author: BOYD, Justice.

text:
    QUAY DEVELOPMENT, INC., Appellant, v. ELEGANTE BUILDING CORPORATION, Appellee.
    No. 56679.
    Supreme Court of Florida.
    Jan. 8, 1981.

      Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellant.
    Charles N. Prather, Orlando, for appellee.
   BOYD, Justice.

This cause is before the Court on appeal of a judgment of the Circuit Court of the Ninth Judicial Circuit, Orange County, which held a state statute unconstitutional. Appellee filed its notice of appeal on April 19, 1979. We- have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

This case involves the constitutionality of former section 56.21, Florida Statutes (1975), which provided the procedure followed below in carrying out an execution sale. The judgment appealed held that the statute was unconstitutional under the fourteenth amendment to the United States Constitution for failing to require adequate notice to the owner of the sale of property to satisfy a tax lien. The court held in the alternative that the actual failure to provide notice in this case constituted such an irregularity in the proceeding as to justify setting aside the sale on the ground of gross inadequacy of the bid price. The statute was amended after the instant proceedings were initiated, and now provides for notice by certified mail to owners of land to be sold under execution. Ch. 77-462, § 2, Laws of Fla.; § 56.21, Fla.Stat. (1979).

On April 1, 1976, Elegante Building Corporation’s corporate income tax for the year 1975, in the amount of $1560.00, became due. On December 1,1976, the Department of Revenue sent the corporation a third and final notice of tax due with a warning that if payment were not made within fifteen days it would record a lien on Elegante’s property and issue an execution order for collection of the amount due. See § 214.51, Fla.Stat. (1975). On December 23,1976, the Department of Revenue filed a lien in Bro-ward County, where the corporation’s offices were located.

In April, 1977, a Department of Revenue agent talked with the Elegante corporation’s president and learned that the corporation intended to sell some land in Orange County in order to pay the taxes. On May 10,1977, the department filed a lien against Elegante’s real property in Orange County and requested that the sheriff levy on it.

The Orange County sheriff’s office then proceeded to file and publish a notice of sheriff’s sale in compliance with section 56.-21, Florida Statutes (1975). The notice advised that the property would be sold on July 18,1977. The notice was posted on the property and published in the Orange County area general circulation daily newspaper once per week for four consecutive weeks prior to the intended data of sale. Although the Department of Revenue and the Orange County sheriff’s office both had actual knowledge of Elegante’s address in Broward County, no notice of the impending sale was served upon or mailed to the corporation. Elegante had no actual knowledge of the sale.

Appellant Quay Development, Inc., was the only bidder at the sheriff’s sale. It bought the property for $75.00. Costs of the sale in the amount of $73.56 were deducted from the sale proceeds, and Ele-gante had $1.44 credited to its tax bill. At the time the property had an assessed value of $150,000 and a market value of $165,000 to $200,000. Elegante later paid its past due taxes after the department seized a corporate automobile in Broward County.

After purchasing the property at the sheriff’s sale, Quay Development filed suit to quiet title. Elegante filed a counterclaim to set aside the sale and a third party claim against the Department of Revenue. The trial court set aside the sale on the ground that section 56.21, Florida Statutes (1975), was unconstitutional for not requiring notice to be sent to Elegante by mail. The publication of notice provided for by the statute was ineffective, the court said, to provide actual prior notice of the sale. The court went on to state ah alternative ground for setting aside the sale: that the failure to effectuate actual notice made out a showing of mistake, surprise, accident, or irregularity sufficient to provide a basis for setting aside the sale for inadequacy of price.

The appellant contends that the notice provisions of section 56.21 were not offensive to due process. We disagree and affirm the judgment on the ground that former section 56.21 was unconstitutional as applied in this case.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed.2d 865 (1950). In Mullane the beneficiaries of a common trust fund were notified by publication of a judicial settlement of accounts. The Court held that such notice was constitutionally inadequate with respect to those beneficiaries whose addresses were known to the trustee.

Accordingly we overrule appellant’s constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee.
As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.

Id. at 318, 70 S.Ct. at 659. Accord, Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); City of New York v. New York, New Haven & Central RR., 344 U.S. 293, 73 S.Ct. 299, 97 L.Ed. 333 (1953). Some state courts have applied Mullane to situations where judgment creditors have sought to levy on property of judgment debtors. E. g. Swartz v. Adams, 93 Nev. 240, 563 P.2d 74 (1977); Luskey v. Steffron, Inc., 461 Pa. 305, 336 A.2d 298 (1975), cert. denied, 430 U.S. 968, 97 S.Ct. 1651, 52 L.Ed.2d 360 (1977).

The appellant argues that the due process standards applicable to litigation among private persons do not apply to proceedings brought by government for the collection of delinquent taxes, citing City of Coral Gables v. Certain Lands, etc., 110 Fla. 189, 149 So. 36 (1933). The arguments advanced in support of the distinction are that government will be impermissibly hampered if it cannot use expeditious enforcement procedures for the collection of taxes and that actual notice will serve no useful purpose because, once the enforcement proceedings have reached the execution stage, the owner can do nothing to prevent the sale.

That the exigencies of government require and justify summary enforcement of tax obligations is not disputed. But the issue in this case is not the constitutionality of such enforcement procedures, see City of Tarpon Springs v. Chrysostomides, 108 Fla. 500, 146 So. 845 (1933), but rather the constitutionality of the notice given to the owner. In the situation such as we deal with here, notice by mail would not cause significant delay or burden on the state in executing on the property. That the party initiating a proceeding affecting the property rights of another is a governmental body rather than a private person is no ground for applying a different due process standard. See, e. g., Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962).

Furthermore, actual notice can be a great benefit to the owner in seeking to salvage his interest in the property levied on. There was evidence that the president of Elegante could have paid the taxes from his personal resources and would have done so had he known the property was about to be sold. At the very least he could have attended the sale and bid on the property himself or on behalf of the corporation. Even if he had failed to out bid Quay Development, the sale price would undoubtedly have been higher resulting in a greater credit to Elegante.

The appellant cites cases approving notice by publication as constitutional. These cases involve situations where there was an attempt to notify the owner by mail, Botens v. Aronauer, 32 N.Y.2d 243, 298 N.E.2d 73, 344 N.Y.S.2d 892 (1973), appeal dismissed, 414 U.S. 1059, 94 S.Ct. 562, 38 L.Ed.2d 464 (1973); Umatilla County v. Porter, 12 Or.App. 393, 507 P.2d 406 (1973); the owner had actual knowledge of the sale, Chesney v. Gresham, 64 Cal.App.3d 120, 134 Cal.Rptr. 238 (5th Dist. 1976), cert. denied, 432 U.S. 907, 97 S.Ct. 2952, 53 L.Ed.2d 1079 (1977); or the law specified a certain date upon which the owner’s interest would terminate. City of Auburn v. Mandarelli, 320 A.2d 22 (Me.1974), appeal dismissed, 419 U.S. 810, 95 S.Ct. 25, 42 L.Ed.2d 37 (1974); Christie-Stewart, Inc. v. Paschall, 502 P.2d 1265 (Okl.1972), vacated on other grounds, 414 U.S. 100, 94 S.Ct. 313, 38 L.Ed.2d 306 (1973). The case at bar is different. Ele-gante had no actual knowledge of the sale nor was there attempted notice by mail. The tax lien was filed in Broward County and therefore did not relate directly to the Orange County property. Elegante did not even have constructive knowledge, other than by newspaper publication and posted notice in Orange County, that the property would be sold. Furthermore, there was no right of redemption once the sale was over.

In Chapin v. Aylward, 204 Kan. 448, 464 P.2d 177 (1970), the appellant had purchased property owned by the appellees at a tax delinquency foreclosure sale. Notice had been by publication in a newspaper circulated in the county where the property was located. The appellees, who lived in another county, had no knowledge of the sale. When the property was involved in later litigation, the former owners intervened claiming that the tax sale had violated their right to notice and was invalid. The trial court vacated the sale and on appeal the Supreme Court of Kansas affirmed holding that notice by publication was insufficient because the owners’ address could readily have been ascertained from public records. The same reasoning applies to the case sub judice.

Our holding that the lack of notice by mail deprived Elegante of due process is not undermined by an analysis of interest balancing to determine what process was due. The state’s interests in a tax sale are actually better promoted by requiring the form of notice best calculated to achieve actual notice under the circumstances. If the owner has knowledge of the sale, he can arrange for the appearance of more bidders, resulting in higher bids. This accrues to the benefit both of the state and the delinquent taxpayer.

We hold that Elegante Building Corporation’s right against the deprivation of property without due process of law was violated by the state’s use of the procedure authorized by former section 56.21. The constitutional infirmity could have been remedied by the simple mailing of a letter. See Dow v. State, 396 Mich. 192, 240 N.W.2d 450 (1976); Collector of Revenue v. Parcels of Land, 585 S.W.2d 486 (Mo.1979).

The judgment of the circuit court is affirmed.

It is so ordered.

