morris experienced pain and discomfort, and had swelling and hematomas in the scrotal sac; in February or March, 1975, Elsa Wimpey conceived; on July 12, 1976, the Wimpeys filed a medical mediation claim pursuant to Section 768.44(4), Florida Statutes (Supplement 1976), upon which no hearing was held or written decision issued. '

The obvious importance of this last allegation is that the filing of a medical mediation claim effectively extended the limitations period.

“The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise. terminated in which to file a complaint in circuit court.” § 768.44(4), Fla.Stat. (Supp.1976).

In order for the trial court to dismiss the Wimpeys’ action as limitation barred, it necessarily had to determine from the pleadings that the action was commenced after the two-year limitation period as extended by the tolling provision. Two questions had to be answered before the determination could be made: (1) for what length of time was the limitation period tolled, and (2) on what date did the Wim-peys discover or with the exercise of due diligence should they have discovered the incident which gave rise to their action?

The defendants’ position is that the jurisdiction of the medical mediation panel terminated by operation of law six months after the claim was filed, and that, therefore, the statute of limitations was tolled for six months. They rely upon Section 768.44(3), Florida Statutes (Supplement 1976), which provides:

“The clerk shall . . . fix a date, time and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the. claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.” (emphasis supplied).

Admittedly, there is ample authority to support the defendants’ position that in a case such as the present one where hearing has not commenced, jurisdiction of the panel terminates six months from the date the claim is filed and, accordingly, the statute of limitations is tolled for six months. Cohen v. Johnson, 373 So.2d 389 (Fla. 4th DCA 1979); Feinstein v. Brown, 370 So.2d 1172 (Fla. 4th DCA 1979); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978); Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978). However, the law in this district is that jurisdiction of the medical mediation panel terminates under Section 768.-44(3), Florida Statutes (Supplement 1976), ten months from the date the claim is filed, notwithstanding that no hearing has commenced within six months of the filing. Love v. Jacobson, 343 So.2d 1328 (Fla. 3d DCA 1977).

Having concluded that the jurisdiction of the medical mediation panel in the present case terminated by operation of law ten months after the filing of the Wimpeys’ claim, it follows that the statute of limitations was tolled for ten months.

We turn now to the second question. In order for the'defendants, invoking Section 95.11(4)(b), Florida Statutes (1977), to be entitled to dismissal of the plaintiffs’ action, they were required to conclusively show from the complaint that the cause of action was discovered or should have been discovered with the exercise of due diligence before September 5, 1974. Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979). It is clear that no such showing has been made. That being the case, a dismissal of the Wimpeys’ complaint on the ground that the applicable statute of limitations had run was precluded. Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980); Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979); Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st DCA 1979); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978); Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978); Salvag- gio v. Austin, 336 So. 2d 1282 (Fla. 2d DCA 1976).

Reversed.

      .The complaint contained five counts. Morris sued Dr. Sanchez, the surgeon, and his professional association for negligence and breach of contract; Morris and Elsa sued Dr. Vidal and Dade Pathology Associates, Inc., the pathologist and his pathology laboratory, for their negligent failure after receipt of tissue or specimen to report that the purported vasectomy had not been performed and for punitive damages against all defendants; and Elsa sued Dr. Sanchez for damages arising out of her pregnancy and abortion necessitated by an RH negative blood factor. Mrs. Wimpey contends that her separate action is controlled by the four-year statute of limitations contained in Section 95.-ll(3)(a), Florida Statutes (Supplement 1974). Her argument is that the two-year limitation period of Section 95.11(4) by its express terms applies only to “persons in privity with the provider of health care” which, she says, she is not. See Gonzales v. Jacksonville General Hospital, Inc., 365 So.2d 800 (Fla. 1st DCA 1978). We need not on this appeal decide this issue.

      . The statute of limitations in effect at the time the action is brought applies. Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978). See also Rubin v. State, 368 So.2d 69 (Fla. 3d DCA 1979). Section 95.11(4), Florida Statutes (1974), effective January 1, 1975, and Section 95.11(6), Florida Statutes (1973), also set a two-year limitation period on medical malpractice using different phraseology.

      . The filing of a medical mediation claim as a predicate to a malpractice action is no longer required. In Aldana v. Holub, 381 So.2d 231 (Fla.1980), the Supreme Court declared the Medical Mediation Act unconstitutional, but gave its decision prospective application only.

      . If the defendants are correct, then the Wim-peys having filed their action on July 7, 1977, would be limitation barred if they discovered or with the exercise of due diligence should have discovered the incident before January 5, 1975.

      . We are not concerned on appeal with this clause since a good cause extension was entered on September 20, 1976.

      . The Florida Rules of Medical Mediation Procedure provide that termination of jurisdiction shall occur if a “hearing has not been commenced within six months of the date of the filing of the claim,” Rule 20.190(c). The rules, which became effective September 1, 1977, are not applicable to the present case. Additionally, we note that the rules were promulgated pursuant to Section 768.44(6), Florida Statutes (Supplement 1976), which authorized “procedural rules as may be established by the Supreme Court.” Since the medical mediation proceedings in the present case antedated the rules, we need not address whether a rule setting forth the time when jurisdiction terminates (in ostensible conflict with the statute) is truly procedural. We are, however, cognizant of the Supreme Court’s statement in Aldana v. Holub, 381 So.2d 231, 235 (Fla.1980), that “the rules do represent this Court’s authoritative interpretation of the medical mediation statute.” Procedural rules are not vehicles for the interpretation of substantive rights. Cf. Collins v. Horton, 111 So.2d 746 (Fla. 1st DCA 1959) (holding that courts do not have the power to give legal advice or render opinions in the absence of a bona fide dispute between contending parties as to a justiciable question); Petition of Kilgore, 65 So.2d 30 (Fla.1953) (concurring opinion of Justice Terrell) (“It is well understood that advisory opinions to the Governor are not of the dignity and status as those rendered on brief and adversary argument.”). Since the tolling provisions of Section 768.44(4) in combination with the termination provisions of Section 768.44(3) provide a substantive right, a procedural rule to the contrary can have no effect. S. R. v. State, 346 So.2d 1018 (Fla.1977).

      . Although it is only implicit in this opinion that a hearing within six months had not commenced, the factual recitation in the sequel to this case, Love v. Jacobson, 358 So.2d 1179 (Fla. 3d DCA 1978), makes that crystal clear. It is apparent that other courts have recognized that our decision in Love v. Jacobson I (343 So.2d 1328) construes Section 768.44(3) differently. See Raedel v. Watson Clinic Foundation, Inc., supra, and Green v. Broward General Medical Center, supra.

      . The effect of this is twofold: the critical date of January 5, 1975, see fn. 4, supra, is moved back in time by four months, or to on or about September 5, 1974; and the Wimpeys’ circuit court action was filed within sixty days from May 12, 1977, the date on which the jurisdiction of the panel terminated. See § 768.44(4), Fla.Stat. (Supp.1976). Our sole purpose in mentioning the latter effect is that the reason given by the trial court for its ruling is that the Wimpeys failed to file within sixty days from termination of jurisdiction. As the defendants concede, that reason was incorrect, even absent our holding that the tolling period was ten months. A party has a limit of sixty days from the date of termination of medical mediation jurisdiction within which to file a complaint for medical malpractice in circuit court only if the portion of the statute of limitations not tolled is less than sixty days; otherwise, the party may file the action any time before the statute of limitations expires. Chambers v. Gaul, 365 So.2d 213 (Fla. 4th DCA 1978); Jones v. North Dade Hospital, Inc., 359 So.2d 56 (Fla. 3d DCA 1978); Enfield v. Held, 357 So.2d 772 (Fla. 2d DCA 1978).

      .It is equally clear that no sufficient showing has been made that the Wimpeys discovered or with the exercise of due diligence should have discovered the incident before January 5, 1975, the cutoff date suggested by the defendants. See fn. 6, supra, and accompanying text. The trial court rejected the Wimpeys’ proposed amendment to the complaint which asserted that it. was not until May 8, 1975, upon the administration of a pregnancy test, that Elsa Wimpey learned that she was pregnant. Mrs. Wimpey attached to her affidavit in support of the proposed amendment Dr. Sanchez’s treatment report of Morris Wimpey, which contained the notation on November 15, 1974, “He is discharged with the provision that he is to submit a sperm specimen to a laboratory before any sexual activities as previously instructed.” This treatment report is not a part of the complaint and cannot be considered on a motion to dismiss. Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 384 So.2d 726 (Fla. 3d DCA 1980). But even were this case before us on the grant of summary judgment, and even if the January 5, 1975, date were applicable, there is nothing to show that these instructions were ever conveyed to Mr. Wimpey.

      . The Wimpeys rely on Vilord v. Jenkins, 226 So.2d 245 (Fla. 2d DCA 1969), which holds that the discovery of an unsuccessful female sterilization procedure cannot occur until pregnancy. The defendants distinguish Vilord on the basis that an improper vasectomy can be discovered through testing. The Wimpeys reply that improper female sterilization can be discovered through testing. Since this fact was not mentioned in Vilord and may have been unknown to the court or to medical science at the time, neither side can take much comfort in the decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Loretta WEISS, Murray Weiss, et al., Appellants, v. Harold TURTLETAUB, Appellee.
    No. 79-2134.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Rehearing Denied Sept. 8, 1980.
    I. Richard Jacobs, Miami, for appellants.
    Donald J. Post and Frank Pridgen, Miami, for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The cost judgment and amended cost judgment under review are affirmed, except insofar as they disallow in part the official court reporter’s fee for the instant trial at which the appellants prevailed, and are reversed, solely as to the such cost item; the cause is remanded to the trial court with directions to award as taxable costs to the appellants the full such court reporter’s attendance fee of $197 based on a holding that: (a) the trial court on this record abused its discretion in disallowing in part as taxable costs the official court reporter’s attendance fee for the trial at which the appellants prevailed as, in our view, such a cost served a useful purpose and was, therefore, taxable under Section 57.071(2), Florida Statutes (1979); see Wilkens v. SuperX Drugs of Florida, Inc., 232 So.2d 19 (Fla. 4th DCA 1970); 12 Fla.Jur.2d “Costs” 169-170 (1979); and (b) the trial court did not abuse its discretion in disallowing as taxable costs the balance of the costs sought herein as, in our view, the showing made on this record is far too sparse to establish, as it should, that such costs served a useful purpose. Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., 170 So.2d 59, 61 (Fla. 3d DCA 1964); see Wilkens v. SuperX Drugs of Florida, Inc., 232 So.2d 19 (Fla. 4th DCA 1970).

