author: HERSEY, Judge.

text:
    Clifford Eugene LAWRENCE, Appellant/Cross-Appellee, v. Jane Barbara LAWRENCE, Appellee/Cross-Appellant.
    No. 79-266.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Timothy P. McCarthy of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, P. A., West Palm Beach, for appellant/cross-ap-pellee.
    Edna L. Caruso of Edna L. Caruso, P. A., West Palm Beach, for appellee/cross-appel-lant.
   HERSEY, Judge.

Appellant, Clifford Eugene Lawrence, appeals from an order holding him in contempt of court and appellee, wife, cross-appeals that part of the order awarding her attorney’s fees.

The parties were divorced in 1972 and the final judgment incorporated a property settlement agreement which, among other things, required appellant to pay $200 every other week to the wife for the support of their two minor children.

As a result of modification proceedings initiated in 1977 and continuing into 1978 the trial court entered an order which stated in pertinent part:

The father shall pay to the mother for the support of the children the sum of $300 every other week retroactive to the serving of the petition, March 9, 1977.

In December of 1978 appellee filed a motion seeking to hold appellant in contempt of court for failure to pay that increment of additional child support accruing from March 9, 1977, to the date of the modification order. The matter was referred to a domestic relations commissioner and in due course the commissioner’s report was filed in the proceedings. Apparently, appellant had paid $100 toward the arrearages which was overlooked in the proceedings, but this fact is not relevant to any issue material on appeal.

The trial court entered an order finding appellant in contempt on the following basis:

It was the Court’s intention and the Modification Order of August 7, 1978 so reflects, that the retroactive arrearage of $3,700.00 was due and payable on August 7, 1978 when the order was rendered.

While it may have been the trial court’s intention to require immediate payment of arrearages there is nothing in the modification order which would have alerted appellant to the necessity for immediate payment. One may not be held in contempt of court for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction. Kranis v. Kranis, 313 So.2d 135 (Fla. 3rd DCA 1975). Courts should be explicit and precise in their commands and should only then be strict in exacting compliance. Hettinger v. McMahon, 164 So.2d 553 (Fla. 2d DCA 1964).

We find that the trial court’s order was not sufficiently explicit and precise with reference to the time for payment of ar-rearages to support a conclusion that appellant willfully or wantonly violated that order. Accordingly, we reverse that portion of the order holding appellant in contempt of court.

On the subject of the award of attorney’s fees, appellant takes the position that the award is in error and appellee cross-appeals on the basis that the award was inadequate.

Section 61.16, Florida Statutes (1979), authorizes an award of attorney’s fees in modification proceedings. Such an award is discretionary. The purpose of an award of attorney’s fees is to insure that both parties will reasonably have the same ability to secure competent legal counsel. Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978). The record supports an award in the instant case and the amount is within the bounds of the trial court’s discretion.

We have considered the other points raised by appellant but find them to be without merit.

The order appealed from is therefore reversed insofar as it finds appellant in contempt of court and in all order respects is affirmed. The matter is remanded for correction of the order to eliminate that aspect which holds appellant in contempt of court and to correct the amount of arrearages.

Appellee’s motion for attorney’s fees on appeal is granted, the amount to be set by the trial court in appropriate proceedings.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

ANSTEAD, J., and FAGAN, OSEE R. (Associate Judge), concur.


source: Caselaw Access Project

author: PER CURIAM. HERSEY, Judge,

license: Public Domain

text:
    CARIBBEAN AGENCIES, INC., Appellant, v. AGRI-EXPORT, INC., a Florida Corporation, Gulf States Trading Co., Inc., a Florida Corporation, and Mayan Lines, Inc., a Florida Corporation, Appellees.
    No. 79-408.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Reginald M. Hayden, Jr., Law Offices of Reginald M. Hayden, Jr., P. A., Miami, for appellant.
    Richard P. Zaretsky, West Palm Beach, for appellees.
   PER CURIAM.

This appeal brings before us an order denying a motion to vacate a default. We determine that since such an order is not appealable under either Rule 9.110 or Rule 9.130, Florida Rules of Appellate Procedure, we are without jurisdiction to consider this appeal. Moody v. Moody, 371 So.2d 553 (Fla.2d DCA 1979).

DISMISSED.

ANSTEAD, J., and FAGAN, OSEE R., Associate Judge, concur.

HERSEY, J., concurring specially.

HERSEY, Judge,

concurring specially.

Caribbean Agencies, Inc., one of two defendants, appeals a non-final order denying its motion to set aside a default entered by the Clerk pursuant to Rule 1.500(a), Florida Rules of Civil Procedure. We here determine that such an order is not appealable.

A defaulted party may for any number of reasons have no legitimate position in the litigation and yet, if the trial court mistakenly refuses to set aside a default, that party is put to the time and expense of a trial on damages and then an appeal. The parties and our judicial system are thus imposed upon. It seems to me that some reasonable alternative should be adopted. The instant case provides a horrible example.

Appellee, Agri-Export, Inc., filed a complaint against Caribbean Agencies, Inc. and Mayan Lines, Inc. Caribbean failed to file a responsive pleading within the time prescribed. Appellant’s motion to set aside the default was denied on the basis that a meritorious defense had not been shown.

Several recent cases have considered the jurisdictional question involved in an appeal from a default. In order not to further muddy the waters, it is appropriate to point out what is not involved here.

A final judgment consequent upon default is an appealable order. So, too, is an order on an application made pursuant to Rule 1.540(b), Florida Rules of Civil Procedure, which may be appealed pursuant to Rule 9.130(a)(5), Florida Rules of Appellate Procedure. See Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971).

We have before us the disposition of a motion to vacate a default, not a default judgment. Under the Appellate Rules applicable before March 1, 1978 such orders were expressly appealable. Rule 4.2(a) of the 1962 Revision provided that interlocutory appeals would lie “from orders granting or denying motions to vacate default and from orders granting or denying dismissal for lack of prosecution.” The present rules are silent as to the appealability of such orders. A committee note to Rule 9.130, Florida Rules of Appellate Procedure indicate that:

Other non-final orders entered by a lower tribunal after final order are reviewable and are to be governed by this rule. Such orders include, for example, an order granting a motion to vacate default.

This assertion finds no support in the language of the rule itself.

Each of the District Courts of Appeal of Florida, with the exception of the Second District, have held that a non-final order granting a motion to set aside a default is not an appealable order. Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979). Security Motors, Inc. v. Fiat Motors of North America, Inc., 373 So.2d 396 (Fla. 1st DCA 1979); Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979); Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980).

However, a slightly different question is presented where the motion to set aside the default is denied. The Second District addressed this issue and dismissed an appeal in reliance on Praet v. Martinez, supra, which, as indicated previously, involved an order granting, not denying, a motion to set aside a default. Moody v. Moody, 371 So.2d 553 (Fla. 2d DCA 1979). Because of the court’s misapplication of Praet, supra, Moody is not persuasive authority on the precise point involved here.

Rule 9.130(a)(3)(C)(iv) of the Florida Rules of Appellate Procedure provides for appellate review of a non-final order which determines the “issue of liability in favor of a party seeking affirmative relief.” A default entered against a defendant determines the issue of liability in favor of the plaintiff. An order granting a motion to vacate a default moots appealability. The defaulted party is in the same position he would have been in had no default been entered. An order denying a motion to vacate has entirely different consequences. The question of liability has been finally settled adversely to the defaulted party and only the issue of damages (or other relief sought by the complaint) remains to be tried. The time for appeal of the default itself may have expired before the defaulted party has notice that a default has been entered. The adverse party is under no persuasive influence to take action which would alert the defaulted party within the appeal period to his approaching dilemma. At the same time it could plausibly be argued that the default itself and not the order denying a motion to vacate the default fits precisely within the parameters of the rule permitting an appeal. So interpreted, the rule would provide a remedy that in most instances could not be invoked because of being discovered too late.

Under these singular circumstances it would seem reasonable to provide that the filing of such a motion tolls the time in which an appeal may be filed. The operative event becomes rendition of the order disposing of the motion.

I also agree with the views expressed by Judge Smith in his dissent in Security Motors, Inc. v. Fiat Motors of North America, Inc., supra, and by Judge Beranek in his special concurrence in Leibman v. Sportatorium, Inc., supra, that an order setting aside a default should have similar treatment, but it seems evident that a change in the rules is required to effect that result. Such a change would eliminate much confusion and would lead to uniformity as well as judicial economy.

Having disposed of this preliminary issue to my own satisfaction, if not that of the majority, a word about the merits would seem to be in order.

The summons and complaint were served on defendants, Caribbean Agencies, Inc. and Mayan Lines, Inc., at the same address. Appellant’s counsel represented both defendants but filed a motion to dismiss and strike on behalf of Mayan Lines only. Default was entered as to appellant Caribbean Agencies, Inc. without notice. A motion for final judgment consequent upon default was filed and six days thereafter counsel filed a belated answer. The clerk did not return the answer to appellant even though a default had been entered. Appellant then filed a motion to set aside the default, attaching to the motion an affidavit of counsel to the effect that the initial failure to file a responsive pleading had occurred through inadvertence. At the hearing a copy of the answer was filed with the court. The order denying appellant’s motion to set aside default for failure to demonstrate a meritorious defense occasioned this appeal. The record discloses that the trial court apparently accepted appellee’s argument that the motion to set aside default must be sworn to and must itself establish both a meritorious defense and excusable neglect. I would hold to the contrary.

