author: BARKDULL, Judge. DANIEL S. PEARSON, Judge,

text:
    HARTMAN SERVICES, INC., Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, Appellee.
    No. 80-1191.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.

      Paul M. Cummings, Miami, Norman Ma-linski, North Miami Beach, for appellant.
    Britton, Cohen, Kaufman, Benson & Schantz and J. T. Haley, Miami, for appel-lee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

The appellant appeals a final summary judgment entered by the circuit court in favor of the appellee, awarding damages, costs and attorney’s fees.

In January 1979, the appellee bank contacted the appellant for a temporary secretarial employee to perform secretarial services at the bank. The parties entered into a contract for such employment. The temporary secretary provided by the appellant was assigned to work in a bank area where bank checks of appellee were made available to the secretary, who filled them out and cashed them, resulting in a $3,152.00 loss to the appellee. In January, 1980, the appellee brought suit against the appellant to recover said loss, alleging breach of contract, negligence, and conversion. The ap-pellee also requested costs and attorney’s fees. The appellant alleged an affirmative defense that the appellee should be es-topped from asserting its claim because of the contract between the parties, which prevented the appellee from entrusting the appellant’s employees with unattended ne-gotiables and which relieved the appellant of losses caused by the appellant’s employees which involved theft, among other things. The appellee thereafter filed a motion for summary judgment, which was granted by the trial court. ■ The appellant’s motion for rehearing and leave to amend its answer was denied, and the appellant appeals.

The appellant contends the trial court erred in entering a final summary judgment; that it erred in denying its motion for rehearing and refusing leave to amend and, lastly, that it erred in awarding attorney fees.

We affirm the award in chief. The construction of the contract was a question of law and it was within the province of the trial judge to construe same on a motion for summary judgment, without receipt of evidence as to the meaning of the provisions quoted in the footnote. Kochan v. American Fire and Casualty Company, 200 So.2d 213 (Fla.2d DCA 1967); Shafer & Miller v. Miami Heart Institute, Inc., 237 So.2d 310 (Fla.3d DCA 1970); National Luggage Services, Inc. v. Reedy Forwarding Company, Inc., 339 So.2d 305 (Fla.3d DCA 1976); Buckner v. Physicians Protective Trust Fund, 376 So.2d 461 (Fla.3d DCA 1979). We find no error in denying the rehearing and in refusing leave to amend. Fink v. Powsner, 108 So.2d 324 (Fla.3d DCA 1959); Wingreen Company v. Montgomery Ward & Co., Inc., 171 So.2d 408 (Fla.3d DCA 1965); Cohen v. Landow, 242 So.2d 801 (Fla.3d DCA 1971). However, we do find error in the award of attorney fees. We find the award to be inappropriate for several reasons: First, it was not provided for in the contract. See: Coleman v. Plantation Golf Club, Inc., 212 So.2d 806 (Fla. 4th DCA 1968). Second, it cannot be claimed under Section 57.105, Florida Statutes (1979) because no claim for the award was made under the statute. See: Autorico, Inc. v. Government Employees Insurance Company, 398 So.2d 485 (Fla.3d DCA 1981). Third, clearly the defense imposed raised a justiciable legal argument. City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112 (Fla.3d DCA 1980); T. I. E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980); Freeman v. Valdez, 393 So.2d 1173 (Fla.3d DCA 1981).

Therefore, for the reasons above stated, the principal award is affirmed. The award of attorney fees is reversed and the matter returned to the trial court with directions to modify the final summary judgment as heretofore entered by striking therefrom the award of attorney fees.

Affirmed in part, reversed in part, with directions.

DANIEL S. PEARSON, Judge,

dissenting in part; concurring in part.

I would reverse the summary judgment entered for the bank and remand the case to the trial court for further proceedings. The contract between Hartman and Southeast First National Bank provided, inter alia, that:

“(2)(b) [Southeast] shall not entrust Hartman Services, Inc. employees with unattended premises, cash, negotiables and other valuables.
“(2)(c) [Southeast] accepts full responsibility for claims ... arising out of or involving a violation of paragraph (2)(b) above.” (emphasis supplied).

The majority, by affirming the summary judgment entered for the bank, holds as a matter of law that the items entrusted to and made available to Hartman’s employee do not come within the term “negotiables and other valuables.” In so doing, it exonerates the bank from the full responsibility which the bank undertook to accept.

Neither the checks nor copies of the checks are part of the record made in the trial court. The majority opinion refers to the items as “bank checks.” The complaint filed by the bank alleges that the items are “checks.” The affidavit of a bank internal control officer calls them “expense check forms.” The summary judgment entered by the trial court uses the term “blank checks.” I take this indifference to mean that in the view of both the majority and the trial court these items, whatever they are called and whatever they look like, are not negotiables or valuables.

I fail to see how the majority can reach such a conclusion on this record. We are hardly enlightened by a lone affidavit, made by the bank’s internal control officer, which asserts that the employee provided by Hartman “negotiated the checks causing loss to the bank,” “forged the signature G. A. Jones on the checks,” and attests to the legal conclusion that the employee was not entrusted with “negotiatables [sic] and other valuables.” From all that appears in this record, the checks in question might fully meet the requisites of a negotiable instrument under Section 673.104, Florida Statutes (1977), and the forged signature “G. A. Jones” may refer to a forged endorsement which would have no effect upon the negotiability of the instrument. But even if, arguendo, the instruments prove not to be “negotiables,” surely they are either “other valuables” as a matter of law, see United States v. Lancer, 361 F.Supp. 129 (E.D.Pa.1973), reversed, other grounds, 508 F.2d 719 (3d Cir.), cert. denied, 421 U.S. 989, 95 S.Ct. 1992, 44 L.Ed.2d 478 (1975); United States v. Edwards, 473 F.Supp. 81 (D.Mass.1979); see also United States v. Alberico, 604 F.2d 1315 (10th Cir. 1979), or there is, at least, a question of fact precluding summary judgment as to whether they are “other valuables,” see United States v. Lancer, supra; United States v. Alberico, supra.

In either event, the conclusion that these checks stolen by Hartman’s employee are not, as a matter of law, “other valuables”— in the face of the bank’s loss of $3,152.00 resulting, as the majority says, from the secretary filling out and cashing the “bank checks” — is, in my view, palpably wrong. I would feel far less discomfort with the majority decision if it were graced, which it is not, with a single case supporting the result reached.

I concur in that part of the majority opinion reversing the award of attorneys’ fees in favor of the bank.

      . This was a general claim. No mention was made of § 57.105, Florida Statutes (1979). In fact, at no time in the trial court was reference made to this statute.

      .
      “(2)(b) Customer shall not entrust Hartman Services, Inc. employees with unattended premises, cash, negotiables and other valuables, or authorize such employees to operate machinery or motor vehicles without pri- or written permission from Hartman Services, Inc. in each instance.”

      . The summary judgment provides, in pertinent part, “... the blank checks taken by one Carolyn Jones [Carolyn Brown] from the Plaintiff bank are not negotiatables [sic] or other values [sic] within the meaning of the exculpatory clause .... ”

      . A negotiable instrument must be a writing: (a) signed by the maker or drawer; and (b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this Article; and (c) be payable on demand or at a definite time; and (d) be payable to order or to bearer.

      . In United States v. Lancer, supra, the court took judicial notice of the fact that 364 blank stolen postal money orders had an aggregate value of more than $100 on the “thieves market.” The conclusion in the present case that the stolen checks are not “valuables” and are therefore valueless is contrary to the judicially noticed fact in Lancer. Even if such fact were not a proper subject of judicial notice, the conclusion that the stolen checks are valueless pretermitted Hartman from proving such a value.

      . In United States v. Edwards, supra, Edwards was charged and convicted with the theft of a “thing of value of the United States,” under Title 18 U.S.C. § 641. Edwards argued that upon mailing the check issued by the United States, it became the property of the named payee and was no longer a “thing of value of the United States.” The court rejected this argument, holding that the check remained a “thing of value of the United States,” since the United States continued to bear the risk of the loss and would be liable on the instrument despite the theft. See also United States v. Miller, 520 F.2d 1208 (9th Cir. 1975); United States v. Lee, 454 F.2d 190, 192 (9th Cir. 1972); Clark v. United States, 268 F. 329 (6th Cir. 1920) (“In a prosecution for the theft of evidence of debt, such as ... checks ... the value of the instrument . .. under particular statutory provisions, ... is deemed to be the money due on the instrument .... ”).

      .In United States v. Alberico, supra, the defendant stole three United States Treasury checks bearing the stamped signature of the United States Air Force disbursing officer made payable to the Rocky Mountain Arsenal. The face values of the checks totalled approximately $75,000. The defendant contended the checks were not “things of value” within Title 18 U.S.C. § 641. The court held that the face amount of the checks defined their value, despite defendant’s argument that he could not cash them and they were of no value to him. In fact, the defendant had sold the checks for $7,000 to an undercover F.B.I. Agent in a sting operation but the court rejected this as an artificial value. As in United States v. Lancer, supra, the court allowed that a permissible theory of value would be evidence of the value of the checks on a thieves’ market, but no such evidence was adduced by the Government.


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    STATE of Florida BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, State of Florida Department of Natural Resources, Appellants, v. Melvin J. LANEY, Appellee.
    No. 80-1525.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.