Affirmed in part; reversed in part.


author: SCHWARTZ, Judge.

text:
    KENDALL EAST ESTATES, INC., Appellant, v. David P. BANKS and Joan S. Banks, his wife, Appellees.
    No. 79-2266.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Rehearing Denied Sept. 4, 1980.

      Krongold & Bass and Paul H. Bass, Coral Gables, for appellant.
    Krause, Reinhard & Linden and Frank H. Tamen, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

On July 20, 1978, Kendall East Estates, Inc. and Mr. and Mrs. Banks entered into a “deposit receipt contract” for the sale and purchase, respectively, of a newly constructed residence in Dade County. The contract contained a clause which provided that “[i]f either party is required to retain an attorney in order to enforce any right hereunder or to assure compliance herewith by the other, the prevailing party in any such litigation shall be entitled to . reasonable attorney’s fees.” At the closing, which took place on August 30, 1978, the parties entered into a separate “Punch List Agreement” in which the seller-builder, Kendall East, agreed to make or to pay for specified repairs and corrections to the house.

In December, 1978, Kendall East sued the Banks in the Dade County Circuit Court for $3,818.00 which, allegedly because of a mutual mathematical error, had been underpaid on the agreed purchase price at the closing. The Banks counterclaimed for a breach of the supplementary August 30, 1978 agreement. The trial judge entered summary judgment for the plaintiff on the complaint. After a nonjury trial, he found in favor of the Banks on the counterclaim in the amount of $2,428.44. A single final judgment was thereafter entered in favor of Kendall East for the $1,389.56 difference. Neither side complains of any of these rul-. ings. However, the further provision of the judgment that both parties bear “their own attorneys’ fees and costs” has elicited this appeal by Kendall East and a cross-appeal by the Banks. We reverse on the appeal and affirm on the cross-appeal.

We first agree with Kendall East that since it was the only “party recovering judgment” in this action at law for money damages, the trial court was obliged by the terms of Section 57.041, Florida Statutes (1979) to assess costs in its favor. E. g., Murray v. Plastridge, Inc., 338 So.2d 260 (Fla. 4th DCA 1976); United Furniture Co. v. Register, 328 So.2d 566 (Fla. 3d DCA 1976); Jordan v. Reynolds, 154 So.2d 200 (Fla. 3d DCA 1963). This result is required notwithstanding the fact that the Banks reduced the amount of the plaintiff’s net judgment by the successful pursuit of their counterclaim. Cases collected, Annot., Who is the “Successful Party,” or “Prevailing Party” for purposes of Awarding Costs Where Both Parties Prevail on Affirmative Claims, 66 A.L.R.3d 1115, 1119-21 (1975); 12 Fla.Jur.2d Costs § 11 (1979); see Spicuglia v. Green, 302 So.2d 772, 773 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975).

Kendall East was also entitled to attorney’s fees for the services involved in the prosecution of the complaint. The action to recover an unpaid portion of the purchase price specified in the purchase and sale agreement was plainly one to “enforce a right [under] or to assure compliance” with a provision of that contract. Attorney’s fees were therefore clearly recoverable under the agreement in question. See Ritter’s Hotel, Inc. v. Sidebothom, 142 Fla. 171, 194 So. 322 (1940).

The Banks’ cross-appeal claims that they should have been awarded attorney’s fees under the July 20 agreement for the maintenance of the counterclaim. For two reasons, we disagree. In the first place, because they did not succeed in recovering a judgment in their favor, they were not the “prevailing party in [the] litigation” as required by the pertinent clause of the contract. See Sharpe v. Ceco Corp., 242 So.2d 464 (Fla. 3d DCA 1970), cert. denied, 247 So.2d 324 (Fla.1971); Annot., 66 A.L. R.3d 1115, supra. Secondly, the counterclaim was, as it specifically alleged, brought pursuant to the August 30,1978 agreement, rather than to enforce rights or require compliance with the July 20, 1978 contract itself. The attorney’s fee provision, by its own terms, therefore did not apply. See, Fred Howland, Inc. v. Gore, 152 Fla. 781, 13 So.2d 303 (1943); Drew v. Hobbs, 104 Fla. 427, 141 So. 596 (1932); Israel v. Bean, 97 Fla. 636, 121 So. 806 (1929); Wing, Inc. v. Arnold, 107 So.2d 765 (Fla. 3d DCA 1958).

The judgment below is affirmed with the exception of the denial of costs and attorney’s fees to the plaintiff-appellant and the cause is remanded for the assessment of those amounts by the trial court.

Affirmed in part, reversed in part and remanded.

      . The rule is different in equitable actions in which the court has discretion as to whether, and in whose favor, costs should be assessed. Wilhelm v. Adams, 102 Fla. 669, 136 So. 397 (1931); Wade v. Murrhee, 75 Fla. 494, 78 So. 536 (1918).

      . For the reasons stated below no fees are assessable for the defense of the counterclaim.

      . The agreement to pay a stated consideration for the property survived the delivery of the deed at the closing. Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967).

      . The complaint alleged that
      “[t]here remains due and owing to Plaintiff by Defendants $3,818.00 on account of the purchase price due Plaintiff on the Contract for purchase and sale.”


text:
    Michael R. MILLER, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 79-2339.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Rehearing Denied Sept. 8, 1980.
    Lionel Barnet, Miami Beach, and Sheldon C. Kurland, Fort Lauderdale, for appellant.
    Robert A. Ginsburg, County Atty. and Susan E. Trench, Asst. County Atty., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

In entering summary judgment below, the trial court held that Dade County was required to make social security (FICA) deductions from salary payments made to its employees during their absence from work because of sickness. For the reasons outlined in State of New Mexico v. Weinberger, 517 F.2d 989 (10th Cir. 1975), cert. denied, 423 U.S. 1051, 96 S.Ct. 779, 46 L.Ed.2d 640 (1976) and Graves v. Gardner, 280 F.Supp. 666 (S.D.N.Y.1968), we agree with that conclusion.

Affirmed.


text:
    Maxine KEMMERER, Appellant, v. Russell E. KEMMERER, Appellee.
    No. 80-2.
    District Court of Appeal of Florida, Third District.
    July 22, 1980.
    Rehearing Denied Sept. 4, 1980.
    Alboum & Furlong and Estelle G. Furlong, Miami Beach, for appellant.
    Charles L. Neustein, Miami, for appellee.
    Before SCHWARTZ and BASKIN, JJ., and TILLMAN PEARSON (Ret.), Associate Judge.
   PER CURIAM.

Under the circumstances presented in the record, we hold that the trial court abused its discretion in failing to grant the wife and minor children of the parties the right to live in the marital home until the wife dies or remarries, or the younger child reaches majority. Smith v. Smith, 378 So.2d 11, 17 (Fla. 3d DCA 1979); Alford v. Alford, 364 So.2d 1255 (Fla. 2d DCA 1978); Bailey v. Bailey, 361 So.2d 204, 205 (Fla. 1st DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 424 (Fla.1977); Plant v. Plant, 320 So.2d 455 (Fla. 3d DCA 1975), cert. denied, dismissed, 336 So.2d 107, 341 So.2d 292 (Fla.1976); Reisman v. Reisman, 314 So.2d 783 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 107 (Fla.1976); Venzer v. Venzer, 308 So.2d 544 (Fla. 3d DCA 1975). Upon remand, the final judgment of dissolution under review shall be appropriately amended to reflect this determination.

We find no error in the other challenged provisions of the judgment below. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Affirmed in part, reversed in part and remanded.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Brenda Louise PRATT, Anthony Lee Williams, Dell R. Callins and Horace Amos, Appellees.
    No. 79-2371.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1980.
    Rehearing Denied Sept. 24, 1980.
    Michael J. Satz, State’s Atty., and Tresa B. Widmer, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Sheldon M. Schapiro of Stone, Schapiro & Dell, P. A., Hollywood, for appellees.
   DOWNEY, Judge.

The question involved in this appeal is the adequacy of an affidavit for a search warrant. The trial court found the affidavit inadequate because it failed “to establish the confidential informant’s reliability and trustworthiness required by Aquilar-Spinelli (sic).”

A Broward County deputy, sheriff filed an affidavit in which he stated that he had been contacted by a City of Hollywood detective who advised the affiant that he had a confidential informant who could make heroin purchases. The affidavit then details how the affiant, the Hollywood detective, and the confidential informant set up a controlled purchase of contraband. The confidential informant was searched, given a transmitting device and money, and taken to a location near the place where the buy was to occur. The police monitored the surveillance device as the confidential informant entered an apartment at a stated time, ordered two dime bags of “Red,” paid for it, and departed at a specified time. The confidential informant was observed leaving the apartment and returning to the waiting police vehicle where she was again searched and nothing was found but the two bags which, upon analysis, were found to contain heroin. The confidential informant told the police that she observed approximately 100 tinfoil packets of heroin on the kitchen table in the apartment. The affidavit similarly detailed another purchase monitored by the police at the same apartment four days later.

