author: DANIEL S. PEARSON, Judge.

text:
    Ana Lourdes GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-268.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.

      Black & Denaro and Roy E. Black, Frank Anthony Rubino, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Upon her nolo contendere pleas, Gonzalez was adjudicated guilty and placed on probation for three years, a condition of which was that she be imprisoned for eighteen months. She reserved for appeal the trial court’s denial of her motion to suppress. Finding that the trial court properly denied the motion to suppress, State v. Ruiz, 360 So.2d 1320 (Fla. 2d DCA 1978); Dykman v. State, 300 So.2d 695 (Fla. 3d DCA 1974); State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973), we affirm the judgments of conviction.

We now address the sentence imposed. It is clear that incarceration as a condition of probation which exceeds one year is unlawful. Villery v. Florida Parole & Probation Commission (Fla.1980). (Case No. 57,935, opinion filed October 30, 1980). Because Villery is made expressly retroactive, Gonzalez, sentenced in early 1979, is entitled to have this excessive incarceration condition invalidated, notwithstanding that she failed to object in the trial court to its imposition. Noble v. State, 353 So.2d 819 (Fla.1977); Butler v. State, 343 So.2d 93 (Fla. 3d DCA 1977).

The. State agrees. It urges, however, that if a defendant is to be relieved of an illegal sentence, relief should come from the trial court, upon a motion under Rule 3.850, Florida Rules of Criminal Procedure. The State relies on a severely eroded, if not implicitly overruled, line of cases, which it asks us to resurrect.

In Noble v. State, 338 So.2d 904 (Fla. 1st DCA 1976), the defendant, not having previously challenged his sentence, appealed only the trial court’s order that he receive no credit for good or gain time. The District Court affirmed without prejudice, specifically allowing the defendant to test the legality of the sentence by filing a Rule 3.850 motion in the trial court. In Jones v. State, 341 So.2d 846 (Fla. 3d DCA 1977), this court followed the procedure announced in Noble. Then, in Engel v. State, 353 So.2d 593 (Fla. 3d DCA 1977), where the defendant’s sole contention, raised for the first time on appeal, was that the imposition of separate sentences for offenses which were facets of the same transaction was unlawful, we relied on Noble and Jones and again affirmed without prejudice to the filing of a Rule 3.850 motion.

Our reliance on the First District’s decision in Noble was misplaced. Two months before Engel, the Florida Supreme Court overruled Noble and remanded the case to the District Court to consider the defendant’s challenge to the illegal sentence. Noble v. State, 353 So.2d 819 (Fla.1977). The court noted:

“The opinion of the District Court could be read as a refusal to consider the sentencing error because it was not raised in the trial court. But, fundamental error need not be raised before the trial court for it to be considered at the appellate level.” 353 So.2d at 820, n. 4.

Clearly, then, since the Supreme Court’s decision in Noble, appellate courts may not reject appeals which raise, even exclusively, fundamental sentencing errors even though no issue concerning the error was first addressed by the trial court. Noble does not give us the option to consider a fundamental sentencing error. If a sentencing error is raised on appeal, we must consider it where objection was made below or, absent objection, where the error is fundamental. The rule of Noble comports with the philosophy that substance should supersede form and with the desirable goal that sentencing issues be resolved expeditiously and with minimal effort and expense.

It is true that in some instances, particularly those where only a sentencing error is raised, it may be more expeditious and less expensive to present sentencing questions to the trial court under Rule 3.850. We have encouraged defendants to adopt such a course. Ruiz v. State, 384 So.2d 723 (Fla. 3d DCA 1980); Abraham v. State, 382 So.2d 382 (Fla. 3d DCA 1980). In other instances, as where the defendant raises several points on appeal, among them a sentencing error (as in the present case), it may be more expeditious to present the sentencing question to us. Ruiz v. State, supra. But if a defendant has sought our review of a sentencing error and, as here, has presented us with a record and briefs, whatever expediency might have been accomplished had the issue been presented to the trial court in the first instance will certainly not be accomplished by our refusal to review the alleged error without prejudice to the defendant to begin again with a Rule 3.850 motion in the trial court.

It is indisputable that an error in sentencing that causes a defendant to be incarcerated or restrained for a greater length of time than the law permits is fundamental. Cunningham v. State, supra, and Hamm v. State, 380 So.2d 1101 (Fla. 2d DCA 1980) (prison sentence not reasonably related to purpose of probation as condition of probation); Abraham v. State, supra (sentence disallowing credit for time spent before conviction in hospital as mentally disturbed sex offender); Skinner v. State, 366 So.2d 487 (Fla. 3d DCA 1979), and Butler v. State, 343 So.2d 93 (Fla. 3d DCA 1977) (sentence in excess of statutory maximum); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973) (probationary term after completion of maximum jail term). Such an error can be corrected on appeal or by a trial court in collateral attack proceedings. Skinner v. State, supra. The State urges us to require Gonzalez to seek relief in the trial court. We believe the Supreme Court’s decision in Noble precludes us from doing that. But Noble aside, considerations of expediency compel the same result. We are here presented with a case where the error is patent on the face of the record. Compare Clinton v. State, 389 So.2d 1082 (Fla. 3d DCA 1980); Cannon v. State, 384 So.2d 971 (Fla. 3d DCA 1980). Were the error not obvious, we would not hesitate to deny review without prejudice to the later institution of Rule 3.850 proceedings where the appropriate record could be developed, or otherwise remand the case to the trial court. But in the absence of such a compelling need to have the trial court consider the matter, it is improper for us to deny review.

Accordingly, we reverse the eighteen-month term of imprisonment imposed as a condition of probation and remand for re-sentencing in accordance with Villery v. Florida Parole & Probation Commission, supra. See Rodriguez v. State, 390 So.2d 143 (Fla. 3d DCA 1980).

Affirmed in part; reversed in part.

      . Even before Villery, we held that a prison sentence not reasonably related to the purpose of probation was illegal. Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980); Freeman v. State, 382 So.2d 1307 (Fla. 3d DCA 1980); Geter v. Wainwright, 380 So.2d 1203 (Fla. 3d DCA 1980); Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979).

      . The position taken by the State is not confined to the present case. It has repeatedly urged that sentencing errors are to be corrected by trial courts, not by us.

      .The court’s primary holding was that Noble’s notice of appeal reciting that he sought review of the “judgment and conviction” was sufficient to raise for consideration the sentencing error, and review should not have been denied on that ground.

      . It appears that we may have overlooked Noble in Jenrette v. State, 373 So.2d 718 (Fla. 3d DCA 1979), where, on the authority of Engel, we relegated a defendant to a Rule 3.850 proceeding where he sought our review of the lawfulness of dual sentences for (a) display of a firearm during the commission of an aggravated battery and (b) aggravated battery. See Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980).

      . It does not appear that expediency was considered in Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980), where the court, having reviewed the several errors raised on appeal, refused to review a sentencing error on the basis that it had not been raised below. Again, this was done without prejudice to the defendant seeking Rule 3.850 relief. The court relied on Engel, a case of questionable authority. See discussion, supra.

      . In Jenrette v. State, 373 So.2d 718 (Fla. 3d DCA 1979), we refused to hear the sentencing error raised by the defendant without prejudice to his right to raise the error in a Rule 3.850 motion in the trial court. The trial court then granted Jenrette relief and set aside his sentence for possession of a firearm in the commission of an aggravated battery. Jenrette appealed from this ruling, contending that he was entitled to have the sentence on aggravated battery set aside. Jenrette v. State, 390 So.2d 781 (Fla. 3d DCA 1980). We rejected this contention, but did set aside his conviction for possession of the firearm. Jenrette's first appeal to us was decided August 7, 1979; his second on November 25, 1980. Had we considered Jenrette’s contention the first time, his matter would have been totally resolved two proceedings and a year and a half earlier.

      . By affirming judgments and sentences without prejudice to a Rule 3.850 motion, we necessarily add to the confusion of the trial court. Since it is a time-honored rule that fundamental error may be considered when raised for the first time on appeal, see, e. g., Noble v. State, 353 So.2d 819 (Fla.1977); Butler v. State, supra, or even if never raised by a party, Cunningham v. State, supra; Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), our “affirmance” may be thought to mean that we did not view the error as fundamental. We thus invite the trial court to deny the Rule 3.850 motion on the basis that the error was waived by the defendant’s failure to object.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David Wayne BRIDGES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1705.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    Bennett H. Brummer, Public Defender, and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim, Smith, Atty. Gen., and Steven L. Bolotin and Calianne P. Lantz, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Beck, 390 So.2d 748 (Fla. 3d DCA 1980); State v. Mullin, 286 So.2d 36 (Fla. 3d DCA 1973). Cross v. State, 378 So.2d 114, 116 (Fla. 5th DCA 1980).


author: HENDRY, Judge.

text:
    Raymond KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1896.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.

      Bennett H. Brummer, Public Defender and Charles I. Poole, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony Mus-to, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, defendant below, was convicted of manslaughter after a jury trial upon an information charging him with second degree murder. At the close of all the evidence, a motion was made for judgment of acquittal and denied by the trial court. Appeal is taken from the conviction. We affirm.

At trial, appellant admitted shooting the victim, a cab driver, but alleged that he shot the victim in self-defense following a struggle in the latter’s cab. He testified that he carried a pistol for protection because he felt that his life was in danger as a result of an unpaid drug debt. He also claimed that the victim took a wrapped object out of the glove compartment which proved to be a gun and radioed someone to meet him at a location other than where the appellant sought to go. Neither appellant’s gun nor the gun of the victim was introduced into evidence. Appellant also admitted that the victim never threatened him or made a menacing gesture toward him. The state offered testimony of a witness who observed the struggle, but not the actual shooting. Evidence of appellant’s flight from the scene following the shooting was also introduced by the state to rebut the appellant’s claim of self-defense.