There is no requirement in our rules to the effect that such a motion be under oath. It is sufficient if the evidence in support of the motion be under oath. The motion was supported by an affidavit and the only appropriate inquiry was whether the circumstances constituted excusable neglect.

This Court stated in Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975), and reiterated in Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977), this Court’s philosophy with regard to defaults:

It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense. Clark v. Roberto’s, Inc. at 871.

The following cases essentially hold that misplacement of the summons and complaint is excusable neglect: Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976). In Bryson, supra, the court held that the trial judge abused his discretion in not vacating a default where counsel was absent from the hearing on the motion for default because the date had not been properly noted on his calendar. In English v. Hecht, 189 So.2d 366 (Fla. 3d DCA 1966), the court ruled that an attorney’s failure to file an amended complaint within a specified time was due to excusable neglect because the attorney miscalculated the time period and thus mistakenly docketed the matter on his calendar.

In addition to the reason(s) offered for failure to act, diligence in filing a motion for relief pursuant to Rule 1.540, Florida Rules of Civil Procedure, is a factor to be considered. Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978); Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977). In the case at bar, counsel timely filed a responsive pleading on behalf of one client, inadvertently failing to respond for appellant. Within six days of the filing of a motion for judgment consequent upon default counsel filed an answer and four days later a motion to set the default aside. I would hold that these circumstances compel a finding of excusable neglect.

I also conclude that the trial court was obliged to consider the contents of the proposed answer filed with the court on the question of the existence of a meritorious defense. Bay Convalescent Center, Inc. v. Carroll, 352 So.2d 900 (Fla. 1st DCA 1977); Mission East Co. v. Wyszatycki, 362 So.2d 87 (Fla. 3d DCA 1978). That answer contained an allegation that appellant was the agent for a disclosed principal, which, if proven, would constitute a complete defense to the complaint.

Appellant having demonstrated both a meritorious defense and excusable neglect, it was an abuse of discretion for the trial court to deny the motion to set aside default.

Apparently trial counsel for appellee had reason to suppose that both defendants were represented by common counsel. Notice of the motion for default was not given, nor was a telephone call made before entry of the default, on the mistaken notion that an attorney’s duty to his client prohibits such exercises in professional courtesy. With the impetus in malpractice litigation I can appreciate counsel’s apprehension in this regard. It is my view, however, that counsel’s obligation to his client does not outweigh his duty as an officer of the court. It is the function of our legal system to resolve controversy on the basis of appropriately presented facts, not tactical proficiency. Time limitations exist for the sake of efficiency, not as traps for the unwary. Suffice it to say that in this case a great deal of time and energy has been wasted for want of a single, simple telephone call that a decade ago would have been considered the rule rather than the exception. Perhaps this clarification of counsel’s duty albeit but a passing thought in a special concurrence, may have some slight impetus toward reversing that trend, at least in the limited area now before this Court.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Richard KEEN a/k/a Spud Keen, Appellee.
    No. 79-421.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance, for appellee.
   MOORE, Judge.

This is an appeal taken by the State from the trial court’s order granting the appel-lee’s motion to suppress evidence. Appellant contends that the seizure of evidence was based upon probable cause and was therefore valid. We agree, and reverse.

On November 30, 1978, Detective Fraw-ley of the Martin County Sheriff’s Office observed appellee at the front desk of the Sheriff’s Office in the company of Glen Harden and Charles Roous. Later that same day he again observed appellee, this time inside the Martin County Jail, though neither appellee nor Harden had signed the log required of all persons entering the jail. At this time, Roous was either being arrested or booked on a capias.

At the time he observed appellee in the jail, Frawley was summoned by a Detective Gumbinner who informed him that an FM transmitting and receiving device (a “bugging” device) had just been seized. Fraw-ley observed the device in Gumbinner’s possession. After receiving this information from Gumbinner, Frawley left the jail and headed toward the detective bureau office. At the sallyport at the south end of the jail Frawley again observed appellee and Harden, at which time appellee called out to Frawley and stated that he wanted his bug back. Frawley walked back to the appellee and Harden and engaged them in a conversation with appellee again demanding the return of his device. During this conversation Frawley noticed that Harden stepped back about 15 to 20 feet. He also observed appellee take a small miniature tape recorder from his front left pocket. He saw ap-pellee hold this recorder in the palm of his left hand, at his side, facing away from Frawley. Appellee did not mention the recorder nor did he show it to Frawley, but Frawley recognized it as a recorder because he owned one similar to it. Frawley was not able to observe whether the recorder was running or whether it had batteries or a tape in it. As their conversation terminated appellee placed the recorder back into his pocket. Roous and appellee then exited the jail and they left in a black Lincoln Continental.

Frawley immediately went to the detective bureau to do some research on the wire interception laws. He then contacted Assistant State Attorney Frank Lynch who asked him if there was time to obtain a warrant for the purpose of seizing the “bugging device”. Frawley replied that there was not because both subjects lived out of the county at that time. Frawley then contacted Sergeant Deludes in the Sheriff’s Office to tell him to be on the lookout for appellee’s vehicle and to stop it and seize the tape recorder. He described the vehicle as a black Lincoln Continental, with several antennae, carrying two white men, appellee and Roous. Frawley also advised Deludes as to what had occurred, specifically stating that appellee had apparently been recording his conversation with Frawley without Frawley’s consent. He also stated that Gumbinner had previously seized the FM bugging device. This BOLO was issued at approximately 2:30 p. m. and the appellee was stopped within the hour about three to four blocks from the Sheriff’s Office.

Deludes testified that the car was stopped by Sergeant Baker at Deludes’ request and in his presence. He testified that Frawley had told him the following information: that Gumbinner had seized an FM device; that Frawley believed that his conversation had been recorded; a description of the recorder; and a description of the car in which the appellee was driving.

As soon as Baker stopped appellee’s vehicle, appellee exited. Deludes walked up to him and observed a recording device fitting the description given to him by Frawley. The device was located in appellee’s shirt pocket. Deludes identified himself and told appellee that he was seizing the recorder. Both men reached for the recorder at the same time, but Deludes managed to gain possession of it. Deludes then took the recorder and issued a property receipt to appellee, which the appellee refused to sign. Both Deludes and the appellee testified that the recorder was located visibly on the ap-pellee’s person at the time of the seizure and that it was in the plain view of the officer. The appellee was not arrested at this time, but he was later charged by information on December 27, 1978 with unlawfully intercepting an oral communication of another in violation of Section 934.-03(l)(a), Florida Statutes (1978), and unlawfully possessing an intercepting device in violation of Section 934.04(l)(b), Florida Statutes (1978).

The sole issue presented by this case is whether there was sufficient probable cause to stop the vehicle of the appellee on the afternoon of November 30, 1978, and thus validate the subsequent seizure of appellee’s tape recorder. If probable cause existed the seizure of the bugging device was justified because of exigent circumstances. See, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Probable cause is defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in believing the accused to be guilty.” Trivette v. State, 244 So.2d 173 (Fla. 4th DCA 1971); State v. Knapp, 294 So.2d 338 (Fla. 2nd DCA 1974). The arresting officer need not actually see the law being violated, nor must he satisfy himself beyond any question that a crime has been committed. Russell v. State, 266 So.2d 92 (Fla. 3rd DCA 1972). The person making the arrest may act either upon facts within his own knowledge or on those communicated to him by a responsible person. Bryant v. State, 155 So.2d 396 (Fla. 2nd DCA 1963). Probable cause to arrest exists where a reasonable person, having the specialized training of a police officer in reviewing facts known to the arresting officer prior to the actual time of arrest, would come to the conclusion that a crime is being or has been committed by the person to be arrested. Skelton v. State, 349 So.2d 193, 194 (Fla. 3rd DCA 1977). A demonstration of the cumulative effect of the police officer’s knowledge and information establishing probable cause can be found in State v. Outten, 206 So.2d 392 (Fla.1968), where the Court stated:

In determining whether the police have probable cause to believe that a [crime] was being committed so as to justify an arrest without a warrant, the sufficiency of the knowledge of the officers must be determined, not by analysis of the effect of each known circumstance in isolation, but by a conclusion as to what a reasonable man, knowing all the facts which the officers knew from their investigation would have believed under the circumstances.

Although we are mindful that the decision of the trial court comes before this Court with a presumption of correctness, the overwhelming weight of the evidence adduced at the suppression hearing indicates error. It is obvious from the record that Frawley had good reason to believe that the appellee was probably bugging him, especially when we consider that he had prior knowledge that the appellee was carrying the bugging device. Frawley saw such a device in the hand of the appellee under circumstances which do not indicate he was mistaken. The evidence indicates that Frawley had a rational basis for formulating a probable belief that a violation of Section 934.03(l)(a) had occurred. The cumulative effect of the information and observations known to Frawley, combined with his expertise, knowledge, and skill as a police officer, were sufficient to give him reasonable grounds for believing that the appellee was engaged in the commission of a crime. Since Frawley had probable cause, the oral transmission of the information on which it was based to Detective Deludes perpetuated the probable cause, and allowed a valid seizure of the appellee’s recorder.