A search warrant was- issued based upon said affidavit, and execution of the warrant resulted in the seizure of contraband and the arrest of appellant. A motion to suppress the evidence was granted by the trial court because the affidavit failed to demonstrate the reliability of the informant.

We reverse upon authority' of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), and Ludwig v. State, 215 So.2d 898 (Fla.3rd DCA 1968). The foregoing cases are authority for the proposition that where some of the underlying circumstances are set forth in the affidavit so that reason for crediting the source of the information is given, it is not necessary to assert or state that the confidential informant is reliable. We hold that the affidavit in question is sufficient to show probable cause for the issuance of the search warrant.

Appellees suggest that other grounds alleged in the motion to suppress were sufficient to support the order of suppression and that the order should be affirmed on that basis. We decline to follow that suggestion and restrict our consideration of the order on the motion to suppress to the trial court’s ruling thereon.

Accordingly, the order appealed from is reversed and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.

      . Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).


text:
    Roy Anthony BORGES, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1242.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 10, 1980.
    Roy Anthony Borges, in pro. per.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.

      Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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

Affirmed.


text:
    Annette J. RING, Appellant, v. Carl LORESCH and Pyms-Suchman Realty, Appellees.
    Nos. 79-2209, 80-513.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 8, 1980.
    Herbert A. Warren, Miami, for appellant.
    Ronald L. Fried, Miami, for appellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed on the authority of Shouse v. Doane, 39 Fla. 95, 21 So. 807 (1897). See also Boswell v. Dickinson, 300 So.2d 61 (Fla. 1st DCA 1974), cert. denied, 312 So.2d 742 (Fla.1975); English v. Clark, 289 So.2d 33 (Fla. 1st DCA 1974), aff’d after remand, 319 So.2d 170 (Fla. 1st DCA 1975); 81 C.J.S. Specific Performance § 39b (1977).


author: HENDRY, Judge. NESBITT, Judge

text:
    Sally WEINER, Appellant, v. Al WEINER, Appellee.
    No. 79-941.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 10, 1980.

      Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellant.
    Krongold & Bass and Paul H. Bass, Coral Gables, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

We review certain rulings of the trial judge incident to the dissolution of the marriage of Al and Sally Weiner. During the course of their marriage, which spanned nearly a quarter-century, the Weiners rose from quite modest means to great wealth. It is with regard to apportionment of their fortune that they join issue.

Permanent periodic alimony of $750 per week was awarded appellant in the proceedings below. On appeal, she reiterates her petition below for $1,200 per week. Appellee rebuts her claim on the basis that the $750-per-week payment constitutes half of his disposable income, and that, “if anything, said alimony is excessive, not inadequate.”

Appellee’s protestation was unavailing in the circuit court, and it fares no better in this forum. The record reveals that appellee is a multimillionaire, and that his disposable income, in six figures annually, only partially represents the indirect income he receives through the ownership and operation of his commercial enterprises. As we have stated before, “the nature and extent of the husband’s capital assets are factors which enter into a determination of the ability of the husband to pay.” Milander v. Milander, 208 So.2d 876 (Fla. 3d DCA 1968). Accord, Chastain v. Chastain, 73 So.2d 66 (Fla.1954); Fleming v. Fleming, 177 So.2d 384, 387 (Fla. 3d DCA 1965).

It was undisputed that the parties’ living expense, in the year prior to their separation, was $2,000 per week, on average, exclusive of certain non-recurring expenses. We note in the record facts militating in appellant’s favor by reference to every criterion in § 61.08(1), (2), Fla.Stat. (Supp.1978). On this record, we must hold that the trial court’s alimony award is inadequate, and constitutes an abuse of discretion. Competent evidence adduced at trial does not support limiting appellant’s award to approximately one-third of the amount she was accustomed to spending during her married life. See McDonald v. McDonald, 368 So.2d 1283 (Fla.1979). We hold that appellant is entitled to $1,200 per week, as of the date of the dissolution decree, October 31, 1978. Massey v. Massey, 213 So.2d 260 (Fla. 3d DCA 1968).

Appellant further challenges the partition of the parties’ undivided interests in a residential lot.

We note initially that a court is without authority, incident to dissolution proceedings, to order ex parte the sale of jointly-owned property; it may partition such interests only where the parties have so agreed, or where one party has sought such disposition through a proper pleading. Sniffin v. Sniffin, 352 So.2d 113 (Fla. 4th DCA 1977); Riggs v. Riggs, 310 So.2d 322 (Fla. 3d DCA 1975). In the case sub judice, the record discloses that no agreement was reached between the parties for the sale of their lot,- and that the sole prayer for partition was contained in appellee’s post-hearing motion to amend pleadings to conform to the evidence. In light of the great length of the proceedings had below (in excess of three years), with the attendant broad opportunity of appellee to seek partition much earlier on, and the consequent prejudice appellant stands to suffer in the execution of appellee’s eleventh-hour request, we find the trial court’s allowance of appellee’s motion to amend to have been in derogation of the proper exercise of its authority, and an abuse thereof. Thus, we reverse that portion of the order which commands the prompt sale of the property; by our said reversal, the parties are rendered tenants-in-common. § 689.15, Fla. Stat. (1979).

Finally, we consider the trial court’s award to appellee of certain valuable “artifacts”, taken from the parties’ household furnishings.

A court may properly make a disposition of property, in the process of marital dissolution, only by agreement of the parties, in an award of lump-sum alimony, in recognition of separate ownership or special equity interest, or pursuant to a request for partition. Tinsley v. Bonner, 362 So.2d 975 (Fla. 3d DCA 1978); Garmon v. Garmon, 357 So.2d 487 (Fla. 1st DCA 1978); Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974). No such agreement, award, recognition or request forms a part of this record. Therefore, we reverse, leaving the parties as tenants-in-common. § 689.15, Fla.Stat. (1979). '

We reverse the trial court’s alimony award, and raise the award to $1,200 per week; we reverse the partition of the parties’ interests in the residential lot, and the award of the artifacts to appellee, thereby leaving the parties as tenants-in-common of the lot and artifacts. As to all other issues raised by appellant, we affirm.

Affirmed in part, reversed in part.

NESBITT, Judge

(concurring in part and dissenting in part):

I concur with the majority in reversing the order of partition of the real property and leaving the parties as tenants in common.

I dissent from the majority which reverses . the personal property awarded to the wife. This award is sustainable as lump sum alimony to assure an equitable distribution of property acquired during the marriage. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980).

I dissent from the decision to increase the wife’s permanent periodic alimony from $750 per week to $1,200 per week as requested.

It is fair to characterize the husband as a wealthy man by reason of his ownership of a majority interest of common stock in a public corporation which he was instrumental in founding. The wife was properly awarded a quarter of a million shares of the husband’s stock in the corporation, as a special equity, by reason of her contribution. By virtue of this award, the wife is a person of substantial financial means.

The trial court, in its final judgment attempted to allay the wife’s fear that the husband would manipulate the corporation so as to render her stock valueless. The husband did not cross-appeal that provision. The wife is also protected by the remedy of a minority shareholder’s suit. Should there be a substantial change in the relative wealth of the parties, due to manipulation of the corporation by the husband and without any fault on the part of the wife, the wife would be able to avail herself of the court’s aid in a modification proceeding pursuant to Section 61.14, Florida Statutes (1979).

To increase the wife’s permanent periodic alimony as requested on such a speculative assertion is unwarranted. Such an argument presupposes that the wife does not have an adequate available legal remedy. Moreover, the trial court was entitled to believe, based upon the wife’s own testimony, that her standard of living and resulting need were artificially created upon advice of counsel which enabled her to assert the need to which she has now been elevated by the majority opinion. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

      . The final judgment from which appeal is taken was entered subsequent to the June 18, 1978 effective date of the Legislature’s amendment of the alimony statute, § 61.08, Fla.Stat. (Supp. 1978). By that amendment, we have a non-exclusive list of “relevant economic factors” which must be considered in a proper award or alimony or maintenance. The amendment constitutes a codification of, rather than a departure from, criteria traditionally employed in Florida' courts in determining proper alimony awards:
      (2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
      (a)The standard of living established during the marriage.
      (b) The duration of the marriage.
      (c) The age and the physical and emotional condition of both parties.
      (d) The financial resources of each party.
      (e) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment.
      (f) The contribution of each party to the marriage, including but not limited to, services rendered in homemaking, child care, education and career building of the other party. The court may consider any other factor necessary to do equity and justice between the parties.

      . Fla.R.Civ.P. 1.190(b).


text:
    Sadie PATE, Appellant, v. Warner BIAS, Appellee.
    No. 79-2171.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 9, 1980.
    Elizabeth S. Baker, Miami, for appellant.
    Louis M. Rockman, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. This is an appeal by the mother from a final order of the Circuit Court for Dade County granting the father primary custody of their ten year old daughter.

We have carefully considered all points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated.

Affirmed.


text:
    Loretta Paula KEDEM, Petitioner, v. Cora W. STECKO, Respondent.
    No. 80-1218.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 4, 1980.