It is appellant’s contention on this appeal that the court’s denial of his motion for judgment of acquittal constituted reversible error. He argues that his uncontradicted testimony of the events surrounding the death established a reasonable hypothesis of innocence; thus, as a matter of law, his version of the incident cannot be disregarded and the conviction must be overturned. We disagree.

The proper test on appeal of a denial of a motion for judgment of acquittal is whether the jury as the trier of fact might reasonably conclude that the evidence excluded every reasonable hypothesis but that of guilt. Rodriquez v. State, 379 So.2d 657 (Fla. 3d DCA 1980); Zuberi v. State, 343 So.2d 664 (Fla. 3d DCA 1977). All facts introduced into evidence are admitted by the defendant, and the court must draw every conclusion favorable to the state. Codie v. State, 313 So.2d 754 (Fla.1975); Rodriquez v. State, supra; Ma trascia v. State, 349 So.2d 735 (Fla. 3d DCA 1977), cert. denied 360 So.2d 1249 (Fla.1978). The motion should not be granted unless there is no legally sufficient evidence on which to base a verdict of guilt. Downer v. State, 375 So.2d 840 (Fla.1979); Everett v. State, 339 So.2d 704 (Fla. 3d DCA 1976).

Relying on the standard enunciated above, we find the evidence legally sufficient to support the trial court’s denial of the motion for judgment of acquittal. The state presented a prima facie case of second degree murder against appellant, thereby shifting to him the burden to come forward with evidence bearing on his claim of self-defense. Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1980); Bolin v. State, 297 So.2d 317 (Fla. 3d DCA), cert. denied 304 So.2d 452 (Fla.1974). In this regard, appellant failed to meet his burden: the only evidence of self-defense put forth by appellant was his own testimony that he was afraid that a “contract had been put out” on his life because of a drug debt he owed. He did not demonstrate that he faced impending danger which required the taking of a life, Teague v. State, supra; Bristow v. State, 338 So.2d 553 (Fla. 3d DCA 1976), nor did he show that he did all that he reasonably could to avoid the killing, State v. Coles, 91 So.2d 200 (Fla.1956), to the point of retreating where necessary, Harris v. State, 104 So.2d 739 (Fla. 2d DCA 1958). Appellant himself admitted that the victim never threatened him in any manner and that he could have run away while the victim was unwrapping the object taken from the glove compartment. The law abhors any theory of self-defense which would submit human life to

the mercy or the cowardice or capricious impulse of one whose easily' awakened fear prompts him, who is armed with a deadly weapon, to strike and upon what at best may be called a hostile demonstration on his victim’s part.

Collins v. State, 88 Fla. 578,102 So. 880, 881 (Fla.1925); Darty v. State, 161 So.2d 864, 873 (Fla. 2d DCA), cert. denied 168 So.2d 147 (Fla.1964).

Once the state demonstrated a pri-ma facie case of murder, the issue of self-defense was properly presented to the jury for resolution. Bristow v. State, supra. Moreover, the jury is not required to accept the testimony of a defendant even when he is the sole eyewitness to the shooting, Darty v. State, supra; rather, the jury’s function is to determine the credibility of the witnesses and weigh the evidence. Appellant’s testimony is subject to the same standard as that of any other witness: the jury is free to believe or disbelieve it in whole or in part. Teague v. State, supra. Where the jury has weighed conflicting evidence, this court will not overrule a verdict if there is competent, substantial evidence to support it. Shiver v. State, 327 So.2d 251 (Fla. 4th DCA 1976).

Careful consideration of the record, briefs, and arguments of counsel in the light of the controlling principles of law leads us to the conclusion that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited and discussed, the judgment and sentence appealed from is affirmed.

Affirmed.

PEARSON, TILLMAN (Ret.), Associate Judge, concurs in the decision to affirm only.

      . Fla.R.Crim.P. 3.380(a).


text:
    Miguel ESTREMADOYRO, Appellant, v. The HEIL CO., a foreign corp., Appellee.
    No. 80-1998.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.

      Alan M. Medof, Miami, for appellant. Ronald B. Gilbert, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Mobil Oil Corp. v. Thoss, 385 So.2d 726 (Fla. 5th DCA 1980); Nessim v. DeLoache, 384 So.2d 1341 (Fla. 3d DCA 1980); § 607.271(5), Fla.Stat. (1977).


text:
    David Lee COLLIER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2439.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1981.
    David Lee Collier, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

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


author: ORFINGER, Judge.

text:
    Dorothy A. DESSERT et vir., Appellants, v. ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY, a Massachusetts Corporation, and Weldon Morford, Appellees.
    No. 80-72.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 1981.

      Anthony I. Provitola, DeLand, for appellants.
    Richard W. Bates and Jesse F. Sparks, Orlando, for appellees.
   ORFINGER, Judge.

Appellants (plaintiffs below) appeal a final judgment entered in favor of appellees (defendants below) based on a jury verdict in favor of appellees. Appellants contend that the trial court erred in giving certain instructions to the jury and in permitting certain testimony to be elicited on cross-examination. Since we conclude that the case should not have been submitted to the jury because the defendants were entitled to a directed verdict, and that therefore the result is correct, we affirm.

Appellant Dorothy A. Dessert was a computer operator employed by General Electric Company in Daytona Beach. In the course of her employment, she stepped into an opening in the floor of a platform upon which her machine was placed, thereby suffering an injury. The platform is part of a testing area where computer cabinets and equipment are tested before being marketed. The equipment being tested requires a mass of electrical cables and air conditioning duct work, so the equipment is placed on'the platform approximately 14 inches high, beneath which the cables and duct work run. The floor panels can be removed to provide access to the cables and electrical outlets below and, as was the case here, the equipment being tested does not always completely cover the opening in the platform on which it is placed.

Appellee Morford, also employed by General Electric, was “Supervisory Representative of Security Control.” He was not appellant’s job supervisor. He had nothing to do with the placement of the equipment on the testing platform or the removal of the floor panels and he exercised no control over the operations. However, Morford was responsible for administering the industrial safety program at General Electric, made determinations of whether a particular condition was a hazard, and was “the individual that would have initiated any remedial action if that was deemed necessary.” Appellant’s complaint against Mor-ford was premised on the theory that he was responsible for providing her with a safe place to work and had a duty to report or correct any defect in the premises which might cause her injury.

The trial court instructed the jury, over appellant’s objection, that the first issue for their determination was whether Morford “committed any affirmative or actual act of negligence which was the legal cause of any loss, injury or damage ...” to appellant. The verdict form, over appellant’s objection, also requested the jury to answer the special interrogatory, viz:

Was there any actual affirmative act of negligence on the part of the Defendant Weldon Morford which was a legal cause of damage to the Plaintiff Dorothy Dessert?

to which interrogatory the jury answered in the negative. Appellants contend that requiring that the jury find an “affirmative act” of negligence on the part of Morford was an erroneous application of worker’s compensation immunity, and led to an incorrect result.

In Zurich Insurance Co. v. Scofi, 366 So.2d 1193 (Fla. 2d DCA 1979), the court was faced with a factual circumstance quite analogous to the case sub judice. There, the decedent was killed when a trench in which he was working collapsed. He brought suit against his supervisor on the theory of negligence in failing to see that the trench was properly braced or sheeted. In reversing a judgment for the survivors, the court found that the supervisor was entitled to the worker’s compensation immunity of his employer.

If a state safety rule was violated at the job site, this was a responsibility of the employer which it can only discharge (or fail to discharge) through its supervisory employee. The supervisor merely carries out the responsibility or duty of the employer. For this purpose he is the employer’s alter ego. Thus, under the circumstances, the supervisor should be entitled to the immunity of the employer.

Id. at 1195.

Although a negligent co-employee may be sued in tort as a third-party tort-feasor notwithstanding the common employer’s immunity, Frantz v. McBee Co., 77 So.2d 796 (Fla.1955), the immunity of the corporate employer extends to its supervisory where that supervisor has committed “no affirmative act of negligence” going beyond the scope of his employer’s non-dele-gable duty. West v. Jessop, 339 So.2d 1136 (Fla. 2d DCA 1976). The umbrella of immunity applies to all those who fill the role of the corporation’s alter ego. Zurich, supra.

Sub judice, the only duty alleged to have been breached by Morford was the duty to provide appellant with a safe place to work. This was the duty owed to appellant by her employer, not by Morford. Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973). Appellant says that Zurich reaches an incorrect result when it relies on Kruse, because in requiring the jury to find an “affirmative act of negligence” on the part of the supervisor the court was departing from the traditional concept of negligence and overlooking the fact that negligence ordinarily can be found from nonfeasance as well as from misfeasance.

In Lupovici v. Hunzinger Const. Co., 79 Wis.2d 491, 255 N.W.2d 590 (1977), the Wisconsin Supreme Court summarized the law relating to personal liability of a supervisory employee for injuries to a fellow employee thusly:

The duty of the officer to supervise an employee is the duty owed to the employer, not to a fellow employee. This duty is exercised in the normal course of the officer or supervisor’s activities. It is when the officer or supervisor doffs the cap of officer or supervisory and dons the cap of a coemployee that he may be personally liable for injuries caused. If the officer or supervisor is to be personally liable it is because of some affirmative act of the officer or supervisor which increased the risk of injury to the employee. If a corporate officer or supervisor engages in this affirmative act, he owes the involved employee a duty to exercise ordinary care under the circumstances. This duty is over and beyond the duty of proper supervision owed to the employer. It is the duty one employee owes another. The purpose of allowing third party actions in addition to worker’s compensation was to retain “the traditional fault concept of placing responsibility for damages sustained upon the culpable party. If an officer or supervisor breaches a personal duty, it does not offend the policy of the Worker’s Compensation Act to permit recovery from the officer or supervisor, [citations omitted],

255 N.W.2d at 592. The rationale of the decision is that the supervisor is personally liable if, as a co-employee, he increases the risk of injury to the employee, that is, he breaches his duty of exercising ordinary care which he owes to the injured party.