      Henry Dean, Tallahassee, for appellant.
    Madigan, Parker, Gatlin, Swedmark & Skelding and Ross A. MeVoy, Tallahassee, for appellee.
    Peter Guarisco, Tallahassee, for Florida Land Title Ass’n as amicus curiae.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   FERGUSON, Judge.

The Trustees of the Internal Improvement Trust Fund of the State Department of Natural Resources appeal from a final summary judgment in which the trial court found that appellee, Melvin Laney, is the fee simple owner of and has record title to certain mangrove swamp land in Monroe County, Florida. The land is identified as Rodriguez Key and is legally described as:

Government Lot 1 of Section 8, Township 62 South, Range 39 East; Government Lot 1 of Section 17, Township 62 South, Range 39 East; Government Lot 1 of Section 18, Township 62 South, Range 39 East.

This property was conveyed to Laney on June 28, 1978. A predecessor in title originally purchased the property from the State in 1892. The State had acquired the right to convey Rodriguez Key and other swamp and overflowed lands from the United States by the Congressional Act of September 28, 1850 which set up procedures for conveying such lands. In 1872, Rodriguez Key was surveyed by a United States government surveyor and a meander line drawn roughly outlining the vegetation growth on the island. In 1879, the United States patented as swamp and overflowed lands the whole of fractional sections 8, 17, and 18 to the State of Florida by Patent No. 19, Tampa District, thereby passing title to these lands to the Internal Improvement Trust Fund as Trustees of the State of Florida. Title remained with the Trustees until the land was sold in 1892.

The Trustees raise four points on appeal: (a) there is a material issue of fact as to whether the high-water line can be located and is, therefore, the boundary between sovereign and uplands, (b) the Marketable Record Title Act does not extinguish the State’s right, (c) the waters surrounding Rodriguez Key are navigable both in fact and law, and (d) the State of Florida vested appellee with title only to those lands above the mean high-water line. We affirm the summary judgment.

The trial court correctly found that the evidence establishes no genuine issue as to any material fact or law as to the controlling boundary line. The affidavit of surveyor Paul O’Hargan offered by Laney and the cases cited in support of his motion for summary judgment, Florida Board of Trustees of the Internal Improvement Trust Fund v. Wakulla Silver Springs Co., 362 So.2d 706 (Fla.3d DCA 1978), cert. denied 368 So.2d 1366 (Fla.1979); and Trustees of the Internal Improvement Trust Fund v. Wetstone, 222 So.2d 10 (Fla.1969), conclusively establish that the boundary line separating the uplands owned by Laney from sovereign lands is the meander line of the U.S. survey of 1872. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927). The general denial by the Trustees and their statement in response to the motion for summary judgment that significant advancements and refinements in surveying title elevation measuring techniques within the past five years have made it possible to accurately determine the mean-high water line in Rodriguez Key are not sufficient evidence to prevent entry of summary judgment. Jones v. Stoutenburgh, 91 So.2d 299 (Fla. 1956).

There is also no genuine issue of material fact that the Marketable Record Title Act does not preserve any claims of the State to Laney’s lands above the meander line. The State acquired the right to own and hold the land under navigable waters lying within the State, including the shores and space between the ordinary high and low water marks upon its admission to the Union in 1845. Title to all other lands in the State remained in the United States, including title to certain swamp and overflowed lands. Wakulla Silver Springs Co., supra. Under the Swamp and Overflowed Land Grant Act of Congress of 1850 the State acquired the right to convey these federally owned lands. As the Florida Supreme Court stated in Martin v. Busch, supra, at pages, 93 Fla. 568, 112 So. 285:

Lands bordering on the shores of a navigable lake or other navigable body of water may be swamp and overflowed lands within the meaning of the Swamp and Overflowed Land Grant Act of Congress of September 28, 1850; but such swamp and overflowed lands do not extend beyond the ordinary high-water mark of navigable lakes, or other bodies of navigable water, since lands under navigable waters to ordinary high-water mark became the property of the State by virtue of its sovereignty, attained when admitted into the Union as a state under the Act of Congress March 3,1845.

Where, however, there is no official survey indicating what the high-water mark is or that it is any different from a meander line established by official survey, that meander line stands as the boundary line dividing swamp and overflowed lands from sovereignty lands. Busch, supra at 93 Fla. 572, 112 So. 286. See also Wakulla Silver Springs Co., supra; Wetstone, supra. It is the duty of the State to officially determine the limits and existing boundaries of the sovereignty lands under navigable waters on which the sold or conveyed lands border. Busch, supra at 93 Fla. 568, 112 So. 285.

In order to show that the lands in question are sovereign lands, the State must prove the existence of the high-water mark on Rodriguez Key and that the lands conveyed fell below this mark. This the State failed to do. There is no question of fact or law that the property conveyed to Laney’s predecessor in title in 1892 was legally swamp and overflowed lands properly conveyed by the State under the Swamp and Overflowed Land Grant Act of 1850 and that by such conveyance, the State gave up any interest it had in these lands.

Because we find the meander line controlling in this case, we also find no material issues of fact or law raised by the Trustees’ points (c) and (d).

Affirmed.

      . Chapter LXXXIV, Acts of Congress of the United States, September 28, 1850, 43 U.S.C.A. § 981 et seq. (1979).

      . §§ 712.01-, 10, Fla.Stat. (1979).

      .Navigability is a question of fact dependent upon whether the body of water is permanent in character, and, in its ordinary and natural state, is navigable for useful purposes and so situated that it may be used for purposes common to the public in the locality where it is located. Odom v. Deltona Corp., 341 So.2d 977 (Fla.1976). See also § 197.228, Fla.Stat. (1979).

      . See note 1, supra.

      . The Florida Land Title Association, Inc. and the Florida Title Underwriters Bureau filed a brief of amicus curiae. We decline to discuss the issues raised in this brief as they are not relevant to a determination of this appeal.


author: BASKIN, Judge. NESBITT, Judge

text:
    Doris BURDICK, Appellant, v. Isadore BURDICK, Personal Representative of the Estate of Samuel Burdick, Deceased, Appellee.
    No. 80-1551.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.

      Allen Kornblum, Hialeah, and Larry Rothenberg, Pembrook Pines, for appellant.
    Malspeis, Lococo, Brown & Schwartz and Jay D. Schwartz, N. Miami, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

The resolution of this appeal from an order denying a widow’s residence homestead status on the ground that her husband had abandoned the homestead prior to his death depends upon an unusual set of circumstances. We hold that the trial court erred in failing to apply the law of the case established by prior court orders, and we reverse.

Samuel and Doris Burdick lived in a home in Coral Gables. He was forced to undergo surgery for the removal of a tumor. Six months later he left the residence following a “spat”, telling Mrs. Burdick that he had taken care of everything, that she had nothing to worry about, and that he would be back. He left most of his clothing and medicine behind. He continued to pay mortgage and utility bills, pool service, insurance, and waste fees as well as payments to prevent interruption of the Miami Herald delivery service. For approximately three months, he lived in an apartment under a one-year lease. Subsequent to another period of hospitalization, he stayed with friends for two weeks. He was again forced to return to the hospital, where he died. No other evidence was presented concerning whether he intended to return to his home. On these facts, the trial court ruled that Mr. Burdick had abandoned the homestead and that the property became an asset of the estate.

Homestead exemption is provided by the Florida Constitution (1968), Article X, Section 4:

HOMESTEAD: EXEMPTIONS — (a) There shall be exempt from forced sale ... the following property owned by the head of a family:
(1) a homestead ... upon which the exemptions shall be limited to the residence of the owner or his family;
(2) personal property to the value of $1,000.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child....

Additional provisions relating to homestead appear in sections 732.401 and 732.4015, Florida Statutes (1977).

In order to be entitled to maintain homestead status on the residence, a wife must not only survive her husband but must also have been a party to a family relationship in existence at the time of the husband’s death. In addition, the residence must have been occupied by the family at the time of the husband’s death. In re Estate of Van Meter, 214 So.2d 639 (Fla. 2d DCA 1968), aff’d, 231 So.2d 524 (Fla.1970). A legal duty to support and continued communal living evidence the existence of a family relationship. In re Estate of Van Meter, supra. Homestead status may be waived by abandonment. Nelson v. Hainlin, 89 Fla. 356, 104 So. 589 (Fla.1925); Beensen v. Burgess, 218 So.2d 517 (Fla. 4th DCA 1969). When homestead status has been acquired, it continues until the homestead is abandoned or alienated in the manner provided by law. Marsh v. Hartley, 109 So.2d 34 (Fla. 2d DCA 1959). Continuous uninterrupted physical presence is not required to create a homestead. Poppell v. Padrick, 117 So.2d 435 (Fla. 2d DCA 1959). Each case must be decided on its own particular circumstances. Marsh v. Hartley, supra.

With these principles in mind, we have examined the record before us. The case originally fell before a predecessor judge on Petition to Set Aside Homestead and Exempt Property, Petition for Family Allowance and Election to Take Elective Share. The material allegations of the petition included statements that, at the time of his death, Mr. Burdick resided at the Coral Gables residence as head of the household consisting of Samuel and Doris Burdick and that she was his surviving spouse. Other allegations contended that the described real property constituted decedent’s homestead. These allegations were denied by appropriate pleadings thereby presenting questions of homestead status to Judge Weaver, the prior judge. Judge Weaver entered an order finding that the material allegations of the petition were true and that Samuel Burdick was survived by Doris Burdick, who he was obligated to support and was, in fact, supporting. The court ruled:

Further adjudged that Isadore Burdick the personal representative of the estate of Samuel Burdick, deceased, is authorized and directed to pay any and all expenses, charges, costs, fees and taxes incurred or accrued in connection with the preservation or maintenance of decedent’s homestead.... (emphasis supplied).