SUNDBERG, C. J„ and ADKINS, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


source: Caselaw Access Project

author: ALDERMAN, Justice. ENGLAND, Justice,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Reinaldo Demetrio MENESES, Respondent.
    No. 57506.
    Supreme Court of Florida.
    Jan. 8, 1981.
    Jim Smith, Atty. Gen., Tallahassee and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    No appearance for respondent.
   ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, Third District in Meneses v. State, 372 So.2d 1152 (Fla. 3d DCA 1979), which conflicts directly with Brooks v. State, 209 So.2d 271 (Fla. 1st DCA 1968). The question presented for our resolution is whether the pendency of a petition for writ of certiorari in this Court, arising from the affirmance on direct appeal of the judgment and sentence, deprives the trial court of jurisdiction to consider a Florida Rule of Criminal Procedure 3.850 motion to vacate filed after the certiorari petition has been filed in this Court. We hold that the trial court was deprived of jurisdiction to rule on Meneses’ motion to vacate while certiorari proceedings were pending before us, approve Brooks, and quash the decision of the district court in Meneses.

On January 31, 1977, Meneses pled nolo contendere to a lottery-bolita violation reserving the right to appeal denial of his motion to suppress after the trial court denied his motion to suppress the primary evidence against him — wiretap evidence of telephone conversations. During the plea proceeding, the assistant state attorney represented to the court that a voice gram had been done and that the voice print compared by public safety department expert Earl Richardson verified the fact that Meneses’ voice was heard on these calls. Meneses was sentenced on March 15, 1977, to two years in the state prison. The District Court of Appeal, Third District, affirmed his conviction and sentence, and Meneses sought certiorari to this Court. While his certiorari petition was pending and without securing leave of this Court to do so, Meneses filed a 3.850 motion in the trial court to vacate his judgment and sentence and to dismiss the information against him, or in the alternative to allow him to withdraw his nolo plea and to proceed to trial. He alleged that the prosecutor had made an untrue statement during the plea proceeding relative to the verification of Meneses’ voice as being a voice heard on these wiretapped calls. He alleged that in fact at the time he had entered his plea, there had been no identification of his voice and further stated that nine days after he entered his plea of nolo contendere, a voice identification report was sent by Earl Richardson to the assistant state attorney assigned to Meneses’ case advising her that he could not positively identify the voice on the tapes submitted to him as Meneses’. The motion also alleged that this report was never furnished to Meneses or his counsel, that the assistant state attorney failed to furnish Richardson’s report to the court which, at the time, was conducting a presentence investigation, and that the court, at the time it entered sentence, had no knowledge of the voice gram report because of deliberate suppression by the State. Finding that the allegations contained in the motion did not constitute legal grounds for granting a new trial or release of Meneses, the trial court denied the motion to vacate without hearing.

Meneses appealed, and the district court reversed and held that the trial court did not lack subject matter jurisdiction to consider the motion because of pendency of certiorari proceedings in the Supreme Court although the district court did recognize that a 3.850 motion may not be considered while the judgment from which relief is sought is on direct appeal in the district court of appeal. The district court remanded to the trial court for an evidentiary hearing to determine whether there had been a Brady violation.

Explaining the difficulty in allowing motions to vacate to be filed while certiorari review or appeal is pending from the conviction. Judge Hubbart dissented and expressed the view that the trial court lacked jurisdiction to entertain Meneses’ motion to vacate. He asserted that the trial court was correct in summarily denying Meneses’ motion to vacate for lack of jurisdiction, and he explained:

The orderly administration of justice requires, it seems to me, that the defendant pursue in one court at a time whatever legal remedies he desires to employ in attacking his criminal conviction. While pursuing his appellate remedies, the defendant ought not be allowed to simultaneously seek collateral attack relief in the trial court. Unnecessary confusion and needless expenditure of judicial time and effort are avoided by such a rule. Until today, I had thought that such was the prevailing law on the subject. Now it appears that Brooks v. State, 209 So.2d 271 (Fla. 1st DCA 1968), is no longer good law, and Barton v. State, 193 So.2d 627 (Fla. 2d DCA 1966); Gobie v. State, 188 So.2d 34 (Fla. 3d DCA 1966); and Grizzell v. State, 187 So.2d 342 (Fla. 1st DCA 1966), are in serious doubt. I am not persuaded that we should turn an about face on such decisions in favor of a practice which is dubious at best, and, in all likelihood, will lead to considerable confusion and waste of judicial resources.
By the court’s decision herein, a busy trial judge is required to hold an eviden-tiary hearing on a motion to vacate, which, if denied, will be a complete waste of time and effort should the Florida Supreme Court later grant certiorari in the cause, quash our decision and reverse the defendant’s conviction. On the other hand, if the trial judge grants the motion to vacate, the Florida Supreme Court will, in effect, be ousted of jurisdiction to further entertain the defendant’s petition for certiorari, an anomaly in itself, after expending, and thus wasting, its judicial labor thereon.
To further complicate the matter, it should be noted that (a) either party may appeal an unfavorable ruling by the trial court on the motion to vacate, and (b) successive motions to vacate may be filed and appeals taken from rulings thereon so long as new grounds are raised in each motion. See Whitney v. State, 184 So.2d 207, 209 (Fla. 3d DCA 1966); 9A Fla.Jur. “Criminal Law” § 540 (1972). By requiring the trial court to entertain such motions and the appellate courts to review rulings thereon regardless of the status of other appellate remedies being simultaneously pursued by the defendant, a practice has been adopted which is likely to lead to the proliferation of a single criminal case in various courts resulting in considerable confusion as to the status of each remedy as well as needless expenditure of judicial time and effort on remedies later mooted at both the trial and appellate levels. Even if this is workable, which I doubt, I see nothing to commend such an unnecessarily complex practice particularly at a time when the state’s judicial resources are already strained by ever increasing caseloads. See England, “1979 Report on the Florida Judiciary,” 53 Fla.Bar.J. 296-305 (1979).

Meneses v. State, 372 So.2d at 1155.

We agree with this rationale of Judge Hubbart, and we approve those decisions, some of which are cited above in the excerpt from Judge Hubbart’s dissenting opinion, which hold that while appeal proceedings or certiorari proceedings are pending in an appellate court, the trial court is without jurisdiction to entertain a motion to vacate. The trial court’s denial of the motion to vacate in the present case was therefore proper.

Our holding, however, does not preclude defendant’s seeking an order from the appellate court to temporarily relinquish jurisdiction to the trial court for the purpose of filing and being heard on a motion to vacate prior to the appellate court’s disposition of the case. This is the practice now utilized in the appellate courts in this state. See e. g., Jacobs v. State, 357 So.2d 169 (Fla.1978). The filing in the appellate court of a request to relinquish jurisdiction, however, does not require an appellate court to automatically relinquish jurisdiction to the trial court. The proceedings in the appellate court may be nearing conclusion, and therefore the appellate court may not wish to relinquish jurisdiction at the time of the request but it might prefer to proceed with the disposition of the cause. This is within the discretion of the appellate court to decide. Further, the appellate court, before relinquishing jurisdiction, may evaluate the grounds for the motion to vacate to determine whether they are frivolous and may decide not to relinquish on this basis. This denial of the request to relinquish, however, is not a ruling on the merits of the motion to vacate and will not prevent a subsequent filing of a motion to vacate with the trial court at the conclusion of the proceedings in the appellate court.

Accordingly, we hold that during the pendency of a certiorari proceeding before us, the trial court is without jurisdiction to rule on a motion to vacate filed after review is sought in this Court. The decision of the district court is quashed, and this cause is remanded for further proceedings consistent herewith.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

ENGLAND, J., dissents with an opinion with which SUNDBERG, C. J., and ADKINS, J., concur.

ENGLAND, Justice,

dissenting.

Despite the seeming force of logic in Justice Alderman’s opinion and Judge Hub-bart’s dissent below, I find more compelling the analysis and reasoning of Judge Schwartz in his majority opinion below. Consequently, I respectfully dissent.

The problem which this case presents, it seems to me, must logically be broken into two distinctive parts; the first a question of judicial power, and the second a question of judicial administration. The majority here deals only with the second.

Judge Schwartz notes in the majority opinion below that, before Meneses sought discretionary review by way of certiorari in this Court, the Third District Court of Appeal had not only affirmed Meneses’ judgment and sentence but had issued its mandate to the circuit court. That important fact, which underpins the circuit court’s subject matter jurisdiction (or judicial power to proceed), seems to have been totally ignored by my colleagues.

Being under a mandate to carry out the original sentence of two years imprisonment, the circuit judge would have been derelict had he not acted promptly to effect Meneses' incarceration. It follows that if Meneses had a valid collateral attack on his sentence or conviction, he would certainly want to present it to the trial judge before entering the jailhouse. Clearly, the circuit court had the subject matter jurisdiction, or the legal power, to entertain Meneses’ claim before a request for review was filed in this Court.

My colleagues are concerned with the efficiency of the court system in dealing with situations where the request for the exercise of our discretionary review of a district court decision is lodged either before or simultaneously with the filing of documents presenting a collateral attack to the trial court. The question in those situations would be whether the filing with us ousts or forestalls what would otherwise be a proper invocation of the trial court’s jurisdiction. I do not think the trial court’s judicial power is either ousted or forestalled in those cases, and I find nothing in Brooks v. State, 209 So.2d 271 (Fla. 1st DCA 1971), to persuade me to the contrary.