Thus, we hold that the “affirmative act of negligence” referred to in Zurich and West means an independent act of negligence committed by the supervisor in breach of a duty to exercise ordinary care which he owes to the injured employee. There was no allegation of such breach nor was there any evidence thereof. The only allegations here, and the only evidence adduced at trial, related to the employer’s non-delegable duty to provide appellant with a safe place to work; thus appellee Morford was entitled to the same tort immunity as was his employer.

The trial court should have granted ap-pellee’s motion for a directed verdict, but since the jury verdict accomplished the same result, the judgment is

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.

      . The record shows that appellant received worker’s compensation benefits from appellee Electric Mutual, as the compensation carrier for General Electric Company.

      . It must be noted here that the trial court gave to the jury the definition of negligence found in Standard Jury Instruction 4.1 as follows:
      Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.

      . Both the instruction to the jury and the interrogatory in the verdict here referred to an affirmative or actual act of negligence.


text:
    Jerry Bernard SLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 80-91.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 1981.
    Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980).

ORFINGER, SHARP and COWART, JJ„ concur.


author: COBB, Judge.

text:
    Marilyn E. SANDERS, Appellant, v. WAUSAU UNDERWRITERS INSURANCE COMPANY, an Arkansas Corporation, Appellee.
    No. 80-659.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 1981.

      Charles E. Davis of Frederick, Wooten & Honeywell, Orlando, for appellant.
    Robert E. Austin, Jr., of Austin & Bur-leigh, P. A., Leesburg, for appellee.
   COBB, Judge.

While appellant Sanders was staying at her mother’s house, she was involved in a motorcycle-pedestrian accident. The issue in this case is whether she was a member of her husband’s household or a member of her mother’s household at the time of the accident for purposes of insurance coverage.

Wausau insured Sanders’ mother. Sanders made a claim on her mother’s insurance policy for underinsured motorist benefits on the contention that, since she was living with her mother at the time of the accident, she was a member of her mother’s household and entitled to coverage. Wausau denied the claim on the ground that Sanders was only temporarily estranged from her husband and was therefore not a member of her mother’s household.

Sanders filed suit for declaratory relief against Wausau. Wausau answered. Both parties then moved for summary judgment. The depositions of Sanders, her mother, and her husband were filed into the court record. The trial court found that Sanders and her husband' were temporarily separated, and therefore Sanders remained a member of her husband’s household.

Though physically absent from a husband’s house, a wife may remain a member of his household. United States Fidelity & Guaranty Co. v. Williams, 375 So.2d 328 (Fla. 1st DCA 1979); Nationwide Mutual Ins. Co. v. Granillo, 117 Ariz. 389, 573 P.2d 80 (1977). The test for whether a wife is no longer a member of her husband’s household is not just physical absence, but physical absence coupled with an intent not to return. Hawaiian Ins. & Guaranty Co., Ltd. v. Federated American Ins. Co., 13 Wash.App. 7, 534 P.2d 48 (1975); Southern Farm Bureau Cas. Ins. Co. v. Kimball, 552 S.W.2d 207 (Tex.Civ.App.1977).

Ordinarily, intent is a question of fact that should not be decided on a summary judgment. However, in this case, both parties requested that the issue be decided by summary judgment, and prior to the ruling, Sanders’ counsel advised the trial court that he did not believe that he could provide any additional testimony other than that already in the record. With the proceeding in this posture, the trial court could render judgment on the merits, although it amounted to a trial of the case rather than a summary disposition. Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir. 1979); Tripp v. May, 189 F.2d 198 (7th Cir. 1951). See also Carpineta v. Shields, 70 So.2d 573 (Fla.1954).

AFFIRMED.

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


text:
    Carl WASSERMAN, Petitioner, v. FLORIDA STATE BOARD OF ARCHITECTURE AND DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, Respondents.
    No. FF-82.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.
    Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for petitioner.
    Gerald W. Weedon and James C. Rina-man, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, Herbert Coons, Jr., Dorothy Glisson, Stephen Marc Slepin of Slepin & Schwartz, Tallahassee, for respondents.
   PER CURIAM.

This court’s decision in Wasserman v. Florida State Board of Architecture, 361 So.2d 792 (Fla. 1st DCA 1978), held invalid, as an unlawful delegation of legislative authority, Section 467.08(l)(b)5, Florida Statutes (1973). On appeal of this decision the Supreme Court of Florida reversed, Florida State Board of Architecture v. Wasserman, 377 So.2d 653 (Fla.1979), holding that the questioned statutory provision contained adequate legislative standards to guide the Board’s discretion in administering the law so as to determine the qualifications of applicants seeking admission to practice the profession of architecture in Florida. This cause was remanded to this court for consideration of Wasserman’s challenge to the evidentiary basis for the Board’s action in denying him certification as an architect in Florida. We affirm the Board’s decision.

In his appeal to this court, appellant contends that the evidence he presented in the administrative hearing below adequately established his qualifications under the “equivalency” portion of the statute, Section 467.08(l)(b)5, which provides as one of the requirements for admission that the applicant must be either a graduate of an approved school or college of architecture, or have had “training which shall be found by the Board to be fully equivalent to such degree, ...” plus a minimum of one year of diversified training in offices of registered practicing architects.

The evidence of appellant’s accomplishments, while impressive, does not compel a finding of reversible error on the part of the Board. The hearing officer, whose findings and recommended order were adopted by the Board, carefully summarized and evaluated the evidence relating to appellant’s educational qualifications, his work experience, private study and other activities, as follows (recommended order, January 27, 1977):

2.The petitioner received a Bachelor of Science degree from Chicago Technical College, Chicago, Illinois on December 17, 1954. Petitioner’s course of study was architectural engineering. The Chicago Technical College was not, during the time that Petitioner attended it, and is not now on the approved list of schools and colleges of architecture adopted and published by the Board. The course of study pursued by the Petitioner at Chicago Technical College was not the same as a program in architecture. The program was a highly technical engineering program. The design studio which is perhaps the major facet of an architectural program was not present in the architectural engineering program pursued by the Petitioner.
3. Following his graduation the Petitioner worked with other architects in the general practice of architecture. His longest periods of employment were with Cabanban and Wasserman, architects, where he worked for four years and eleven months from 1958 until 1963; and with Ohrnstein and Wasserman, with whom he was employed for four years and four months from 1966 through 1971. In each of these jobs the Petitioner performed the sort of work ordinarily performed by architects. A listing of the different projects in which the Petitioner performed design and supervisory functions is set out as a part of Hearing Officer’s Exhibit 10. A wide variety of commercial buildings, apartment complexes, and private residences are included. Petitioner served as a partner in Cabanban and Wasserman, and in Ohrn-stein and Wasserman. Augustine Caban-ban and Earl Ohrnstein were both registered architects during the course of the partnerships. Cabanban and Ohrnstein each testified that the Petitioner performed the full range of architectural services during the course of the partnerships, and that his work was excellent. Architectural drawings submitted by the Petitioner to the Board demonstrate that the Petitioner did not achieve a high level of design proficiency from his work experience. The best drawings submitted demonstrated a level of competence of approximately a third year architecture student in a five year program. Other drawings demonstrated a lack of design competence, and were inadequate.
4. During 1972, the Petitioner passed the standard examination offered by the National Council of Architectural Registration Boards. Petitioner holds a current certificate issued by the National Council, and is registered to practice architecture in the State of Illinois.
5. Schools or colleges of architecture approved by the Board have many common features, and the curricula offered at the schools are fairly consistent. Generally the programs and the curricula have remained consistent since approximately 1955 with minor variations, or changes of a technical sort. There is no real distinction between the sort of program which would have been approved in 1955, and the sort of program which would be approved today. Typically an approved program which operated on a quarter hour academic basis would require approximately 240 quarter hours for graduation. Approximately 75 quarter hours would be in architectural design culminating in a thesis. Approximately 60 quarter hours would be in general education subject matter, with between 30 to 35 hours in social science and humanities. The social science background is important because an architect must bring together all the factors which relate to the building environment, including social factors.
6. The educational program followed by the Petitioner lacked the necessary design courses and social science courses which would be required in an approved architectural program. An architectural engineer is an engineer involved with buildings. The design courses in an architectural engineering program are set up to enable the engineer to work with an architect. Through on-the-job training the Petitioner received considerable design experience; however, drawings which he submitted to the Board did not evidence that he had achieved the level of design competence which would be required of a graduate of an approved architectural program. The fact that the Petitioner passed the National Council’s test does not in itself establish that Petitioner reached the necessary level of competence. Petitioner did not offer evidence from which it could be concluded that his studies and experience would substitute for the social science background required of a graduate of an approved program. The Petitioner did not establish that he took social science courses, or engaged in individual study in the social sciences, or engaged in any other activities which would substitute for such an academic background.

The Board adopted the hearing officer’s conclusions that appellant failed to establish by satisfactory evidence that he had acquired a level of competency equal to that of an architect with a degree from an approved school or college of architecture, and that appellant’s deficient educational background was not supplemented by private study, on the job training, or other practical experience sufficient to meet the equivalency requirement of the statute.

Our examination of the record convinces us that the findings and conclusions of the hearing officer, and the Board, are supported by competent substantial evidence. This case is distinguishable from Burford v. Florida State Board of Architecture, 342 So.2d 853 (Fla. 1st DCA 1977), in which there was an absence of significant negative findings, factual errors in the findings of the Board, and differences in the qualifications of Burford, who was a registered architect in seven states at the time of his application for registration in Florida. The Board’s decision must therefore be affirmed.

AFFIRMED.

McCORD and LARRY G. SMITH, JJ., and WOODROW M. MELVIN, Associate Judge (Retired), concur.