In a subsequent order, another judge determined beneficiaries. In that order, the court ruled that the order entered by Judge Weaver was binding since it had not been appealed and had “ended litigation as to the issue of the status of the husband and wife there decided....” The court stated:

Finally, the courts of this State are committed to the general proposition that a successor judge may not review, modify, or reverse, upon the merits, on the same facts, the final orders of his predecessor, absent mistake or fraud. Groover v. Walker, 88 So.2d 312 (Fla.1956); Bailey v. Bailey, 204 So.2d 531 (Fla.App. 3rd 1967).

The order now under consideration, however, fails to comport with the court’s statements. In the Order on Petition to Set Aside as Homestead, the court found that Judge Weaver had not adjudicated the issue of homestead, and that since the decedent had removed himself from the home without intending to return, the homestead status had been abandoned. In our view, the court erred in failing to follow the language of the prior order entered by the predecessor judge. Furthermore, appellant met her burden of proof and established that no abandonment occurred.

For these reasons, we reverse the order entered by the trial court and remand for further proceedings consistent with this opinion.

NESBITT, Judge

(specially concurring):

I concur in the result and judgment rendered by the majority.

The real property in question constituted the homestead of the decedent at the time of his death and, pursuant to Article X, Section 4 of the Florida Constitution and Section 732.4015, Florida Statutes (1977), was not subject to a devise because he was survived by his spouse to whom the real property homestead passed under the law of intestate succession, pursuant to Section 732.401(1), Florida Statutes (1977). There is a presumption against the abandonment of one’s homestead, Poppell v. Padrick, 117 So.2d 435 (Fla. 2d DCA 1959), and, in this case, the proponent failed to carry its burden to demonstrate, by clear and convincing evidence, that such an abandonment occurred. Banks v. Banks, 98 So.2d 337, 339 (Fla.1957). While it is true that the decedent physically left the property, he continued attributes of support on behalf of his wife while she resided in the home, as was his legal duty, which demonstrated that he was a person in charge of communal living of two persons as a family, as a matter of law — if not in fact. See, Crosby and Miller, Our Legal Chameleon, The Florida Homestead Exemption: I-III, 2 U.Fla.L.Rev. 12, 24 (1949).

I entirely disagree with the majority’s conclusion that the successor judge was bound by the previous findings or order of his predecessor. While it is true that the order of his predecessor granted the personal representative’s petition to preserve and maintain the “decedent’s homestead,” it did not adjudicate the status of the real property with respect to the homestead. The petition to set aside homestead was the only pleading which ever placed in issue the homestead status of the real property, and that petition was ruled upon only by the successor judge. Under the doctrine of collateral estoppel, only “issues actually litigated” are set to rest. Coplan Pipe & Supply Co., Inc. v. Central Bank & Trust Company, 362 So.2d 447 (Fla. 3d DCA 1978). Consequently, the successor judge was in error when he relied upon the predecessor’s order regarding the “decedent’s homestead” in entering an order determining decedent’s heirs and beneficiaries and finding that his surviving spouse was, in fact, his lawful wife. In other words, the three separate petitions: (a) to preserve and maintain the decedent’s property; (b) to determine heirs and beneficiaries; and (c) to set aside homestead, presented separate and distinct issues to the various judges in the probate division.

Finally, if the above reasoning is not satisfactory, then there is one which most assuredly is. Our present determination, that the real property in question was clothed with the homestead status at the time of the decedent’s death and thereby not subject to devise, manifestly demonstrates that the property in question was neither a pro-batable asset over which the personal representative had any right of possession nor did the probate court even have jurisdiction over it. Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938); Raulerson v. Peeples, 77 Fla. 207, 81 So. 271 (1919).

Consequently, the order of the predecessor judge finding the property in question was the decedent’s “homestead” was a bru-tum fulmen.

      . Provides for descent of homestead with a life estate to the surviving spouse and vested remainder to lineal descendants.

      . Provides that homestead shall not “be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.”


author: PER CURIAM.

text:
    The FIRST STATE BANK OF MIAMI, Appellant, v. Carl EISDORFER, Appellee.
    No. 80-2018.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Britton, Cohen, Kaufman, Benson & Schantz and J. Robert Olian, Miami, for appellant.
    Jeanne Heyward, Thomas B. Duff, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Final summary judgment entered in favor of Carl Eisdorfer is reversed. As a matter of law, we find Eisdorfer liable upon the obligations represented by the subject promissory notes.

In the instant case, Eisdorfer signed the face of the subject promissory notes in his corporate capacity below the corporate name. The only possible purpose for the endorsement on the reverse side of the promissory notes was to submit the endorser (Eisdorfer) to personal liability on the obligations represented by the said promissory notes.

It is, therefore, ordered and adjudged that the cause be reversed and final summary judgment be entered in favor of The First State Bank of Miami.

      . Eisdorfer was a defendant in the case below. The cause proceeded as against him only.


text:
    Robert R. MURETTA, Appellant, v. Jean F. MURETTA, Appellee.
    No. 80-2139.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Francis E. Holden, Jr., Hialeah, for appellant.
    Neil J. Berman, Miami, for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    Charlotte GOLDSTEIN f/k/a Charlotte Ginsberg, Appellant, v. Burton GINSBERG, Appellee.
    No. 80-2323.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Kendall B. Coffey, Miami, for appellant.
    Ginsberg & Goldman and Daniel Ginsberg, N. Miami Beach, for appellee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant, in 1960, recovered a final judgment covering a number of items, including periodic alimony. The appellee’s continuing duty to make periodic alimony payments ceased in 1965.

In 1980, the appellant sought a continuing writ of garnishment, pursuant to Section 61.12(2), Florida Statutes (1979). The trial court refused to issue a continuing writ of garnishment, and this appeal ensued. We affirm.

There did not appear to be any evidence of a current continuing order to make periodic alimony or support payments in the record before the trial court; to the contrary, the evidence indicated that all such periodic payment orders had ceased. We therefore find that the trial court was eminently correct in not permitting the appellant to secure the issuance of a continuing writ of garnishment directed to the judgment debtor’s employer. See and compare: Schwarz v. Waddell, 389 So.2d 210 (Fla. 4th DCA 1980).

Affirmed.


text:
    Pearl STEINER, Appellant, v. Walter STEINER, Appellee.
    No. 80-2346.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Sparber, Shevin, Rosen, Shapo & Heil-bronner and Bonnie Blaire and Marsha C. Rosen, Miami, for appellant.

      Robert H. Burns, Miami Beach and Alan S. Kessler, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: DANIEL S. PEARSON, Judge.

text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellant, v. N. K., INC., a Florida Corporation, Appellee.
    No. 81-272.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    William A. Hatch, Tallahassee, for appellant.
    Sy Chadroff and Lane Abraham, Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

The Division of Alcoholic Beverages and Tobacco entered an emergency order, without a prior hearing, suspending the liquor license of N. K., Inc. because of numerous alleged narcotics violations which occurred on the licensed premises. The following day the licensee sought and obtained an injunction from the Dade County Circuit Court staying the Division’s action. The Division brings this appeal asserting the Circuit Court lacked jurisdiction to issue the injunction. We agree and reverse the trial court’s order issuing the injunction.

In Metropolitan Dade County v. Department of Commerce, 365 So.2d 432, 433 (Fla. 3d DCA 1978), we held “injunctive remedy [in the Circuit Court] ... is applicable only in those extraordinary cases where a party has no other adequate administrative remedy to cure egregious agency errors or where a party’s constitutional rights are endangered.” (emphasis supplied). The licensee in the present case clearly had another remedy. Section 120.68, Florida Statutes (1979), provides for immediate review in the appropriate District Court of Appeal where the agency suspends or revokes a license. See Aurora Enterprises, Inc. v. State, Department of Business Regulation, 395 So.2d 604 (Fla. 3d DCA 1981). As we noted in Aurora Enterprises, Section 120.68(3) specifically provides for the remedy sought by the licensee here.

In seeking the injunction in Circuit Court, the licensee claimed that constitutional due process considerations require a pre-suspension hearing. The claim is without merit. Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Aurora Enterprises, Inc. v. State, Department of Business Regulation, supra. The licensee’s additional claim that the findings recited in the order of suspension do not sufficiently articulate the reasons nor justify the emergency suspension is also without merit. We rejected a similar claim in Aurora Enterprises, a case which involved virtually identical findings to those recited in the present suspension order.

Since it is clear the Circuit Court did not have jurisdiction, we reverse the order enjoining the Division of Alcoholic Beverages and Tobacco.

Reversed.

      . Our abbreviated discussion of the substance of the licensee’s claim is solely to show that at the time the injunction under consideration issued, the licensee’s constitutional rights were not endangered. We note that in the event a post-suspension hearing is not held, the licensee has an entirely different constitutional claim, see Aurora Enterprises, Inc. v. State, Department of Business Regulation, supra, which the Circuit Court may indeed have jurisdiction to hear.


author: ERVIN, Judge.

text:
    Glenn K. BRYANT and LeRoy Bryant, Appellants, v. The SCHOOL BOARD OF DUVAL COUNTY, FLORIDA, a body corporate, Robert E. Rupp and Roy R. Stasco, Appellees.
    No. OO-399.
    District Court of Appeal of Florida, First District.
    June 3, 1981.