Accordingly, the trial court’s order suppressing the evidence is reversed and this cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DOWNEY and ANSTEAD, JJ., concur.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Sidney O’QUINN, Appellee.
    No. 79-587.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    David R. Damore of Aiken & Damore, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an appeal by the State from an order discharging the defendant on speedy trial grounds. Defendant was arrested on July 27, 1978, and subsequently charged with possession of marijuana in excess of 100 pounds. Defendant’s trial was set and reset on several occasions. A 60-day extension of the speedy trial time was ordered and eventually defense counsel made an oral motion to discharge based on speedy trial grounds. The trial court granted the motion by order of March 7, 1979, pursuant to Florida Rule of Criminal Procedure 3.191 and Article I, Section 16, of the Florida Constitution. We reverse.

The trial was initially set for December 4, 1978, before Judge Miette Burnstein. A continuance was ordered and a hearing was scheduled for January 16, 1979, on defendant’s motion to suppress certain evidence. At this hearing, defense counsel learned that the trial of the matter, now scheduled for January 22, 1979, within 180 days from arrest, had been reassigned to Judge Melvin Grossman, a newly appointed Circuit Judge. On January 16,1979, defense counsel filed a motion to disqualify Judge Grossman because he had previously been legal advisor to the City of Hollywood Police Department, which had investigated defendant’s alleged crime. On January 18, 1979, defendant also filed a motion to sever his trial from the trial of another co-defendant.

On January 22, 1979, Judge Grossman entered an order finding that the motion to disqualify was legally insufficient but, sua sponte recusing himself and transferring the case to Judge Thomas Coker, Chief Administrative Judge, for reassignment. On the same day, January 22, 1979, the State filed a motion to extend speedy trial time due to exceptional circumstances as delineated in Rule 3.191(d)(2) and 3.191(f). Judge Thomas Coker granted the motion and, by order of January 22, 1979, extended speedy trial time for a period of sixty days. This extension order was entered on the 178th day after defendant’s arrest.

Thereafter, on March 12, 1979, various motions were being argued before Judge Joseph Price, to whom the case had been reassigned. During this hearing, the defendant made an oral motion to discharge on speedy trial grounds. Eventually, the trial court entered a written order granting the motion based on both the Speedy Trial Rule and on the constitutional right to speedy trial.

Defendant/appellee argues that under the total circumstances, the trial court acted within its discretion in discharging the defendant based upon defendant’s constitutional right to speedy trial. These circumstances principally include the general delay in trial and the State’s failure to comply with defendant’s request for production of police reports under discovery.

We deal with the latter reason first. Defendant moved to compel production of the police reports but had obtained no ruling by the trial court on this issue. Further, the trial court actually deferred ruling on defendant’s motion to compel production of police reports pending an in camera inspection. Since the trial court had not ruled on the discovery issue, it could not have dismissed defendant for that reason. We must, therefore, look to the narrow issues of speedy trial as stated in the order of discharge.

First of all, there has been no technical violation of the speedy trial rule. Prior to the expiration of the 180-day period, speedy trial time was extended for 60 days based upon exceptional circumstances. An order to this effect had been entered by Judge Coker, and the transcript of the hearing in question makes it clear that Judge Price did not intend to overrule the prior extension order entered by Judge Coker. Judge Price stated:

I am not going to grant a motion to dismiss, specifically made on the basis that Judge Coker was in error in entering an order extending the time for speedy trial, because I don’t think it is up to me to say, but I’m not sure that you are making a motion for discharge simply on the basis that speedy trial has run.

After this statement, defense counsel orally argued the issue of constitutional speedy trial as opposed to a technical application of the rule and the trial court announced that the motion would be granted. Although the court’s oral ruling did not specify constitutional grounds, the written order specified both the rule and constitution. We do not find a constitutional speedy trial violation in accordance with precedent on the subject. This case does not fall within the rules of Negron v. State, 306 So.2d 104 (Fla.1974), and State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978). Ninety days had not run from a State continuance after a lapse of the initial 180-day period under the rule. We conclude that the order of discharge herein cannot be sustained on the basis of either the constitution or rule and the order of discharge is thus reversed. The cause is remanded for further proceedings.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ„ concur.


text:
    David Lee LOCKHART, Appellant, v. STATE of Florida, Appellee.
    No. 79-668.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Jeffrey A. Glass and Patrick C. Rastatter of Glass, Rastatter, Stark & Tarlowe, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a judgment and sentence adjudicating the appellant guilty of burglary and sexual battery. He was sentenced to concurrent terms of thirty years and fifteen years, respectively.

Appellant raises only one point which merits discussion. He claims that the trial court erroneously denied his pre-trial motion to compel discovery of certain police reports which he sought for use at trial. Appellant contends that the trial court’s failure to compel the State to furnish these reports deprived him of the opportunity to effectively cross-examine witnesses against him at trial. He argues that the trial court’s action constituted a departure from the mandatory requirements of Florida Rule of Criminal Procedure 3.220(a) which provides:

(a) Prosecutor’s Obligation.
(1) After the filing of the indictment or information, within fifteen days after written demand by the defendant, the prosecutor shall disclose to defense counsel and permit him to inspect, copy, test and photograph, the following information and material within the State’s possession or control:
(i) The names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.
(ii) The statement of any person whose name is furnished in compliance with the preceding paragraph. The term “statement” as used herein means a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement, provided, however, if the court determines in camera proceedings as provided in subsection (i) hereof that any police report contains irrelevant, sensitive information or information interrelated with other crimes or criminal activities and the disclosure of the contents of such police report may seriously impair law enforcement or jeopardize the investigation of such other crimes or activities, the court may prohibit or partially restrict such disclosure. The court shall prohibit the State from introducing in evidence the material not disclosed, so as to secure and maintain fairness in the just determination of the cause.

The State’s chief witness against the appellant was the victim of the burglary-sexual battery. The other witnesses whose testimony is pertinent to this appeal were four officers of the Fort Lauderdale Police Department.

Appellant’s motion to compel discovery of the police reports was based on two alternate theories: (1) the reports contained a substantially verbatim recital of an oral statement by a person (the victim) whose name had been furnished pursuant to Rule 3.220(a)(l)(i), and (2) the reports were written and signed, or otherwise adopted or approved by the officers who made them and whose names had been furnished to the defense. We affirm the denial of the motion to compel discovery and, for purposes of clarity, we will separate our discussion regarding the discoverability of police reports under each of these theories.

Applying the above cited rule to appellant’s first theory, it is obvious that any “statement” made by the victim would be discoverable if it were signed, approved or adopted by her, since the prosecutor provided defense counsel with the victim’s name as a person who had “information . relevant to the offense charged”. Similarly, the victim’s statement would be discoverable if it were a “stenographic, mechanical, electrical or other recording”, or if her statement were a “substantially verbatim recital” of a statement made to a police officer and recorded contemporaneously with its utterance. Appellant thus contends that, because the police reports were based on statements made to the police by the victim, the reports were discoverable and necessary to cross-examine the victim.

The fallacy in appellant’s argument is that the reports did not contain “substantially verbatim” statements of the victim. Nor were these reports adopted, approved, signed, or otherwise ratified by the victim. Furthermore, the reports reveal that the police did not write their reports contemporaneously with the victim’s utterances. Simply stated, the reports are merely synoptic, composite summaries of the victim’s previously rendered narrative of the events surrounding the crime. As such, we find this aspect of the present appeal to be directly apposite to the holdings of the Third District Court of Appeal in State v. Latimore, 284 So.2d 423 (Fla. 3rd DCA 1973) and State v. Dumas, 363 So.2d 568 (Fla. 3rd DCA 1978), and we therefore hold that the police reports were not discoverable as “substantially verbatim” statements of a witness.

Inasmuch as Florida Rule of Criminal Procedure 3.220(a) is modeled after the Federal Jencks Act, 18 U.S.C.A. Section 3500 (also Rule 16, Fed.R.Crim.P.), we find additional authority in interpretive federal decisions which support our holding. See, e.g., United States v. Peterson, 524 F.2d 167 (4th Cir. 1975); United States v. Greeley, 471 F.2d 25 (3rd Cir. 1972); United States v. Polizzi, 500 F.2d 856, 893 (9th Cir. 1974); United States v. Gaston, 608 F.2d 607 (5th Cir. 1979); United States v. Cuesta, 597 F.2d 903 (5th Cir. 1979); United States v. Muckenstrum, 515 F.2d 568 (5th Cir. 1975); United States v. Gaddis, 506 F.2d 352 (5th Cir. 1975); United States v. Goodwin, 470 F.2d 893 (5th Cir. 1972).

We now discuss whether the trial court erred in refusing to compel the state’s production of the police reports as “statements” of the officers who made them. In other words, the issue is whether police reports are discoverable as “statements” of the officers whose names were furnished to the defense.

In Miller v. State, 360 So.2d 46 (Fla. 2nd DCA 1978), the Court held that police reports were discoverable by the defense when a police officer who authored the report was a witness to the crime itself and used the report prior to testifying to refresh his memory. See also, State v. Herrera, 84 N.M. 365, 503 P.2d 648 (App.1972); State v. Babin, 319 So.2d 367 (La.1975); State v. Hicks, 515 S.W.2d 518 (Mo.1974); LeGrande v. Commonwealth, 494 S.W.2d 726 (Ky.App.1973); Maynard v. Commonwealth, 497 S.W.2d 567 (Ky.App.1973). In the instant case, the police officers who testified against appellant were not eyewitnesses to the crime itself, but rather, their testimony related solely to the post-crime investigation and the eventual arrest of the appellant.