First, it is essential to keep in perspective the nature of the relief requested of this Court in those situations, for it must be remembered that there is no right of review from the affirmance of a conviction by the district court. Second, it must be remembered that a stay of the district court’s mandate may be requested through procedures available under the appellate rules. With these predicates in mind, it seems to me indisputable that there is no basis on which to suggest that the trial judge would lack the power or authority to incarcerate a person who simultaneously seeks or has sought discretionary review in this Court. If he has that power, it is self-evident that the efficaciousness of a valid claim for relief from an original conviction and sentence would be meaningless unless it can be asserted before the judge who is duty-bound to jail him.

As a matter of power, then, a trial judge surely has the authority not only to act on his instructions from the district court but to consider a proper request for relief from that directive. Judge Schwartz has noted that at no time in Florida’s jurisprudence has the pendency of a discretionary review writ in the supreme court been deemed to oust the jurisdiction of a trial court to proceed in matters it is directed to undertake by a district court of appeal. Indeed, one is hard-pressed to understand the sense for appellate rules regarding stays if the mere filing of a petition for discretionary review in the supreme court prohibits the trial court from carrying out a direct order from a higher court.

The problem of concern to my colleagues is solely one of judicial administration, which they unfortunately discuss as if it were a matter of trial court jurisdiction. For administrative purposes, the majority suggests that collateral attack should await our exercise of discretion to accept or reject review of Meneses’ petition for certiorari, or that a second, new request for discretionary action (to relinquish jurisdiction) should be filed with us as a predicate for trial court action. The first alternative is not very attractive, of course, for Meneses would be ill-served by awaiting the exercise of our discretionary decision in jail. The majority impliedly concedes as much by suggesting that Meneses should be allowed to ask us to relinquish jurisdiction to the trial court so that he can pursue a collateral attack.

An examination of the administrative processes preferred by the majority, I suggest, reveals more misdirected judicial effort than the alternative of allowing the trial court to act. A request to us to relinquish jurisdiction will plunge this Court into an evaluation of the legal basis for the claim of post conviction relief, though we have no record on which to make a judgment other than those selected portions of the record which may be supplied with the motion or response, at a time when we will not have yet decided whether we have either a basis or an interest in reviewing the original conviction and sentence. That, I submit, results in very poor judicial resource allocation.

For one thing, we are ill-equipped to evaluate a request for post conviction relief; certainly we lack the resources of a trial judge to resolve factual disputes. Second, I fail to see any advantage in diverting this Court’s attention from its normal business, as assigned by the constitution, to a relinquishment request which requires an evaluation of the legal basis for establishing the impropriety of an impending incarceration. This is unpalatable not only because at least five justices must review the request, but as well because the relinquishment request would always be a pressing issue, commanding the Court’s immediate attention and perverting our own priorities for the allocation of our time.

For better judicial administration, I prefer the abatement of the discretionary review proceeding in this Court pending the trial court’s determination of the defendant’s right to be freed from incarceration. If a criminal defendant facing incarceration believes that his conviction and sentence are improper for reasons which support a collateral attack, I would allow him to pursue that remedy at any time in the trial court, and to have a determination of his claim finally resolved even if an evidentiary hearing and an appeal are necessary. I see no disadvantage to the judicial system, or to any party, in allowing the defendant an expeditious route of relief from an illegal sentence.

To avoid the concerns expressed by my colleagues, I would afford a simple solution. I would impose a duty on the defendant (and allow the state to act if the duty were not performed) to file with this Court a copy of the motion for collateral attack which is filed in circuit court. I would then treat that filing as a basis for summary suspension of our consideration of the request for discretionary review. As a ministerial matter, the clerk of this Court would take the necessary steps when that document is filed to withdraw from active consideration by the justices the defendant’s then pending request for discretionary review. By this means the convicted defendant, in effect, elects to pursue first his need for immediate relief, aware that his collateral attack will have the consequence of suspending any activity in this Court on his request for our review of the legal basis for his conviction and sentence. I see no reason why a defendant should not be allowed that election. To follow the process through, I would have us resume our consideration of the request for discretionary review of the original sentence and conviction, if then necessary, at the conclusion of the post conviction relief proceeding, or at the conclusion of the appeal if one is taken.

The process I propose not only limits a criminal defendant to the choice of one forum, the goal which Judge Hubbart and the majority seek, but it accommodates a prompt adjudication of any valid basis on which to set aside the original conviction and sentence. This, to me, better conserves the resources of the judicial system. Equally important, it also avoids the need to alter existing doctrines of judicial power on the basis of some undefined theory of ouster.

Having said that trial courts have both the power to consider requests for collateral attack pending a request for discretionary review of the original conviction and sentence here, and that judicial administration can best be served by allowing an immediate filing of that collateral attack in the trial court, I would add that I do not consider the same procedure appropriate once this Court has acted to grant discretionary review. Consequently, if an order granting review has been entered before collateral attack is launched in the trial court, the matter should be treated in a manner identical to those cases in which a direct appeal is pending before a district court of appeal when the trial court receives such a request.

SUNDBERG, C. J., and ADKINS, J., concur.

      . Art. V, § 3(b)(3), Fla.Const. (1972); Lake v. Lake, 103 So.2d 639 (Fla.1958). A distinction must be drawn between a right of review and a right to request review. See Pressley v. Wainwright, 367 So.2d 222 (Fla.1979) (England, C. J., dissenting).

      . Fla.R.App.P. 9.310.

      . Barton v. State, 193 So.2d 627 (Fla. 2d DCA 1966); Grizzell v. State, 187 So.2d 342 (Fla. 1st DCA 1966).


author: MILLS, Chief Judge.

text:
    GUNITE WORKS, INC., and Underwriters Adjusting Company, Appellants, v. James LOVETT, Appellee.
    No. UU-176.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1980.
    Gary L. Stump of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   ON PETITION FOR REHEARING DENIED

MILLS, Chief Judge.

Appellants’ petition for rehearing is denied but their request for clarification of the Court’s opinion of 30 September 1980 is granted; the opinion is withdrawn; and this opinion substituted for it.

This appeal raises the sole question of the effective date of Section 440.12(2Xa), Florida Statutes, as amended by the 1979 Legislature. The enactments at issue are Chapter 79-40 and Chapter 79-312, Laws of Florida.

Section 7 of Chapter 79-40 provided that Section 440.12(2)(a), Florida Statutes “shall apply only to injuries occurring on or after July 1,1979.” Section 127 of Chapter 79-40 provided, “[T]his act shall apply to all claims for injury arising out of accidents occurring on or after July 1, 1979.” Subsequently, Chapter 79-312 was passed which amended many sections of the workers’ compensation law, including many of those amended by Chapter 79-40; however, Chapter 79-312 did not amend Section 7 of Chapter 79-40 or, in other words, did not amend Section 440.12 of the Florida Statutes. Section 23 of Chapter 79-312 amended Section 127 of Chapter 79-40 to change the effective date from injuries occurring on or after July 1 to injuries occurring on or after August 1. Furthermore, Section 26 of Chapter 79-312 provided that the act should take effect on August 1, 1979, except for certain specified sections, none of which amended the compensation rate provisions, and those sections were to take effect July 1.

Appellants contend that one must consider both Chapters 79-40 and 79-312 together and give prime consideration to Section 26 of the latter, which provided for the entire act to take effect August 1 except for those sections specified explicitly. Chapter 79-312 was the last will and expression of the intention of the legislature.

Appellees point out that the two enactments at issue made many changes in the workers’ compensation law, three of which were the wage rate, jurisdiction of the First District Court of Appeal, and sections of the law concerning all other factors.

Chapter 79-312 amended the effective dates of the two other aspects of Chapter 79-40, but did not amend the effective date of those sections concerning wage rate. Since the legislature did not modify that date, there could be no doubt that the legislature intended the compensation rate to be increased as of July 1.

In Garlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978), the Florida Supreme Court asserted:

The omission of a word in the amendment of a statute will be assumed to have been intentional. And, where it is apparent that substantial portions of a statute have been omitted by process of amendment, the courts have no express or implied authority to supply omissions that are material and substantive, and not merely clerical and unconsequential. (354 So.2d at 364-365)

Applying that rule to the facts here, we must assume that the act of the legislature in changing the effective date of some provisions of the workers’ compensation law and in failing to change the effective date for other provisions expressed the legislature’s intent that the latter provisions take effect on the date initially designated, July 1, 1979.

This interpretation is consonant not only with the case law, but also with statutory law. Section 1.04, Florida Statutes (1979), provides that amendatory acts passed in the same legislative session are to be read in pari materia and “full effect is to be given to each, if that is possible.”

The order of the Deputy Commissioner finding the effective date of 440.12(2)(a), as amended by the 1979 Legislature, to be July 1, 1979, is AFFIRMED.

McCORD and THOMPSON, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    METROPOLITAN DADE COUNTY, Appellant, v. Gloria Y. YELVINGTON and James O. Yelvington, her husband, Appellees.
    No. 79-1588.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.

      Robert A. Ginsburg, County Atty. and Thomas Goldstein, Asst. County Atty., for appellant.
    James 0. Nelson, Miami, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Mrs. Yelvington slipped on an algae-coated boat launching ramp at Pelican Harbor, a recreational facility operated and maintained by Metropolitan Dade County. She and her husband sued the County for damages arising from her injuries. A jury returned a verdict in favor of these plaintiffs and specially found that Mrs. Yelvington was sixty per cent negligent. From the trial court’s judgment thereon both sides have appealed, and we affirm.