      . Appellant’s contention that the Board’s failure to follow the technical requirements of the statute by adopting a “rule” setting forth the approved schools or colleges of architecture recognized by the Board is without merit. As pointed out in the Supreme Court’s opinion, Florida State Board of Architecture v. Wasserman, 377 So.2d 653 at 657, the statute itself “establishes a standard by which to evaluate applicants.” The Board’s conclusion that appellant was not a graduate of “a school or college of architecture” is amply supported by the evidence, despite the fact that the Board’s “list” of such “approved” colleges or schools was merely incorporated in its official minutes, rather than being formally promulgated as a rule.

      . Florida State Board of Architecture v. Wasserman, supra, opinion at 654, alludes to the Circuit Court’s declaratory judgment holding that in order to meet the “training” equivalency of the statute, Section 467.08(1 )(b)5.
      ... an applicant must have acquired by any combination of private study, classroom education, on-the-job training and/or other practical experience a degree of proficiency found by the Board after study of each applicant’s qualifications, to be fully equal to the degree of competency as an architect possessed by a graduate of an accredited school.
      Further in the Supreme Court’s opinion, at 657, the court stated:
      The requirement of a degree from a school or college of architecture establishes a standard by which to evaluate applicants. The training equivalency provision of the statute is governed by the same standard. That is, the legislature intended that the Board evaluate the applicant’s training by comparing it to the curriculum required for graduation from a school or college of architecture.
      We interpret this language as tacit approval of the Circuit Court’s interpretation of the statute, which we in turn utilize as a guideline for our review of the Board’s decision.


text:
    PALATKA ABSTRACT AND TITLE GUARANTY, INC., Appellant, v. CITIZENS COMMERCIAL BANK OF TALLAHASSEE, Appellee.
    No. TT-198.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.
    E. Harper Field of Field, Granger, Santry & Mitchell, P. A., Tallahassee, for appellant.
    Gene D. Brown of Lewis & Brown, Tallahassee, for appellee.
   PER CURIAM.

Appellee, Citizens Commercial Bank of Tallahassee, filed a complaint against appellant, Palatka Abstract and Title Guaranty, Inc., in Leon County alleging negligence and breach of contract on the part of appellant.

Citizens Commercial Bank contracted with Palatka Abstract Company to prepare an abstract of title on property situated in Putnam County. The bank alleged that Palatka Abstract negligently failed to include in the abstract of title a mortgage that was recorded concerning the property and two judgments that had previously been recorded. Defendant/appellant filed a motion to transfer venue from Leon County to Putnam County. The motion was denied, and this interlocutory appeal ensued. We affirm.

The question here involves Florida Statutes Section 47.051 which provides:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for the transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.

It is undisputed that Palatka Abstract’s place of business is located in Putnam County and that the property is also in Putnam County. Therefore, if venue is proper in Leon County the cause of action must have accrued there.

In the instant case, the last act necessary to complete the contract was delivery of the abstract to appellee in Leon County.

A cause of action on a contract accrues for venue purposes where the breach of that contract occurs, and if a contract involves performance, the breach occurs where the defaulting party failed to perform an act that it has agreed to do. (Cites omitted)

Speedling, Inc. v. Krig, 378 So.2d 57 (Fla. 2d DCA 1979). Therefore, if a breach occurred, it occurred in Leon County when Palatka Abstract delivered the allegedly deficient abstract. Accordingly, the cause of action accrued in Leon County. Appellants have shown no abuse of discretion by the trial judge below.

Therefore, the order of the trial judge is AFFIRMED.

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


text:
    SHIP SHAPE et al., Appellants, v. Ellis K. TAYLOR, Appellee.
    No. TT-427.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.
    Mark A. Olewinski, Orlando, for appellants.
    Edward H. Hurt, Orlando, for appellee.
   PER CURIAM.

REVERSED and REMANDED for reconsideration in light of this Court’s opinion in East Coast Tire Company v. Denmark, 381 So.2d 336 (Fla. 1st DCA 1980).

ERVIN, SHAW and WENTWORTH, JJ., concur.


text:
    ORLANDO UPHOLSTERY and CNA/Insurance Group, Appellants, v. Clara Webster JOHNSON, Appellee.
    No. TT-432.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1981.

      Mark A. Olewinski, Orlando, for appellants.
    Lawrence L. Lidfeldt, Maitland, for ap-pellee.
   PER CURIAM.

Employer/carrier appeal a workers’ compensation order approving claimant’s retainer agreement with her attorney and further ordering the employer/carrier to retain and pay the claimant’s attorney specific percentages of all moneys paid to the claimant. We reverse.

Claimant allegedly sustained an industrial accident while working for the employer on October 28, 1979. Following the accident, she contacted an attorney and entered into a retainer agreement for prosecuting her claim. Pursuant to Section 440.34(1), Fla.Stat. (1979), a hearing was held and the order now appealed was entered, approving the retainer agreement. Additionally, the order required the employer/carrier to retain and periodically pay to claimant’s attorney specific percentages of any and all moneys due the claimant.

The deputy commissioner was without authority to require the employer/carrier to withhold money due the claimant and to periodically pay claimant’s attorney. East Coast Tire Company v. Denmark, 381 So.2d 336 (Fla. 1st DCA 1980). Section 440.34, Fla.Stat. (1979), does not provide any authority for the continuing duties required from the employer/carrier under the order appealed.

Therefore, the order is reversed and the case is remanded for further proceedings consistent with this opinion.

McCORD, SHIVERS and JOANOS, JJ., concur.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Edward Eugene RARDIN, Appellee.
    No. 79-308.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.

      Michael J. Satz, State Atty. and Patti Englander, Asst. State Atty., Fort Lauder-dale, for appellant.
    Alan H. Schreiber, Public defender and Jerry B. Smith, Asst. Public Defender, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an appeal by the State from an order granting defendant’s motion to suppress physical evidence, the issue being whether defendant consented to the search of his trailer or simply acquiesced to the police officers’ apparent authority. We reverse.

A fire broke out in a trailer occupied by defendant on October 16,1978. The following day, the Broward County Sheriff’s Department sent one of its detectives on a routine investigation to determine the cause and origin of the fire. Upon arrival, the detective identified himself to defendant, told him he was there to inspect the trailer for the cause and origin of the fire, and requested permission to go inside and look around. Defendant agreed and unlocked the door. The detective looked around quickly and left, informing the defendant he would come back later that afternoon to complete the investigation.

Before returning, the detective received a tip that the fire might have been purposefully set to murder someone. The detective suspected that defendant, allegedly inside the trailer when the fire started, was the intended victim.

The detective returned to the trailer approximately two and one-half hours later accompanied by a Deputy State Fire Marshal and an assistant chief of Davie’s Volunteer Fire Department. The trio introduced themselves to defendant and explained they were there to reinspect for the cause and origin of the fire. The detective told defendant they had received a telephone call informing them that the fire was an attempted murder and asked defendant if anyone was after him. They took photographs and picked up burnt debris samples for laboratory testing.

At the hearing on his motion to suppress, defendant admitted willingly allowing the investigators to search the trailer, but claimed he did so only because he did not know he could refuse — “[he] just assumed the man with a badge had a right.” This, according to defendant, vitiated his consent, requiring the investigators to obtain a warrant.

If, as defendant contends, he did not voluntarily consent, the Supreme Court’s opinion in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), required the investigators to secure a warrant to explore the cause of the fire. However, we find the facts of this case undisputably show defendant knowingly and voluntarily permitted the investigators to enter and search his trailer. Unlike Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978), this is not a situation where defendant merely acquiesced to the officer’s apparent authority. The investigators’ actions were entirely reasonable and not at all coercive. By affirmatively responding to the investigators’ request to enter the trailer and unlocking the door for them, defendant expressly invited or agreed to the search.

The investigators’ failure to advise defendant of his right to refuse consent is one factor to be considered in assessing voluntariness, but does not automatically render the consent involuntary. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla.1978); State v. Spanierman, 267 So.2d 102 (Fla. 2d DCA 1972). As the Schneckloth Court stated:

While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. * * * Any defendant who was the subject of a search authorized solely by his consent could effectively frustrate the introduction into evidence of the fruits of that search by simply failing to testify that he in fact knew he could refuse to consent. And the near impossibility of meeting this prosecutorial burden suggests why this Court has never accepted any such litmus paper test of voluntariness. * * * In short, neither this Court’s prior cases, nor the traditional definition of “voluntariness” requires proof of knowledge of a right to refuse as the sine qua non of an effective consent to a search. Schneckloth v. Bustamonte, supra, 412 U.S. 227, 230, 234, 93 S.Ct. 2047, 2049, 2051.

Defendant was not in custody when he gave his consent. In fact, he wasn’t even a suspect. Defendant cooperated with what appeared to be entirely reasonable police conduct designed for his protection.

We hold the defendant’s consent was voluntary and not invalidated by the investigators’ failure to advise him that he might have refused consent. Accordingly, the order suppressing the evidence is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    J. C. JENNINGS, Appellant, v. Thelma JENNINGS, Appellee.
    No. 79-607.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.

      Charles C. Chillingworth, Chillingworth & Considine, Palm Beach, for appellant.
    James F. Simpson, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

On May 26, 1976, the trial court entered an order relieving the husband from any further obligation to pay alimony. On appeal this court in Jennings v. Jennings, 353 So.2d 921 (Fla. 4th DCA 1978), held that it was improper for the trial court to eliminate rather than reduce alimony because the husband had asked for reduction, not termination, of alimony in his petition for modification. In reliance upon the identical situation in Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974), we vacated the portion of the final judgment which terminated alimony and remanded the cause to the trial court for the purpose of determining an appropriate reduction of the husband’s alimony obligation consistent with the pleadings and proof. We also permitted the husband to amend his petition on remand.

