author: OTT, Chief Judge.

text:
    AMERICAN METROPOLITAN MORTGAGE, INC., d/b/a Mid-Florida Finance Company, Appellant, v. Melva MARICONE, Central Plaza Bank and Trust Company, Chemical Bank, Ellis National Bank of Clearwater, et al., Appellees.
    No. 81-1998.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1982.
    Rehearing Denied Dec. 8, 1982.

      Dennis M. Janssen of Riden, Crawford & Janssen, P.A., St. Petersburg, for appellant.
    Bruce Marger of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, P.A., St. Pe-tersburg, for appellee and cross-appellant Central Plaza Bank and Trust Co.
    Sam W. Harris, William F. Blews, St. Petersburg, for appellee Maricone.
    H. James Fischer, St. Petersburg, for ap-pellee Chemical Bank.
    R. Timothy Peters of Goza, Hall, Peters & Smith, P.A., Clearwater, for appellee Ellis Nat. Bank of Clearwater.
   OTT, Chief Judge.

Appellee, Melva Maricone, placed considerable trust in appellee, R. Lee Van Kirk, and from time to time invested money in his business. In March, 1978, she deeded certain real property (her home) to Van Kirk to arrange loans for her further investment in Van Kirk’s business. Van Kirk obtained separate mortgage loans on the property from appellant, American Metropolitan Mortgage, Inc., d/b/a Mid-Florida Finance Company (Metropolitan Mortgage), and cross-appellant, Central Plaza Bank and Trust Company (Central Plaza). He used the proceeds of the loans for his own purposes. Subsequently when appellee discovered Van Kirk’s violation of her trust, she filed a vendor’s lien and this action. The trial court not only voided her deed to Van Kirk, it also voided both mortgages and denied Metropolitan Mortgage’s application to foreclose its mortgage. We reverse these latter parts of the final judgment.

The trial court voided the two mortgages on a finding that each mortgagee had notice of appellee’s interest since she continued to reside on the property when the mortgages were given. The court overlooked the decisions in Reasoner v. Fisikelli, 114 Fla. 102, 153 So. 98 (1934), and Robert v. Bass, 111 So.2d 455 (Fla. 1st DCA 1959), which hold that an equitable owner who creates record title in another while retaining possession is estopped from disputing record title in the absence of express actual notice to the contrary.

An officer of Central Plaza drove by the property to view its condition and location. The officer saw that it was occupied but made no inquiry of the occupants. Melva Maricone contends that Central Plaza, having undertaken inspection, was on notice of all facts which an inquiry would have revealed. Since appellee created title in the mortgagor, as between the mortgagees and her, she must bear the loss. “The object of the law in holding possession implied actual notice of an adverse right is to protect the possessor from the acts of others who do not derive their title from him. It is never to protect the possessor against his own acts . . . . ” Reasoner v. Fisikelli, 153 So. at 99.

Metropolitan Mortgage assigned its mortgage to American Metropolitan Bank & Trust Company (Metropolitan Bank) and then reacquired it after appellee had recorded a notice of vendor’s lien and Metropolitan Mortgage had brought an action to foreclose the mortgage. Appellee contends that Metropolitan is barred because it had actual knowledge of her claim when it reacquired the mortgage. This contention overlooks the facts that the mortgage was assigned as collateral security for a loan and was reassigned to facilitate foreclosure. Furthermore, Metropolitan Mortgage had no actual knowledge of appellee’s claim when it accepted the mortgage or when it transferred the mortgage to Metropolitan Bank. Consequently, Metropolitan Bank acquired the mortgage free and clear of appellee’s claim and, by virtue of the reassignment, Metropolitan Mortgage stands in the shoes of Metropolitan Bank. 37 Fla. Jur.2d Mortgages, § 521 (1982); 55 Am. Jur.2d Mortgages, § 1273 (1971).

Those parts of the judgment which void these mortgages and deny Metropolitan Mortgage foreclosure are REVERSED. We also VACATE that portion of the judgment assessing costs for reconsideration by the trial court in the light of this opinion.