The County asserts first, that Section 375.251, Florida Statutes (1975), relieves it of any duty of care toward any person who goes onto Pelican Harbor or any park area which it provides. This contention was rejected in McPhee v. Dade County, 362 So.2d 74 (Fla. 3d DCA 1978), and is rejected here.

The County’s second argument is that Mrs. Yelvington’s negligence in failing to look out for her own safety in the face of the open and obvious algae condition precludes the plaintiffs from recovering any damages. This argument is similarly rejected. The slippery algae condition on the boat launching ramp was not, as a matter of law, so open and obvious as to completely relieve the defendant of liability. See, e. g., Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979). Nor can it be said that, as a matter of law, the defendant was not chargeable with any knowledge of the danger. See, e. g., Vermont Mutual Insurance Co. v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978). To the extent that Mrs. Yelv-ington was negligent in not perceiving the danger created by the County, her negligence was not a bar to recovery, but rather was reflected in the jury’s special verdict on comparative negligence. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Blackburn v. Dorta, 348 So.2d 287 (Fla.1977); Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). Cf. Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979) (holding that in a products liability action the “patent danger” or “open and obvious hazard” doctrine is not a bar to recovery, but a defense to which the principles of comparative negligence apply). Where a possessor of land should anticipate the harm which may be caused by a condition on the land, he may be liable despite the obviousness of the hazard. Restatement (Second) of Torts, § 343A.

On their cross-appeal, the Yelving-tons contend that there was no evidence to support the jury’s finding that Mrs. Yel-vington was negligent to any degree. We hold that there was ample evidence to support the jury’s special verdict that Mrs. Yelvington was sixty per cent negligent.

Affirmed.

      . While there was evidence that the ramp also contained recently washed-up seaweed about which the County may not have had notice, there was sufficient evidence presented upon which the jury could have concluded that Mrs. Yelvington slipped on a two or three-month buildup of algae.

      . The holding in McPhee was that the County, as a political subdivision of the sovereign, is immune from liability. Thus, the statement in McPhee that Section 375.251 does not apply to a county could be considered dictum. We now hold that Section 375.251 does not apply to a county.


author: PER CURIAM.

text:
    Charles RIVERS a/k/a Terrance Boyd, Appellant, v. The STATE of Florida, Appellee.
    No. 80-413.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Charles Rivers, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and PEARSON, DANIEL, JJ.
   PER CURIAM.

The summary denial of appellant’s motion to vacate the term of five years probation with the special condition that he serve three years in the state penitentiary is reversed and remanded to properly re-sentence the defendant for the reasons and authorities cited in Freeman v. State, 382 So.2d 1307 (Fla.3d DCA 1980).

Reversed and remanded.


text:
    Edwin C. LEE, Appellant, v. STATE of Florida, Appellee.
    No. XX-151.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.
    Edwin Cooper Lee, in pro. per.
    No appearance for appellee.
   PER CURIAM.

Appellant, Edwin Lee, appeals from the lower court’s denial of his motion for post— conviction relief. The trial court refused to take jurisdiction of the motion because of a pending appeal from an order denying an earlier Fla.R.Crim.P. 3.850 motion seeking to vacate the same sentence on different grounds.

We affirm the trial court’s order. Lee’s second motion may not properly be heard on the merits until the appeal of his first motion attacking the same sentence has been resolved. Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978). Since we affirm on jurisdictional grounds only, we express no opinion on the merits of Lee’s motion.

AFFIRMED.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Robert McGRIFF, Appellant, v. Annie McGRIFF, Appellee.
    No. 80-1404.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1980.
    Valencia M. Abner, Legal Services of Greater Miami, Inc., Miami, for appellant.
    Jeffrey A. Schwarz, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   ORDER ON MOTION TO DISMISS

PER CURIAM.

The appeal in this cause shall stand dismissed unless the appellant within ten days of this order files with the clerk of this court a $50 filing fee as required by Section 35.22(3), Florida Statutes (1979), upon a holding that: (a) Section 57.081, Florida Statutes (1979), does not apply to appellate cases, and, accordingly, does not excuse the appellant as an indigent from filing the above $50 appellate filing fee, Lee v. City of Winter Haven, 386 So.2d 268 (Fla.2d DCA 1980); (b) the 1980 Amendments to Section 57.081, Florida Statutes (1979), as contained in ch. 80-348, Florida Session Law Service (1980), were not in effect at the time this appeal was filed [July 9,1980] because the bill containing the said 1980 Amendments was not signed by the Governor until July 3, 1980, two days after its contemplated effective date, thereby making the effective date of the bill August 6, 1980, or 60 days after the adjournment sine die of the session of the legislature in which the said bill was enacted, Art. Ill, § 9, Fla.Const.; 1967 Op.Atty. Gen.Fla. 067-49 (August 10, 1967), and, accordingly, the appellant cannot rely on these amendments to excuse the payment of the above $50 appellate filing fee; and, (c) Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), is, in our view, inapplicable to filing fees in appellate cases and does not hold, as asserted by the appellant, that the equal protection clause of the Fourteenth Amendment requires this court to waive all filing fees in appellate cases to indigent persons.


author: PEARSON, DANIEL, Judge.

text:
    LET’S HELP FLORIDA, a political committee and Paul School et al., Appellants, v. DHS FILMS, INC., a New York Corporation, Appellee.
    No. 80-1910.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1980.
    Simon, Schindler & Tripp and Judith A. Bass, Miami, for appellants.
    Lapidus & Stettin and Herbert Stettin, Miami, for appellee.
    Before BARKDULL, HENDRY and PEARSON, DANIEL, JJ.
   ON MOTION TO DISMISS

PEARSON, DANIEL, Judge.

The trial court entered summary final judgment in favor of DHS Films, Inc., one of two defendants below. The plaintiffs appealed. DHS has moved to dismiss the appeal contending that since the cause continues in the trial court against a co-defendant and that court’s labor is not done, the summary final judgment is not appeala-ble.

We deny the motion to dismiss the appeal. A judgment, if otherwise final, as is the judgment here, which totally disposes of the case as to a party or parties, is a final appealable order which we have jurisdiction to review. Fla.R.App.P. 9.030(b)(1)(A). Such a judgment must be appealed within thirty days of rendition as prescribed in Florida Rule of Appellate Procedure 9.110(b), Dustin v. Latzko, 155 Fla. 824, 21 So.2d 904 (1945); Logan v. Flood, 346 So.2d 1243 (Fla. 1st DCA 1977), and cannot be appealed at the time of the disposition of the balance of the case, Donin v. Goss, 69 So.2d 316 (Fla.1954).

The motion to dismiss is, accordingly, denied.

      . Logan v. Flood holds that where a final judgment is entered in a cause as to one or more defendants, the method of review is pursuant to former Florida Appellate Rule 3.2.b (1968). That rule provided that appeals from final decisions be commenced within thirty days from rendition.

      . This situation is to be distinguished from a judgment which disposes of one of several claims, but where the parties remain in the action in the trial court. The resolution of appealability in the several claims situation depends upon whether they are distinct and sev-erable. See Mendez v. West Flagler Family Ass’n, Inc., 303 So.2d 1 (Fla.1974).


author: RYDER, Judge.

text:
    FLORIDA GULF COAST BUILDING TRADES COUNCIL, AFL-CIO and J. G. Cain, Appellants, v. The Edward J. DeBARTOLO Corporation and Belk Lindsey of Tampa, Inc., Appellees.
    No. 80-200.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1980.
    Rehearing Denied Jan. 5, 1981.

      Richard H. Frank and Mark F. Kelly of Frank, Chamblee & Kelly, P. A., Tampa, for appellants.
    W. Reynolds Allen and Mark E. Levitt of Hogg, Allen, Ryce, Norton & Blue, Tampa, for appellees.
   RYDER, Judge.

Florida Gulf Coast Building Trades Council (hereinafter referred to as Council), appeals an order enjoining it from handbilling activity on the premises owned by the Edward J. DeBartolo Corporation (hereinafter referred to as DeBartolo) and Belk-Lindsey of Tampa, Inc. (hereinafter referred to as Belk-Lindsey). We reverse.

DeBartolo filed a complaint for injunc-tive relief on December 16,1979. The complaint alleges that DeBartolo owns and manages a retail shopping mall containing more than eighty tenants, and that persons acting on behalf of the Council came upon the property to distribute handbills at entrances to the mall. The handbills request consumers not to shop at mall stores because of the mall ownership’s contribution to substandard wages and conditions of employment in the construction of a Wilson’s department store by H. J. High Construction Company. The complaint alleged further that DeBartolo leased property to Wilson’s, who were constructing their own store, and that DeBartolo had no control over the manner of construction. The complaint characterized the handbilling activity as trespass, and sought an order temporarily and permanently enjoining the trespasso-ry conduct.

Appellants moved to dismiss the complaint, alleging that the handbilling activity was protected by Section 7 of the National Labor Relations Act (hereinafter referred to as NLRA) and by Section 8(b)(4) of the Act. The motion also recited that both parties filed unfair labor practice charges with the National Labor Relations Board (hereinafter referred to as NLRB) based upon the handbilling activity. Following an evidentiary hearing, the circuit court entered an order granting the request for injunctive relief. The circuit court rejected the contention that the matter was within the jurisdiction of the NLRB, and found that it possessed subject matter jurisdiction. The court noted in a subsequent order that the motion for summary judgment had been denied.