      Quarles & Mills and Charles F. Mills, South Miami, for petitioner.
    Robert M. Brake, Coral Gables, for respondent.
    Before HUBBART, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The petition for writ of certiorari is granted in part and denied in part. The summary judgment of partition is vacated to the extent that it orders the partition of furniture and any other personalty which is .contained in the premises, since with respect to such items there exists a genuine issue of material fact as to the ownership of such personalty. In all other respects, the petition for writ of certiorari is denied.


text:
    REDWING ENTERPRISES, INC., d/b/a Red Road Lounge and Package Store, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, DEPARTMENT OF BUSINESS REGULATION, Appellee.
    No. 79-2279.
    District Court of Appeal of Florida, Third District.
    July 29, 1980.
    Rehearing Denied Sept. 8, 1980.
    Anthony J. Scremin, Miami, for appellant.
    Dennis E. LaRosa, Tallahassee, for appel-lee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final administrative order under review revoked the appellant’s beverage license on the ground that a disqualified person was indirectly interested in its operations in violation of Section 561.17(1), Florida Statutes (1977). See, Tony’s Fish Market of Ft. Lauderdale, Inc. v. State Board of Business Regulation, 358 So.2d 125 (Fla.1st DCA 1978). The findings and conclusions of the hearing officer to this effect, which were adopted by the Division of Alcoholic Beverages and Tobacco, are supported by competent substantial evidence and the essential requirements of the applicable law. Smith Terminal Warehouse Co. v. Be vis, 312 So.2d 721 (Fla.1975); Peden v. State Board of Funeral Directors & Embalmers, 189 So.2d 526 (Fla.3d DCA 1966); Torch Club, Inc. v. Keating, 174 So.2d 746 (Fla.2d DCA 1965), cert. denied, 188 So.2d 313 (Fla.1966). The order below is therefore

Affirmed.


author: COBB, Judge.

text:
    William Horace SHUE, Appellant, v. STATE of Florida, Appellee.
    No. 79-10.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.
    Rehearing Denied Aug. 29, 1980.
    Michael J. Minerva, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant was tried by a jury and convicted of two counts of sexual battery committed upon two girls eleven years of age or younger in violation of section 794.011(2), Florida Statutes (1975). The jury returned two verdicts of guilty and rendered an advisory sentence of life imprisonment. The trial court imposed a sentence of death.

Appellant appealed to the Florida Supreme Court where he contended, relying upon Coke v. Georgia, that the punishment of death for the crime of rape was disproportionate to the crime and, therefore, unconstitutional. The Florida Supreme Court did not decide the issue of whether death is a permissible punishment for child rape, but did vacate the sentence of death on the ground that the facts did not warrant imposition of a sentence of death in the face of the jury’s recommendation of life imprisonment. The Florida Supreme Court affirmed both judgments of conviction and “remanded [the case] to the trial court with directions to vacate the sentence of death and to impose two separate sentences of life imprisonment.” Shue v. State, 366 So.2d 387 at 391 (Fla.1978).

In accordance with the directions of the Florida Supreme Court, a resentencing hearing was held by the trial court. At the hearing, defense counsel moved for a continuance on the ground that he had just met the appellant for the first time and had not had time to confer with him. The trial court denied the motion on the ground that there was no discretion as to the resentence, since the trial court was only following the mandate of the Florida Supreme Court. Defense counsel then raised two points pri- or to the imposition of the resentence. . He argued that since one of the victims was eleven years and some months old at the time of the offense, that she was not “eleven years of age or younger” and, therefore, the appellant could not be subjected to the twenty-five year mandatory minimum sentence on that count. He also contended that any consecutive sentencing would be an illegally enhanced punishment. The trial court then resentenced the appellant to two consecutive life sentences with the twenty-five year mandatory minimum applicable to each. Appellant appeals his re-sentence.

Appellant’s contention that the state did not prove that one of the victims was not “eleven years of age or younger” has been waived by the appellant’s failure to raise this issue on his direct appeal. Likewise, we find appellant’s contention that he is being subjected to an illegally enhanced punishment to be without merit.

However, we believe that the trial court did have discretion to impose either two consecutive life sentences or two concurrent life sentences. A defendant is enti-tied to be represented by counsel at the time of sentencing. Evans v. State, 163 So.2d 520 (Fla. 2d DCA 1964); Langlois v. State, 191 So.2d 284 (Fla. 3d DCA 1966). This right to counsel includes the right to confer with that counsel. See Cash v. Colver, 120 So.2d 590 (Fla.1960). Since a conference between the appellant and his attorney may have given rise to arguments that could have been presented to the trial court as to why the appellant should have been given two concurrent life sentences as opposed to two consecutive life sentences, he should have been afforded that opportunity.

We therefore remand this case to the trial court for a resentencing to be held after the appellant has been given an opportunity to confer with his attorney. Nothing in this opinion prohibits the trial court from again resentencing the appellant to two consecutive life sentences with the twenty-five year mandatory minimum applicable to each.

The case is remanded with directions to vacate the sentence and to impose a new sentence in conformity with this opinion.

REMANDED for resentencing.

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

      . 433 U.S. 584, 97 S.Ct. 2861, 52 L.Ed.2d 982 (1977).

      . See State v. Carroll, 378 So.2d 4 (Fla. 4th DCA 1980).


text:
    Louis E. GOLDKAMP, Petitioner, v. Linda Schwarz ROSE, Respondent.
    No. 80-568.
    District Court of Appeal of Florida, Fifth District.
    July 30, 1980.

      David C. Chafin, Orlando, for petitioner.
    John W. Tanner, P. A., Daytona Beach, for respondent.
   COBB, Judge.

Petitioner Goldkamp challenges the trial court’s denial of a motion for summary judgment where the sole question the parties sought to have determined was whether defendant/counterclaimant Rose could maintain her claim for punitive damages in spite of the fact that counsel for the parties stipulated that neither party will be entitled to any compensatory damages under the threshold requirements of section 627.-737, Florida Statutes (1979). However, the Pre-Trial Order incorporates by reference defendant Rose’s Compliance With Order For Pre-Trial Conference, which in turn lists as special damages not only medical expenses but also property damage for loss of an auto. These property damages are clearly compensatory or actual damages which, if shown, may serve as the required basis for punitive damages. See McLain v. Pensacola Coach Corp., 152 Fla. 876, 13 So.2d 221 (1943). Even though some of the claimant’s compensatory damages may be barred by the Florida Automobile Reparation Act’s threshold limitations on personal injury claims, these threshold limits are not applicable to property damage claims. Faulkner v. Allstate Ins. Co., 367 So.2d 214 (Fla.1979); Kluger v. White, 281 So.2d 1 (Fla.1973).

We do not undertake to determine the effect of the stipulation by counsel in regard to presentation at trial of property damage nor foreclose any issue as to the counterclaimant’s possible waiver of a property damage claim. At this point, the property damage claim is still before the trial court. Until the trial court rules on the property damage issue, the case is not ripe for review. Finding no departure from the essential requirements of law, certiorari is hereby

DENIED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . See, § 627.737, Fla.Stat. (1979).


text:
    Stanley MARKS, Herman Marks, Paul Marks, and Eugene D. Marks, d/b/a Marks Brothers Company, a partnership, and Liberty Mutual Insurance Company, Appellants, v. Martin Jose DELCASTILLO, as Personal Representative of the Estate of Martin Alfredo Delcastillo, a deceased minor, and Jorge Luis Delcastillo, a deceased minor, Appellee.
    No. 78-1777.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 18, 1980.

      Magill, Sevier & Reid, Miami, Pattillo, McKay & McKeever and L. Edward McClellan, Jr., Ocala, for appellants.
    Spence, Payne, Masington & Grossman, Podhurst, Orseck & Parks and Joel D. Eaton and Walter H. Beckham, Jr., Miami, for appellee.
    Before SCHWARTZ and PEARSON, DANIEL, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   SCHWARTZ, Judge.

On August 26, 1972, a trailer-“magazine” containing over ten tons of dynamite exploded with monumental force in a remote area of northwest Dade County. The bodies of three persons on the scene were literally obliterated by the blast. Two of them, Martin and Jorge Delcastillo, 18 and 14 years old respectively, were the children of Martin and Ada Delcastillo. As the personal representative of their estates, Mr. Del-castillo brought wrongful death actions against the Marks Brothers Company, a partnership engaged in the construction business, which owned the “magazine” and its contents and was in possession — by permission of the owner — of the property on which it was located. After a lengthy trial, the jury found each boy 30 percent, and Marks Brothers 70 percent negligent in the causation of the accident. In the separate verdicts required by Section 768.22 Florida Statutes (1977), it awarded damages, as reduced by the 30 percent comparative negligence, of $980,000 to the mother and father —$245,000 to each parent for the death of each child — and a total of $206,500 to the decedents’ estates, $105,000 to Jorge’s and $101,500 to Martin’s. Marks Brothers has appealed from the judgment entered in accordance with the verdicts. We affirm the parents’ awards and reverse those to the estates.

I

The appellants’ first and major contention is that they were entitled to a directed verdict in their favor below. We find to the contrary. Viewed, as required, in the light most favorable to the appellee, the record amply supports the determination that Marks Brothers breached the duty it owed the Delcastillo boys, as licensees on land it controlled, to warn them of a “condition known ... to be dangerous when such danger is not open to ordinary observation” and was therefore liable for their deaths.

So considered, the record shows as follows. The dynamite trailer, which was used in connection with blasting operations conducted by Marks Brothers in the vicinity, was located on an otherwise vacant tract of land near the eastern edge of the Everglades, bounded on the east by N.W. 117th Avenue and on the south by a dirt extension of N.W. 41st Street. A dirt road running westerly from N.W. 117th Avenue provided access to the interior portion of the parcel where the trailer-magazine had been placed. While a steel cable, stretched between two posts across the road, served to keep unauthorized vehicles out of the area, persons on foot had easy access to the trailer and the entire parcel, either down the road itself, or by gaining entry from any other direction by climbing an embankment and walking through marshland.

There was overwhelming evidence that, for a long time prior to the tragedy and to the actual knowledge of the defendant-partnership and its employees, many persons had taken advantage of the ready availability of the parcel. Scattered around the perimeter of the property, at points no more than a few hundred yards from the dynamite, were piles of trash, discarded automobiles and appliances, old tires and other assorted junk. The entire area, in short, had taken on the character of a local dump. Portentously, it had also become a neighborhood shooting gallery. As Marks Brothers was specifically aware, those who frequented the parcel (including, on at least two occasions, Martin Delcastillo) had regularly used it for target practice. Indeed, the sides of the trailer itself were pockmarked by bullet holes.