We do not believe that Rule 3.220(a)(1)(H) contemplates carte blanche discovery of all police reports which, prior to adoption of the rule, were traditionally not subject to discovery. Thus, we hold that police reports are not discoverable, per se, as “statements” of the officers who made them. We do not say, however, that they are only discoverable when the officers are “eyewitnesses” to the crime, as was the ease in Miller, supra. We recognize the trial court’s discretion to permit discovery in certain other instances. For example, a police officer’s report describing the scene of a crime after the actual commission of the crime could be of singular importance in establishing a point crucial to the case at trial. Such an instance could exist where the officer has given conflicting statements regarding the victim’s injured condition, yet states in his report that the victim was not injured. Thus, although there can be no doubt that there are instances in which a police officer’s non-eyewitness testimony is highly probative of the guilt or innocence of the accused, such a situation is not presented here.

It is significant that none of the officers who testified were eyewitnesses, and none used his report while on the witness stand, although all testified that they had refreshed their recollection by reading their reports at various times before trial. It is well established that defense counsel has no right to demand or inspect a written memorandum or report, for cross-examination purposes, when that memorandum or report is not used by the witness while on the witness stand. Francis v. State, 343 So.2d 932 (Fla. 3rd DCA 1977); Marshall v. State, 321 So.2d 114 (Fla. 1st DCA 1975); Williams v. State, 208 So.2d 628 (Fla. 3rd DCA 1968). An entirely different result would occur, however, in those cases where the witness testifies with the aid of notes or memoranda. Allen v. State, 243 So.2d 448 (Fla. 1st DCA 1971).

Accordingly, we find no error in denying defense motions to compel production of police reports. The appellant’s conviction and sentence are affirmed.

AFFIRMED.

HERSEY, J., and LAMAR WARREN, Associate Judge, concur.


text:
    Richard BERG, Appellant, v. STATE of Florida, Appellee.
    No. 79-1042.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Richard T. Donato of Law Offices of Levi England, Davie, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a conviction of possession of cocaine with the intent to deliver. The appellant entered a nolo con-tendere plea, specifically reserving his right to appeal the trial court’s denial of his motion to suppress and his related motion to dismiss.

Appellant’s arrest was precipitated by his temporary detention in the Fort Lauder-dale-Hollywood Airport, such detention being due to appellant’s purported similarity to the “drug courier profile” utilized by airport detectives. Appellant was observed walking from a ticket counter to a metal detector in an extremely nervous manner by Detectives Keeney and Harrer of the Broward County Sheriff’s Office. He was visibly shaking and had an overall demean- or of nervousness and apprehension. His odd appearance made the detectives suspicious, and while they were observing appellant approach the metal detector, the appellant made eye contact with them, hesitated for a moment, and then resignedly continued to walk through the detector. At the detector one of the detectives asked the appellant if he could speak with him, advising the appellant that he was not required to speak with either of them. Nonetheless, the appellant consented to speak at this time.

It is undisputed that the detectives conducted their inquiry under nothing more than a mere suspicion based upon the appellant’s similarity to the “drug courier profile”. The appellant is a juvenile diabetic who was suffering from at least the preliminary stages of insulin shock at the time in question. This was corroborated by medical testimony adduced at the suppression hearing. The appellant stated that his “nervous demeanor” was directly attributable to the irrationality of mind and physical tremulousness produced by the oncoming insulin shock.

When the detectives inquired as to appellant’s destination, he responded that he was a union electrician who was going to Seattle to work. The appellant was unable to produce a union card upon request by the detectives. This further aroused the suspicion of the detectives, who then requested if they might examine appellant’s baggage. Appellant was carrying a briefcase and had checked other baggage on the flight. The appellant was informed that he was not required to allow the detectives to inspect his baggage, but he replied that he was willing to cooperate. The detectives and the appellant went to the baggage room where the detectives searched appellant’s baggage. While searching appellant’s briefcase Detective Keeney discovered a brown bag filled with a white powdery substance which he believed to be an illicit substance. Although the appellant claimed that this was a laxative (which eventually proved to be true), the detective placed appellant under arrest. Keeney then conducted three or four field tests of this substance, utilizing at least three different test kits. All of the tests produced negative results, that is, the substance was not indicated to be illicit. While these field tests were being conducted, Detective Harrer was searching appellant’s remaining baggage. The search eventually produced the cocaine for which the appellant was ultimately charged with intent to deliver. Keeney testified that after the negative field tests were conducted, but before Harrer’s discovery of the cocaine, the appellant requested that the search of his baggage be terminated. Detective Harrer testified that he was unaware of any such request by the appellant prior to the time he discovered the cocaine.

Assuming the initial consent was valid, and that Detective Keeney’s discovery of the laxative sufficed to constitute probable cause to arrest appellant, we must then determine the legal effect of appellant’s withdrawal of consent after Keeney conducted three or four negative field tests. While it is true that Keeney was mistaken in his belief that the laxative was an illicit substance, his discovery of the white powdery substance gave him a reasonable basis for believing the substance was a proscribed drug. However, any probable cause which Keeney might have had was surely diminished as a result of three or four negative field tests conducted with three different test kits. At this point, the detectives were conducting the search without probable cause, and without appellant’s consent, since Keeney himself testified that appellant had requested an end to the search prior to Harrer’s discovery of the cocaine. The fact that Harrer did not know of appellant’s withdrawal of his prior consent is really immaterial, since appellant clearly indicated his desires to Keeney. Consent to search no longer existed. Appellant’s withdrawal of his prior consent tips the eviden-tiary scales against a finding that a consent to a search was demonstrable by clear and convincing evidence. Because the negative field tests vitiated the existence of probable cause and the appellant withdrew his consent, the detectives’ continued search was violative of the appellant’s fourth amendment rights, and any evidence produced as a result of such a search should have been suppressed.

Accordingly, the defendant’s conviction and the order denying the motion to suppress are reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

BERANEK and HURLEY, JJ., concur..

      . At the suppression hearing, both of the detectives testified that he was the one who made the initial verbal contact with the appellant.

      . At the suppression hearing, Keeney testified that he placed the appellant under arrest after the discovery of the laxative substance. However, in the probable cause affidavit which Kee-ney completed after the arrest, he stated that he arrested appellant only after the discovery of the cocaine itself.

      .Although the State did not cogently rebut appellant’s claim that he was under the influence of a mental defect produced by insulin shock, the trial court must be presumed to have correctly afforded the proper weight to the testimony regarding this issue. Since the trial court was not obliged to believe the appellant’s testimony, it could have been justified in finding appellant’s claim that he was suffering from insulin shock to be without merit.


text:
    ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. Robert GRAHAM, Governor of the State of Florida, f/u/b/o the Circuit Court of Broward County, Florida, Appellee.
    No. 79-1106.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Victor Tobin, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by a bonding company from an order denying its motion to set aside a judgment which had been entered on an appearance bond previously issued by the company. The defendant in a criminal prosecution was scheduled to appear before the Circuit Court on October 12, 1978, to answer a charge of larceny. He failed to appear and the appearance bond was es-treated. The Court entered an order of forfeiture on October 12,1978, and on January 22, 1979, a judgment was entered pursuant to Section 903.27, Florida Statutes (1979). At no time did the bonding company attack the forfeiture prior to entry of judgment. Thereafter, appellant filed a motion to set aside judgment pursuant to Section 903.27, Florida Statutes (1979), which provides in part:

(2) After notice of judgment against the surety given by the clerk of the circuit court, the surety or bail bondsman may within 45 days file a motion to set aside the judgment. The court entering the judgment may at any time set aside the judgment in whole or in part for reasonable cause shown. During the pendency of such motion the court may stay execution on judgment or other process.

The statute provides that a judgment may be set aside “for reasonable cause shown.” Here the trial court found that the appellant had failed to demonstrate reasonable cause in accordance with Public Service Mutual Insurance Company v. State, 135 So.2d 777 (Fla. 1st DCA 1961). We find that appellant has failed to demonstrate an abuse of discretion on the part of the trial judge in the exercise of her discretion on the issue of reasonable cause. The order denying motion to set aside the judgment is affirmed.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    William Earl CULL, Appellant, v. Robert D. HURTH and Claudia A. Hoffman, Appellees.
    No. 79-1535.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Ronald W. Houchins, Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    Claudia A. Hoffman, pro se.
   BERANEK, Judge.

William Cull seeks review of a non-final order. He appeals pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). We treat the “appeal” as a petition for common law certiorari, grant the petition, quash the contested order of the trial court, and remand for further proceedings.

A brief factual background is necessary. Robert Hurth, an attorney, held a second mortgage on property owned by appellant, William Cull. This mortgage secured a debt for legal fees incurred from Hurth’s representation of Cull in a criminal prosecution. Hurth sued to foreclose the mortgage and eventually obtained a final judgment of foreclosure. The property was sold to Hurth at the foreclosure sale. Shortly thereafter, Hurth conveyed the property to Claudia Hoffman by quit claim deed.