Following the issuance of our mandate on February 17, 1978, the husband filed a motion for leave to amend his petition to seek elimination of alimony nunc pro tunc. On April 6, 1978, he withdrew his amended petition and filed another amended petition wherein he asked that the trial court reduce alimony to $1.00 per year or eliminate it altogether if a new trial were necessary to effect the latter. On August 21, 1978, the trial court entered an order, awarding judgment against the husband for back alimony. No appeal was taken therefrom.

On October 20, 1978, the husband filed a motion for judgment asking the trial court to reduce alimony to $1.00 per year from May 26, 1976, to the present. The trial court denied the motion on February 12, 1979, and the husband brought this appeal.

We held in Benson v. Benson, 369 So.2d 99, 101 (Fla. 4th DCA 1979): “A court can only modify support payments prospectively from the time a petition for modification is filed.” Sub judice the motion for judgment serves the same purpose as a petition for modification and we shall impose the same ramifications upon it. Accordingly, for the period prior to the filing of the motion for judgment the order of the trial court is affirmed on authority of Benson, supra.

In consideration of the period subsequent to October 20,1978, we disagree with appellant’s basic argument that the granting of his motion for judgment is what the mandate of this court contemplated. Instead we believe that the mandate contemplated the payment of alimony by appellant until he amends his petition to seek termination and the trial court considers appellant’s pleadings and proof. While appellant may have amended his pleadings, the record fails to reflect any proof to support relief. Therefore, we affirm.

AFFIRMED.

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

      . In Jennings, supra at 921, we said:
      True, the trial judge could have reduced the alimony to $1.00 per year and not have violated the rule of Herbert, supra; however, an award of one dollar would leave open the question of further modification at a later date should changed circumstances justify it.

      . Appellee never asserted that appellant was estopped from again raising the same periods of time considered by the earlier order of August 21, 1978. Therefore, any estoppel argument that may have been available to appellee was waived.


text:
    Edward K. GARVY, Appellant, v. Edward L. HAMILTON, Alma A. Hamilton, Howard D. Wixson, Jr., and Wanda C. Wixson, Appellees.
    No. 79-747.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    Brian J. Fogarty, Boca Raton, for appellant.
    Richard A. Gescheidt, Boca Raton, for appellees.
   PER CURIAM.

We have carefully considered the briefs as well as the record proper in this case and find adequate evidentiary support for the decision of the trial court, although not necessarily for the reason the trial court judge mentioned in his oral ruling at the conclusion of the trial.

Accordingly, we find it appropriate to affirm the judgment appealed from.

AFFIRMED.

DOWNEY, MOORE and HERSEY, JJ., concur.


author: MOORE, Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY and Capeletti Bros., Inc., Appellants, v. Adam FORD, as personal representative of the Estate of Alice Mae Ford, deceased, Appellee.
    No. 79-1672.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.

      Larry Klein and Adams, Coogler, Watson & Smith, West Palm Beach, for appellants.
    Cynthia S. Prettyman, Montgomery, Ly-tal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee.
   MOORE, Judge.

This interlocutory appeal attacks the denial of a motion to transfer venue. We affirm.

The plaintiff (appellee-Ford) sued the appellants and other defendants, including the State Department of Transportation (DOT), in Palm Beach County for the wrongful death of his wife. The trial court correctly granted DOT’s motion to transfer to Leon County that portion of the claim which was against DOT. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). Appellants thereupon moved to transfer the entire case to Leon County because of their pending cross-claim against DOT for indemnification and contribution. The denial of this latter motion forms the basis of this appeal.

Appellants contend that trying the issues involved amongst the various parties to this litigation in two different circuits before two different juries will result in chaos. Although we refrain from characterizing the results in such strong terms, we do appreciate the difficulties involved and the resultant confusion. Nevertheless, as we said in State of Florida, Department of Transportation v. Bromante, 365 So.2d 388 (Fla. 4th DCA 1978): “This, of course, necessitates the plaintiff’s maintaining two suits instead of one, which is certainly not ideal but the remedy perhaps lies with the Legislature.”

The trial court’s reliance on Bro-mante, however, is misplaced. There, the court was concerned with three defendant governmental agencies each of which had an absolute right to be sued in its county of residence. In recognition of City of Boca Raton v. Walker, 354 So.2d 440 (Fla.3rd DCA 1978) and Southern Gulf Utilities v. Mayo, 239 So.2d 146 (Fla. 1st DCA 1969), this Court determined that separate trials are permissible when a governmental agency exercises its right to be sued in its county of residence. Here, only one of three defendants has such an absolute right. When the claim against that defendant is transferred, the venue of the remaining claims is within the sound discretion of the trial court. See, Stowers Equipment Rental Co. v. Brown, 370 So.2d 1248 (Fla. 4th DCA 1979). We find no abuse of that discretion.

Accordingly, this cause is affirmed and remanded for further proceedings.

AFFIRMED.

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


text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant/Cross-Appellee, v. SOUTHERN SANITATION SERVICE, a Florida Corporation, Appellee/Cross-Appellant, v. CITY OF DELRAY BEACH, a municipal corporation, Appellee.
    Nos. 79-2132, 79-2133.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.

      Kenneth L. Ryskamp, Goodwin, Rys-kamp, Welcher & Carrier, P. A., Miami, for appellant/cross-appellee.
    D. David Keller, Bunnell, Graham & Den-man, P. A., Fort Lauderdale, for appel-lee/cross-appellant.
    J. Burke Culler, Jr., Adams, Coogler, Watson & Smith, West Palm Beach, for appellee.
   PER CURIAM.

The trial court dismissed Florida East Coast Railway Company’s (hereinafter FEC) action for lack of prosecution. We reverse.

The record discloses that on June 25, 1976, FEC filed supplemental interrogatories directed to the City of Delray Beach and that on July 2, 1976, the City filed its answers to the interrogatories. On June 27, 1977, Southern Sanitation Service, Inc., moved to dismiss the cause for lack of prosecution and on July 12, 1977, FEC responded to said motion, noticed two depositions and filed an at-issue notice of trial. The trial court granted the motion to dismiss on July 28, 1977.

Following the denial of its motion for reconsideration, FEC on September 23, 1977, filed a notice of appeal of the July 28, 1977 trial court order of dismissal. We dismissed that appeal as untimely. Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So.2d 1200 (Fla. 4th DCA 1979). Thereafter the trial court entered a final judgment of dismissal without prejudice on September 5, 1979 which dismissed the proceeding as to all claims and all parties. FEC brought this appeal from that final judgment.

Initially we hold that we have jurisdiction to consider the present appeal from the final judgment. See Fla.R.App.P. 9.130(g). We further conclude that the trial court erred in dismissing the cause for failure to prosecute because there was record activity within one year preceding the motion to dismiss. Bair v. Paim Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980); Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972); American Salvage and Jobbing Company, Inc. v. Salomon, 367 So.2d 716 (Fla.3d DCA 1979). As we pointed out in Bair, supra, Florida Rule of Civil Procedure 1.420(e) now provides in part: “Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.”

Accordingly, we reverse and remand with directions to reinstate the cause on the docket for further proceedings toward a trial on the merits.

REVERSED and REMANDED WITH DIRECTIONS.

DOWNEY and GLICKSTEIN, JJ., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.

      . We held that at that time the order was non-final and appealable as an interlocutory appeal pursuant to Florida Rule of Appellate Procedure 4.2(a) (1962). Therefore, the motion for reconsideration, treated as a motion for rehearing, did not toll the time for filing the notice of appeal. As a result the notice, filed 57 days after the trial court’s order of July 28, 1977, was not timely. Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So.2d 1200 (Fla. 4th DCA 1979).


text:
    Shawn SYDENHAM, Appellant, v. Luis Adna SANTIAGO and Gulf Oil Company, Appellees.
    No. 80-216.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    Stuart L. Stein of Stein & Grief, Fort Lauderdale, for appellant.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appel-lees.
   MOORE, Judge.

The plaintiff in a negligence action appeals from a final summary judgment entered in favor of the defendant, Gulf Oil Company.

The plaintiff was injured when he was unloading a truck tire which exploded. The explosion allegedly was caused by the negligent manner in which the tire had been repaired at a Gulf service station just prior to the accident.

The service station was operated by Santiago who purchased gasoline and oil products from Gulf and leased a “Gulf” sign. Gulf credit cards were accepted at this station. Santiago purchased all of his tires, batteries, and other accessories from local distributors other than Gulf and all of the other equipment in the station, including the gas pumps, were owned by Santiago. Gulf had no control over the operations of the service station aside from the gasoline sales.

The plaintiff’s complaint alleged that the Gulf Oil Company was vicariously liable for the negligent acts of the service station employees who performed the repairs on the plaintiff’s tire. He alleges that he relied upon Gulf’s representations, through national advertising, of competence in the area of service station operations and, coupled with the Gulf corporate logo on the premises, he was led to believe that Santiago had apparent authority to act as Gulf’s agent.

The final summary judgment is affirmed on the authority of Cawthon v. Phillips Petroleum Company, 124 So.2d 517 (Fla. 2nd DCA 1960). An oil company does not confer apparent authority, subjecting itself to vicarious liability for negligence, upon a retail service station by allowing the use of its trade name and selling its products to the station. This holding is consistent with our recent decision in Ortega v. General Motors Corporation, 392 So.2d 40 (Fla. 4th DCA 1980) in which we declined to hold General Motors Corporation liable on an apparent authority theory solely because a truck retailer displayed GMC signs and trademarks at its place of business. We are also mindful of the decision in Fernandez v. Valle, 364 So.2d 835 (Fla. 3rd DCA 1978); however, we find it distinguishable. There, the issue was actual control by a principal over an agent. The issue presented to us is simply one of apparent authority of an agent to act on behalf of a principal and is answered by Cawthon.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    Charles A. BROWN and Miriam Brown, husband and wife, Appellants, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, a foreign corporation, and Willie Henry Lawrence, Jr., Appellees. Charles A. BROWN, Jr., Appellant, v. Willie Henry LAWRENCE, Jr., Excell Insurance Company, a foreign corporation, authorized to do business in the State of Florida, and Progressive Casualty Insurance Company, a foreign corporation, Appellees.
    Nos. 80-778, 80-781.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1981.
    William H. Roundtree, Cocoa, for appellants.
    D. David Keller, Bunnell, Graham & Den-man, P. A., Fort Lauderdale, for appellees, Lawrence and Progressive Cas. Ins. Co.
   BERANEK, Judge.