SCHEB and SCHOONOVER, JJ., concur.


source: Caselaw Access Project

author: WIGGINTON, Judge. WIGGINTON, Judge.

license: Public Domain

text:
    Gary Basil PUGH, Appellant, v. STATE of Florida, Appellee.
    No. AJ-103.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    On Rehearing Dec. 8, 1982.
    Melanie Ann Hines, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Pugh appeals from the judgment and conviction of felony petit theft. After a careful and thorough review of the record on appeal, we find sufficient basis on which to rest our affirmance of the trial court’s denial of Pugh’s motions for judgment of acquittal and for a new trial. Further, the trial court did not err in admitting into evidence the stolen property; sufficient chain of custody was demonstrated by the state.

Nevertheless, we are concerned with the actual judgment and sentence for felony petit theft. Section 812.014(2)(c), Florida Statutes, under which Pugh was charged and convicted, creates the substantive offense of felony petit theft. It essentially provides for enhanced punishment, by elevating the offense from a second degree misdemeanor to a third degree felony upon the third or subsequent conviction for petit theft. However, the fact of the prior convictions is not brought to the jury’s attention during trial, but is developed in a subsequent, separate hearing, in order not to destroy the presumption of innocence in favor of the defendant. State v. Harris, 356 So.2d 315, 317 (Fla.1978). Therefore, in order to be sentenced under the felony provisions of the statute, the defendant must have been convicted at least twice previously of petit theft. Harris v. State, 400 So.2d 1296 (Fla. 1st DCA 1981).

In the instant case, the record is insufficient to establish the historical fact of prior convictions and to resolve questions regarding identity. At a separate hearing following the jury’s verdict, defense counsel objected to the state’s proffer of prior convictions, contending two of the prior convictions were rendered on the same day and were therefore to be treated as one conviction, Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979); the proffer did not indicate for what offense the convictions were entered; and an alleged “third” conviction did not carry with it the proper identification. The court, agreeing, set an evidentiary hearing, but thereafter, the record is silent as to any such hearing except that Pugh was ultimately sentenced to five years for felony petit theft.

Because the error in sentencing could cause Pugh to be incarcerated for a greater length of time than the law permits, it is fundamental, and we must consider it although Pugh could otherwise challenge it via a Rule 3.850 motion. Polk v. State, 418 So.2d 388 (Fla. 1st DCA 1982); Gonzalez v. State, 392 So.2d 334 (Fla.3d DCA 1981). The judgment and sentence are therefore reversed and vacated and the cause is remanded with directions that the trial court reconsider both, consistent with this opinion.

MILLS and ERVIN, JJ., concur.

ON MOTION FOR REHEARING

WIGGINTON, Judge.

Having considered appellee’s motion for rehearing, we grant the motion. It was brought to our attention that counsel for the parties stipulated to the existence of other prior convictions for petit theft, aside from those included in the current record on appeal, and to their sufficiency to support felony petit theft sentencing treatment in this case. Accordingly, the judgment and sentence are hereby AFFIRMED.

MILLS and ERVIN, JJ., concur.

      . Counsel for Pugh filed its brief in accordance with the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pugh, himself, did not file a brief, although he was given opportunity to do so.


author: MILLS, Judge. MILLS, Judge.

text:
    Andre SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. AN-167.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1982.
    Rehearing Denied Dec. 17, 1982.
    Andre Simmons, appellant, pro se.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Simmons appeals summary denial of his motion for post-conviction relief. We reverse.

Simmons contends that he is entitled to youthful offender treatment. On its face this petition has merit. See, Richardson v. State, 398 So.2d 1010 (Fla. 1st DCA 1981). The cause is remanded for either attachment of portions of the record showing no entitlement to relief, holding of a proceeding on entitlement, or resentencing.

REVERSED.

ERVIN and WIGGINTON, JJ., concur.

ON MOTION FOR REHEARING

MILLS, Judge.

We note that if the record indicates that Simmons is not entitled to relief because of the date of the commission of his crime, the appropriate portions of the record shall be attached to the order.

Rehearing is denied.

ERVIN and WIGGINTON, JJ., concur.


author: PER CURIAM.

text:
    Kathleen COLEMAN, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, a foreign insurer, Appellee.
    No. 82-895.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Jan. 10, 1983.
    Bernard H. Butts, Jr., Hialeah, and Sanford M. Reinstein, Miami, for appellant.
    Richard E. Hardwick, Coral Gables, Daniels & Hicks and Patrice A. Talisman, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Traveler’s Insurance Co. v. Furlan, 408 So.2d 767 (Fla. 5th DCA 1982).


author: HOBSON, Acting Chief Judge.

text:
    In re ESTATE OF Richard A. WAGNER. Reginald T. LYMAN and Kenneth R. Lyman, Appellants, v. Mary FOLAN, Appellee.
    No. 81-2111.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 17, 1982.