By motion pursuant to Rule of Civil Procedure 1.540 Cull moved to set aside: (1) the final judgment of foreclosure, (2) the judicial sale to Hurth, and (3) the subsequent sale by Hurth to Hoffman. In the motion, Cull alleged that the mortgage sued upon had been obtained by Hurth through coercion and overreaching. Cull asserted he was in jail under criminal prosecution when Hurth presented him with the mortgage and required him to sign it without adequately advising him regarding its nature or effect. Cull also alleged that he had not received notice of the final hearing in the mortgage foreclosure action, did not receive a copy of the final judgment, and was totally unaware of the sale of the property until he received a certificate of sale from the clerk. Cull further asserted that the sale between Hurth and Hoffman was a purposeful attempt to cut off his rights and that Hoffman was not a bona fide purchaser because she was well aware of the facts involving title to the property.

After two separate evidentiary hearings, the trial court entered an order on June 11, 1979. This order, however, did not rule upon the motion to vacate the final judgment. Instead, it recited that the hearing on the motion to vacate final judgment was continued so that the court could hear from Hurth regarding the circumstances surrounding defendant’s execution of the note and mortgage. The order also failed to rule on the motion to set aside the sale to Hoffman. Despite the absence of a ruling on the validity of the final judgment, the court did deny the motion to set aside the judicial sale, finding that Cull had in fact received a copy of the clerk’s certificate of sale some five days after the sale. The court concluded that since Cull had not timely exercised his equity of redemption after receiving the certificate of sale, the motion to set aside the sale should be denied. The order in question also granted Hoffman a writ of assistance which ordered Cull to immediately leave the property in which he had been residing throughout the proceedings.

Cull has sought review of this order by interlocutory appeal pursuant to Rule of Appellate Procedure 9.130(a)(5), relating to rulings on motions filed pursuant to Rule of Civil Procedure 1.540. Here, Cull’s 1.540 motion sought three separate rulings. The order in question ruled only on the issue of the judicial sale and entirely failed to rule upon the final judgment which formed the basis for the judicial sale. Simultaneously with the reservation of jurisdiction regarding the final judgment, the court granted a writ of assistance to the intervenor. Under these unusual circumstances, we conclude that the order constitutes a departure from the essential requirements of law and may well result in prejudice which could not be remedied at any later time. Although the trial court did not fully dispose of the 1.540 motion, we conclude that we have jurisdiction through the vehicle of certiorari.

The order of the trial court must be quashed because of inconsistencies on its face which result in prejudice to petitioner, Cull. The 1.540 motion sought to vacate the final judgment on various grounds and to vacate the judicial sale on the same grounds. The trial court denied the motion to vacate the sale but reserved ruling on the motion to vacate the final judgment. Although no express ruling was made on the motion to vacate the subsequent sale to Claudia Hoffman, she was granted possession of the property in the writ of assistance.

Although we do not rule on the propriety of all procedures followed herein, we do conclude that when faced with a motion to set aside a final judgment and a foreclosure sale based upon the same reasons, the trial court cannot uphold the foreclosure sale, remove the mortgagor, and simultaneously reserve ruling on the motion to vacate the final judgment, noting the necessity for further evidence on that issue.

The continued pendency of the motion to set aside final judgment and the court’s finding of a necessity for testimony from the mortgagee on the issue had the effect of clouding the rights to possession and title. A writ of assistance is a form of process issued by a court to transfer possession of land, the title or right to which has been previously adjudicated. In Dixon v. Dixon, 140 Fla. 166, 191 So. 292, 293 (1939), the Florida Supreme Court stated:

The issuance of the writ of assistance rests in the sound discretion of the Court; it issues only when the right is clear and free from doubt, when there is no equity — or appearance of equity — in the defendant; it is not customary to issue the writ where there is a bona fide contest as to the right to the possession of the property, or where the rights of the parties have not been fully and finally adjudicated in the principal suit.

Here, there was an ongoing dispute regarding numerous issues between the parties.

The order below is quashed and the cause remanded to the trial court with directions to proceed with a determination of all issues presented. The basic foundation issue appears to be the validity of the final judgment upon which all further proceedings depend. The trial court should initially address this issue.

CERTIORARI GRANTED, ORDER QUASHED, CAUSE REMANDED.

DOWNEY and ANSTEAD, JJ., concur.

      . Claudia Hoffman intervened in the proceedings below and sought a writ of assistance to remove Cull from the property.

      . This situation is to be distinguished from Sundie v. Haren, 253 So.2d 857 (Fla.1971). We are not here dealing with a non-party purchaser at a judicial sale.


author: PER CURIAM.

text:
    FLORIDA PAROLE AND PROBATION COMMISSION, Appellant, v. Willie Edd TURNER, Appellee.
    No. 79-1866.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Michael H. Davidson, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

On March 31, 1978, Willie Edd Turner was released from prison pursuant to a certificate of mandatory conditional release executed by the Florida Parole and Probation Commission. He was subsequently arrested for shoplifting on October 19, 1978, and burglary on January 23, 1979. A preliminary hearing was held on February 21, 1979, upon a retake warrant issued by the Commission. The purpose of the preliminary hearing was to determine if probable cause existed to show that the arrested violator had committed acts which constituted a violation of the conditions of parole. Turner was not represented by counsel at that hearing, and the hearing examiner found probable cause. On March 12, 1979, the Commission ordered Turner be committed to jail, pending a revocation hearing. On May 23, 1979, the Commission denied Turner’s application for bond.

Counsel subsequently appeared for Turner and filed an application for habeas corpus on June 11, 1979; and on July 25, 1979, the trial court granted the application on a ground not raised in the application, namely, that Turner did not have counsel at the preliminary hearing. The order provided the Commission could hold new proceedings if counsel were present representing Turner. The Commission filed a notice of appeal on August 13, 1979.

Thereafter, the following occurred:

1. Turner’s appointed counsel waived a preliminary hearing for Turner.

2. A bond hearing was conducted on September 12, 1979, with Turner and his counsel present.

3. On October 3, 1979, in deference to the trial court’s order of July 25, 1979, the Commission ordered Turner released on his own recognizance.

4. On October 3, 1979, the Commission ordered Turner to report to Lake Butler for a revocation hearing to be held on February 7, 1980.

5. On December 20, 1979, Turner was in custody pursuant to his conviction on December 7,1979, of burglary and his sentence of two years, less time served. The Commission served Turner on the later date with a notice of hearing for January 4, 1980, to be held at Lake Butler upon the question whether Turner had violated his parole because of the conviction as well as his failure to make a full report to his parole supervisor in December, 1978.

6. On January 4, 1980, Turner executed a voluntary waiver of revocation hearing.

7. On January 16, 1980, the Commission revoked Turner’s mandatory conditional release.

The appeal having become moot, it is sua spon te dismissed.

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. William Reginald NORRIS, Appellee.
    No. 79-1887.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Charles M. Harris, Hollywood, for appel-lee.
   HERSEY, Judge.

The State takes an appeal from an order granting appellee’s motion to dismiss.

Appellee was charged with attempting to obtain a prescription drug by fraud. The circumstances leading to this charge began with a telephone call to a pharmacist purportedly from a doctor prescribing medication for a patient, one Ben Stroud. The pharmacist called the doctor and ascertained that no such telephone call had been made by him nor did he have a patient named Ben Stroud. Consequently, the pharmacist alerted the police who set up surveillance of the pharmacy. Upon appel-lee’s entry into the pharmacy and his request for the prescription for Ben Stroud, the police approached him, asked him for identification and then placed him under arrest. In response to an inquiry, appellee indicated that Ben Stroud was a friend and that he was picking up the prescription at his request. A police officer located a slip of paper in one of the pockets of appellee’s jacket, containing the name and address of Ben Stroud, the name and B.N.D. number, telephone number and partial ¿ddress of the physician who allegedly made the original call, the name and telephone number of the pharmacy, and the name tussionex (the prescription drug involved here).

Appellee filed a pleading entitled “Sworn Motion to Dismiss,” although the motion was not made under oath. Attached to and filed with the motion was an affidavit of appellee that quoted from a police report of the incident and contained a statement that the handwriting on the slip of paper found in appellee’s pocket was not his. The State filed a demurrer.

The trial court granted the motion to dismiss on the basis that the demurrer accepted the facts alleged in the motion and that the facts “ . . .as stated in the motion are insufficient to prove that the Defendant has “knowledge” that the prescription was fraudulent.”

We find error and reverse.

Neither the motion nor the affidavit contain any suggestion that appellee was without knowledge of the fact that Ben Stroud was fraudulently attempting to obtain a prescription drug. In as much as the State’s demurrer does not admit that appel-lee was without such knowledge, this fact of knowledge remains a material fact in dispute between the parties and therefore subject to trial on the merits. Intent is not usually subject to direct proof, but may be inferred from the acts of the parties and surrounding circumstances. Being a state of mind, intent is usually a question of fact to be determined by the trier of fact. State v. West, 262 So.2d 457 (Fla. 4th DCA 1972). In this respect knowledge is like intent. Heineman v. State, 327 So.2d 898 (Fla. 3rd DCA 1976).

In summary, the State could well admit every fact alleged in the motion to dismiss and the accompanying affidavit and still make a case for the charge of attempting to obtain a prescription drug by fraud. Under these circumstances, the order granting defendant’s sworn motion to dismiss contains reversible error and is accordingly reversed. The case is remanded for such further proceedings as may be appropriate.