Following the entry of the injunction, the handbilling activity on behalf of the Council took place upon property owned by Belk-Lindsey. Belk-Lindsey requested leave to intervene, was granted that status, and filed a complaint seeking temporary injunc-tive relief. The court entered an order temporarily restraining the handbilling activity from taking place upon Belk’s property. The dispute with DeBartolo apparently occurred during a week-end and the Council filed an unfair labor practice charge the following Monday. The subsequent charge filed by DeBartolo was prosecuted by the NLRB’s regional director, precluding prosecution of the Council’s charge, because the handbill referred to tenants of the mall, not DeBartolo, and thus entangled neutrals in the underlying dispute.

The Council’s conduct below was in violation of state trespass laws. The question is whether enforcement of that state law is preempted by the exclusive federal competence of the NLRB. When an activity is arguably subject to Section 7 or Section 8 of the NLRA, the states as well as federal courts must defer to the NLRB. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Below, the parties conceded that the conduct was both arguably protected and arguably prohibited. The handbill-ing was arguably prohibited since directed at DeBartolo, a neutral to the dispute with Wilson’s contractor. The handbilling was arguably protected activity under 29 U.S.C. § 8(b)(4) (1970), as publicity for an area standards dispute. Sheet Metal Workers Local 54, 174 N.L.R.B. 362 (1969).

Thus, unless an exception to Garmon applies, the arguably protected and prohibited nature of the activity would require federal preemption. The supreme court has found exercise of state trespass jurisdiction to be proper over arguably prohibited conduct only when there is little risk of state interference with NLRB jurisdiction because the issue presented to the state court is different from that which could have been, but was not, presented to the NLRB. Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). Unlike Sears, the Council did file a charge with the NLRB 12th regional office, but the result was the same since the complaint was not issued by the NLRB regional director. As in Sears, DeBartolo had no direct way to present the issue of location of handbilling to the Board; their complaint could deal only with the act of handbilling and its objectives. Thus, the Sears decision would indicate that the arguably prohibited aspect of the handbilling does not preclude state court assertion of trespass jurisdiction.

The arguably protected nature of the conduct requires preemption when an aggrieved party has an opportunity to invoke NLRB jurisdiction or induce his adversary to do so. Sears, supra. In Sears, the court assumed that the NLRB could not rule on the protected nature of the conduct under a complaint brought by Sears suggesting that the conduct was prohibited. The Sears court noted further that there was little danger of state misdirection in balancing Section 7 rights against state trespass laws, since trespassory conduct is usually not protected and if there is a strong argument for protection, the union would most likely file an unfair labor practice charge to get the issue before the NLRB. While the union attempted this below, the NLRB regional director failed to issue a complaint, and there was, thus, no opportunity for the parties to present the issue to the NLRB.

All of the factors present in Sears which caused the court to hold that state court jurisdiction was proper exist below, and we thus find that the exercise of jurisdiction was proper by the circuit court below. Of course, the next thing the lower court must do after finding jurisdiction would be to decide whether the trespass was protected by federal law by accommodating DeBarto-lo’s property rights with the Council’s Section 7 and Section 8 rights. We are unable to find any indication that the lower court considered this issue; it appears that the injunction was issued as soon as the jurisdictional issue was resolved. Fortunately, we need not deal with that question, for we must reverse for another reason.

The Supreme Court assumed in Sears that Sears could not obtain a ruling on whether the trespassory conduct was protected because the only issue Sears could raise was whether the conduct was prohibited or not. Only the union could raise the issue of the protected nature of the conduct. Apparently the NLRB does not make the same assumption in the case below. During the pendency of this appeal, the NLRB reached a decision in the case brought on DeBartolo’s complaint that the handbilling was prohibited, and indeed found that the handbilling below was protected. Florida Gulf Coast Building Trades Council, AFL-CIO, 252 N.L.R.B. 99 (1980). Since the entire rationale of the Sears case was based on the premise that the above NLRB action was not possible, we are unsure of the effect of Sears on this case and on any future litigation.

We are certain that the NLRB has jurisdiction, to the preemption of state courts, to accommodate property rights and rights created by the NLRA. Since the NLRB has determined that the conduct below was protected, we must reverse the order below and remand with instructions to dissolve the injunction. We note that the injunction was proper when issued. The Sears case was then unclouded, and the lower court, if it had reached an accommodation of DeBar-tolo’s property rights and the Council’s NLRA rights, may have found that the handbilling was not protected. But the NLRB has injected “new law” into that question with their opinion finding the economic interests of mall store owners to be so interdependent as to permit the handbill-ing below. We are constrained to follow the law in effect at the time of our opinion.

Although the NLRB order did not involve Belk-Lindsey, we hold that the same policy considerations apply to accommodation of their property rights as to those of DeBartolo. As the NLRB noted below:

In sum, we find that the mutual obligation is between the parties and the benefits derived from participation in the mall enterprise reflect the symbiotic nature of the relationship between DeBartolo and its tenants, not unlike the relationship between the operations of a diversified corporation. High’s contribution to this enterprise is as an employer which applies its labor to a product, i. e., the Wilson’s store, from which DeBartolo and its tenants will derive substantial benefit. Consequently, we find as a result of its relationship with Wilson’s and the shopping center enterprise that High applies capital, enterprise and service to that enterprise, and thus it is a “producer” in the sense that that term is used in the publicity proviso as interpreted by the Supreme Court in N. L. R. B. v. Servette, Inc., 377 U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964) and by this Board in United Steelworkers of America, AFL-CIO-CLC, 244 N.L.R.B. 6 (1979).
Having found High to be a producer within the meaning of Section 8(b)(4), we find that respondent’s handbilling urging a total consumer boycott of DeBartolo and its tenants other than Wilson’s is protected by the publicity proviso of that section of the Act.

Florida Gulf Coast Building Trades Council, AFL-CIO, supra at 12. While the trial court did not have the benefit of that opinion in reaching the accommodation required between property and NLRA rights, we hold it to be dispositive.

Since the handbilling below was protected activity, the orders of injunction are REVERSED and the cases REMANDED for entry of appropriate orders dissolving the questioned injunctions.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


author: THOMPSON, Judge.

text:
    Robert Larry CROW, Appellant, v. STATE of Florida, Appellee.
    No. SS-321.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1980.
    Rehearing Denied Feb. 13, 1981.

      Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   THOMPSON, Judge.

The appellant was charged with trafficking in stolen property, which consisted of the “royalty rights and/or services” of several popular singers. After a jury trial, the appellant was convicted and he now appeals his conviction. We affirm.

The appellant initially argues that the State’s prosecution of this case was unconstitutional because the activity of dealing in “bootlegged” tape recordings is controlled exclusively by federal copyright laws. See 17 U.S.C. §§ 106-118, 301, 501-510. However, the appellant was not charged with engaging in “bootleg” activities. Instead, he was charged with dealing in stolen royalty rights and/or services, which belonged to various performers, not under federal copyright law, but under various private contracts. These private contractual rights constitute property, see § 812.012(3)(b), Fla.Stat., that are not within the ambit of the federal copyright law.

The appellant also argues that because the State failed to file an information until 149 days after his arrest, his right to due process was abrogated. However, the appellant failed to move for a continuance chargeable to the State. See Mulryan v. Judge, Division “C” Circuit Court of Okaloosa County, 350 So.2d 784 (Fla. 1st DCA 1977); State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975), cert. den. 334 So.2d 609 (Fla.1976). Instead, the appellant filed a written document with the court, wherein he stated that he waived his right to move for a continuance, “notwithstanding that his attorney has advised him that he should move to continue the cause until he has had the opportunity to properly prepare the case for trial.” Accordingly, the appellant cannot properly complain on this appeal that his right to due process has been denied, since his waiver of his right to a continuance was clearly not coerced. See Sumbry v. State, 310 So.2d 445 (Fla. 2d DCA 1975).

We have considered the other points raised by the appellant and find them to be without merit. Therefore, the judgment of conviction is affirmed in its entirety.

MILLS, C. J., and McCORD, J., concur.


author: BASKIN, Judge.

text:
    Ina M. BAEZA et al., Appellants, v. PAN AMERICAN/NATIONAL AIRLINES, INC., Florida Unemployment Appeals Commission and Florida Department of Labor, Appellees.
    Nos. 80-280 to 80-303.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 8, 1981.

      Lawrence Kanzer, Miami, for appellants.
    James R. Parks, Charles E. Patterson, Jr., and Dennis L. Curran, Tallahassee, for ap-pellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Twenty-Four Pan American/National Airlines flight attendants challenge the denial by the Florida Unemployment Appeals Commission of their claims for unemployment compensation benefits approved by claims examiners and affirmed by the Appeals Referee. The Commission reversed the compensation awards to be paid during maternity leaves made mandatory under the collective bargaining agreement between the flight attendants’ union and the airline. That agreement requires an employee to notify her employer as soon as she “has knowledge of her condition.” The Commission found that sick pay benefits paid to appellants during their maternity absences were wages under Section 443.-03(13)(a), Florida Statutes (1977), thus disqualifying them from obtaining unemployment compensation benefits under sections 443.03(12)(a) and 443.04(3)(a). The Commission, however, affirmed the referee’s findings that insurance disability payments did not constitute wages. Under the Commission’s rulings, appellants are eligible to collect sick pay and insurance payments, but not unemployment compensation benefits. Appeals from the Commission’s rulings have been consolidated. We reverse in part and affirm in part.