On the day of the accident the Delcastillo boys, after telling their parents where and why they were going, went to the area with an older companion for target practice. They carried a .22 rifle and a 12 gauge shotgun. Within a half hour after they were last seen alive, the trailer exploded with such awful force that it left a crater 65 feet wide and 15 feet deep as virtually the only evidence of its previous existence. The trailer had had an aluminum skin surface and its interior was lined with four inch thick oak beams. The rear and side doors, which were covered by metal plate, were permanently closed; the front door was fitted with a theft-resistant lock and was covered with one-quarter inch steel. The entire facility rested on tires attached to steel axles, imbedded in the ground, upon which it had been pulled by a tractor onto the area. After the explosion, only tiny bits of metal and splinters of wood remained of the trailer; the tires and steel axles had entirely disappeared. The three human beings were so totally disintegrated that their deaths could be established only circumstantially. It was inferred from the extent of the destruction of their bodies that when the trailer exploded they were either actually inside it, as the defendants’ experts testified, or no more than 30 feet away.

The devastation wrought by the blast also made it impossible to establish the circumstances of the manner which brought it about. Both sides presented expert opinions which in each case essentially amounted to no more than informed speculation on the issue. It was generally agreed, however, that since the trailer could not have been penetrated simply by a single stray or deliberately-aimed bullet, the explosion must have occurred either after the magazine door had been opened in some manner or by the detonation of the entire trailer from an outside source. The theories as to how either such event might have taken place included the possibility that the three boys had deliberately broken into the trailer in order to steal the dynamite — a theory contrary to all the known facts about the decedents and which would have required the use of specialized equipment which they did not possess. Other, more likely scenarios included, inter alia, (a) the setting off of a loose stick of dynamite outside the trailer, either by one of the boys’ firing at it or otherwise; and (b) an attempted burglary of the trailer by others in which the burglars set off the blast or in which the front door was left open and then accidentally fired into.

It is as unnecessary and inappropriate, however, as it is impossible to pinpoint the precise sequence of events which occurred on that day. It is certain that the immense capacity for harm presented by 21,000 pounds of dynamite came into fruition and that three persons who were very near were killed as a result. Under these circumstances, we think what was said nearly a century ago in Tissue v. Baltimore & O.R. Co., 112 Pa. 91, 3 A. 667, 668-69 (1886) particularly appropriate:

As it is impossible to tell what was the immediate cause of the explosion, it would be by no means fair to charge it to the negligence of any one.
* * * * * *
The act of putting the magazine where it was may have been prudent, or at least not unreasonably imprudent, and the explosion may have been the result of an accident which no ordinary human foresight could provide against; hence one for which no one can be held responsible. But, however this may be, the matter is, under all the evidence, for a jury, and to a jury it must be referred.

See also the factually remarkably similar case of St. Joseph Lead Co. v. Prather, 238 F.2d 301 (8th Cir. 1956).

Of course, in this as in every case, a jury is permitted to impose liability only within the ambit of the law; there must be evidence of a breach of a duty owed by the defendants to persons in the status of the plaintiff’s decedents. Such evidence exists in abundance in this record. In view of Marks Brothers’ knowledge of the fact that many persons had used the property in question over a lengthy period of time, it is clear, as was held in Libby v. West Coast Rock Co., Inc., 308 So.2d 602 (Fla.2d DCA 1975), cert. denied, 325 So.2d 6 (Fla.1975), and Seaboard Air Line R. Co. v. Branham, 99 So.2d 621 (Fla.3d DCA 1958), cert. discharged, 104 So.2d 356 (Fla.1958), that the decedents were implied or uninvited licensees on the premises. See Morris v. Florida C.& P.R. Co., 43 Fla. 10, 29 So. 541 (1901); Wytupeck v. City of Camden, 25 N.J. 450, 136 A.2d 887 (1957) and cases cited; Davis v. Chicago & N.W.R. Co., 58 Wis. 646, 17 N.W. 406 (1883); W. Prosser, Law of Torts § 58, at 361 n.98 (4th Ed. 1971); 62 Am. Jur.2d Premises Liability § 51 (1972); see generally Wood v. Camp, 284 So.2d 691 (Fla.1973). The Libby case also elucidates, in the essentially interchangeable terms of both the Florida and the Restatement formulations of the rule, the duty owed by a landowner to such persons:

The duty owed a licensee is to refrain from wanton negligence or willful misconduct which would injure him, to refrain from intentionally exposing him to danger and to warn him of a defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee. Post v. Lunney, Fla.1972, 261 So.2d 146; McNulty v. Hurley, Fla.1957, 97 So.2d 185.
* * * * * *
Our holding is consistent with § 342 of the Restatement of Torts 2d, which states:
§ 342. Dangerous Conditions Known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved, [e.s.] 308 So.2d at 604-05.

As we have already indicated, we have concluded that the jury could properly have found a breach of that portion of the duty imposed by these authorities which requires the landowner to give warning of a dangerous condition, the dynamite on its premises. In arguing to the contrary, the appellants primarily make the interrelated claims (a) that no specific warnings were required at all because the dangers presented by the dynamite were “open to ordinary observation,” so that, in terms of the Restatement, Marks Brothers should not have expected that licensees “would not discover or realize the danger” and (b) that if warnings were arguendo required, they had in fact been provided. The record is contrary to both of these contentions.

Jury Question as to Whether Danger of Dynamite was “Open to Ordinary Observation.” The testimony of those who lived for months near the dynamite magazine without any knowledge of its supremely dangerous nature is itself ample evidence, contrary to the appellants’ assertion, that the risks involved were not open to the ordinary observation of licensees like the Delcastillo boys. A couple, Mr. and Mrs. McCord, and another neighbor, Mr. Davis, who lived on property adjacent to the tract, all stated that they had no idea that dynamite was present during the entire year- and-a-half that the trailer had been located on the parcel. Davis testified that he had actually seen the trailer brought on the property and had regularly gone “junking” and shooting in the area, all without recognizing the trailer for what it was. He stated with emphasis that, if he had known that dynamite was being stored on the property next to his, he would have moved from the area. It is therefore (if we may appropriately use the expression in this context) perfectly clear that there was nothing about the trailer itself which served to make its contents—which constituted the danger—an “open and obvious” condition. To the contrary, by concealing what lay within its interior, the trailer’s exterior had just the opposite effect. The cases upon which the appellants rely, all of which involve dangerous conditions which were completely open to view, are thus entirely inapposite. Cf. Bovino v. Metropolitan Dade County, 378 So.2d 50 (Fla.3d DCA 1979) (motorcycles in operation); Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla.3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979) (overhead power line); Libby v. West Coast Rock Co., Inc., supra (open mine pit).

On this question (as well as on the related warning issue discussed infra) the appellants also contend that the dangers of the explosives were rendered open and obvious by the admitted fact that the boxes of dynamite themselves were clearly and plainly labelled as such. For two reasons, we find no merit in this position. First, it assumes, contrary to what the jury was entitled to find, that the Delcastillos were actually inside the trailer where the boxes could be seen when the explosion occurred. Second, even if that were true, it is plain that a danger cannot be obvious within the meaning of the licensee rule if it becomes so only when it is too late for that danger to be obviated by those who are confronted by it. The fact that one may see the bottom of an otherwise concealed hole as he is falling through it does. not make the danger it presents an obvious one.

Jury Question as to Warnings. Marks Brothers’ alternative argument that sufficient warnings were in fact provided is likewise unacceptable.

(a) While there was evidence that there were one or more signs on the perimeter of the property which read “No Trespassing,” “No Shooting,” or “Keep Out,” these general notices were plainly insufficient to discharge the defendants’ duty to give warning of the great and specific danger of explosives lurking in the interior of the tract. St. Joseph Lead Co. v. Prather, supra; see generally, Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958); Mathis v. National Laboratories, 355 So.2d 117 (Fla.3d DCA 1978); Brevard County v. Jacks, 238 So.2d 156 (Fla. 4th DCA 1970).

(b) The key question, then, was whether sufficient warnings in the form of signs at or near the trailer itself giving specific notice of the danger of dynamite were in place before the accident. On this issue, the evidence was in complete and hopeless conflict, which it was for the jury alone to resolve. On several bases, it was fully warranted in concluding that no such signs were there.

(1) The pieces of circumstantial evidence (i) that no trace of any signs (including those which had been allegedly placed beyond the area of total destruction) was found after the accident and (ii) that guns had been regularly fired at the trailer, see note 3 supra, both strongly indicate that no signs were in existence before the explosion.

(2) Mr. Davis specifically and affirmatively testified that he had been in the immediate area of the trailer and that, for a period of months prior to the accident, no such signs existed. The defendants earnestly contend that Davis’s evidence is merely “negative” testimony which is of no value. We disagree. A careful analysis of his evidence reveals that it falls within the class of probative testimony aptly described in American Motorists Ins. Co. v. Battista, 370 So.2d 445, 446 (Fla.1st DCA 1979):

“. . . the [witness] did not testify that T saw nothing,’ but rather stated, in essence, that T looked where I should have been looking and there was nothing to see.’ ”

Accord, Welfare v. Seaboard Coast Line R. Co., 373 So.2d 886 (Fla.1979); Tyus v. Apalachicola Northern R. Co., 130 So.2d 580 (Fla.1961).

(3) Finally, even the testimony of Marks’ own employees who testified to the existence of these signs was in total internal disarray. Some stated that there were signs on the trailer, but not anywhere else; others, that the warnings were placed on posts or trees some distance away, but not on the trailer. The jury was free to believe the testimony of each of these witnesses that there were no signs at a particular location while disbelieving his statements that signs were present elsewhere. E. g., Wynne v. Adside, 163 So.2d 760 (Fla.1st DCA 1964) (applying rule that trier of fact may accept some parts and reject others of the testimony of a particular witness); Bailey v. Sympson, 148 So.2d 729 (Fla.3d DCA 1963) (same). Thus, the defendants’ own case provided sufficient ground for a conclusion that no signs were present.