REVERSED AND REMANDED.

DOWNEY and MOORE, JJ., concur.


text:
    Elijah BOWLES, Appellant, v. Vickie BOWLES, Appellee.
    No. 79-2261.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.

      Andrew M. Chansen of Chansen & Chan-sen, Fort Lauderdale, for appellant.
    No appearance for appellee.
   BERANEK, Judge.

This is an appeal by husband from a non-final order of the trial court giving wife custody of the children and exclusive possession of the marital home pending final dissolution. This is an appealable non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).

Initially, a restraining order was issued by the trial court on the request of the wife. It provided that the husband was to vacate the marital home and that he was restrained from taking any of the children from home or school. Husband then filed a motion to dissolve the restraining order and a motion for temporary custody of the children. After a hearing the trial court entered an order ratifying the previous order but allowing husband reasonable visitation with his children and allowing him to keep the two oldest children on week-ends.

Husband appeals the trial court’s order maintaining there was insufficient basis for temporarily granting exclusive possession of the marital home to the wife absent a showing that public decency, safety of the parties or welfare of the children is adversely affected. Husband also contends the trial court erred in not awarding the husband temporary custody of the children maintaining that the wife is unstable, has recently attempted suicide and cannot control the children.

The record before this court is meager, consisting of a transcript of hearing where only the husband and his nephew testified. The trial court determined that the husband had another house to live in and husband’s attorney agreed that wife could live in the marital home unmolested until the case was litigated to a conclusion.

Husband argues that the order was in error, relying upon Daniel v, Daniel, 236 So.2d 197 (Fla. 1st DCA 1970). There the court found it error under the facts of that case to temporarily exclude husband from the marital home absent evidence of quarreling or fighting or any adverse effect upon the children. In this case, however, there was testimony in the record indicating that husband and wife were quarreling and fighting. Furthermore, as stated above, the husband’s attorney seemed to agree the wife could live unmolested in the house on a temporary basis since the husband had another house in which to live. We cannot say the trial court erred. In Burnett v. Burnett, 158 Fla. 464, 28 So.2d 878 (1947), it was suggested by counsel that the trial court believed it was without legal authority to order husband from the home. The Supreme Court commented:

If the chancellor was in fact of this view, he was in error. While the matter is one vested very largely in his discretion, it is the settled law of this State that he may require the parties to live separately if public decency, the safety of the parties or the welfare of the children requires.

Here, the trial court acted within his discretion.

With respect to husband’s petition for temporary custody of the children, we similarly find no abuse of discretion. Other than a mere reference by the husband and nephew to a suicide attempt by wife, there is no evidence that she cannot care for the children. On the contrary, the husband testified she does take care of the children, is a good mother, and that she loves them. The trial court’s exercise of discretion as to temporary child custody should thus not be disturbed.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: DOWNEY, JAMES C., Associate Judge. CROSS, Judge,

text:
    William E. BERNSTEIN, Marjorie Bernstein, Frank L. Harrington, Jr., Sally Harrington, Cosmo E. Mingolla and Elaine F. Mingolla, Appellants, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF ORLANDO, a corporation, Appellee.
    No. 78-1029/NT4-84.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Rehearing Denied July 31, 1980.
    J. Rex Farrior, Jr., and Joseph G. Thresher of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellants.
    Harlan Tuck of Giles, Hedrick & Robinson, Orlando, for appellee.
   DOWNEY, JAMES C., Associate Judge.

William E. Bernstein and five other defendants seek review, by means of Florida Appellate Rule 9.130(a)(3)(C)(iv), of a multifaceted order, dated April 6, 1978, which struck certain counts of the defendants’ counterclaim, and granted a motion for summary judgment for the plaintiff, First Federal Savings & Loan Association of Orlando, as to certain aspects of the case.

This litigation commenced when plaintiff filed a suit to foreclose a mortgage on a large condominium complex and golf course in Seminole County against the mortgagor, Development Enterprises, Incorporated, and the six individual defendant/appellants. The defendants had endorsed a $600,000 note secured by a mortgage on the golf course and had also executed guaranty agreements as each phase of the condominium construction commenced. During the course of the litigation the trial court severed the issues involving the six individual defendants from the issues directly involving the mortgagor.

The plaintiff’s complaint sought to foreclose against all unsold condominium units and the golf course. Although plaintiff held 112 separate notes and mortgages on 112 individual condominium units and a separate note and mortgage on the golf course, the amounts due were lumped together in the suit seeking sale of all of the property involved. The defendants’ ultimate answer, besides a general denial of much of the complaint, set up seven affirmative defenses and a counterclaim in four counts. The affirmative defenses alleged:

1) the complaint is vague and attempts to aggregate the amounts due under different obligations, which attempt to aggregate prejudices defendants;

2) the guaranty agreements are indefinite and uncertain for various stated reasons;

3) plaintiff has prejudiced defendants’ subrogation rights under their guaranty agreements by not protecting the priority of the various mortgages;

4) defendants are entitled to a segregation of the amounts due under the various notes and cannot be subjected to a claim for the total amount due; plaintiff has repudiated the guaranty agreements by its conduct;

5) the real property encumbered by the mortgage was sold at public sale to appel-lee, and the market value of said property exceeded the amount owed; also prior to the suit plaintiff misapplied funds paid by defendants;

6) plaintiff repudiated the express terms of the guaranty agreements in numerous enumerated ways; in addition, affirmative defense (6) incorporates Count IV of the counterclaim by reference;

7) plaintiff represented that it never sought a deficiency decree against a borrower in order to induce defendants to cooperate, and plaintiff is estopped to act otherwise.

The counterclaim alleged in Count I that the guaranty agreements were vague and indefinite and unenforceable, or in the alternative that defendants’ liability should be determined and its subrogation rights fixed. Count II alleged the agreements should be cancelled for indefiniteness or appellants should receive damages for plaintiff’s breach of contract. Count III prayed for an accounting of monies paid by defendants and misapplied by plaintiff. Count IV incorporated Count III and, in addition, alleged that the defendants requested plaintiff to accept a tender of the amount due on the note they had endorsed and assign the note to defendants; however, plaintiff refused until required to do so by the court. As a result of plaintiff’s refusal defendants were damaged in various stated ways.

Plaintiff filed a motion for summary judgment and motions to strike the affirmative defenses and dismiss the counterclaim. In the order sought to be reviewed the trial court granted (a) the motion for summary judgment as to affirmative defenses 1 through 4, (b) the motion to strike affirmative defenses 6 and 7, (c) the motion for summary judgment as to Counts I and II of the counterclaim, (d) the motion to dismiss Count III of the counterclaim with leave to amend, and (e) the motion to dismiss Count IV of the counterclaim with prejudice.

The net effect of the foregoing order is to leave the amended complaint, the answer with a general denial, the fifth affirmative defense, and Count III of the counterclaim (as amended) as the pleadings that raise the issues to be tried.

The threshold issue in this court is the appealability of the order of April 6, 1978. It is apparent that the portion of the order under review which granted plaintiff’s motion for summary judgment is not appealable. See, e. g., Shupack v. Allstate Insurance Company, 356 So.2d 1298 (Fla. 3d DCA 1978). Furthermore, that part of the order which granted the motion to strike affirmative defenses is also not appealable, since an order striking affirmative defenses is not listed as an appealable order under Florida Rule of Appellate Procedure 9.130. Finally, the order dismissing Count IV of the counterclaim with prejudice which is a final order is also not appealable because it is interrelated with and involves the same transaction and parties as are involved in the other defenses and counts of the counterclaim. In fact, it is so interrelated with Count III of the counterclaim which remains viable that Count III is incorporated in Count IV as one of the grounds for relief in Count IV. S. L. T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974). In view of the foregoing we are unable to reach the merits of the question raised by the defendants on this appeal.

ACCORDINGLY, this appeal is dismissed.

BERANEK, JOHN R., Associate Judge, concurs.

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

CROSS, Judge,

concurring in part and dissenting in part:

Except as to the appealability of the final order dismissing Count IV of the counterclaim with prejudice I concur in the majority’s opinion. As to the final order dismissing Count IV of the counterclaim with prejudice I would allow the appeal to proceed for determination of the issue raised. Mendez v. West Flagler Family Hospital Association, Inc., 303 So.2d 1 (Fla.1974).


author: GLICKSTEIN, HUGH S., Associate Judge. BERANEK, JOHN R., Associate Judge,

text:
    INSURANCE FIELD SERVICES, INC., John D’Angelo and Joan D’Angelo, Appellants/Cross-Appellees, v. WHITE & WHITE INSPECTION AND AUDIT SERVICE, INC., a Missouri Corporation, Appellee/Cross-Appellant.
    No. 78-1180/NT4-85.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.

      Nicholas Yonclas and Michael P. McMahon of Akerman, Senterfitt & Eidson, Orlando, for appellants/cross-appellees.
    Thomas B. Tart of Gurney, Gurney & Handley, P. A., Orlando, and William C. Partin, Kansas City, Mo., for appellee/cross-appellant.
   GLICKSTEIN, HUGH S., Associate Judge.

Appellants, Insurance Field Services, Inc., John D’Angelo and Joan D’Angelo, bring this appeal from a final judgment and order modifying final judgment which enjoined John D’Angelo from competing against ap-pellee until August 1, 1979, and which ordered John D’Angelo to pay $8,500.00 in compensatory damages to appellee and the remaining appellants to pay nominal damages in the amount of $1.00.