      William M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appellants.
    Noah Jenerette, Jr. and Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, William G. Cooper and John F. MacLennon of Kent, Watts, Durden, Kent & Mickler, Jacksonville, for appellees.
   ERVIN, Judge.

The issue before us is whether appellants’ amended complaint sufficiently alleged negligence on the part of appellees so as to avoid an order of dismissal. Because the case involves allegations against a governmental employer, we are also called upon to analyze the effect of certain 1980 amendments to Florida’s sovereign immunity law on pending and future cases relating to pleading, and to pending cases relating to joinder of parties, the parties’ rights of access to the courts, and their vested rights to maintain a suit. The latter three areas are all constitutional in nature.

Appellants Glenn and LeRoy Bryant seek reversal of a final judgment dismissing their amended complaint with prejudice. We agree with their contentions, and reverse and remand with directions.

The pleadings reveal that a group of students were permitted by defendants to organize a club, known as the Omega Club. The club, like all other clubs at Forrest High School in Jacksonville, had to obtain Principal Stasco’s approval for any outings held outside school hours and, according to school regulations, it was prohibited from hazing prospective members at initiation ceremonies, and was required to have a faculty member present at all the club activities and meetings. Appellee Rupp was assigned as the faculty advisor for the Omega Club, which allegedly had a well-known reputation for conducting activities that violated school board regulations, such as consumption of alcoholic beverages. As a result of this reputation, it was alleged that the school was required to monitor closely the club’s activities.

One evening in October, 1975, club members held a meeting at the school to plan an initiation ceremony. Rupp knew that the meeting was going to be held, but for reasons unknown, he did not attend. As part of initiation, the club members decided to conduct a hazing ceremony. Rupp did not attend the hazing/initiation ceremony, but Glenn Bryant, a student and prospective member, did. During the hazing, he incurred an injury resulting in the severance of his spinal cord. This caused a permanent paralysis from the neck down. Glenn, and his father, LeRoy Bryant, filed suit against the School Board, and its agents Stasco and Rupp, grounded on claims of negligence.

The complaint’s first two counts allege that the school board, through its two agents, were guilty of simple negligence. The appellants predicate their theory of negligence upon the board’s policy, expressed in its duly adopted rules, that no outing could occur without permission of the school principal, and if it occurred, it had to be attended by a faculty adviser. Appellants have alleged that Rupp knew of the club’s reputation, the planning session, the initiation, and the planned hazing ceremony. Assuming these facts to be true, the school board and its agents had a duty to execute and implement board policy without negligence. Hollis v. School Board of Leon County, 384 So.2d 661, 666 (Fla. 1st DCA 1980). See also Padgett v. The School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981). By failing to carry out this duty, appellees could conceivably be deemed negligent. They permitted a chain of events to be set in motion which allegedly culminated in Bryant’s injury.

However, any analysis of a negligence action is not complete without considering the issue of causation. To be liable, appellee’s actions must be deemed by law to be the proximate cause of Bryant’s injuries. “The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Pope v. Pinkerton-Hays Lumber Company, 120 So.2d 227, 229 (Fla. 1st DCA 1960), cert. denied, 127 So.2d 441 (Fla.1961); see also, Fellows v. Citizens Federal Savings and Loan Association of St. Lucie County, 383 So.2d 1140 (Fla. 4th DCA 1980). The Board, Rupp and Stasco moved for dismissal on a number of grounds, one of which was the causation issue. Defendants below argued that Bryant’s injuries were the result of an intervening cause, the actions of certain club members at the outing. As noted in Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla.1980), a person, although negligent, is not liable for damages when a separate force or action is “ ‘the active and inefficient intervening cause.’ ... the ‘sole proximate cause’ ... or an ‘independent’ cause.” In this sense, “ ‘an intervening force is one which comes into active operation in producing the result after the negligence of the defendant.’ ‘Intervening’ is used in a time sense .... ” Pope, supra, at 230 (emphasis in original).

However, the original negligent actor may be liable if the intervening cause is foreseeable. Gibson, supra, at 522. If the harm that occurred is within the scope of the danger or risk attributable to defendant’s negligent conduct, then it is deemed foreseeable. There are three ways in which the harm may fall within the scope of danger: First, the legislature may specify the type of harm. Id. Second, if the same type of harm has occurred previously due to the same type of negligent conduct, and the tortfeasor has actual knowledge of this, liability can be established. Gibson, supra, at 522. Third, liability can be made out if the negligence complained of has resulted in harm so frequently “ ‘in the field of human experience’ ” that harm may be expected to happen again. Gibson, supra, at 522-523; see also, Pinkerton-Hays Lumber Company v. Pope, 127 So.2d 441 (Fla.1961). Justice Cardozo has noted that foreseeable risks are risks reasonably to be perceived by the eye of vigilance. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).

Proximate cause and foreseeability are essential negligence principles that must be alleged. Bryant v. Jax Liquors, supra, fn. 1. We consider that the complaint sufficiently alleges these key points, based on the tests enumerated in Gibson, supra. The complaint alleged the known dangers of hazing and the free-wheeling manner in which the Omega Club members traditionally conducted themselves. It also alleged that the legislative voice for school affairs (the School Board) had adopted rules that provide a standard to which students are required to conform. Such allegations come within both the first and third methods by which a specified risk may be deemed foreseeable. See Gibson, supra, at 522. Foreseeability is the measuring stick by which proximate cause is determined. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 55-56 (Fla.1977). Therefore, unless reasonable men could not differ that the defendants’ acts or omissions could not be the proximate cause, the issue is for the jury. Vining, supra, at 56; Railway Express Agency, Inc. v. Garland, 269 So.2d 708, 711 (Fla. 1st DCA 1972). Since there remains before us a question concerning what is the proximate cause of Glenn Bryant’s injuries, this case must be remanded for further proceedings. J. M. Fields, Inc. v. Smuckler, 385 So.2d 124 (Fla.3d DCA 1980).

Count III of the complaint was directed against Rupp and Stasco in their individual capacities. It, like the first two counts against the Board, was apparently based upon “simple” or “ordinary” negligence, because the two individuals’ acts were termed as being merely “careless”. In determining the validity of this theory of negligence, two questions must be answered: (1) Is such a suit precluded by virtue of the 1980 amendments to the Florida Sovereign Immunity Act?, and (2) if not, should the action against the two agents in their individual capacities, alleging simple negligence, be severed from the remaining counts alleged?

In the closing hours of the 1980 legislative session, Section 768.28(9) was amended. See Laws of Florida, Chapter 80-271, § 1. The amendment bars any suit against a governmental employee either individually or in his official capacity, unless that employee has acted with a willful or wanton disregard of one’s human rights, safety or property, or in bad faith, or with malicious purpose. The effect of the statute as amended is that the employee may only be sued in his individual capacity for willful and wanton conduct for which the governmental employer remains excused from liability. The amendment was made applicable to all actions pending before the trial or appellate courts on July 1,1980, the effective date of the act. Laws of Florida, Chapter 80-271, § 4. Bryant argues that this revision usurps his right to sue appel-lees Rupp and Stasco for ordinary negligence, which had become vested under the Florida Constitution of 1968, Article I, Section 9, since the suit was filed long before the statute was amended. Indeed, this right was explicitly recognized by District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla.1980). Bryant argues also that the legislature has abolished his right to seek redress for an injury without providing a reasonable alternative in violation of the Florida Constitution of 1968, Article I, Section 21. See Kluger v. White, 281 So.2d 1 (Fla.1973).

Without addressing the question whether the statute bars Bryant’s access to the courts, we agree with Bryant’s argument that the statute’s abolition of his right to sue Rupp and Stasco for ordinary negligence is unconstitutional since it affects rights which had become vested. See State of Florida, Department of Transportation v. Knowles, 388 So.2d 1045, 1047-1048 (Fla.2d DCA 1980). Although retroactive statutes are not necessarily invalid, they may become so if a vested right is adversely affected. Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978); McCord v. Smith, 43 So.2d 704 (Fla.1949). Accordingly, the cause of action against Rupp and Stasco for ordinary or simple negligence cannot be permitted to fall based on the amendment to the sovereign immunity statute. Were the statute’s provisions to be prospectively applied, the outcome might be different. However, the legislature’s retroactive application of the statute cannot be permitted to displace appellant’s vested constitutional rights.

In their supplemental brief, the Bryants refer to a clause in the amended version of Section 768.28(9), Florida Statutes (Supp.1980), which states that no governmental employee shall be named as party defendant in any action unless the employee has acted in a wanton or willful manner or with malicious purpose or in bad faith. This clause, like the rest of the act, is expressly made applicable to pending cases in the trial or appellate courts. This presents a problem as to whether we should remand with an order to sever the action against Rupp and Stasco from the action against the School Board, since the practical effect of this amendment is to permit a suit only against the governmental entity based on ordinary negligence of its agent(s) or against only an employee who has acted wantonly. Because this affects the issue of joinder during the pendency of this case’s pre-existing prosecution, we find that the legislature has intruded into a matter of practice and procedure. We decline to direct a severance.