(c) For precisely the same reasons we have already determined that the printing on the boxes of dynamite inside the trailer did not render their danger “open and obvious,” we reject the concomitant contention that the labels discharged the duty to warn. Again, the jury was entitled to find that the boys had not entered the trailer when they were killed. Even if they had, however, the duty to warn means the duty to warn adequately. See Tampa Drug Co. v. Wait, supra. Warnings are not adequate when they are not given in time for the person supposedly warned to escape the dangerous condition in question — as in the case of one made aware of the fact that dynamite is present only immediately before it explodes. See Carroll v. Moxley, 241 So.2d 681, 683 (Fla.1970); 1661 Corp. v. Snyder, 267 So.2d 362 (Fla.1st DCA 1972); compare Brown v. Thomas Blackwell Coal & Mining Co., 124 Ky. 324, 99 S.W. 299 (1907).

In sum, the jury could have found that the defendants maintained a horrendously dangerous commodity hidden on its premises without giving effective or adequate warning of its existence. The law of Florida provides a remedy when licensees like the plaintiffs’ sons are injured or killed as a result of such conduct. Seaboard Air Line R. Co. v. Branham, supra. See generally, Annot., Explosives — Liability, 35 A.L.R.3d 1177 (1971).

II

In their second point, the appellants claim that a new trial should be granted because of the admission of parts of the depositions of Mr. and Mrs. McCord which indicated that they had satisfactorily settled their own claims for damages arising out of the explosion. See, Dade County v. Clarson, 240 So.2d 828 (Fla.3d DCA 1970); City of Coral Gables v. Jordan, 186 So.2d 60 (Fla.3d DCA 1966), aff’d, 191 So.2d 38 (Fla. 1966); but see Compania Dominicana de Aviacion v. Knapp, 251 So.2d 18 (Fla.3d DCA 1971), cert. denied, 256 So.2d 6 (Fla.1971). We do not consider the merits of this contention because the record does not show that the issue was properly preserved by an appropriate objection below.

The McCords’ depositions were proffered as the plaintiff’s first items of evidence at the trial. Prior to their being read, an unreported side-bar conference was conducted in which the trial judge considered the defendants’ objections. The transcript shows that some of the questions and answers which appear in the depositions were not read to the jury. At a hearing held months afterward to reconstruct the record, the plaintiff’s lawyer testified that these were the only ones objected to at the side-bar; defense counsel stated that he had also objected to others which are now claimed as error on appeal. The trial judge ruled that he had no independent recollection of the incident and was unable to resolve the controversy. Since the appellants have therefore failed to carry their burden of showing otherwise in the record, we are thus compelled to presume that the testimony now in issue was not in fact objected to. Haist v. Scarp, 366 So.2d 402 (Fla.1978); see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

There is no question that such a failure to object to evidence at the trial precludes appellate review of the propriety of its admission. McSwain v. Howell, 29 Fla. 248, 10 So. 588 (1892); Tabasky v. Dreyfuss, 350 So.2d 520 (Fla.3d DCA 1977). Moreover, the fundamental error exception to this rule does not apply, since an alleged evidentiary error of this kind plainly does not go to the heart or the foundation of the case. Clark v. State, 363 So.2d 331 (Fla.1978); Russell v. Wainwright, 266 So.2d 375 (Fla.4th DCA 1972); Ross v. Florida Sun Life Ins. Co., 124 So.2d 892 (Fla.2d DCA 1960). To put the issue in a somewhat different way which we think also accurately expresses the fundamental error doctrine: while the evidence in question was undoubtedly harmful to the defendants’ position, it surely cannot be said that it is certain, or even highly probable, that the plaintiff would or could not have prevailed before the jury if, upon proper and timely objection, the offending testimony had been excluded at the trial. Since this is so, it cannot be said to have been fundamental to the case. Compare, e. g., Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412 (Fla.4th DCA 1980), and cases cited. The principle that it is impermissible for a party to raise a claim of error — which could have been obviated if timely presented — only after the jury has already ruled against him, therefore directly applies. See Diaz v. Rodriguez, 384 So.2d 906 (Fla.3d DCA 1980).

Ill

Because, in contrast, the fundamental error doctrine does apply to the damages recovered by the boys’ estates, we reverse those awards. As the jury was instructed, the estates were awarded damages for their “loss of net accumulations.” Under the clear terms of Section 768.-21(6)(a), Florida Statutes (1977), however, such losses are recoverable only when, as was not true in this case in which the boys were survived by their parents, the decedent leaves a spouse or lineal descendants. Bassett v. Merlin, Inc., 335 So.2d 273 (Fla.1976); see White v. Clayton, 323 So.2d 573 (Fla.1975). These aspects of the final judgment are thus totally unsupported by the applicable law.

The appellee agrees that this is true. He argues, however, that the issue was not properly preserved below because defense counsel did not make his objection to the proposed instruction on the issue on this ground, but rather on the basis that there was no evidence in the record of the amount of the lost accumulations. Henningsen v. Smith, 174 So.2d 85 (Fla.2d DCA 1965), and many similar cases are cited for the proposition that only the grounds of objection to jury charges asserted below may be considered on appeal. However, the rule does not apply to this point. The estates have recovered damages to which they have no right under the law. Such an error is a fundamental one which requires reversal notwithstanding the lack of appropriate objection at the trial. As this court recently held in Keyes Co. v. Sens, 382 So.2d 1273, 1276 (Fla.3d DCA 1980):

The rule that questions not presented to and ruled upon by the trial court are not reviewable on appeal is subject to the exception that an appellate court may consider and rule upon a constitutional or fundamental error when first raised or revealed on the record on appeal. Love v. Hannah, 72 So.2d 39, 43 (Fla.1934); Ewing v. Dupee, 104 So.2d 672 (Fla.2d DCA 1958); Florio v. State ex rel. Epperson, 119 So.2d 305, 309 (Fla.2d DCA 1960); In re: Kionka’s Estate, 121 So.2d 644, 647 (Fla.1960); Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); American Home Assurance Co. v. Keller Industries, 347 So.2d 767, 772 (Fla.3d DCA 1977). In Sanford v. Rubin, supra, the court said:
“ ‘Fundamental error,’ which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. The Appellate Court should exercise its discretion under the doctrine of fundamental error very guardedly.”
The error of imposing on a defendant compensatory damages which are not authorized by law and which are contrary to law is one that goes to the ultimate merits of the cause. Cf., American Home Assurance Co. v. Keller Industries, supra. Moreover, such an error is one of constitutional dimension, for the reason that enforcement of such a judgment would constitute a taking of property from the defendant without due process of law. [e.s.]

See also, Florida East Coast R. Co. v. Rouse, 194 So.2d 260 (Fla.1967); Townsend v. Beck, 140 Fla. 553, 192 So. 390 (1939). Applying the tests of fundamental error we have already suggested, (i) it is a certainty that the estates may not and would not have received their portions of the verdict, and (ii) the error may be corrected without requiring a retrial, simply by eliminating the estates’ separate awards. That must therefore be done.

For these reasons, those portions awarding damages for the estates of the decedents shall be stricken from the judgment under review, which is otherwise entirely affirmed.

Affirmed in part, reversed in part.

      . Gravette v. Turner, 77 Fla. 311, 81 So. 476 (1919); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla.3d DCA 1977).

      . McNulty v. Hurley, 97 So.2d 185, 187 (Fla.1957).

      .As noted infra, this fact itself provided a strong indication that there were no effective warnings that there was dynamite inside the trailer.

      . Several unexploded sticks were found in the crater after the blast.

      . This might have been effected with dynamite caps secured from a steel locker 300 feet from the trailer which bore signs of having been broken into.

      . As the “occupier” or “possessor” of the property, Marks Brothers stood in the shoes of the owner. See Cockerham v. R. E. Vaughan, Inc., 82 So.2d 890 (Fla.1955).

      . Because of this holding, it is unnecessary to consider whether the defendants’ actions may have amounted to wanton and willful misconduct.
      We also do not reach the question of whether licensees may recover upon a showing of a breach of Section 12.09(2) Code of Metropolitan Dade County (1969), which provides:
      (2) Storing explosives. Every person in possession of any explosive shall cause the same to be stored in a safe place and shall maintain such security measures as shall be reasonably necessary to prevent all unauthorized persons from gaining access to such explosives. Any person who shall fail to use reasonable precautions for the security and safety of explosives in his possession shall be deemed guilty of violating this chapter, and subject to the penalties provided for herein, and in addition thereto, shall be subject to revocation of his permit.
      See and compare, de Jesus v. Seaboard Coast Line R. Co., 281 So.2d 198 (Fla.1973); Cuyaho-ga Wrecking Co. v. Mastres, 368 So.2d 380 (Fla.3d DCA 1979), cert. dism., 375 So.2d 911 (Fla.1979); Schulte v. Gold, 360 So.2d 428 (Fla.3d DCA 1978), cert. denied, 368 So.2d 1367 (Fla.1979); Richardson v. Fountain, 154 So.2d 709 (Fla.2d DCA 1963), cert. denied, 157 So.2d 818 (Fla.1963).