Appellee, White & White Inspection and Audit Service, Inc., cross-appeals and urges as error the absence of punitive damages being assessed against the appellants, the trial court’s failure to enjoin Joan D’Angelo and Insurance Field Services, and the appropriateness of the nominal damages of $1.00 assessed against them.

We affirm in part, reverse in part and remand.

Appellee, a Missouri corporation, is engaged in providing underwriting inspections, premium audits, and loss control work for the insurance industry. As of July, 1977, John D’Angelo had been appellee’s branch manager in Florida for over four years D’Angelo’s wife, Joan, was employed by appellee in the Florida office where she performed all of the required clerical duties.

In July of 1977, Insurance Field Services, Inc., was incorporated by John D’Angelo and two other individuals, one of whom was a field representative for the appellee, to compete in the same work as appellee. John D’Angelo was the president of the newly created corporation and the owner of 51% of the capital stock. Joan D’Angelo, while not a stockholder, was the secretary-treasurer.

At the time of the formation of the appellant corporation, John D’Angelo was party to an agreement with appellee, paragraph X of which required him not to compete with appellee for two years after termination of the agreement. Notwithstanding the existence of the agreement and the covenant not to compete, John D’Angelo in July, 1977, together with his wife Joan, undertook to solicit appellee’s customers for the newly formed corporation, as well as to acquire the services of appellee’s field representatives for the benefit of said corporation.

In one instance, the evidence was uncon-tradicted that efforts by John D’Angelo to solicit an insurance company which had been a high volume account of the appellees resulted, following unsuccessful efforts by appellee to save the account, in the insurance company obtaining services elsewhere.

Meanwhile, in furtherance of her efforts to advance the business of the new corporation, Joan D’Angelo had advised an agent of one of appellee’s customers that appellee was going out of business in Florida, had told the postman to transfer appellee’s mail to the new address of the corporate appellant and that appellee “would be no more,” and had issued a written directive to all of the successfully solicited field men to commence work immediately for the corporate appellant on those accounts of appellee’s customers who had authorized the change— all without appellee’s knowledge and consent.

By August 1, 1977, John D’Angelo, together with the assistance of his wife Joan, had effectively solicited the services of all of appellee’s field representatives, except one, and had assurances of business from many of appellee’s customers, all of which customers had been transacting their business with appellee through the D’Angelos or the field representatives.

On August 1, 1977, John D’Angelo sent appellee a letter of resignation and, together with his wife, moved out of appellee’s office. By that time, the D’Angelos had assigned to their solicited field representatives, for the benefit of the corporate appellant, and without the knowledge and consent of appellee, between 300 to 400 work items which insurance company clients had previously submitted to appellee.

Appellee’s president, Alva J. White, upon learning of the resignation, immediately came to Florida in an effort to reorganize the office and protect appellee’s business. A telegram was sent by White to John D’Angelo on August 5,1977, demanding the return of any work in progress and the return of the files of the appellee which had been taken in the move. A few days later, White and the D’Angelos discussed the return of the work in progress, to which return said appellants acceded.

At the time of final hearing, the corporate appellant’s work items had risen to 1,191, while appellee’s had dropped to 533. White testified that appellee’s Florida branch had turned the corner, profit-wise, in late 1976; that for the period of July 1, 1977, through February 28, 1978, appellee’s profits were approximately $17,000.00 less than the same period of the preceding fiscal year; that from and after August 1, 1977, appellee had either totally or partially lost business from sixteen different insurance companies, some of which companies had been using appellee’s services for both audits and inspections; that as of August 1, 1977, appellee lost seven field representatives and a field manager; and that to reorganize the Florida office, 24 man weeks of additional help and 14 weeks of the president’s time had been expended.

We initially note that since August 1, 1979, has passed that portion of the final judgment which enjoined John D’Angelo and failed to enjoin other appellants from competing with appellee until that date has become moot. Accordingly, as to that portion of the final judgment we affirm.

We are thus left with reviewing the respective compensatory awards fashioned in favor of appellee against John D’Angelo, Joan D’Angelo, and Insurance Field Services, Inc., based on the trial court’s controverted finding that the parties had tortiously interfered with appellee’s business relationships.

In Lake Gateway Motor Inn, Inc., v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla.4th DCA 1978), we held that to be actionable, tortious interference requires:

(1) the existence of an advantageous business relationship under which the plaintiff has legal rights;

(2) an intentional and unjustified interference with that relationship by the defendant, and

(3) damage to the plaintiff as a result of the breach of the business relationship.

See also, Serafino v. Palm Terrace Apartments, Inc., 343 So.2d 851 (Fla.2d DCA 1976); Smith v. Ocean State Bank, 335 So.2d 641 (Fla.1st DCA 1976); Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla.4th DCA 1971); 45 Am.Jur.2d, Interference § 50.

We are of the opinion that as to all three appellants, all of the requisite elements exist in this case.

First, economically advantageous business relationships, capable of ascertainment, existed between appellee and its numerous insurance company clients, pursuant to which appellee had legal rights. These legal rights need not have been evidenced by an enforceable contract. Azar v. Lehigh Corp., 364 So.2d 860 (Fla.2d DCA 1978); John B. Reid and Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla.3d DCA 1965); Franklin v. Brown, 159 So.2d 893 (Fla.1st DCA 1964).

Secondly, for the reasons herein set forth, we find an intentional and unjustified interference with those relationships by all appellants.

The question of whether appellants’ admittedly intentional interference was unjustifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances among which the methods and means used and the relation of the parties are important. Restatement 2d, Torts § 767 and comments.

In framing the issue, we agree with the opinion of the New Jersey Supreme Court in Grillo v. Board of Realtors of the Plainfield Area, 91 N.J.Super. 202, 219 A.2d 635 (1966), that the ultimate inquiry is whether the interference by the defendant is “sanctioned by the rules of the game.” As the New Jersey Court notes:

There can be no tighter test of liability in this area than that of the common conception of what is right and just dealing under the circumstances. Not only must defendants’ motive and purpose be proper but so also must be the means. (Citations omitted). 219 A.2d at 649.

Here, all appellants claim the privilege of competition in justifying their interference with appellee’s business relations. We first dispose of that contention with regard to John D’Angelo by noting that his agreement with appellee included a covenant not to compete.

Section 542.12(2), Florida Statutes (1977), provides that:

One who sells the good will of a business, or any shareholder of a corporation selling or otherwise disposing of all his shares in said corporation, may agree with the buyer, and one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, so long as the buyer or any person deriving title to the good will from him, and so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction be enforced by injunction. (Emphasis added).

Although it found Mr. D’Angelo to be an independent contractor rather than an employee, we find the trial court misconceived the legal effect of the sufficiency of the evidence, and that Mr. D’Angelo is, in our opinion, an agent within the meaning of Section 542.12(2) as interpreted by this court in Economic Research Analysts, Inc. v. Brennan, 232 So.2d 219 (Fla.4th DCA 1970). Accordingly, the covenant not to compete executed by Mr. D’Angelo was enforceable and precluded him, and Insurance Field Services, Inc., of which he was president, from competing with appellee.

In any event, even if there had been no restrictive covenant, we believe there exists a more compelling reason for finding that the conduct of the appellants amounted to an unjustified interference. The evidence is undisputed that virtually all of the soliciting of appellee’s customers and field agents and related activity engaged in by the D’Angelos for the benefit of the corporate appellant occurred during the period the D’Angelos were employed by the appel-lee.

While in the absence of an agreement, there is normally nothing improper with an agent or employee terminating the employment relationship and proceeding to compete with his former principal or employer, there nevertheless exists during the ongoing relationship a common law duty not to engage in disloyal acts in anticipation of future competition. Restatement (Second) of Agency § 393, Comment e, (1958); see, e. g., Las Luminarias of the New Mexico Council of the Blind v. Isengard, 92 N.M. 297, 587 P.2d 444 (1978); Town and Country House and Homes Service, Inc. v. Evans, 150 Conn. 314, 189 A.2d 390 (1963); Becker v. Bailey, 268 Md. 93, 299 A.2d 835 (1973); Berry v. Goodyear Tire and Rubber Company, 270 S.C. 489, 242 S.E.2d 551 (1978); Lowndes Products, Inc. v. Brower, 259 S.C. 322, 191 S.E.2d 761 (1972); Gaal v. BASF Wyandotte Corporation, 533 S.W.2d 152 (Tex.Civ.App.1976). See generally, 2 Fla.Jur.2d, Agency and Employment §§ 70, 140. Appellants John and Joan D’Angelo breached their duty of loyalty to the appellee by securing the services of appellee’s field agents and the business of appellee’s customers prior to August 1,1977, while still in the employ of appellee. Since the means by which the D’Angelos sought to compete with appellee were improper, their intentional interference with appellee’s business relationships was unjustified. The corporate appellant can assert no claim which would entitle it to the benefits which flowed from the D’Angelos’ breach of duty.