Matters of practice and procedure, as opposed to matters of substantive law and rights, are reserved exclusively to the judiciary, more specifically, the rulemaking powers of the Supreme Court. “Substantive rights are those existing for their own sake and constituting the normal legal order of society, i. e., the rights of life, liberty, property and reputation.” In re Florida Rules of Criminal Procedure, 272 So.2d 65 at 65 (Fla.1972), (Adkins, J., concurring). The determination of who shall be joined or severed during the prosecution of a case commenced before the effective date of the amended statute appears to fall within the scope of practice and procedure.

In examining the mandatory late joinder of an insurance company as required by statute, the Florida Supreme Court recently indicated that such a requirement is a matter of practice and procedure. See Markert v. Johnson, 367 So.2d 1003, 1006 (Fla.1978). The effect of the amended sovereign immunity law, if retroactively applied, would be to require the severance of parties from an existing case. This seems to be analogous to the situation in Markert, supra-.

The fourth count is directed against Rupp and Stasco, but it is unclear whether Rupp and Stasco are being sued individually or in their capacity as agents of the school board, and whether the theory of negligence espoused in this count can be construed as “willful or wanton.”

Suit is permitted against a governmental employee only in his individual capacity, and not against his governmental employer, or against the employee in his official capacity, if the employee’s conduct toward the aggrieved plaintiff was in bad faith, or with malicious purpose, or in “a manner exhibiting wanton or willful disregard of human rights, safety, or property.” District School Board of Lake County v. Talmadge, supra. This is based on the command of Section 768.28(9), Florida Statutes, the sovereign immunity statute.

Additionally, we construe the Bryants’ use of the phrase “gross and reckless” as being within the ambit of the phrase “wanton and willful misconduct” as used in Section 768.28(9). Thus, Count IV is only actionable against Rupp and Stasco in their individual capacities, and not against them as agents of the Board.

To conclude, Bryant has alleged a cause of action against the Board, Rupp and Stas-co in both their official and individual capacities in ordinary negligence, and against Rupp and Stasco, individually, based on a wanton disregard of Bryant’s human rights, safety or property as permitted by Tal-madge, supra.

The ruling below is reversed and remanded for further proceedings not inconsistent with this opinion as to all counts of the Bryants’ amended complaint.

LARRY G. SMITH and SHIVERS, JJ, concur.

      . In Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), this court affirmed a judgment dismissing the Bryant’s earlier amended complaint. While not alleged in the case under consideration, the “Jax Liquors" case contains other allegations that round out the facts of this case in that the Omega Club members .apparently purchased some rum and pressured Bryant and other initiates into drinking a quantity sufficient to cause them to become intoxicated. Bryant then fell, jumped or was pushed by the other intoxicated initiates, causing the resulting injuries. Because these allegations were not presented in this case, they in no way affect our opinion today.

      . LeRoy Bryant’s cause of action is essentially a re-allegation of Glenn Bryant’s complaint. He seeks compensation for medical bills and loss of services of his son.

      . See Fla.Const. of 1968, Art. I, § 21. Kluger, supra, at 4 states:
      . . . that where a right of access to the courts for redress for a particular injury has been provided by statutory law pre-dating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the state pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

      . Courts in other states apparently support the view that the terms reckless and wanton are interchangeable. See Hughes v. Southern Haulers, Inc., 379 So.2d 601 (Ala.App.1979); Green v. Millsboro Fire Co., Inc., 385 A.2d 1135 (Del.Super.1978); Gammon v. Edwardsville Community Unit School, District No. 7, 82 Ill. App.3d 586, 38 Ill.Dec. 28, 403 N.E.2d 43 (1980); Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907 (La.App.1975); Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944); Danculovich v. Brown, 593 P.2d 187 (Wyo.1979); contra, State v. Tamanaha, 46 Haw. 345, 377 P.2d 688, 690-691 (1962), in which it was decided that conduct which is more than negligent may be reckless without being lawful or wanton.


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

text:
    Richard C. RANNEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1746/T4-707.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Richard L. Jorandby, Public Defender, Jorge Labarga, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

REVERSED and REMANDED but, as in Gee v. State, - So.2d - No. 80-336 (Fla. 5th DCA February 11,1981), we certify the following question to the Florida Supreme Court:

CAN AN APPELLATE COURT APPLY THE HARMLESS ERROR DOCTRINE, SECTION 924.33 AND SECTION 59.041, FLORIDA STATUTES (1979), TO THE FAILURE OF A TRIAL COURT TO GIVE THE JURY INSTRUCTION REQUIRED BY RULE 3.390(a), FLORIDA RULES OF CRIMINAL PROCEDURE, IF THE APPELLANT’S GUILT IS CLEARLY ESTABLISHED AND THE APPELLATE COURT DETERMINES THE ERROR COULD NOT HAVE AFFECTED THE VERDICT?

ORFINGER and COWART, JJ., concur.


text:
    Alton T. ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 81-316.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Alton T. Alexander, pro se.
    Jim Smith, Atty. Gen., Tallahassee and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Alexander appeals the summary denial of his motion to vacate and correct his sentence. He was sentenced to a term of twelve years which was split, pursuant to section 948.01(4), Florida Statutes (1979), into a two-year term of imprisonment followed by ten years of probation.

The revised opinion in Villery v. The Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), specifically held that the incarceration segment of a split sentence may not equal or exceed one year. Because Villery is made to apply retroactively, the summary denial of appellant’s motion for post conviction relief is reversed, and the case is remanded to the trial court for resentencing.

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


author: SHARP, Judge.

text:
    William Carl JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 80-563.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

James appeals from a conviction of three charges: robbery with a firearm; using a firearm while committing a felony; and grand theft. James asserts that these offenses were facets of the same criminal transaction and therefore he should not have been adjudicated and sentenced for the two lesser included offenses — using a firearm while committing a felony and grand theft. We agree.

The record shows that James used a firearm in robbing a jewelry store. He and his accomplice took jewelry worth $250,000 and cash from the store and then fled into the adjoining mall area. The owner of the store pursued him, and James turned and fired a single shot in the owner’s direction. The police captured James in the mall parking lot.

Under these circumstances the offenses of grand theft and using a firearm while committing a felony were lesser offenses included in the offense of armed robbery. See Brown v. State, 206 So.2d 377 (Fla.1968). Accordingly, the judgments for grand theft and using a firearm while committing a felony are reversed and the corresponding sentences are vacated. State v. Pinder, 375 So.2d 836 (Fla.1979); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981); Walker v. State, 386 So.2d 630 (Fla. 5th DCA 1980).

REVERSED in part.

ORFINGER and COBB, JJ., concur.


author: COWART, Judge.

text:
    MIGHTY OAK, INC., a foreign corporation, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, etc., Appellee.
    No. 80-5.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      Nord L. Johnson of Rano, Cauvel & Johnson, P. A., DeLand, for appellant.
    Cooper & Rissman, Orlando, for appellee.
   COWART, Judge.

The claim of appellant, Mighty Oak, Inc., for loss by fire of a building insured by appellee Hartford Accident & Indemnity Company was denied on the ground that the policy was not applicable because the insured property had been vacant for over 60 days prior to the fire. Appellant sued on the policy alleging that one Lane was an agent of appellee and that Lane had actual knowledge of the vacancy which knowledge, imputed to appellee, constituted a waiver of the vacancy provisions of the policy. At trial appellant presented evidence from which the jury could have found that Lane was an agent of appellee. Appellant’s witnesses also testified to conversations in which they mentioned to Lane that the property was vacant. Lane denied receiving such information. From a judgment based upon a jury verdict for appellee, Mighty Oak appeals, alleging that the trial court erred in refusing instructions that would have in effect been a holding as a matter of law that Lane was an agent of appellee and in refusing to tell the jury that notice to Lane constituted notice to Hartford.

We hold that the trial court properly declined to rule, as a matter of law, that Lane was appellee’s agent and properly submitted to the jury the issues as to whether Lane was an agent with apparent authority, whether Lane knew of the vacancy and whether Lane’s acquisition of such knowledge, if any, was within the scope of such apparent authority. We do not read Hughes v. Pierce, 141 So.2d 280 (Fla. 1st DCA 1961), to require a contrary holding. Furthermore, on this appeal appellant is estopped to argue estoppel under Russell v. Eckert, 195 So.2d 617 (Fla. 2d DCA 1967), because the trial court relied upon a stipulation that appellant was, at trial, relying on the theory of waiver as opposed to estoppel. Likewise, appellant’s trial counsel specifically agreed that the trial court not give any instruction defining waiver, so the adequacy of the trial court’s instruction on that subject cannot be urged on appeal.