These two appeals grow out of a single auto accident and the resulting litigation. We affirm. Mr. Lawrence sued Mr. Brown (appellant) and his insurance carrier for personal injuries and property damage sustained in an auto accident of May 9, 1975. Brown counterclaimed against Lawrence and his insurer, Progressive Casualty Insurance Company, for personal injuries and property damage growing out of the same accident. Brown was represented by an attorney furnished by his insurance carrier on the defense of the action, and was also represented by his personal counsel on the prosecution of his counterclaim.

Shortly before trial, a settlement was reached. A joint “Motion for Order of Dismissal” was signed by plaintiff’s counsel and the one attorney representing defendant and defendant’s insurance company. The joint motion recited “that all matters and things in controversy between them have been amicably settled and adjusted.” Pursuant to the joint motion an order of dismissal was entered reciting that “the above entitled action be and the same is hereby dismissed .” Almost simultaneously Brown’s personal counsel filed a voluntary dismissal of his counterclaim. This voluntary dismissal stated it was “without prejudice.” The order of dismissal was entered on May 10,1978. The terms of the settlement between Brown and Lawrence were that Brown’s carrier pay Lawrence the sum of approximately $6,000 in return for a complete release from Lawrence.

Several months later on August 28, 1978, Brown and his wife filed a new action against Lawrence and his insurance carrier for the same personal injuries and for the wife’s loss of consortium growing out of the same accident. The defendant filed an answer and subsequently a motion to dismiss the action with prejudice. Lawrence, now occupying the position of defendant, asserted that the previous counterclaim was compulsory in nature and that the dismissal of this compulsory counterclaim resulted in its being barred from further prosecution. The trial court granted the motion to dismiss with prejudice based upon the dismissal of the compulsory counterclaim and the order of dismissal previously entered.

Brown’s counsel then moved to withdraw his notice of voluntary dismissal in the first case and to have the dismissed counterclaim set for trial in that case. These motions were denied and the present appeals are taken from the orders entered in both cases disposing of the counterclaim adversely to Brown. The court also taxed costs against Brown in case no. 76-1342 by order of August 18, 1980. The appellee concedes this order to have been improper and it is thus vacated.

Brown now argues that all parties knew he intended to dismiss his counterclaim because of certain evidentiary problems and to refile it at a later date. Despite this assertion on appeal, it appears this factual issue has never been presented to nor decided by the trial court. The motion to dismiss with prejudice made in the new case was based solely upon the state of the record. On the face of the record Brown had dismissed what was obviously a compulsory counterclaim and an order had been entered by the trial court dismissing the entire action with prejudice. The documents contained in the two court files support the actions of the trial court in dismissing the second suit with prejudice.

The only real issue raised on appeal is that the result is unfair because all three lawyers involved knew Brown intended to pursue his counterclaim later. Once again, nothing in the pleadings before the trial court so indicates. A motion for relief under Rule 1.540 of the Rules of Civil Procedure might have presented the argued misunderstanding of counsel as a factual issue for determination. Instead the trial court was presented only with defendant’s motion to dismiss based on the prior dismissal of the compulsory counterclaim and the prior order which dismissed the “action” with “prejudice.”

In the earlier proceeding there was apparently no communication between the one lawyer representing Brown and his insurance carrier and additional personal counsel who was representing Brown on the counterclaim alone. Only insurance counsel signed the joint motion for dismissal. Such split representation certainly has not worked to the client’s advantage but was apparently the client’s choice. We are not called upon to resolve the obvious problems presented when a single client is represented by two lawyers who take independent and inconsistent action on their client’s behalf. These problems were never properly presented to the trial court for decision and, although they are obviously the root of the present controversy, we are unable to reach them here. The orders below are hereby affirmed.

AFFIRMED.

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

      . The issue of whether the wife’s claim could be maintained notwithstanding prior disposition of the husband’s claim is not presented as an issue on appeal and is not here decided. See Resmondo v. International Builders of Florida, Inc., 265 So.2d 72 (Fla. 1st DCA 1972).


author: GRIMES, Judge.

text:
    K. W. QUAINTANCE, Appellant, v. Frederic M. FOGG and Lee Drenckhahan, Appellees.
    No. 80-1014.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1981.
    Frederick C. Kramer of Law Offices of Salvatore C. Scuderi, Marco Island, for appellant.
    Kenneth Muszynski of Arthur V. Woodward, P.A., Marco Island, for appellees.
   GRIMES, Judge.

This case presents the question of whether payments made on a foreign judgment toll the statute of limitations on an action to establish the foreign judgment in Florida.

On June 20, 1979, Frederic Fogg and Lee Drenckhahan filed a complaint against K. W. Quaintance to establish the unpaid portion of a Minnesota judgment as a Florida judgment. The Minnesota judgment, which was attached to the complaint, was rendered on October 28, 1970, and awarded $31,697.70 to Mr. Fogg, his wife Delores, and Mr. Drenckhahan.

Mr. Quaintance answered the complaint, asserting as one of his affirmative defenses that the statute of limitations barred the action. The case went to trial without a jury after which the court entered a final judgment in favor of the plaintiffs. The court found that the Minnesota judgment was originally $31,697.70 but that Mr. Quaintance had from 1973 to 1978 paid Mr. Fogg $8,000.00, leaving a principal balance due of $23,697.70. Accordingly, the court entered judgment in that amount with appropriate interest. Thereafter, Mr. Quain-tance instituted this timely appeal.

In its judgment, the court set forth alternative findings to support its conclusion that the statute of limitations had not run on the plaintiffs’ cause of action. These findings were as follows:

4. That in accordance with § 95.-051(l)(f), Florida Statutes, payments by defendant, K. W. QUAINTANCE, toward satisfaction of the judgment tolled the statute of limitations, assuming that the applicable statute of limitations under § 95.11(2)(a) was 5 years, but the Court finds that the applicable statute of limitations under § 95.11(1) was 20 years.

Appellant argues and appellees concede that the court erred in ruling that the twenty-year limitation period of section 95.-11(1) was applicable to this case as opposed to the five-year limitation period of section 95.11(2)(a). These sections provide that:

95.11 Limitations other than for the recovery of real property shall be commenced as follows:
(1) WITHIN TWENTY YEARS. — An action on a judgment or decree of a court of record in this state.
(2) WITHIN FIVE YEARS.—
(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.
(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
(c) An action to foreclose a mortgage.

Clearly, appellant is right on this point. Appellees’ suit was not an action oh a judgment of a court of record in this state but rather an action on a judgment of a court of Minnesota. This being the case, the statute of limitations barred the suit unless the payments Mr. Quaintance made tolled the limitation period as the court found in its alternative ruling.

The applicable tolling statute is section 95.051 which reads in part as follows:

95.051 When limitations tolled.—
(1) The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:
(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.
(2) No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.

The argument over the applicability of this section centers around whether a judgment is a written instrument upon which an obligation or liability is founded.

At common law, partial payments of a judgment did not toll the limitation period on a suit on that judgment. Olson v. Dahl, 99 Minn. 433, 109 N.W. 1001 (1906). Moreover, to the extent that it can be said that a written instrument is nothing more than a contract, several cases have held that a judgment is not a contract within the meaning of the word contract as it is used in a statute or rule which provides that part payment on a contract will toll the statute of limitations. Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561 (1941); La Salle Extension University v. Barr, 19 N.J.Misc. 387, 20 A.2d 609 (City of Paterson Dist.Ct.1941); Garabedian v. Avedisian, 42 R.I. 78, 105 A. 516 (1919); Yergensen v. Ford, 16 Utah 2d 397, 402 P.2d 696 (1965). On the other hand there are some decisions in which part payments have been deemed to toll the statutes of limitations on judgments, but these cases generally involve judicially created tolling provisions prompted by the total absence of statute or a statute specifically referring to part payment on a judgment. See Annot., 45 A.L.R.2d 967 (1956).

In the final analysis, this is strictly a case of statutory construction, and there are no Florida cases construing the statute and no cases from other jurisdictions which construe similar statutes. In a broad sense, a judgment can be said to be a written instrument upon which an obligation is founded, namely the obligation to pay the judgment. Yet, the use of language in section 95.051(l)(f) which so closely parallels the language contained in section 95.-ll(2)(b) suggests that the legislature intended to limit the instances in which part payment would toll the statute to those causes of action enumerated in section 95.-ll(2)(b). It would have been easy enough for the legislature to have made reference in section 95.051(l)(f) to a claim based upon a judgment had it wished. Consequently, we construe subsection (f) as not including part payments on a judgment. Appellees’ argument that our construction of the statute places a person who reduces his claim on a promissory note to a foreign judgment in a position inferior to one which he held before he obtained the judgment is a matter which must be addressed to the legislature.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and BUCK, MORISON, Associate Judge, concur.

      . Mrs. Fogg died in 1971.

      . Appellees cannot successfully argue that the original notes constituted the written instruments because once they obtained the judgment, the obligations reflected by the notes merged into that judgment. Sessions v. Stevens, 1 Fla. 233 (1847); Restatement of Judgments § 47 (1942).