Finally, we conclude that entry of judgment in the amount of $8,500.00 in favor of appellee, that figure representing half of its lost profits as attributable to the tortious conduct of John D’Angelo, was supported by competent substantial evidence. Appellant, John D’Angelo contends that the amount, as bearing upon appellee’s loss of prospective profits, was not established with reasonable certainty. Conner v. Atlas Aircraft Corporation, 310 So.2d 352 (Fla.3d DCA 1975). However, as this court noted in Adams v. Dreyfus Interstate Development Corporation, 352 So.2d 76 (Fla.4th DCA 1977):

Uncertainty as to the amount of damages or difficulty in proving the exact amount will not prevent recovery where it is clear that substantial damages were suffered and there is a reasonable basis in the evidence for the amount awarded. Ultimately the degree of certainty simply requires that the mind of a prudent impartial person be satisfied with the damages. Id. at 78.

Here, there is no question but that the tortious interference of appellants was the direct cause of appellee’s lost profits from August, 1977, through February, 1978.

Appellee’s business, like most companies, revolves, in large measure, upon the building of good will accomplished when a client becomes accustomed to dealing with someone who is regularly performing a service. Appellee’s field representatives and the individual appellants had been performing services for appellee’s customers in a satisfactory manner, and the record provides no indication that its customers had any inclination to terminate using appellee’s services. The price increase instituted by appel-lee only became significant when appellants began quoting cheaper prices to be charged by the new corporation.

We are not required, in determining whether appellee’s damages were established with the requisite certainty, to speculate about the future. On the contrary, the evidence establishes a well organized corporation, with every reason to expect higher profits from and after August 1, 1977, thrown into an organizational tailspin because of its loss of goodwill occasioned solely by appellants’ conduct.

We hold that appellee was entitled to compensatory damages of $8,500.00 not only from John D’Angelo but from all the appellants, jointly and severally, whose tor-tious conduct, while acting in concert, caused appellee’s damages. Bermil Corporation v. Sawyer, 353 So.2d 579 (Fla.3d DCA 1977); Mead Corporation v. Mason, 191 So.2d 592 (Fla.3d DCA 1966).

Appellee also sought punitive damages but that claim, we conclude, was properly stricken by the trial court. See Hoppe v. Hoppe, 370 So.2d 374 (Fla.4th DCA 1978).

Accordingly, we affirm the final judgment for injunction and compensatory damages against John D’Angelo, reverse the post judgment order, and remand for entry of judgment in the sum of $8,500.00 against Joan D’Angelo and Insurance Field Services, Inc., jointly and severally.

AFFIRMED in part, REVERSED in part, and REMANDED.

CROSS, J., concurs.

BERANEK, JOHN R., Associate Judge, dissents with opinion.

BERANEK, JOHN R., Associate Judge,

dissenting:

I respectfully dissent. The trial court found that the agreement not to compete between John D’Angelo, appellant, and White & White Inspection and Audit Service, Inc., appellee/cross-appellant, was enforceable under Section 542.12(2), Florida Statutes (1977). The trial court found John D’Angelo to be an independent contractor, and thus should have held the non-competitive clause not enforceable under Florida law. The issue before the trial court was whether the law of Missouri would allow enforcement of such a non-competitive agreement and whether such an agreement was contrary to the public policy of the State of Florida to the extent that a Florida court should not aid in the enforcement of it. The trial court found in favor of enforcing the non-competitive agreement, and I believe this ruling was inconsistent with the finding that John D’Angelo was, in fact, an independent contractor. I do not concur with the majority that Mr. D’Angelo was “an agent” as a matter of law.

I would hold that the non-competitive agreement was erroneously enforced and reverse the case for further consideration of the demand for damages based upon the theory that Mr. and Mrs. D’Angelo are liable for damages by virtue of having intentionally pirated the business of White & White Inspection and Audit Service, Inc., while they remained associated with that business.

      . Covenant Not to Compete:
      10.1 Contractor agrees that for a period of two years following the termination of this agreement, whether such termination be with or without cause, he will not enter the employ of any person, firm or corporation engaged in a similar line of business in any state referred to in the 2nd paragraph on page 2.1 of this agreement, nor himself engage during wuth period, directly or indirectly, as principal, atent or employee, in any business in competition with the Corporation in such State(s). The parties hereto recognize that the services to be performed by the Contractor are special and unique and that by reason of his association the Contractor will acquire confidential information as aforesaid. It is agreed that any breach of this agreement by the Contractor shall entitle the Corporation, in addition to any other legal remedies available to it, to apply to any court of competent jurisdiction to enjoin any violation of this agreement.

      . In Economic Research Analysts, Inc. v. Brennan, 232 So.2d 219 (Fla.4th DCA 1970), we held:
      Subsection (2) provides that “ . . . [0]ne who is employed as an agent or employee may agree with his employer . . . ” (Emphasis added). The use of the word “employed” in this context does not mean that the agent is thereby, ipso facto, in an “employer-employee” relationship, but the word is used and should be construed in a broader sense as referring to one who is hired, or engaged or used as an agent. The term “agent” necessarily contemplates the existence of a “principal” and implies employment or service coupled with delegated authority to manage some affair for or on behalf of the principal and on his account, and to render an accounting of it. Berney v. State, Fla. 1948, 38 So.2d 55. In simple terms, agency may be defined as the relation which results where one person called the principal, authorizes another, called the agent, to act for him with more or less discretionary power, in business dealings with third persons. 2 C.J.S. Agency § 1. Id. at 221.
      See also, Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 944 (Fla. 1977), wherein the court said:
      It is not necessary, however, that one be an employee of a corporation in order to be its agent.


text:
    Toy UNDERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 79-28.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Robert E. Pierce, Public Defender, Ta-vares, and Ronald E. Fox, Asst. Public Defender, Ocala, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court of Marion County, Florida. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On February 11, 1980, the Fifth District Court of Appeal gave the appellant thirty (30) days within which to file a brief in his own behalf and on March 14, 1980, an additional fifteen (15) days was granted for the filing of this brief, which brief was filed March 24, 1980. The court has reviewed the brief and record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby

AFFIRMED.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Robert Simon WORMSER, Petitioner, v. STATE of Florida, Respondent.
    No. 80-452.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Young Joe Simmons, of Green, Simmons, Green, Hightower & Gray, Ocala, for petitioner.
    Meredith Power, Asst. State’s Atty., Oca-la, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

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


author: COBB, Judge.

text:
    ARMELLINI EXPRESS LINES, INC. et al., Appellants, v. Darrell T. SEXTON, Jr., etc., et al., Appellees.
    No. 79-778/T4-485.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Dennis J. Wall of Rumberger, Kirk & Caldwell, Orlando, for appellants.
    Miles B. Mank, II, Vero Beach, for appel-lees.
   COBB, Judge.

This case arose from a three-vehicle accident that occurred on 1-95 at night with smoke or fog covering the highway. William Carver was driving an Armellini tractor-trailer rig and stopped in the smoke or fog while on the highway. Royce Stone was driving a Ploof truck and ran into the rear of the Armellini tractor-trailer. Irene Mackey, now Irene Sexton, was driving an automobile with her son, Darrell Sexton, Jr., as a passenger in the middle front seat. Patrick White was also a passenger in the Sexton vehicle. The Sexton automobile slid underneath the Armellini tractor-trailer.

Patrick White filed suit against Armelli-ni, Carver, Ploof, and Stone in a prior suit. Irene Mackey (Sexton) was apparently added as a party plaintiff in that suit. In that prior suit, the jury returned a verdict which found that William Carver was one hundred percent negligent for any damage caused to Irene Mackey (Sexton), and that she herself was zero percent negligent. Armellini and Carver then settled the claim in return for a release and voluntary dismissal prior to the entry of a final judgment against them. Therefore, the final judgment entered in that case included the verdict findings with regard to Irene Mackey (Sexton) and William Carver, but did not enter judgment against Armellini and Carver in favor of Irene Mackey (Sexton).

Subsequently, Darrell Sexton, Jr., filed this suit against Armellini, William Carver, Bankers & Shippers Ins. Co., Ploof Truck Lines and Royce Stone for the injuries he sustained in the accident. His mother, Irene (Mackey) Sexton, sued for loss of services and medical expenses arising from the injuries to her son, Darrell Sexton, Jr.

Darrell Sexton, Jr., moved for a partial summary judgment on the issue of negligence based on estoppel by judgment due to the verdict in the prior suit. The trial court granted the partial summary judgment for Darrell Sexton, Jr., against Armellini, Carver and Bankers & Shippers. It is this final partial summary judgment which is being appealed.

There was no judgment in the prior suit against the appellants that could serve as the basis for estoppel by judgment in this case. Generally, a final judgment is necessary to serve as the basis for estoppel by judgment. See Donnell v. Industrial Fire & Cas. Co., 378 So.2d 1344 (Fla. 3d DCA 1980); Edwards v. Kings Point Housing Corp., 351 So.2d 1073 (Fla. 4th DCA 1977); Thoman v. Ashley, 170 So.2d 332 (Fla. 2d DCA 1964), cert. denied, 177 So.2d 205 (Fla.1965). Here there was only a verdict, and a verdict without a judgment is generally inadequate as a basis for estoppel by judgment. 50 C.J.S. Judgments § 614 (1947).

Since there was no judgment against the appellants, we do not reach the issue of whether Florida should recognize the offensive use (as opposed to defensive use) of estoppel by judgment.

REVERSED.

FRANK D. UPCHURCH, Jr., J., and SCHWARTZ, ALAN R., Associate Judge, concur.