Our determination of these consolidated appeals depends upon our interpretation of the term “wages” in the cited unemployment compensation statute. If appellants received wages, they were not unemployed and therefore not entitled to unemployment compensation benefits. Section 443.04 permits payment of benefits to unemployed individuals:

(3) Weekly benefit for unemployment.
(a) Total-Each eligible individual who is totally unemployed in any week shall be paid with respect to such week a benefit in an amount equal to his weekly benefit amount.

Section 443.03(12) defines unemployment:

‘Unemployment’: (a) An individual shall be deemed ‘totally unemployed’ in any week during which he performs no services and with respect to which no wages are payable to him, or ‘partially unemployed’ in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount....

Thus, an employee is entitled to receive unemployment compensation for those weeks in which she is not paid wages for services performed. Since appellants received sick pay benefits during their maternity absences, we must decide whether those benefits were “wages” as the Commission contends.

Section 443.03(13)(a) states:

‘Wages’: (a) ‘Wages’ means all remuneration paid for services from whatever source, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash....

Are sick pay benefits, which are based on length of service with the company, payments for rendered services and therefore “wages” under Section 443.03(13)(a), Florida Statutes (1977)?

Appellants rely on section 443.-03(13)(b)(2), which excludes from the definition of wages amounts paid on account of sickness or accident disability:

(b) The term “wages” shall not include:
2. The amount of any payment with respect to services performed, to, or on behalf of, an individual in its employ under a plan or system established by an employing unit which makes provision for individuals in its employ generally or for a class or classes of such individuals (including any amount paid by an employing unit for insurance or annuities, or into a fund, to provide for any such payment), on account of:
a. Retirement.
b. Sickness or accident disability.
c. Medical and hospitalization expenses in connection with sickness or accident disability.
d. Death...

The Commission contends that the general definition of section 443.03(13)(a) is determinative, and that the exclusions for sickness in section 443.03(13)(b)(2), upon which appellants rely, do not apply. We agree with the view expressed by appellants. We hold that the statute expressly excludes sick pay from classification as wages.

Although we note appellee’s contention that section 443.03(13)(b)(2) refers to contributions by an employer to disability plans rather than to benefits paid to employees, we find no authority to support that position.

The courts tell us: “The Unemployment Compensation Law is remedial, humanitarian legislation and should be liberally and broadly construed.” City of Fort Lauderdale v. Fowler, 355 So.2d 159, 161 (Fla. 4th DCA 1978) (quoting Williams v. State, Department of Commerce, 260 So.2d 233, 234 (Fla. 1st DCA 1972)). Section 443.-20, Rule of Liberal Construction, Florida Statutes (1977), states that the unemployment compensation chapter shall be liberally construed to accomplish its purpose to promote employment security and to secure for the citizens of this state certain grants and privileges. It provides that all doubts as to the proper construction of any provision of the chapter shall be resolved in favor of conformity with those requirements. The Unemployment Compensation Law should be liberally construed in favor of claimants. Smallwood v. Florida Department of Commerce, 350 So.2d 121 (Fla. 4th DCA 1977); Fredericks v. Florida Department of Commerce, 323 So.2d 286 (Fla. 2d DCA 1975). Disqualifying provisions are to be narrowly construed. St. Joe Paper Co. v. Gautreaux, 180 So.2d 668 (Fla. 1st DCA 1965).

We are not unmindful of the principle that construction of a statute by the agency or body charged with its administration is entitled to great weight and will not be overturned unless it is clearly erroneous. Ft. Pierce Utilities Authority of the City of Ft. Pierce v. Florida Public Service Commission, 388 So.2d 1031 (Fla.1980) (Case No. 57,854, opinion filed September 25, 1980); State ex rel Biscayne Kennel Club v. Board of Business Regulation of State, 276 So.2d 823 (Fla.1973). In this case, the Commission’s construction of Section 443.03(13), Florida Statutes (1977), was clearly in error.

Comparing related legislative action in order to determine legislative intent, we note that section 443.06 expressly disqualifies a retired employee from receiving unemployment compensation benefits while he receives retirement benefits. Although the legislature in that section prohibits double payment of benefits (retirement and unemployment), no similar disqualification regarding sick pay benefits and unemployment compensation appears. We turn again to the principles of statutory construction and find that any omission is presumed to be deliberate. Cook v. State, 381 So.2d 1368 (Fla.1980). Because the mention of one thing implies the exclusion of another, Thayer v. State, 335 So.2d 815 (Fla.1976), a statute which enumerates or forbids matters is ordinarily construed as excluding those not expressly mentioned. We therefore conclude the legislature did not intend to disqualify recipients of sick pay benefits from collecting unemployment compensation benefits.

The Commission based its ruling on Eastern Air Lines, Inc. v. Florida Industrial Commission, 201 So.2d 604 (Fla. 3d DCA 1967). In that case, a claimant receiving vacation pay but performing no services was held not to be unemployed. Vacation pay was considered remuneration for services.

The Eastern case is distinguishable. In the statute applicable to the cases we now consider, sick pay is expressly excluded from the list of disqualifying factors, whereas vacation pay is not mentioned.

We next consider whether the distinction drawn by the Commission of allowing unemployment compensation benefits to an individual receiving insurance benefits, but disallowing unemployment compensation to an employee receiving sick pay, is valid. Although the airline contributed to both sick pay benefits and insurance benefits, the specific exclusion of section 443.-03(13)(b)(2) precludes a finding that sick pay is “wages”. The Commission has no authority to support its position that merely because sick pay is determined by length of service whereas disability insurance is based solely on an insurance policy, different characterizations and treatment result. We, therefore, hold that neither insurance nor sick pay benefits are “wages” as defined by Section 443.03, Florida Statutes (1977).

We have determined that an applicant who provides no services and receives no wages is “unemployed” under section 443.-04(3)(a). Next, section 443.05(l)(c)(l) requires the applicant to be able and available for work. Once the applicant has “knowledge of her condition”, she is required by the collective bargaining agreement to inform the company. A letter of agreement between the union and the company contains a “stop flying” provision which forces immediate maternity leave without regard to the month of pregnancy or the ability of the employee to work, although reinstatement is guaranteed.

The Supreme Court of the United States has recognized that statutory assumptions that pregnant women are unable to work are invalid. The Supreme Court has held a Utah statute, which made pregnant women ineligible for benefits for a certain period of their pregnancies, upconstitutional and vio-lative of the due process clause of the Fourteenth Amendment. Turner v. Department of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975). See Kibble v. Employment Division, 36 Or.App. 243, 584 P.2d 340 (1978); Gols v. Ross, 59 App.Div.2d 994, 399 N.Y.S.2d 337 (1977). See Generally 51 A.L.R.3d 254 (1973).

A pregnant employee is not automatically unavailable for work. Unlike the applicant in Monsanto v. Florida Department of Labor and Employment Security, Division of Employment Security, 371 So.2d 594 (Fla. 1st DCA 1979), these applicants have not been shown to be unavailable for other work in positions that do not require flying. Section 443.06(2)(a) contains factors to be considered in determining whether work is suitable, but nothing in the statute prevents a pregnant woman from working.

For these reasons, we reverse the decision of the Florida Unemployment Commission which found that appellants were not totally unemployed because they received payments for accumulated sick leave. We hold that accumulated sick leave benefits paid to an employee who is on mandatory maternity leave, but who is able to work, are not wages disqualifying her from receiving unemployment compensation benefits.

We affirm the decision of the Commission relating to insurance payments.

Reversed and remanded for further proceedings to determine the benefits due each applicant.

      . Appellants were employees of National Airlines, Inc. but now are employed by Pan American World Airways, Inc. as a result of a merger of both companies.

      . Agreement between National Airlines, Inc. and its flight attendants as represented by the Transport Workers Union, Local 555, Section 15(F).


author: BOARDMAN, Acting Chief Judge.

text:
    Marilyn M. HOOD, Appellant, v. Arthur F. HOOD, Appellee.
    No. 80-266.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1980.
    Rehearing Denied Jan. 23, 1981.

      Ben W. Thompson of Larkin & Larkin, Dade City, for appellant.
    Leonard J. Holton, Dade City, for appel-lee.
   BOARDMAN, Acting Chief Judge.

Marilyn M. Hood (wife), defendant/cross-claimant in the trial court, appeals a final judgment ruling that her claim for half the amounts collected by appel-lee/defendant/cross-defendant Arthur F. Hood (husband) under a note and mortgage, except for the final payment, was barred by the statute of limitations. We reverse.

On August 21, 1973, husband and wife sold their joint interest in certain realty to Cole and Jean Skinner and took back a note and mortgage. Husband and wife were subsequently divorced on May 17, 1976. At the time of the dissolution of the parties’ marriage, they jointly owned a number of parcels of real estate. The final judgment of dissolution, pursuant to stipulation, awarded wife the marital home, but awarded husband the remaining jointly owned real property described therein. The note and mortgage in question were not specifically mentioned in the final judgment, although numerous other items of personal property were specifically disposed of. The judgment did, however, award all property not specifically mentioned titled solely in the name of one of the parties to that party.

The note and mortgage provided for monthly payments of $676.16. All payments other than the final check, being held in escrow at the time of trial, were made payable to husband and were placed in his separate checking account.