During the cross-examination of Lane the trial court sustained an objection to a question by appellant’s counsel as to whether Lane was himself covered by a policy of errors and omissions insurance. Appellant argues that, since Lane’s credibility as to his receipt of knowledge of the vacancy was in issue, appellant should be able to impeach Lane’s credibility by showing that Lane was not covered by an errors and omissions insurance policy and, therefore, that Lane might have a motive to testify falsely to avoid personal liability to appellee. We do not agree. Appellee insurance company certainly did not rely on Lane or anyone to constantly investigate and to keep the company informed of potential hazards to insured property. Rather, the company merely wrote a condition into its policy that the company was not liable for loss occurring while the building was vacant or unoccupied beyond a period of 60 consecutive days. Therefore, it cannot be presumed that Lane would be liable for failure to communicate to appellee knowledge, if any, of the vacancy of the insured building. Appellant should have first shown, if possible, that the witness Lane was concerned about some personal financial responsibility to appellee as the result of his testimony in this case before attempting to “frost the cake” by questions relating to the details or the degree of any such concern. Until there is some basis in fact indicating that a witness might actually be concerned that his truthful testimony will result in personal disadvantage to himself, all is but suggestions and arguments from the imagination of counsel. Until there was some reasonable basis indicating the witness’ concern, speculative questions relating to the possible responsibility of the witness or the witness’ errors and omissions insurer were likely to mislead the jury, were properly considered irrelevant, and were properly excluded by the trial judge. There was no specific offer (proffer) of evidence to establish Lane’s concern about personal disadvantageous consequences of his own testimony and there was no specific offer of the excluded evidence sufficient to comply with Florida Rule of Civil Procedure 1.450(b). See Ritter’s Hotel, Inc. v. Sidebothom, 142 Fla. 171, 194 So. 322 (1940).

The judgment below is

AFFIRMED.

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


text:
    Darwin L. FETTERS, et ux, Appellants/Cross-Appellees, v. UNITED STATES FIRE INSURANCE COMPANY, a New Jersey corporation, Appellee/Cross-Appellant.
    No. 80-289.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Anthony I. Provitola, DeLand, for appellants/cross-appellees.

      James W. Markel and Leslie King O’Neal of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for ap-pellee/cross-appellant.
   COWART, Judge.

Appellant Darwin L. Fetters, a resident of Florida, was driving one of his employer’s trucks in Alabama when he was injured in a collision with an uninsured motorist. Fetters brought this action against his employer’s insurer, appellee United States Fire Insurance Company, on the uninsured motorist coverage provision of a policy covering the employer’s fleet of trucks. Appel-lee insurer denied the circumstances of the Alabama accident and counterclaimed for a declaratory judgment as to whether the claim was governed by the law of Alabama or Florida and as to the maximum policy limit provision applicable to appellee’s claim. From an order holding the law of Alabama applied, Fetters appeals and, from a ruling that the applicable uninsured motorist coverage limit was $250,000 rather than $10,000, the insurer cross-appeals.

An order, to be appealable as final, must constitute an end to the judicial labor in the cause and there must remain nothing further to be done by the court to effect a termination of the cause as between the parties directly affected. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). There is an exception where an order finally adjudicates a separate and distinct cause of action which is not interdependent with other claims yet to be resolved. Id. at 99; Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

Although the order here decides two issues and completely adjudicates the insurer’s counterclaim, that issue of coverage is not separate and distinct from Fetters’ claim on the policy but is an inseparable part of it. Fetters’ basic claim has not yet been adjudicated. In similar cases such orders have been held to be non-final and non-appealable. Brannon v. Johnston, 83 So.2d 779 (Fla.1955) (order finding the defendant negligent and leaving only the issue of damages to be tried was not appeala-ble); Hyde v. Maine, 324 So.2d 689 (Fla. 2d DCA 1975) (pre-trial order determining limits of liability coverage non-appealable); Shealy v. Clark Construction Company of Ocala, Inc., 323 So.2d 11 (Fla. 1st DCA 1975) (order denying cross-claim for indemnity between co-defendants was non-final).

The appeal is therefore sua sponte

DISMISSED.

ORFINGER and SHARP, JJ., concur,


author: SHARP, Judge. COWART, Judge,

text:
    Lafe Camden WEST, Appellant, v. Florence Ellen WEST, Appellee.
    No. 80-343.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      C. Allen Watts, DeLand, for appellant. Frank D. Newman, DeLand, for appellee.
   SHARP, Judge.

The husband/appellant raises four points in his appeal from a final judgment of dissolution:

(1) The trial judge erred in failing to award him a special equity in the marital home;
(2) The court erred in awarding lump sum alimony in the form of a % interest in a note and mortgage to the wife;
(3) The court erred in awarding the wife permanent periodic alimony; and
(4) The court erred in awarding travel expenses and attorney’s fees to the wife.

We agree that error occurred in this case on the first point, and we remand this case to the trial court for further consideration, in light of this opinion.

The parties were both previously married and widowed prior to their marriage in 1963. At the time of the dissolution, they had been married 151/2 years. Most of that time was spent in West Virginia. After their marriage, the wife came to live with the husband and his two daughters, ages 13 and 16, on his farm near Parkersville. The wife primarily performed housekeeping chores, and helped care for the girls until they married and moved away. The parties extensively remodeled the farmhouse after their marriage, and when they sold it in 1978, it was beautifully cared for and landscaped. The husband worked as a foreman in a steelmill and obtained most of his income from that source, although he raised hay, cattle and some vegetables on the farm.

From her prior marriage the wife had a small farm. She sold it for $8,000 and at the time of the dissolution, she was allowed to retain approximately $4,000 from a joint savings account, which both parties agreed was the “balance” of these proceeds. She testified she spent the rest of her funds on gifts for the husband and his daughters, things they needed on the farm, and special expenses of the household.

From his prior marriage, the husband had his farm, titled solely in his name. Except for the remodeling loans, which he paid out of his earnings, the farm was unencumbered. When the parties moved to Florida in 1978, he sold the farm for $48,000. Out of these proceeds he spent $30,000 to buy the marital home and adjoining lot in De-Land, Florida. The house and lot were put in the joint names of the parties. The husband testified he intended to make no gift to the wife, and that his niece and her husband persuaded him to put the property in joint names for “tax” and survivorship reasons. He also testified that the note and mortgage for the balance owed on his farm (approximately $8,000) were erroneously put in the parties’ joint names, contrary to his directions. He intended to put one of his daughter’s names on the documents with his.

The record established that the parties had had a good marital relationship for many years, and the wife had been a good housekeeper, wife, and mother even though she had health problems. When they moved to Florida, the husband suffered a “change of personality.” He became suspicious of his wife’s fidelity without any basis, and he accused her of lying. Eventually he physically abused her, and drove her to West Virginia where he dropped her off at her sister’s home, together with some of her clothing.

At the time of the dissolution, the wife was 71 years of age and in frail health. Her total assets consisted of her approximately $4,000 savings and personal articles. She received $174 per month in social security, her sole source of income. She does not drive, and were it not for her elderly sister’s hospitality, she would have no place to live. She is unable to travel alone, and was required to borrow funds from relatives and persuade friends and relatives to bring her to Florida for the depositions and the final hearing in this cause.

At the time of the dissolution, the husband was 67 years old, and although he had suffered a stroke and was not able to work, he had a total income (pension and social security) of $627 per month. His financial affidavit showed a total of $45,710 in assets and $7,300 in liabilities.

POINT ONE

This record does not support the trial court's determination that the husband failed to establish a special equity in the parties’ jointly owned home and lot in De-Land. This result must have been premised on the trial judge’s finding that the wife either partially contributed to the purchase funds or that the husband intended to make a gift to her when he put the property in joint names. The Florida Supreme Court “restated” the law on this point in Ball v. Ball, 335 So.2d 5, 7 (Fla.1976);

Either spouse has the right to attempt to establish a ‘special equity’ in the realty by reason of his or her extraordinary contribution towards its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended ... Consistent with prior decisional law, however, we hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for sur-vivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended. (Footnotes omitted).

We recognize the breadth of discretion accorded trial courts in dissolution matters but if there is no possible basis in the record to sustain the judgment, it must be reversed. In this case there was no evidence, the wife contributed any of her assets to the purchase of the marital home. Her hard work as a farm housewife and her husband’s use of his earnings as a foreman to improve the farm are not the kinds of contributions which create “special equities.” The key issue in this case is whether in the face of the husband’s uncontro-verted testimony that he did not intend to make a gift to the wife, there was any “contradictory evidence that a gift was intended.” We have carefully read the record, and conclude there was no such evidence. Therefore, the trial court could only have concluded that the husband was entitled to receive at least his $30,000 special equity in the marital home and lot.

POINT TWO

We find the trial court committed no error in awarding this wife lump sum alimony in the form of a one-half interest in the balance of the sums due on the note and mortgage relating to the sale of the husband’s farm. The length of this marriage, the relative financial situations of the parties, and the wife’s expenditure of approximately $4,000 from her assets on the husband’s farm and household are more than adequate grounds to sustain this award.

POINT THREE

The permanent alimony award of $100 per month to the wife was well within the trial court’s reasonable exercise of discretion, based on this record. Appellant argues that the wife’s financial affidavit afforded no legal basis upon which to make a support award because it was based primarily on her estimated expenses, in the event she was able to move from her sister’s home and establish separate living quarters for herself. The estimated expenses do not appear to be grossly overstated or unreasonable. The wife estimated her living expenses at $777 per month, including “rent” and “transportation”. The husband’s estimated expenses were $645.50 per month, although he had no rent or house payment expenses.

The failure of the wife to base her affidavit on actual expenditures is not fatal in this case, because the record clearly shows she had only $174 per month total net income to live on after the parties separated, and the husband paid her no support during this time. She could not expend what she did not have. Her care and support were being partly provided for by her relatives. The husband merits no credit or consideration for either circumstance.

POINT FOUR

The trial court’s award of $416.47 travel expenses to the wife are challenged by the appellant because the wife had more “liquid” assets than the husband. The husband, however, had a much larger net worth than the wife and a far greater income. No error in making this award was demonstrated. Canakaris v. Canakaris, 389 So.2d 1197 (Fla.1980).