      .It is self-evident that the dynamite was known to Marks Brothers to be dangerous in the extreme and thus to involve an “unreasonable risk of harm” to licensees. Morse v. Hendry Corp., 200 So.2d 816 (Fla.2d DCA 1967). Moreover, even the appellants do not seriously urge that, as a matter of law, they complied with the duty stated in 2 Restatement (Second) of Torts § 342(b) (1965), as an alternative to giving warnings, “to exercise reasonable care to make the condition safe.” The precautions deemed necessary in discharging a particular duty of reasonable care are ordinarily for the jury to decide. Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980); Acme Electric, Inc. v. Travis, 218 So.2d 788 (Fla.lst DCA 1969), cert. denied, 225 So.2d 917 (Fla.1969). It is also well-established that the amount of care required increases with the dangerousness of the agency involved and thus with the likelihood of injury, see Carter v. J. Ray Arnold Lumber Co., 83 Fla. 470, 91 So. 893 (1922); cf., Escambia County Electric Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83 (1911). The record shows that another company which stored dynamite less than twenty blocks from the Marks Brothers had erected a fence a substantial distance from its magazine and posted armed guards on continuous duty in order to keep the unwary out of harm’s way; the jury would have been well-justified in concluding that the defendants should have taken the same precautions. See Holley v. Mt. Zion Terrace Apartments, Inc., supra; Homan v. Dade County, 248 So.2d 235 (Fla.3d DCA 1971).

      . We reject the defendants’ claim that the finding of comparative negligence necessarily demonstrates that the plaintiff’s decedents had become actually aware of the dynamite but disregarded its dangers. The jury could even more easily have based its determination of contributory negligence upon, for example, the boys’ negligent shooting of a firearm in the area, without any knowledge of the dynamite at all.

      . In the Prather case, the trial judge made the following uncannily similar finding in imposing liability:
      Viewing the facts, as of this time, most favorably to the plaintiffs, as required under the rule on a motion to reverse the jury’s finding, we find that the defendant knowingly permitted a powder magazine to stand in disuse for many years in an open field that was much traveled and used by the public, and near a public road and a private road. The public had made paths across the field by their use. Defendant had constructed stiles for the public to cross over the fences into the fields. The tract was not entirely fenced. Children were known to play in the field and about and on the powder magazine when it was in disuse. Men trained their dogs in the field and discharged firearms. Only at the extreme northwest corner were any signs posted indicating the defendant’s objection to use of the field by the public. The signs were posted where a private wagon road entered the field. Residences were within two hundred yards of the powder magazine. It was from one of the homes so situated that the deceased, joining with a companion who lived in the home, started on the venture that resulted in his death. The field in which the powder magazine was located adjoined two villages. Under these conditions and with these surrounding circumstances defendant renovated the powder house and placed a large quantity of dynamite caps in boxes in the house. The boxes were piled on runners to a height of about five feet. Thereafter defendant made no effort to warn those it knew were using the tract of land of the presence of explosives in the powder magazine. It neither fenced the magazine nor posted notice of any kind. What caused the explosion no one knows. It was defendants’ implication during the trial that the deceased fired a rifle shot against the door of the magazine. There is not the slightest evidence that the steel door was penetrated by a rifle shot. The lock was so applied that the key did not go entirely through the door. The issue of the deceased shooting at the magazine was submitted to the jury and the jury found against the defendant on it. An explosion did occur from unknown causes with such force that the powder magazine, made of ten inch concrete reinforced walls, was demolished and left rubble. Three people, including the son of the plaintiffs, were killed. Houses in the vicinity were damaged. 238 F.2d at 306.

      . There was evidence, which tended to negate this possibility, that it was unlawful to attach a warning sign directly to an explosive magazine.

      . We similarly find no merit in the defendants’ additional argument that they were not on actual or constructive notice that signs, which employees testified had been originally placed near the trailer, had been subsequently torn down or removed.

      .We relinquished jurisdiction to the trial court for this purpose. Fla.R.App.P. 9.200(f)(2).

      . The court did observe that he thought it improbable that the defendants’ attorney would not have made the objections in question. We think it, however, even more unlikely that the able and experienced trial judge would not have sustained the objections, if they had been presented to him.

      . We tentatively suggest the following as a shorthand-rule of thumb approach to this and related questions as they apply to civil cases: fundamental error occurs when the result would have been different; reversible error, when the result might have been different; harmless error, when it would not have been different.

      .This contention was acknowledgedly incorrect. No specific testimony on the issue is required to support such an instruction or award. Threets v. Hardison, 255 So.2d 267 (Fla.1971); Laskey v. Smith, 239 So.2d 13 (Fla.1970).

      .The plaintiff cites Bould v. Touchette, 349 So.2d 1181, 1186 (Fla.1977) in support of his contention that fundamental error was not involved. In Bould, the supreme court held that the defendant, by failing to object to evidence relating to a legally unrecoverable element of damage, had consented, acquiesced and in fact invited the error allegedly involved. In essence, the defendant was deemed to have become estopped to claim that error had in fact occurred. Bould plainly has no application to this situation. The plaintiff concedes’that there was no evidence whatever introduced on the accumulations issue at the trial. Indeed, even though the position was incorrect, see note 16, supra, this was the gist of the objection to the instruction asserted by the defendant below. They did nothing at all to induce or invite the error now in question, much less estop themselves from asserting it.

      . See note 15, supra, and accompanying text.

      . A different question might be involved if an unauthorized item of damage were included along with proper elements in a general verdict, making it impossible to determine what amount was incorrect without a new trial. The “two-issue” rule might also prevent reversal in such a situation. See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).


text:
    Gene ROSEN, Appellant, v. Eileen ROSEN, Appellee.
    No. 79-2321.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 16, 1980.

      Frank E. Freemen, Miami, for appellant.

      Leff, Pesetsky & Zack and Walter S. Pes-etsky, North Miami Beach, for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The primary issue in this case concerns the propriety of awards of the marital home of the parties and $125,000 in cash to the wife as lump sum alimony. We are thus required once more to assess the impact and effect on this question of the landmark decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We conclude that the award of the home is justified by the rationale of that decision but that the same is not true of the money award, since it requires a distribution of the husband’s personal funds which were not obtained through the efforts of either party during the marriage.

Gene and Eileen Rosen were married in 1970 when they were 25 and 21 years of age. They had two girls, who were five and three when the marriage was dissolved in November, 1979. Mr. Rosen is an attorney who had apparently deliberately limited his practice, from which he earns $15,000 to $20,000 a year. The larger portion of his income, which totals about $60,000 a year, is secured from interest on $500,000-$600,000 in individually owned liquid assets derived from an inheritance from his grandfather and personal gifts by his father. Although Mrs. Rosen has teaching experience and a master’s degree in elementary education, she has worked very little since the marriage and has devoted almost all of her time to her duties as a homemaker and mother. There was also evidence that she was hampered by medical problems and by psychological difficulties arising from the breakup of the marriage. At the time of the dissolution, she owned stocks, bonds and jewelry worth about $20,000 and had an individual net worth of somewhat less than that. The Rosens owned their family home, valued at $138,000 with a mortgage of $40,000, as tenants by the entireties.

“The Husband, by the institution of this action, has necessitated the Wife to employ counsel. The trauma of the litigation caused the Wife’s counsel to expend unnecessary time in the defense of the Husband’s claims, as well as prosecution of Wife’s claims. The Husband should bear the cost of part of the fees sought by the Wife’s counsel, but only that portion reasonably incurred. The Court, having heard expert testimony, finds that $45,000.00 is a fair and reasonable fee to be paid to the wife’s attorneys, of which $25,-000.00 should be paid by the Husband as his contribution.”

Early in the proceedings, which involved Mr. Rosen’s petition and Mrs. Rosen’s counter-petition for dissolution, they agreed that she should have custody of the children, and he, reasonable visitation. Thereafter, the marital controversy typically concerned only money. At its conclusion, the trial court determined, as to the aspects of the case now in dispute:

(1) On the alimony question the court stated, “The wife has a need for alimony. Since she is highly educated and holds a Master’s degree in Education, she does not need rehabilitative alimony. The Husband has substantial liquid assets which are available for a lump sum alimony award. Investment by the Wife should result in income sufficient to obviate the necessity for permanent or periodic alimony.” Pursuant to this finding, no periodic alimony was provided, but the husband’s interest in the home and $125,000 in cash were awarded as lump sum alimony.
(2) Mr. Rosen had made a gift to his wife of a $25,000 savings and loan account for which he was ordered to reimburse her.
(3) The husband was required to pay child support of $100 per week per child, plus all medical and dental expenses.
(4) The court found that $45,000 was a “fair and reasonable” fee for the wife’s attorneys, of which Mr. Rosen was required to pay $25,000.

The husband appeals from these aspects of the final judgment. We affirm in part, reverse in part, and remand for further proceedings.

Rosen’s primary contention is that the lump sum awards are erroneous. In this regard, he does not, nor could he claim that the prerequisites for granting alimony in some form — need and ability to pay — do not exist. See Sisson v. Sisson, 336 So.2d 1129 (Fla. 1976); Costich v. Costich, 383 So.2d 1141 (Fla.4th DCA 1980). He argues, however, that the lump sum awards are inappropriate under the applicable law. In testing the validity of this argument we apply the basic principle that, as stated in Yandell v. Yandell, 39 So.2d 554, 556 (Fla. 1949):

ordinarily the better practice is to direct periodic payments of permanent alimony and a lump award should be made only in those instances where some special equities might require it or make it advisable

As evidenced by the quotation of most of this passage with approval in the Canakaris opinion at 382 So.2d 1201, the general rule favoring periodic over lump sum alimony remains viable in our state. This is so despite the facts that Canakaris also disapproved the use of the term “special equity” in this context and, much more important, that it very significantly expanded the range of circumstances under which lump sum may be justified, either instead of, or in addition to, a periodic provision. Under the now-controlling Canakaris rule, lump sum alimony is permissible, in the discretion of the trial court, when

the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. 382 So.2d at 1201.