On February 20,1979, the Skinners elected to prepay the balance due on the mortgage and note, notified husband and wife of their intention, and tendered the balance due at that time. Being unable to secure the execution of a satisfaction by wife, the Skinners sued husband and wife for cancellation of the note and mortgage upon payment of the unpaid principal and interest. Wife filed an answer and cross-claim against husband seeking half of the proceeds from the note and mortgage. Husband filed an answer to the cross-claim and a cross-claim against wife alleging an oral agreement prior to the dissolution of their marriage to transfer and assign to him her rights under the note and mortgage and further asserting the defense of laches.

After hearing, the trial court entered final judgment ruling that wife’s claim was barred by the statute of limitations except for the final payment. This appeal followed timely.

It is clear that the statute of limitations does not bar wife’s claim. Section 95.11(2)(b), Florida Statutes (1977) provides that a legal or equitable action on a contract obligation or liability founded on a written instrument must be commenced within five years from the accrual of a cause of action. Continental Casualty Co. v. Florida Power & Light Co., 222 So.2d 58 (Fla.3d DCA 1969). Since there is no indication that payments were not current as of the date of dissolution of the parties’ marriage, May 25, 1976, no cause of action on behalf of wife for lack of payment existed as of that date. Thus, the limitation period would not expire until May, 1981.

Furthermore, the statute of limitations is an affirmative defense. Fla.R. Civ.P. 1.110(d). The defendant is required to affirmatively plead it and, if he fails to do so, he has waived it and is estopped from using it as a defense. Aboandandolo v. Vonella, 88 So.2d 282 (Fla.1956); Tuggle v. Maddox, 60 So.2d 158 (Fla.1952). Husband’s pleadings do not raise the statute of limitations as a defense.

We are not aware of any other basis upon which the judgment below can be upheld. The trial court apparently found against husband on his claim of an oral agreement or it would have ruled that wife was not entitled to any payment. Similarly, we must conclude that the trial court did not believe that wife was guilty of laches or he would not have found that she was entitled to half of the final payment. Laches is a bar to maintenance of suit. Norton v. Jones, 83 Fla. 81, 90 So. 854 (1922). Thus, wife should have been awarded the full amount of her claim or, if the doctrine of laches was applicable, nothing.

Inasmuch as the judgment appealed is in error and cannot be affirmed under any legal or equitable theory, the judgment is REVERSED and the cause REMANDED with directions to award wife one half of the amount collected by husband under the note and mortgage from the date of dissolution of the parties’ marriage.

CAMPBELL, J., concurs.

OTT, J., dissents.

      . The Skinners are not parties to this appeal.


text:
    DEPARTMENT OF REVENUE OF the STATE OF FLORIDA, a State Agency, and Randy Miller, its Executive Director, Appellants, v. The Honorable Ronald J. SCHULTZ, as Pinellas County Property Appraiser, and a Citizen and Taxpayer of Pinellas County, Florida, Appellee.
    No. 80-1311.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1980.
    Rehearing Denied Jan. 15, 1981.
    J. Terrell Williams, Tallahassee, Jim Smith, Atty. Gen. and David K. Miller and William D. Townsend, Asst. Attys. Gen., Tallahassee, for appellants.
    W. Gray Dunlap, County Atty. and Patrick T. Maguire, Asst. County Atty., Clear-water and Benjamin K. Phipps, Tallahassee, for appellee.
   PER CURIAM.

Reversed. See Florida Public Service Commission v. Triple A Enterprises, Inc., 387 So.2d 940 (Fla.1980).

BOARDMAN, Acting C. J., and OTT and RYDER, JJ., concur.


author: OTT, Judge.

text:
    Burt A. JORDAN, Appellant, v. Ann C. JORDAN, Appellee.
    No. 79-1874.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1980.
    Rehearing Denied Jan. 23, 1981.
    Roger B. Davis, Miami, for appellant.
    John R. Asbell of Asbell, Hains, Doyle & LeWallen, P. A., Naples, for appellee.
   OTT, Judge.

A final judgment entered in this dissolution action on August 16,1979, awarded the wife custody of two young children, child support, permanent periodic alimony, lump sum alimony and attorney’s fees. We find no error in those awards and therefore affirm them.

The judgment also ordered the husband to maintain insurance on his life for the benefit of the children and medical/dental insurance coverage for them. In addition, certain conditions were placed on his right of visitation. We find no abuse of discretion in those orders and therefore affirm them.

Finally, the judgment declared the husband in contempt for removing the children from the State of Florida, contrary to “the previous Court order.” It appears from the record that during the course of the proceedings it became apparent to husband that he probably would not prevail in the custody battle. He quietly picked up the children from the wife for “visitation” and moved to the State of Rhode Island. There he obtained a court order restraining the removal of the children from that state. So far as the record reveals, he and the children are still there. In any event, he did not appear to contest the wife’s contempt motion on August 14, 1979, at which time the final hearing on the entire case was also held, resulting in the aforesaid final judgment. As a consequence of the finding of contempt, the judgment sentenced appellant to a year in the county jail, with provision that the sentence would be suspended if he returned the children to the wife within 48 hours. That portion of the judgment is not supported by the record and we therefore reverse it.

A brief review of the trial court proceedings will explain our conclusion regarding the alleged contempt. The first order dealing with custody was contained in a default judgment entered September 22, 1978, when appellant failed to file a timely appearance, and that order awarded temporary custody to the wife. However, on appellant’s motion that judgment was “set aside and vacated” on November 15, 1978, and, although he was (1) ordered to continue to pay temporary child support and (2) later granted physical visitation with the children, the fact remains that no custody order was in effect (or in existence) when appellant left the state with the children.

Under those circumstances, we do not reach the question whether appellant would have been in violation of the temporary custody order had it been in effect. It wasn’t, and therefore contempt proceedings predicated on a violation of such order can have no validity.

The portions of the judgment finding appellant in contempt, and punishing him for it, are vacated and set aside. In all other respects, the judgment is affirmed. Nothing contained herein shall be construed, as imposing any limitation or restriction on the power of the court below to lawfully enforce those provisions of the final judgment of August 16, 1979, which are affirmed by this opinion.

HOBSON, Acting C. J., and CAMPBELL, J., concur.


author: CARLTON, CHARLES T., Associate Judge.

text:
    Marjorie NURDIN and Kal-Mar Construction, Inc., Appellants, v. ANHEUSER-BUSCH, INC., Appellee.
    No. 79-1904.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1980.
    Rehearing Denied Jan. 22, 1981.
    Lee S. Damsker of Gordon & Maney, Tampa, and Mulholland & Anderson, Tampa, for appellant Marjorie Nurdin.
    William Lackey and Samuel R. Neel, III, of McClain & Walkley, Tampa, for appellant Kal-Mar Construction, Inc.
    Larry I. Gramovot and Chris W. Alten-bernd of Fowler, White, Gillen, Boggs, Vil-lareal and Banker, Tampa, for appellee.
   CARLTON, CHARLES T., Associate Judge.

This appeal is brought by appellants Marjorie Nurdin and Kal-Mar Construction, Inc. upon the trial court’s granting of a motion for summary judgment in favor of appellee, Anheuser-Busch, Inc.

Appellant Marjorie Nurdin went to work for an independent contractor, Scientific Industries, Inc., four or five days before her accident. Scientific Industries was an independent contractor of Anheuser-Busch. It had a contract with Anheuser-Busch, Inc. to, among other things, clean the monorail trains. Scientific Industries’ employees worked at Busch Gardens from 8:30 P.M. until 5:00 A.M. and the accident happened around 11:00 P.M.

On the night in question Marjorie Nurdin was assigned by her supervisor to clean a monorail train parked next to a two and one-half foot wide, black metal catwalk that stands five feet off the ground.

Appellant Kal-Mar Construction, Inc. was another independent contractor of An-heuser-Busch, Inc. It provided services that maintained and repaired the monorail trains. In providing these services, Kal-Mar Construction used two hoses which were lying across the catwalk the night of the accident. One hose was a green hose used to clean the monorail engines and the other hose was a black propane gas hose used to fuel the monorails. Scientific Industries had requested in the past that Kal-Mar Construction roll up these hoses at night but they would riot do it. These hoses were found at different places on the catwalk and vicinity on different nights. In addition, there was testimony concerning the lighting conditions. Nurdin testified that the lighting was not adequate that night. The supervisor of Scientific Industries testified that at times the lighting was poor but on the night in question the lighting was good.

While engaged in her duties of cleaning the monorail train, Nurdin tripped and fell off the catwalk. She alleged she tripped over the black propane gas hose lying over the black catwalk and sustained personal injuries.

Considering the record in the case and after hearing arguments of counsel, the trial court entered a summary judgment in favor of appellee, Anheuser-Busch, Inc. This appeal followed.

Summary judgment may be properly granted in negligence cases only where the moving party has successfully met his burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966); McCabe v. Walt Disney World, 350 So.2d 814 (Fla. 4th DCA 1977). This burden was discussed in Wills v. Sears, Roebuck and Co., 351 So.2d 29 (Fla.1977). In Wills, the supreme court pointed out that a movant’s burden is even more onerous in negligence actions where summary judgment procedures historically have been employed with special care. The court observed that unless a movant can show unequivocally there was no negligence, or that the plaintiff’s negligence was the sole proximate cause of the injury, courts will not be disposed to the granting of a summary judgment in the movant’s favor. This court noted in McKay v. Motley, 343 So.2d 668 (Fla. 2d DCA 1977), that since the adoption of the doctrine of comparative negligence it is less probable that a summary judgment on the issues of liability would be appropriate. The existence of negligence or comparative negligence is ordinarily a question for the jury.