For the reasons stated in this opinion we reverse Point One of the lower court’s judgment, and remand this proceeding to the lower court for entry of an appropriate judgment. The court may, in light of our opinion, revisit all aspects of the judgment, and shall be free to consider a greater or lesser award of periodic alimony and/or lump sum alimony as may be appropriate in this case.

REVERSED and REMANDED.

COBB, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I dissent for the reasons given in the dissent in Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981). Here, clearly, Mr. West supplied all of the consideration for the jointly held marital property from the proceeds of his West Virginia farm, so Sudholt v. Sudholt, 389 So.2d 301 (Fla. 5th DCA 1980) does not apply and Bail does. Bail cannot be avoided, as in Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), on the basis that Ball is not retroactive because Ball was decided in 1976 and the marital home was purchased after Mr. and Mrs. West moved to Florida in 1978.

Under Ball for the donee it’s “all or nothing at all.” If, as the trial judge here found, there was a gift, upon dissolution the donee has a moiety as a tenant in common (§ 689.15, Fla.Stat. (1979)). However, if, as the majority finds, there was no gift, Ball says “the property should be awarded to that [donor] spouse.... ”

      . Sudholt v. Sudholt, 389 So.2d 301 (Fla. 5th DCA 1980).

      . Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

      . Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Winikoff v. Winikoff, 339 So.2d 262 (Fla. 3d DCA 1976).

      . Duncan v. Duncan, 379 So.2d 949 (Fla.1980). See Snider v. Snider, 371 So.2d 1056 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980).

      . Ball v. Ball, 335 So.2d 5 (Fla.1976).

      . Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980); Sudholt v. Sudholt, 389 So.2d 301 (Fla. 5th DCA 1980).

      . Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Bird v. Bird, 385 So.2d 1090 (Fla. 4th DCA 1980); Caidin v. Caidin, 367 So.2d 248 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 765 (Fla. 1980).

      . Canakaris v. Canakaris, 389 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


author: DAUKSCH, Chief Judge.

text:
    Angela FAZIO, Appellant, v. STATE of Florida, Appellee.
    No. 80-442.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Louise L. Cavanaugh and Rick Kolodin-sky of Central Florida Legal Services, Inc., Daytona Beach, for appellant.
    Paul C. Doyle and Leo C. Stellwagen, Jacksonville, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order confining appellant under the provisions of section 394.467, Florida Statutes (1979). It was alleged appellant was ill, was likely to injure herself or others and needed to be placed involuntarily in a treatment facility.

It is alleged by appellant that the trial court violated basic constitutional due process rights by failure to allow legal counsel for appellant or to require a proper waiver of counsel; failure to inform appellant of her right to independent examination by her own mental health professional as required by section 394.467(3), Florida Statutes; failure to adequately document the nature and extent of the illness as required by section 394.467(3), Florida Statutes; failure to record the hearing so that an effective mode of review is obtainable; and failure to provide the least restrictive alternative available for the proper treatment and care of appellant.

The State of Florida has agreed “with the position of appellant that the involuntary commitment proceedings in the lower court are defective, both under section 394.467(3), Florida Statutes (Supp. 1980), and constitutionally.”

We also agree. The order of the trial court is reversed and the appellant is discharged. The court must afford all persons all statutory and constitutional rights to which they are entitled, be they juveniles as in R. V. P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981), or alleged mentally incompetent persons, as in this case, or any other person.

ORDER REVERSED; APPELLANT DISCHARGED.

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


author: DAUKSCH, Chief Judge. COWART, Judge,

text:
    In re the Marriage of Laurel J. Ising MARSH, Appellant, v. Arthur Wayne MARSH, Appellee.
    No. 80-451.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      Ed Leinster, Orlando, for appellant.
    Robert J, Buonauro, Orlando, for appel-lee.
   DAUKSCH, Chief Judge.

This is an appeal from a final judgment of dissolution of marriage. The appellant raised three points on appeal. We find merit in the first point raised and reverse.

The trial judge denied the wife a special equity in the marital home on the following facts. The marriage involved was of short duration, four months, and no children were born of the marriage. The wife owned the marital home before the parties, were married. After having been married two months, the wife had the home put into her name and the husband’s name. The wife alleges, and the evidence supports the allegation, that this was done so that her children from a previous marriage would have a home if something happened to her; however, in case of a divorce, the property was to be transferred back to her. The husband claimed it was a gift. The trial court found that the wife gave the home as a gift to the husband and ordered the home partitioned and sold. We find the trial court erred in failing to award the marital domicile to the wife because of her special equity.

Prior to Ball v. Ball, 335 So.2d 5 (Fla.1976), a conveyance from a husband to a wife was presumed to be a gift as was a conveyance from a wife to a husband. Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971). The effect of the Ball decision was to raise another presumption: the presumption that a special equity is created by an unrebutted showing that all the consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship. “Now the burden is on the grantee to establish, by ‘contradictory’ evidence, that a gift was intended. In sum, the grantee must overcome the presumption of the special equity.” Wright v. Wright, 388 So.2d 1319, 1321 (Fla. 5th DCA 1980).

The evidence clearly showed that the wife entered the present marriage owning the house in her name, she paid all of the mortgage payments and property taxes. The husband testified that the wife had intended a gift to him. As was held in Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 1st DCA 1978), the Ball decision should not be read “as holding that a word or two of testimony by the recipient spouse, to the effect that the other intended a gift, obliterates the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage.” Although donative intent is a question for the trial court, the trial court’s ruling is not binding on an appellate court where as here there is no credible evidence of such an intent below. Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA 1978). We are bound to determine that the wife has a special equity in the marital domicile as there was no credible evidence to support the trial court’s ruling that the wife intended a gift.

Accordingly, that portion of the final judgment of dissolution of marriage ordering the marital home partitioned and sold is reversed.

REVERSED IN PART.

COBB, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

A person who owns separate property conveys that property during marriage jointly to themselves and their spouse. Later at dissolution of the marriage that person wants the whole property back. Are they entitled to a return of it? In failing to provide a definitive answer to this question, Florida law fails to provide a rule of law leading to a reasonably predictable result which would permit legal counsel to advise clients and trial and appellate courts to assure that equality of application of law to cases to which the public is entitled.

Ball v. Ball, 335 So.2d 5 (Fla.1976), in effect holds that, in making a division of property in a dissolution proceeding, where all the consideration for property held as tenants by the entireties is supplied by one spouse from a source clearly unconnected with the marital relationship, that spouse has a “special equity” in the property and is entitled to its return, “in the absence of contradictory evidence that a gift was intended.” Wright observes that Ball has troubled trial judges. The trouble is that Ball contains latent conceptual incongruities which promote vexatious litigation by subtle suggestions that (1) evidence of a gift is contradictory to evidence that the property was originally separate property; (-2) a deed of conveyance of separate property to oneself and one’s spouse does not constitute sufficient evidence of a gift to the spouse; and (3) evidence is admissible to vary, contradict, or add to, the unambiguous term of an unqualified deed of gift. Since separate property is the only type of property which can be the subject of a true gift as between married persons, evidence that the property was previously separate property and that an interest in it was conveyed as a gift is entirely consistent. However, as a result of the language in Ball, parties often litigate these two concepts as if they were contradictory: the donor seeks to prove that the property was originally the donor’s separate property (or that all the funds used to purchase it came from the donor’s separate property) while the donee attempts to prove that the property was the subject of a gift. Some cases are resolved on this level of controversy. Sometimes the trial court (or later the appellate court) either finds that the donor did not furnish a 11 of the consideration from separate funds or finds the donor intended a gift and the donee prevails. Other times trial courts find that all the consideration was from the “donor” and that a gift was not intended and therefore hold for the donor. Commonly however, the trial judge and counsel instinctively realize that these questions are not really at issue so Ball is erroneously read to suggest that the issue to be tried is the donor’s subjective intent in making the gift with the donor contending that the conveyance was made solely to create a tenancy by the entireties for sur-vivorship purposes during coverture and the donee contending that the conveyance was an unqualified gift. Since every gift by one spouse to both creates a tenancy by the entireties, one of the incidents of which is that each has a right of survivorship, the trial judge often perceives the ultimate issue must be whether, at the time the gift conveyance was made, the donor intended it to be absolute in quality or conditioned on the continuance of the marriage. Since a standard unconditional deed is normally effective to make a gift of an interest in land, a proper application of the parol evidence rule would appear to preclude this inquiry; but the rule is disregarded because, in the usual case of a gift by formal deed, its application would make Ball meaningless — so testimony is taken. Since a married person making a beneficial gift to a mate is not normally then contemplating dissolution of marriage, the donor’s strained testimony impeaching the clear terms of his unqualified gift deed naturally raises a question as to the donor’s credibility. A donee who would normally win at the first level of resolution merely by introducing the deed in evidence as proof of a gift loses at this level of dispute because of the inability to refute the donor’s testimony as to a subjective intent to make only a qualified gift. The result is that cases involving the same simple question and the same essential facts are decided differently from case to case after extensive litigation with the result depending on the particular trial and appellate court’s understanding of Ball, perceptions as to the credibility of the parties and the weight of the evidence, and various ancillary factors including whether the donor appears, in hindsight, to be able to financially afford to make the gift, the time between the gift and the dissolution, the length of the marriage and the length of the chancellor’s foot.