Since there is no question that the appellant’s financial situation more than satisfies the second qualification, the only real issue before us is whether there is a “justification” for the lump sum awards made below. Insofar as the husband’s interest in the marital domicile is concerned, we think that the subject matter of the award provides its own justification. The home was chosen by both parties for themselves and their children. It is where Mrs. Rosen has been living for several years and where she is entitled to continue to live with the girls in the future. We cannot therefore hold that the trial court abused its discretion in ordering that title to the residence be transferred to her. In common with every post-Cana-karis case which has considered the issue, and with Canakaris itself, we thus affirm the award of the husband’s interest in the home to the wife. Seum v. Seum, 384 So.2d 223 (Fla.3d DCA 1980); Lewis v. Lewis, 383 So.2d 1143 (Fla.4th DCA 1980); Costich v. Costich, supra; Hague v. Hague, 382 So.2d 852 (Fla.3d DCA 1980); MacDonald v. MacDonald, 382 So.2d 50 (Fla.2d DCA 1980); see also Creel v. Creel, 378 So.2d 1251 (Fla.3d DCA 1979).

We reach the opposite conclusion with respect to the $125,000 cash payment. There is no cognizable “justification” — that is to say, no “good reason” or useful purpose — which can sustain this award. The primary non-semantic effect of the Cana-karis decision was to adopt the holdings of Brown v. Brown, 300 So.2d 719 (Fla.1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla. 1975), (a) that the contributions of the wife to the marital partnership as a mother and homemaker should be given recognition equal to the money-earning activities of the husband, and (b) that these contributions of the wife may be recompensed by lump sum alimony. In essence, her domestic efforts have been made the equivalent, for lump sum purposes, of the financial considerations referred to in the Yandeli case as arising “where the wife may have brought to the marriage, or assisted her husband in accumulating, property.” 39 So.2d at 556. None of these “justifications” exist in this case, in which the husband’s liquid assets were indisputably willed or given to him by his family and were neither earned through activities he engaged in while his wife did her part by staying at home, nor contributed to by Mrs. Rosen in any more concrete fashion.

Nor do any of the other recognized bases for a lump sum payment apply. Since the Rosens have small children whose interests will require contact between them for years to come, a lump sum award would not accomplish the sometimes salutary purpose of putting a definite end to the relationship and “thereby avoid vexatious and possibly endless litigation.” Yandell, supra, 39 So.2d at 557. Compare also, Goode v. Goode, 76 So.2d 794 (Fla. 1954); Bradley v. Bradley, 327 So.2d 253 (Fla.4th DCA 1976). The Rosens are both young and Mr. Rosen is in good health. Thus, lump sum is not necessary to provide the wife with vested security against her ex-husband’s possible early demise or disability, as was the case in, for example, Storer v. Storer, 353 So.2d 152 (Fla.3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla. 1978). See also, Stith v. Stith, 384 So.2d 317, 319 (Fla.2d DCA 1980), and cases cited. Finally, there is no showing, as in Lewis v. Lewis, supra, that the husband will be unable to make periodic payments, nor any indication that Mrs. Ro-sen has a particularized need for a cash award either, again for example, to make required expenditures, see Creel v. Creel, supra, or to get her out of debt. See Bosem v. Bosem, 279 So.2d 863 (Fla. 1973); Adams v. Adams, 376 So.2d 1204 (Fla.3d DCA 1979). All that remains to support the requirement of a $125,000 payment, therefore, is that Mr. Rosen has, as the trial judge ruled, the means with which to meet it. As Canakaris itself clearly shows, while such an ability is a required condition to making a lump sum award, it is not, standing alone, sufficient to support it. We are mindful of the admonition in Canakaris to “avoid establishing inflexible rules that make the achievement of equity between the parties difficult, if not impossible.” 382 So.2d at 1200. But we also agree with Judge Downey’s interpretation of this comment in Costich v. Costich, 383 So.2d at 1143:

“This is not to say that the trial judge has unbridled discretion to award lump sum alimony, but rather that he must be ‘guided by all relevant circumstances to ensure equity and justice between the parties’ ”.

In this case, we are unable to discern any “relevant circumstance” whatever which serves to support the $125,000 lump sum provision. Hence, that award is vacated. Cf. Stith v. Stith, supra. Because, however, as has already been emphasized, there is error only in the form of the alimony provided below, we remand the cause for an award of periodic alimony. See also, Genoe v. Genoe, 373 So.2d 940 (Fla.4th DCA 1979). The amount, character, and duration of those payments are matters initially for the discretion of the trial court. Canakaris v. Canakaris, supra; Rosenberg v. Rosenberg, 371 So.2d 672 (Fla. 1979); Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976).

The husband’s other appellate complaints require little discussion. The trial judge’s finding that Rosen made a $25,000 gift to his then-wife is supported by the testimony that he opened an account in that amount in her name alone and that she withdrew it and gave the proceeds to him only upon his unfulfilled promise to open another account, also in her name, at higher interest. See, Ball v. Ball, supra; Marti v. Marti, 377 So.2d 1005 (Fla.3d DCA 1979); Laws v. Laws, 364 So.2d 798 (Fla.4th DCA 1978); see also, Bullard v. Bullard, 380 So.2d 1090 (Fla.3d DCA 1980). We similarly find no error or abuse of discretion in the amounts provided for child support. Shaw v. Shaw, supra; Adams v. Adams, supra. These aspects of the judgment are therefore affirmed.

In the light of our holding on the lump sum question, we set aside the award of $25,000 in attorney’s fees. It is obvious that this amount was largely — and appropriately — based upon the results achieved below by the wife’s counsel. Snider v. Snider, 375 So.2d 591 (Fla.3d DCA 1979); State, Department of Natural Resources v. Gables-By-The Sea, Inc., 374 So.2d 582 (Fla.3d DCA 1979). Since we have reversed a large portion of those benefits, it is therefore required that upon remand, the pre-fi-nal judgment fees be reduced commensurately. E. g., Hirsch v. Hirseh, 369 So.2d 407 (Fla.3d DCA 1979) and cases cited; cf. Maxwell v. Maxwell, 251 So.2d 902 (Fla.1st DCA 1971).

The wife has filed a motion for an award of attorney’s fees for services rendered in this court. The motion is granted. Particularly because there must be further proceedings in the trial court in any event, including consideration of other attorney’s fee issues, we direct, as permitted by Fla. R.App.P. 9.400(b), that the lower tribunal also assess the amount of appellate fees to which the wife is entitled.

The judgment below is affirmed with the exceptions of the $125,000 lump sum and the $25,000 fee awards. As to these matters, the judgment is reversed and the cause is remanded with directions to proceed in accordance with the views expressed in this opinion.

Affirmed in part, reversed in part and remanded.

      . The court also found that Mr. Rosen had not sustained his claim to a special equity in Mrs. Rosen’s interest in the residence.

      . The basis for this decision was stated as follows:

      . Because of this holding we need not separately consider Rosen’s claim that he was entitled to a “special equity” in his wife’s interest in the home. See note 1 supra. In view of the conflicting evidence as to the motivations involved in taking title to the property by the entireties, however, it is at the least highly doubtful that the lower court could be held in error in ruling to the contrary. Ball v. Ball, 335 So.2d 5 (Fla. 1976).

      . Presumably by her efforts in the husband’s business or professional activities.

      . The Storer court also emphasized the factor that there were no children of the marriage and thus no necessity for a continuing relationship after the dissolution.

      . Of course, the husband’s family-derived assets must be taken into account in determining his ability to pay periodic or, if otherwise appropriate, lump sum alimony. Firestone v. Firestone, 263 So.2d 223 (Fla. 1972).

      . The trial court may take further testimony on these issues, if deemed advisable.

      . Unlike the lump sum award, of course, periodic alimony is subject to termination because of the wife’s remarriage or the death of either party. Canakaris v. Canakaris, supra; Adams v. Adams, supra. It may also be modified under Section 61.14, Florida Statutes (1979). By successfully challenging the lump sum award, Rosen has taken the chance that any such modification may be upward. See Powell v. Powell, 386 So.2d 1214 (Fla.3d DCA 1980).

      . The wife may also seek fees for the additional services in the trial court required by this opinion.


author: BASKIN, Judge.

text:
    E. T. LEGG & ASSOCIATES, LTD., Appellant, v. SHAMROCK AUTO RENTALS, INC., and Ackerley Communications, Inc., Appellees.
    No. 79-1619.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.
    Rehearing Denied Sept. 10, 1980.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Steel, Hector & Davis and Talbot D’Al-emberte and Donald M. Middlebrooks, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

We reverse the final judgment of the trial court which set aside jury verdicts for appellant and remand for a new trial solely on the question of damages. The jury found appellees Shamrock Auto Rentals, Inc. and Ackerley Communications, Inc. liable to appellant E. T. Legg & Associates for Shamrock’s breach of contract for lease of outdoor advertising space and for Acker-ley’s interference with this contractual relationship. It awarded compensatory damages from Shamrock of $149,000 and from Ackerley of $35,000. The trial court reconsidered reserved motions for directed verdicts and entered final judgment for Shamrock and Ackerley upon a finding that Legg had failed to prove a right to future profits with reasonable certainty and had failed to present evidence on any alternative theory of damages.

As to the damages, the only evidence presented pertained to income or gross receipts, not profits, and testimony concerning expenses did not establish specific dollar amounts. The evidence was therefore inadequate to prove lost profits. American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). In this respect, the trial court correctly questioned the jury verdicts concerning the award of damages.

On the other hand, the evidence presented on the issue of defendants’ liability was conflicting. Construing that evidence in the manner most favorable to Legg, we must conclude that there was evidence to support the jury’s finding that defendants were liable. Riccio v. Allstate Insurance Co., 357 So.2d 420 (Fla. 3d DCA 1978). The verdicts, therefore, insofar as they established liability, should not have been disturbed by the court.

For these reasons, we reverse the final judgment entered by the trial court, reinstate the jury verdicts as to liability, and remand for a new trial as to damages.