      Edward F. Koren and Steven D. Merry-day of Holland & Knight, Lakeland, for appellants.
    William H. Grace of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P.A., Fort Myers, for appellee.
   HOBSON, Acting Chief Judge.

The brothers Reginald and Kenneth Lyman appeal an order which ruled 1) that the antilapse statute is inapplicable and thus they are not entitled to share as beneficiaries in the portion of the estate of the testator, their uncle Richard Arthur Wagner, which he devised to named sisters who died after execution of the will but before his death; and 2) that the lapse statute is applicable and thus the lapsed portion passes to the surviving named beneficiaries. We affirm in part and reverse in part.

The testator, a resident of Florida, executed a four-clause last will and testament in Florida in 1971. Clause FIRST provided for the payment of debts and funeral expenses. The four-paragraph Clause SECOND devised specified percentages of “all the rest, residue and remainder of my estate” to designated beneficiaries. Paragraph A of Clause SECOND bequeathed 30% of the “residue” in three equal shares of 10% to the testator’s three younger blood sisters: Lucile Lyman (appellants’ mother), Rita Wykof and Frances Sluka. The paragraph provided that “[sjhould any of my sisters predecease me, then her share shall be distributed to my surviving sisters, equally.” Paragraph B bequeathed 20% of the “residue” to appellee, Mary Folan, the testator’s only child. The paragraph stated that “[sjhould my said daughter predecease me, then her share shall be distributed to her surviving children hereinafter named, in equal shares.” Paragraph C bequeathed 40% of the “residue” in four equal shares of 10% to the testator’s four grandchildren: Lee Ann Folan, James Folan, Richard Folan and Karen Folan. The paragraph provided that “[sjhould any of my said grandchildren predecease me, then his or her share shall be distributed to my surviving named grandchildren, in equal shares.” Paragraph D bequeathed the remaining 10% of the “residue” in two equal shares of 5% to two nephews of the testator: Edwin and Louis Wagner, sons of a blood brother who predeceased him. The paragraph stated that “[s]hould either of my said nephews predecease me, then his share shall be distributed to my surviving nephew.” Clause THIRD appointed appellee as executrix of the estate. Clause FOURTH provided for the appointment of a different person as executor in the event that appellee could not serve as executrix.

The testator died on December 20, 1979. All of his sisters named in paragraph A of Clause SECOND predeceased him. Frances Sluka died in 1976 without surviving children. Rita Wykof died in 1977 without surviving children. Lucile Lyman died in 1978 survived by appellants.

Following probate of the will, appellee filed a petition for determination of beneficiaries, requesting that the court ascertain whether the antilapse statute entitled appellants to receive the devise described in paragraph A. She certified that she had furnished copies of the petition to appellants, the testator's four grandchildren named in paragraph C and the testator’s two nephews named in paragraph D. Appellants filed a response contending that the paragraph A devise should pass to them under the antilapse statute because their mother survived her sisters. The court ruled that “the antilapse statute does not apply in this matter” and that the paragraph A devise passes under the lapse statute “to the other residuary devisees in proportion to their interest in the residue.”

Two issues present themselves on appeal: first, whether the antilapse statute applies; and, second, if it does not apply, whether the lapse statute applies.

Section 732.603, Florida Statutes (1979), the antilapse statute, reads in pertinent part:

732.603 Antilapse; Deceased Devisee; Class Gifts. — Unless a contrary intention appears in the will:
(1) If a devisee who is a grandparent, or a lineal descendant of a grandparent, of the testator:
(a) ...
(b) Fails to survive the testator ...
(c) . . .
then the descendants of the devisee take per stirpes in place of the deceased devisee ....

Section 732.604, Florida Statutes (1979), the lapse statute, states in whole:

732.604 Failure of Testamentary Provision.—
(1) Except as provided in s. 732.603, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
(2) Except as provided in s. 732.603, if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devi-see, or to the other residuary devisees in proportion to their interests in the residue.