      . Some courts have suggested that a policy reason for excluding judgments from the tolling provisions is that otherwise title examiners would never know from the face of the record whether a judgment lien remained viable. E. g., Giordano v. Wolcott, 46 N.J.Super. 278, 134 A.2d 593 (1957). In view of section 55.081, Florida Statutes (1979), this may not be as significant a consideration in Florida.


text:
    STATE of Florida, Appellant, v. Calvin JACKSON, Appellee.
    No. 81-43.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 1981.
    Rehearing Denied Jan. 19, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    William N. Hutchinson, Jr., Fort Lauder-dale, for appellee.
   PER CURIAM.

This matter is before the court upon the state’s motion to stay the release of the appellee. The appellee was convicted and sentenced in 1975 for sexual battery. The trial court, on January 9,1981, upon consideration of appellee’s amended motion to mitigate or vacate sentence, modified appel-lee’s life sentence to time served plus three years of probation.

The state contends that under the holding in State v. Pitts, 227 So.2d 880 (Fla. 1st DCA 1969) the trial court has no authority to authorize appellee’s release pending the state’s appeal of the order modifying appel-lee’s sentence. We cannot agree. In our view State v. Pitts held that once an order is entered setting aside a judgment pursuant to Florida Rules of Criminal Procedure 3.850, the defendant is to remain in custody pending the disposition of the state’s appeal and the charges still pending against him, subject to the authority of the trial court to release the defendant on bail.

The appellee sought to have his conviction and sentence vacated pursuant to the provisions of Rule 3.850 alleging in essence that he was illegally arrested and thereafter denied a fair trial. The trial court left appellee’s judgment of conviction intact but modified the sentence as noted, supra.

Under the provisions of Rule 3.850, an appeal from an order entered may be taken “as from a final judgment on application for writ of habeas corpus.” Florida Rules of Criminal Procedure 3.820(b) relating to habeas corpus and custody pending appeal therefrom provides:

(b) Pending a review of a decision discharging a prisoner on habeas corpus, he shall be discharged upon bail, with sureties to be approved as other bail bonds are approved for his appearance to answer and abide by the judgment of the appellate court.

We believe this provision may also apply to a defendant ordered released pursuant to the provisions of Rule 3.850, pending the state’s appeal from the order of release. Also see Donaldson v. Cochran, 117 So.2d 738 (Fla.1960). The proceedings herein do not precisely fit the rule since the appellee was not ordered discharged but rather released on probation. Under these circumstances we feel the trial court’s authority to grant bail is discretionary.

Accordingly, jurisdiction of this cause is hereby remanded to the trial court for a period of 30 days for further proceedings in accordance with the terms of this opinion to determine whether the appellee should be entitled to bail pending disposition of the state’s appeal.

LETTS, C. J, and DOWNEY and AN-STEAD, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    B. W. DEESE and Gladys B. Deese, his wife, Appellants, v. Frank MOBLEY, Appellee.
    No. PP-41.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.
    Frank M. Gafford, Lake City, for appellants.
    Martin S. Page, of Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   LARRY G. SMITH, Judge.

Appellants, Mr. and Mrs. Deese, appeal from a final judgment in their mortgage foreclosure action discharging appellee, Mr. Mobley, from any liability under the note and mortgage. The Deeses contend that the court erroneously determined that an agreement between the Deeses and Hazel Mobley, appellee’s former wife and a comaker on the note, whereby the Deeses released Mrs. Mobley from liability on the note, had the effect of also releasing Mr. Mobley. We find error and reverse.

In 1968 Mobley and his wife Hazel purchased some land from appellants, giving a promissory note and purchase money mortgage to secure the sum of $16,000.00, the balance of the purchase price after a down payment of $1,000.00. In 1973 the Mobleys were divorced and became tenants in common, each owning an undivided one-half interest in the land. A provision in the final judgment of divorce ordered Mr. Mob-ley to make all payments on the Deese mortgage.

Shortly after the divorce, Mrs. Mobley discussed with Mr. Deese her desire to sell her undivided one-half interest in the land. Mr. Deese, being unsure what effect his purchase of her interest would have on his security under the mortgage, suggested that his daughter purchase the property from Mrs. Mobley. Mrs. Mobley understood that she would be relieved of her liability on the note and mortgage, and that the Deeses would look solely to Mr. Mobley for satisfaction of the debt. Mr. Deese examined a copy of the divorce decree, which he interpreted as making Mr. Mobley solely responsible for the obligation under the note and mortgage. Mrs. Mobley then conveyed her interest in the property to the Deeses’ daughter, in turn for which she was paid the sum of $1,000.00 from the daughter’s funds. At the time of the transaction, the mortgage was in default, there being unpaid principal of $16,000.00, and unpaid interest of approximately $4,000.00. The Deeses later filed this foreclosure action against Mr. Mobley only.

The trial court ruled that since the actions of the Deeses operated as a release of Mrs. Mobley from the entire debt, this had the effect of also releasing Mr. Mobley, with whom Mrs. Mobley was jointly and severally liable on the note. The rule of law applied by the trial court is found in Penza v. Neckles 340 So.2d 1210 (Fla. 4th DCA 1976), approved 344 So.2d 1282 (Fla.1977), which held that the written release of one joint and several obligor on a contractual obligation discharged from liability the other joint and several obligor, even though the release expressly stated that it was not the obligee’s intention to release the other joint and several obligor and reserved the right to sue the other joint and several obligor. Appellee argues in support of the trial court’s decision that this rule is one of the “ordinary rules of contract law” contemplated by the “discharge” provisions of Section 673.601(2), Florida Statutes (1979), which provides in part:

673.601 Discharge of parties.—
(1) Any party is also discharged from his liability on an instrument to another party by any other act or agreement with such party which would discharge his simple contract for the payment of money-

In 3, Anderson, Uniform Commercial Code, 63601: 17 “Release of joint maker,” the author states (at page 103):

The general rule that the release of one co-debtor releases the other co-debtors applies to the release of one or more — less than all — of the obligors on the promissory note who are jointly or jointly and severally bound, by virtue of the provision that a negotiable instrument is discharged by any act which would discharge a simple contract for the payment of money. The reason often advanced in support of this rule is that since the debtors have a right of contribution among themselves, the releasing creditor ought not to be allowed to enforce his claim against one whose remedy of contribution has been destroyed by the release.

In another jurisdiction the court has determined that a negotiable instrument may be discharged by an oral release or an oral agreement entered into for valuable consideration, adopting what it presumed to be the majority resolution of the conflict among jurisdictions which have adopted the Uniform Commercial Code. Brunswick Corporation v. Briscoe, 523 S.W.2d 115 (Mo.App.1975).

Despite the foregoing, our reading of the Uniform Commercial Code dealing with negotiable instruments (Chapter 673, Florida Statutes) as applied to the facts of this case, convinces us that the discharge and release of Mrs. Mobley did not release Mr. Mobley of any and all liability, as found by the trial court, but only released him from one-half of the debt.

First, we find upon review of the testimony that the “agreement” between Mr. Deese and Mrs. Mobley does not substantiate appellee’s contention that the entire debt evidenced by the promissory note was discharged. Assuming for the purposes of this decision, although it is questionable, that the “understandings” of the parties to this transaction would qualify as a “release” in the Penza v. Neckles sense we find from review of the record an absence of evidence sufficient to substantiate appel-lee’s claim that the entire debt was discharged. Mr. Deese denied that he agreed with Mrs. Mobley to forgive the debt against her. In his deposition he testified that what he told Mrs. Mobley was: “I will let you, Mrs. Mobley, sell your interest to her, Mary Ann [the Deeses’ daughter], and take you off the note for one-half the mortgage and give you $1,000.00.” The transaction was further explained by the question and answer given by Mr. Deese on cross-examination by appellee’s counsel at the final hearing before the court:

Q. So then I would be correct in saying that your deal with Mrs. Mobley was, you would give her $1,000.00 over your daughter’s name in return for which she’d give your daughter a deed to her one-half interest, and you would additionally take her off the note or forgive her of one-half of the debt that you are suing on here today; is that not correct? (emphasis supplied)
* * * * * #
A. If I said it there, then it is right, yes, sir. I can’t remember just the words. Q. All right. And then it is your intention and has been your intention ever since then that Mrs. Mobley, once she gave a deed to your daughter and took the $1,000.00, was no longer obligated on this debt?
# * * * * #
A. In my mind, I felt she was off of it, yes, sir.

Mr. Deese further testified that upon his examination of the divorce decree between the Mobleys, he noted and relied upon the provision which made Mr. Mobley obligated for all of the mortgage, and “it left her hand, left her half to herself.”

Mrs. Mobley testified in her deposition, admitted at the final hearing, that after she conveyed her interest in the property and received the money, “I figured I was out of it and didn’t have anything to do with it.” She stated also that it was her understanding that Mr. Deese understood also that she would no longer be liable on the mortgage. She further stated, however, that her liability on the note in no way entered into the purchase price of her agreement to sell her one-half interest in the property, and although she thought she would “not be liable” on the note after the sale, she stated that in her conversation with Mr. Deese the note and mortgage and the matter of her payment of it were not mentioned. The following questions and answers also appear in the portions of her deposition introduced into evidence:

Question: Now, did Mr. Deese give you an agreement in writing or any other memorandum that he agreed to absolve you from any obligations on the note or anything like that?
Answer: No, sir.
Question: Well, what exactly were the terms of your agreement with Mr. Deese that you were to be released from the note and mortgage?
Answer: Well, after I sold him my interest in it I thought it would be up to him and Mr. Mobley.
Question: Well, I concur with that, but what agreement? Did Mr. Deese give you any contract?
Answer: No sir.
Question: Isn’t it true, in fact, you and he did not actually discuss that precise point?
Answer: Right, he never did say anything to me about it.