Marjorie Nurdin was an employee of an independent contractor. As such, she had the status of a business visitor or invitee upon the premises of the landowner. Hall v. Holland, 47 So.2d 889 (Fla.1950). This court held in Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla.2d DCA 1980), that an invitee’s knowledge of a hazard “is a factor to be weighed by the jury against the landowner’s alleged negligence.” 383 So.2d at 991. Under the factual situation of the instant case, the jury empanelled to try the cause should have the opportunity to reach its verdict after being instructed by the trial court on the issues of negligence and a landowner’s duty to the employee of an independent contractor.

Accordingly, we reverse and remand this cause for further proceedings not inconsistent with this opinion.

HOBSON, Acting C. J., and RYDER, J., concur.


text:
    Barney Martin SHIRAH and Lisa Brennan Shirah, Appellants, v. STATE of Florida, Appellee.
    No. SS-151.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    Rehearing Denied Feb. 9, 1981.
    F. Lloyd Blue, Jr. and J. LaDon Dewrell of Dewrell & Blue, Fort Walton Beach, for appellants.
    Jim Smith, Atty. Gen. and David P. Gaul-din, Asst. Atty. Gen., Tallahassee, for appel-lee.
   PER CURIAM.

The appellants seek review of their convictions for delivery and possession of controlled substances. Section 893.13, Florida Statutes (1977). We have for our consideration two points on appeal.

During the pre-trial activities, the appellants moved to suppress certain evidence which was obtained during a search of the appellants’ home. The trial court denied the motion. The Shirahs now assert error in that the search warrant was based upon an affidavit containing misstatements and unreliable information. After reviewing the motion, we find it contained insufficient allegations to sustain an attack on the underlying affidavit. Mason v. State, 375 So.2d 1125 (Fla. 1st DCA 1979).

The appellants also urge as error the trial court’s denial of two motions for new trial. Each motion alleged as its basis the ineffective assistance of trial counsel. We find that the first motion did not contain adequate allegations to warrant a new trial and that the second motion was not timely filed. Accordingly, the convictions are affirmed.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


author: SHARP, Judge.

text:
    CENTRAL HOME TRUST COMPANY OF ELIZABETH, Appellant, v. John T. LIPPINCOTT and Nancy L. Lippincott, Appellees.
    No. 80-434.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Rehearing Denied Jan. 23, 1981.

      Barry R. Nager, Orlando, for appellant.
    William A. Greenberg, Orlando, for ap-pellees.
   SHARP, Judge.

The plaintiff, Central Home Trust Company of Elizabeth, New Jersey, appeals from a summary judgment entered against it denying any recovery. Central sued the defendants, the Lippincotts, as makers or obligors of an installment promissory note executed in New Jersey. The trial court held the suit was barred by Florida’s five year statute of limitations because Central had charged off the Lippincott debt on its books more than 5 years before the suit was filed. We reverse because there is no basis for applying the statutory bar in this case.

On May 5, 1973, the Lippincotts executed an installment promissory note in Elizabeth, New Jersey, payable to Central. The total debt was $3,445.56, payable in monthly installments of $95.41 commencing July 10, 1973, and if paid according to the terms of the note, the last installment of $95.41 would have been due on June 10,1976. The note contained an acceleration clause allowing the holder to make all payments “immediately due and payable, at the election of the Bank, and without notice to the undersigned, in the event any installment was not paid when due.... ” The Lippincotts failed to pay the installment payment due October 10, 1973, and defaulted on the balance of the payments as well.

Central filed suit in Florida on the note on September 13, 1979, claiming a balance due of $2,923.62, plus interest and other costs. The defendants moved for summary judgment and for judgment on the pleadings on the sole ground that the 5 year statute of limitations barred the suit. The Lippincotts argued the five year statute of limitations commenced to run when the bank charged off the loan, and they placed in the record a letter they received from Central dated May 10, 1979. The letter stated that the Lippincotts owed Central $3,445.56 on the note and that the Bank had “charged off” the loan on March 25, 1974. It explained “when a bank charges a loan off that means they write it off their books as a total loss.” The letter also indicated the Lippincotts left New Jersey without giving Central their forwarding address, and the Bank had just “located” them in Florida.

The statute of limitations begins to run a promissory note when a cause of action accrues against the maker or obli-gor. The UCC provides that for a “time instrument” a cause of action against the maker or acceptor accrues on the day after maturity. Installments due at different times under a note mature or accrue the day after each is due to be paid, and the statute of limitations may run on some and not others. Applying these rules to this case, the installments due in 1973 and some in 1974 may be barred by the statute of limitations, but the balance of the payments due in 1974, 1975 and 1976 would not be barred.

The statute of limitations may commence running earlier on an installment note for payments not yet due, if the holder exercises his right to accelerate the total debt because of a default or other reason. However there is no basis to conclude in this case that the note was accelerated. Under the terms of this note, Central had the option of accelerating if a default occurred. Default by the makers alone could not accelerate the indebtedness. Baader v. Walker, 153 So.2d 51 (Fla.2d DCA), cert. denied 156 So.2d 858 (Fla.1963). To constitute an acceleration after default, where the holder has the option to accelerate, the holder or payee of the note must take some clear and equivocal action indicating its intent to accelerate all payments under the note, and such action should apprise the maker of the fact that the option to accelerate has been exercised. 11 Am.Jur.2d Bills and Notes § 296 (1963). Examples of acceleration are a creditor’s sending written notice to the debtor, making an oral demand, and alleging acceleration in a pleading filed in a suit on the debt. No such demand or notice was given in this case. By the time the suit was filed all sums were due under the terms of the note.

Central “charged off” the Lippin-cott loan as a bad debt in 1974, six months after it went into default. We reject the Lippincotts’ argument that the act of charging off the remaining debt “accelerated” the balance. “Charge-off” is defined in Black’s Law Dictionary as:

[ A]nything manifesting intent to eliminate an item from assets. Write-off of asset or other item, e. g., uncollectible account, receivable or debt. To treat as a loss or expense an amount originally recorded as an asset: usually the term is used when the charge is not in accord with original expectations.

Often charge-offs are required by bank examiners or banking laws and regulations. The process has nothing to do with contacting the debtor and demanding the total debt be paid. It is strictly a bookkeeping or accounting procedure within the bank or loan company. It is not more plausible to say a bank has “forgiven” a debt because it was “charged off” than to say it “accelerated” the debt when it was “charged off.” Neither has nothing to do with the charge-off process.

In similar contexts when the payee of a note has been required by law to present a claim for payments not yet due, such as in bankruptcy proceedings or probate matters, the courts hold that acceleration does not occur. 11 Am.Jur.2d Bills and Notes § 296 (1963).

This rule is based on the theory that the provision is primarily for the benefit of the holder, who can exercise or waive his right as he wishes, since he should be free to decide whether he requires protection under the circumstances of the particular default, and that the obligor should not be entitled to take advantage of his own wrong and cause an automatic change of maturity.

11 Am.Jur.2d Bills and Notes § 294, p. 319 (1963).

For the reasons stated herein, the judgment is reversed and the case is remanded.

REVERSED and REMANDED.

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

      . Section 95.11(2)(b), Florida Statutes (1979) sets a 5 year period for suits involving “a legal or equitable action on a contract, obligation, or liability founded on a written instrument.” The applicable statute of limitations clearly is section 95.11(2)(b), Florida Statutes (1979). Central originally sought to rely on a New Jersey statute. However, it is well established that the forum state’s statute of limitations is generally applicable. Brown v. Case, 80 Fla. 703, 86 So. 684 (1920); 12 Am.Jur.2d Bills and Notes § 1039 (1964); 11 Am.Jur.2d Bills and Notes § 99 (1963). Section 95.10, Florida Statutes, which provides an exception to this general rule, is not applicable. Brown v. Case, supra.

      . Whether or not section 673.122(1), Florida Statutes (1979) may have tolled the statute was not raised by the parties; it is not necessary to consider this point in reaching a decision.

      . 12 Am.Jur.2d Bills and Notes § 1054 (1964).

      . § 673.109(l)(c), Florida Statutes (1979).

      . § 673.122(l)(a), Florida Statutes (1979).

      . General Capital Corporation v. Tel Service Co., 212 So.2d 369 (Fla.2d DCA 1968), modified, 227 So.2d 667 (Fla.App.,1969). 12 Am. Jur.2d Bills and Notes §§ 1030, 1036, 1054 (1964); 21 Fla.Jur. Limitations of Actions §§ 43, 42 (1958).

        . Motel Management Company, Inc. v. Winger, 335 So.2d 9 (Fla. 4th DCA 1976); Federal Home Mortgage Corp. v. Taylor, 318 So.2d 203 (Fla. 1st DCA 1975), 12 Am.Jur.2d Bills and Notes § 1047 (1964); 11 Am.Jur.2d Bills and Notes § 294 (1963); 6 Fla.Jur.2d Bills and Notes § 272 (1978).