It should be recognized that while such gifts are made for various purposes and motives (usually to acquire, enhance, or restore wedded bliss), they are, in form unqualified gift conveyances and are intended as such when made although they are sorely regretted later. A determinative rule of law, good for all time, should be fashioned accordingly. The rule should be that unless it contains an express condition or qualification within itself, a deed or other conveyance absolute in form constitutes an executed gift and can be rescinded only for fraud or other grounds sufficient to set aside similar gifts as between unmarried parties. The mere regular and usual application of the parol evidence rule and the law relating to rescissions alone would attain this result. On the other hand, if those who can implement philosophy by the creation of legal concepts, feel that public policy dictates that such gifts be subject to rescission on dissolution, as Ball implies, then the rule ought to forthrightly state that all such gifts are impliedly in contemplation of, and conditional, upon, a continuation of the marital relationship. Such a rule would not only be consistent with public policy considerations for the preservation of marriages but would promote and facilitate a resolution of the question in a more uniform and predictable manner. Another resolution would be to treat such gift cases similar to eases where one party supplies some but not all of the consideration for the jointly held property from proceeds of separate property and uphold the gift but, at least under certain specified circumstances, find a special equity in favor of the donor for the amount of the contribution from the separate property with the remainder, if any, equally divided. This would ameliorate the harshness of the “all or nothing at all” result of the Ball doctrine and while it would have no more or less basis in legal principle than Ball, it would do justice in more cases. This is, in effect, what is suggested as to Mr. West’s $30,000 special equity in the majority opinion in West v. West, 399 So.2d 428 (Fla. 5th DCA 1981).

The cases since Ball are in complete disorder. In some cases the trial court followed Ball, found no gift and was affirmed on appeal. Other times the trial judge followed Ball, found no gift but was reversed on appeal. In other cases the trial court found a gift and was upheld on appeal, while on other cases the trial court similarly found a gift but was reversed on appeal. Because of the erratic and often harsh consequences of the application of Ball, many of the appellate decisions reversing trial courts have admittedly reached a far better result than did the trial courts. However, the trial judge may dislike his conclusion quite as much as the appellate panel which later criticizes and reverses him. Under law a trial judge, faithfully following a binding but faulty rule of law should not be reversed on the merits; the rule should be changed. A sound rule of law would eliminate obvious disparities resulting from the interposition of the philosophies of appellate panels for those of trial judges. A definitive guideline would also eliminate or reduce judge shopping and allow attorneys to more accurately advise clients and settle cases based on mutual agreement as to the predictable outcome of litigation. So until Ball is revisited by the supreme court and a better rule is promulgated for the guidance of trial courts, I cannot conscientiously reverse trial judges’ decisions based upon findings of fact which are in turn based upon determinations of credibility and the weight of evidence, by merely finding no evidence, or no “credible” evidence supporting the trial judge’s conclusion, whether or not it makes for a result which appears to me more just. A formal deed of gift itself is always evidence of intent to make a gift. The unqualified terms of the usual deed from one spouse to both is always evidence of intent to make an outright, absolute, unconditional gift of a moiety to be held with a right of survivorship during marriage and, by statute, as a tenant in common thereafter. The donor’s testimony as to his donative intent, even if wrongfully admitted to vary, contradict, or add to, his writing, is always a matter of credibility sufficient to sustain the trial court’s finding or not finding that a gift was intended under Ball. Accordingly, although I agree with the fairness of their result, I cannot concur with the action of the majority in reversing the trial judge in this case.

      . Separate property is property acquired from “a source clearly unconnected with the marital relationship.” Ball v. Ball, 335 So.2d 5, 7 (Fla.1976). This is the same concept used to describe certain property of a wife in Article 11, Section 1 of the Florida Constitution of 1885 (prior to the 1968 constitutional revision) and means property owned before marriage or acquired afterward by gift, devise, bequest, descent or purchased with funds from such sources.

      . See note 1 supra.

      . Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980).

      . As Judge Upchurch in Wright v. Wright explains, “To make a valid gift, a donor or grant- or must have an unqualified right to the property he transfers .. . Before a gift can be make the donor must first own the subject of the gift.” 388 So.2d at 1321.

      . See Sudholt v. Sudholt, 389 So.2d 301 (Fla. 5th DCA 1980).

      . Ball only says that “the property should be awarded to that spouse [the donor], as if the tenancy were created solely for survivorship purposes during coverture....” [emphasis added] 335 So.2d at 7.

      . Coverture refers only to the condition, state, status or disability of a wife arising from the marriage relationship so the use of that word in Ball appears to have been improvident and it is taken to mean “during marriage.”

      . As in Ball, only land is here involved. The donee of a gift of personalty, the conveyance of which may or may not be accomplished by a formal written document, may have a different problem with proof.

      . Typically the donor’s counsel asks the donor, “When you made that deed did you intend to make an outright gift?” After a negative answer counsel then asks, “Well then, why did you make that deed?” “To create an estate by the entirety solely for survivorship purposes during coverture” or words of similar import (insofar as they can be remembered and pronounced) is the usual answer since Ball. The donor may view this as only an opportunity to express what his intent would have been if, at the time of the gift, he had been queried as to the result he desired for the gifted property in the event of a subsequent dissolution.

      . Peculiarily the length of the marriage in Ball is not mentioned but a long marriage is conspicuously mentioned in most of the reported cases upholding a gift or reversing a contrary finding.

      . Later the reasons given are anything except to make an outright gift. Normal reasons given are to avoid probate expenses, to provide security for the wife, for survivorship reasons, because someone told them to, etc.

      . Cases such as Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979), Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979), and Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), avoided a harsh result under Ball by straining the retroactive language in Ball to make it inapplicable to the conveyance in that particular case. However if the rule in Ball does not lead to a good result in cases involving conveyances antedating it, then the rule will not obtain a better result in cases to which it applies because in this matter the public does not act in response to law cases. The appropriate rule of law should fit together human nature, common sense, and policy for the greatest public good so as to, if possible, use objective facts as proof to achieve a just result in the vast majority of the cases to which it applies.

      . See e. g., Florida Moss Products Co. v. City of Leesburg, 93 Fla. 656, 112 So. 572 (1927). See also Englishmans Bay Co. v. Jackson, 340 A.2d 198 (Me.1975).

      . An analogy can be made to the rule involving gifts, such as engagement rings, made -in contemplation of marriage. See Gill v. Shively, 320 So.2d 415 (Fla. 4th DCA 1975). The right to rescind the gift could either be absolute upon dissolution for any reason or, perhaps only if the dissolution is by, or with the consent of, the donee.

      . See, e. g., Kaylor v. Kaylor, 390 So.2d 752 (Fla. 4th DCA 1980) [1980 F.L.W. 2034] (stock); Weiss v. Weiss, 390 So.2d 1236 (Fla. 4th DCA 1980); Pepper v. Pepper, 388 So.2d 1342 (Fla. 3d DCA 1980); Mitchell v. Mitchell, 368 So.2d 628 (Fla. 4th DCA 1979) (certificate of deposit); Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978) (real property and common stock treated identically); Malkemes v. Malkemes, 357 So.2d 223 (Fla. 2d DCA 1978).

      . See, e. g., Leonard v. Leonard, 389 So.2d 256 (Fla. 3d DCA 1980) (houseboat); Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980); Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979); Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978); Sanders v. Sanders, 362 So.2d 284 (Fla. 1st DCA 1978).

      . See, e. g., Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980); Smith v. Smith, 382 So.2d 1242 (Fla. 2d DCA 1980); Marti v. Marti, 377 So.2d 1005 (Fla. 3d DCA 1979), dismissed, 383 So.2d 1198 (Fla.1980) (savings account); Snider v. Snider, 371 So.2d 1056 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980) (notes and mortgages); Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979).

      . See, e. g., Nusbaum v. Nusbaum, 386 So.2d 1294 (Fla. 4th DCA 1980) (certificate of deposit); Verace v. Verace, 383 So.2d 995 (Fla. 5th DCA 1980) (certificate of deposit); Behrman v. Behrman, 376 So.2d 294 (Fla. 2d DCA 1979) (certificate of deposit); Griffin v. Griffin, 375 So.2d 1086 (Fla. 1st DCA 1979); Evers v. Evers, 374 So.2d 1117 (Fla. 1st DCA 1979); Lawless v. Lawless, 362 So.2d 302 (Fla. 2d DCA 1978); Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA), cert. denied, 365 So.2d 709 (Fla.1978).

      . § 689.15, Fla.stat. (1979).

      . See § 90.103(3), Fla.Stat. (1979).

      . In Parramore v. Parramore, 368 So.2d 1308 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979), it is said, “Weighing of the evidence and determining the credibility of witnesses is uniquely within the province of the trier of the fact.” Id. at 1310. See also Wise v. Wise, 335 So.2d 610 (Fla. 1st DCA 1976).


text:
    George JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1191.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    James B. Gibson, Public Defender and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Having considered the arguments on appeal, we affirm the appellant’s conviction. However, under the authority of Villery v. Florida Parole and Probation Comm’n., 396 So.2d 1107 (1981) [1981 FLW 313], we reverse the sentence and remand the cause to the trial court for resentencing pursuant to the requirements therein.

AFFIRMED in part; REVERSED in part; and REMANDED.

COBB, FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.