As in the case of other defenses to negotiable instruments, the defendant has the burden of establishing his defense of discharge by a preponderance of the total evidence. This accords with the general rule that the burden of proving payment as a defense is upon the defendant in an action on a note. 6 Fla.Jur.2d, Bills and Notes, § 463. Mrs. Mobley’s “understanding” that she was relieved of any further liability on the note, considered in the light of her testimony that her obligation to pay the note was not discussed, leaves only the testimony of Mr. Deese as to exactly what representations were made with respect to discharge of the note. We find nothing in Mr. Deese’s testimony, nor in the reasonable inferences to which it is susceptible, to support a finding of an agreement with Mrs. Mobley to discharge the entire debt. His statements rather clearly evince an offer to relieve her of one-half of the debt, which she accepted by the conveyance and receipt of the $1,000.00 payment. In reality, it is clear that while Mr. Deese spoke of relieving Mrs. Mobley of her one-half of the debt, he no doubt entertained the notion, based upon the provisions of the divorce decree, that Mr. Mobley would remain liable for the entire debt, and that the mortgage security held by the Deeses would remain unimpaired notwithstanding the transaction between Mrs. Mobley and the Deeses’ daughter. Thus, in their foreclosure suit the Deeses sought recovery of the entire mortgage indebtedness from Mr. Mobley.

Since we find no basis for the conclusion that the entire debt was discharged by agreement with Mrs. Mobley, Section 673.-603, Florida Statutes (1979), would apply, under which the liability of any party is discharged “to the extent of his payment or satisfaction to the holder, . ... ” In return for her conveyance of an undivided one-half interest in the land, plus $1,000.00, Mr. Deese agreed to “take her off the note or forgive her of one-half of the debt.” While it is true that Mrs. Mobley “understood” that she was relieved of the debt, presumably in its entirety, her unilateral understanding was not based upon any agreement with or representations made by Mr. Deese. Because Mrs. Mobley was discharged from half of the debt, based upon the admissions of Mr. Deese, Mr. Mobley would be discharged also, to the same extent, that is, one-half of the total debt. As a matter of fact, at one point in his testimony, appellee stated, in answer to the question whether he still owned his half interest in the land: “Yes, sir, I feel like I do. Once I pay my half of the mortgage, I feel like I do.” The same question was thereafter repeated, with an objection on the grounds of irrelevancy and immateriality being sustained.

Appellee suggests that the trial judge could well have bottomed his ruling upon a finding that Mr. Mobley was discharged under Section 673.606(l)(a), Florida Statutes, which provides:

673.606 Impairment of recourse or of collateral.—
(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
(a) Without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, ....

We agree with appellee’s contention that the identity of persons having a “right of recourse” referred to in this section would ordinarily be determined from the face of the note itself, unless the holder had knowledge of some separate agreement, rather than from the provisions of a divorce decree, which, as pointed out by appellee, is considered primarily as a resolution of the rights and interests of the parties to the divorce, and in many instances is subject to change by subsequent action of the court. Again, however, we find in the quoted language of Section 673.606(l)(a) no support for appellee’s contention that Mr. Mobley should be relieved of the entire debt. We note first that this provision deals with “suretyship defenses.” See Florida Code Comments and Uniform Commercial Code Comment, 19B, Florida Statutes Annotated, § 673.606; 3, Anderson, Uniform Commercial Code, § 3-606:4, 606:5. There appears to be a conflict of authority on whether the term “any party”, as used in the Uniform Commercial Code § 3-606(l)(a) (Section 673.606(l)(a), Florida Statutes), includes comakers, Rushton v. U.M. & M. Credit Corporation, 245 Ark. 703, 434 S.W.2d 81 (1968), or does not include co-makers (except accommodation makers), Wohlhuter v. St. Charles Lumber and Fuel Co., 62 Ill.2d 16, 338 N.E.2d 179 (1975); Provident Bank v. Gast, 57 Ohio St.2d 102, 386 N.E.2d 1357 (1979); and Hooper v. Ryan, 581 S.W.2d 237 (Tex.Civ.App. 10th Dist., 1979). But the authorities indicate that the release of one of two makers under Section 3-606(l)(a), Uniform Commercial Code, discharges the other to the extent of only half his liability, since one maker would have the right of recourse against the other maker for only one-half of the note. See Provident Bank v. Gast, supra, at page 1360, note 4, citing White and Summers, Uniform Commercial Code, page 434, at note 121, Section 13-14.

According to the foregoing authorities, assuming Section 673.606(l)(a) is applicable, Mr. Mobley would be entitled to discharge as to only one-half of the obligation evidenced by the note and secured by the mortgage, a result consistent with the one we reach here on the factual basis previously discussed.

REVERSED and REMANDED for further proceedings consistent with this opinion.

ROBERT SMITH and WENTWORTH, JJ., concur.

      . Since the note did not state whether the Mob-leys were jointly or severally liable, they became jointly and severally liable by operation of Section 673.118(5), Florida Statutes (1979):
      (5) Unless the instrument otherwise specifies two or more persons who sign as maker, acceptor or drawer or indorser and as a part of the same transaction are jointly and severally liable even though the instrument contains such words as “I promise to pay.”

      . Here the “release” relied upon in appellee’s defense was based entirely upon oral statements made by Mr. Deese contemporaneously with and as an inducement for the transaction between Mrs. Mobley and the Deeses’ daughter. Penza v. Neckles, supra, deals with a written release, of a contractual obligation, not a negotiable instrument. The rights as between holders, makers and sureties of promissory notes qualifying as negotiable instruments, with respect to the discharge of one by the discharge of another, are governed by statute, Chapter 673, Florida Statutes. See Brunswick Corporation v. Concorde Yachts, Inc., 370 So.2d 102 (Fla. 4th DCA 1979). We defer further attempts to place a “label” on the transaction in question because this issue has not been briefed by the parties. We note, however, the discussion in 10 Fla.Jur.2d, Compromise, Accord and Release, § 1, pointing out that the lines of distinction among accord and satisfaction, compromise and settlement, novation, payment, and release are not well-defined. We note further that a release, unlike accord and satisfaction, and compromise and settlement, generally must be in writing. 10 Fla.Jur.2d, Compromise, Accord, and Release, § 1, and 28 Fla.Jur., Release, § 2.


author: McCORD, Judge.

text:
    CARDINAL INDUSTRIES, INC., and Insurance Company of North America, Appellants, v. Clarence DAWKINS, Appellee.
    No. QQ-426.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.

      Donna L. Bergh, Orlando, for appellants.
    Gary L. Stump, Wittaker, Pyle, Stump & Webster, Orlando, for appellee.
   McCORD, Judge.

Appellants, employer/carrier, appeal from a workers’ compensation order awarding certain temporary total disability benefits to appellee, ordering appellants to pay for continuing medical care for appellee and assessing attorney’s fees. Competent substantial evidence supports the Judge of Industrial Claims’ finding of temporary total disability from November 30, 1978, until January 24, 1979, and thus we affirm the benefits awarded therefor. However, as to the remaining temporary total disability benefits awarded and the award of continuing medical care, we reverse.

Appellee sustained a work-related injury in July 1978 when he strained a muscle in his lower back. He missed no work as a result of that injury and continued his work activities as usual, which included lifting heavy sheets of gypsum. On November 7, 1978, he sustained another injury when he fell from a jack and landed on his hand and buttocks on a cement surface. Following that accident, he continued normal work activities for two weeks, after which time he consulted Dr. Williams, a family physician. Dr. Williams took x-rays but found nothing wrong with appellee, and referred appellee to Dr. Madison, an orthopedist, who first saw appellee in December 1978. Dr. Madison prescribed a corset for appellee as well as physical therapy but did not place any restrictions on appellee in regard to his back. In January 1979, appellee was seen by Dr. Madison’s partner, Dr. Mackey. Dr. Mackey found no objective indication of back injury but, based on appellee’s subjective complaints, he prescribed a certain nerve treatment and physical therapy three times a week. Dr. Madison testified that during the time appellee was undergoing therapy, he was unable to work. He also testified that by January 24, 1979, he had performed all the appropriate tests and still found no objective findings of any back problems. Consequently, he prescribed no further treatment. Another doctor, Dr. Stanford, began to see appellee in February 1979 and, after taking extensive tests, concluded that he could find no cause for ap-pellee’s symptoms, and he had no treatment to offer.

At the hearing, appellee testified that he still suffers pain. He has not worked since December 11, 1978, and, at the time of the hearing in February 1979, he felt he was unable to work. The Judge of Industrial Claims concluded that appellee was temporarily totally disabled from November 30, 1978, the date he last worked for his employer, forward. He also ruled that appellants are responsible for payment of past and future medical bills incurred by appel-lee.

Dr. Madison’s testimony is competent to establish that appellee was unable to work during the period of physical therapy, which ended January 24, 1979, when Dr. Madison concluded that, on the basis of many tests, appellee suffered no physical injury. Thus, on the basis of Dr. Madison’s testimony, the evidence supports the finding of temporary total disability until that point in time.

Competent substantial evidence does not, however, support the Judge of Industrial Claim’s conclusion that appellee is entitled to further temporary total disability benefits and to continuing medical treatment. Of the three doctors testifying, none found residual problems with appel-lee’s back, and all three recommended no further treatment. The only testimony indicating temporary total disability and the need for continuing treatment was appel-lee’s own testimony. According to Action Pool Builders v. Grant, IRC Order 2-3743 (1979):

Where there is no medical evidence that the claimant is totally disabled, total disability cannot be established merely by the claimant’s testimony that he did not make an effort to work because he did not feel able to do so. Under such circumstances, a claimant is required to make an effort to return to gainful employment. Martin Marietta Corporation v. Johnson, 7 PCR 355 (1973), cert. denied, 283 So.2d 557 (Fla. 1973).

Therefore, the award of temporary total disability benefits beyond January 24,1979, and the award of continuing medical treatment are reversed.

As to the award of attorney’s fees, we remand for reassessment in light of the reduction of benefits awarded as a result of this opinion.

Affirmed in part, reversed in part, and remanded for reassessment of attorney’s fees.

MILLS, C. J., and BOOTH, J., concur.