The parties only concern themselves with the issue of whether the antilapse statute applies. Essentially, they disagree about the testator’s intent regarding the point in time to which the words “my surviving” refer in the paragraph A phrase “my surviving sisters.” The testator provided in paragraph A that “[sjhould any of my sisters predecease me, then her share shall be distributed to my surviving sisters, equally.” Appellants assert that the antilapse statute is applicable because they believe that he intended by this language to provide for the distribution of a predeceased sister’s share to her surviving sisters regardless of whether her surviving sisters survived him. In contrast, appellee contends that the antilapse statute is inapplicable because she thinks that he meant to provide for the distribution of a predeceased sister’s share to her surviving sisters only if her surviving sisters survived him.

A universal caveat in antilapse statutes is that their provisions yield to an adverse intention of the testator. The Florida statute is no exception. See section 732.603.

The testator’s intent should be discerned from a consideration of the entire will. Brickell v. DiPietro, 145 Fla. 23, 198 So. 806 (Fla.1940); In re Estate of Ritz, 385 So.2d 1102 (Fla. 5th DCA 1980). Where a testator’s intent is obscured by ambiguous and uncertain language, as here, it is proper to invoke common law canons of testamentary construction in order to determine the signification of the wording. See Filkins v. Gurney, 108 So.2d 57, 58 (Fla.2d DCA 1959).

A basic rule of construction is that words occurring more than once in a will are presumed to carry the same meaning unless a contrary intent appears or unless the words are applied to a different subject. See, e.g., Schaefer v. Merchants National Bank of Cedar Rapids, 160 N.W.2d 318 (Iowa 1968); Dozier v. Able, 241 S.C. 358, 128 S.E.2d 682 (1962); Smith v. Town of Groton, 147 Conn. 272, 160 A.2d 262 (1960); Carson v. Simmons, 198 Va. 854, 96 S.E.2d 800 (1957); Gordon v. Gordon, 332 Mass. 197, 124 N.E.2d 228 (1955), cert. denied, 349 U.S. 947, 75 S.Ct. 875, 99 L.E. 1273 (1955); In re Lidston’s Estate, 32 Wash.2d 408, 202 P.2d 259 (1949); In re Hall’s Will, 114 Vt. 400, 45 A.2d 574 (1946); In re Paulsen’s Estate, 113 Colo. 373, 158 P.2d 186 (1945). We presume that the testator intended for the words “my surviving” in paragraphs A, C and D to refer to the same point in time in the survivorship sense. (The will does not evidence an intent which would rebut this presumption. Further, the testator applied the words “my surviving” in paragraphs A, C and D to the identical subject: the disposition of portions of the “residue” of his estate.) A logical deduction from this presumption is that the testator intended for the words “her surviving” in paragraph B to refer to a different point in time.

By examining the survivorship language in paragraph B it is possible to determine the testator’s intent regarding the differing points in time to which the words “her surviving” and “my surviving” refer. The testator provided in paragraph B that in the event his only daughter predeceased him, her share would pass to “her surviving children hereinafter named, in equal shares.” By employing the phrase “her surviving children hereinafter named” instead of “my surviving grandchildren hereinafter named,” he undoubtedly intended that the children who survived his predeceased daughter would share in her portion regardless of whether her surviving children survived him. It follows that he used the words “my surviving sisters” in paragraph A instead of “her surviving sisters” to show that he intended for a predeceased sister’s portion to be divided among her surviving sisters only if her surviving sisters survived him.

A second fundamental rule of construction is that words of survivorship relate to the time of the testator’s death in the absence of a manifestation of a different intent. See Allen v. Maxwell, 249 Ala. 655, 32 So.2d 699 (1947); In re Northrip’s Will, 258 A.D. 71, 15 N.Y.S.2d 789 (N.Y.App.Div.1939), aff’d 282 N.Y. 797, 27 N.E.2d 205 (1940); In re Nass’ Estate, 320 Pa. 380, 182 A. 401 (1936). This rule of construction has been implicitly applied with uniformity in cases involving the words “my surviving ....” See Veal v. King, 216 Ga. 298, 116 S.E.2d 223 (1960); Nass’ Estate; In re Koorbusch’s Will, 199 Misc. 861, 103 N.Y.S.2d 462, 465 (Sur.Ct.1951).

We thus hold that the antilapse statute is inapplicable because the testator intended for the survivorship language in paragraph A (and, of course, in paragraphs C and D) to relate to the time of his death. Accordingly, the portion of the trial court’s order ruling the antilapse statute inapplicable is affirmed.

The remaining issue is whether the devise described in paragraph A of Clause SECOND passes under the lapse statute to the surviving beneficiaries named in paragraphs B, C and D of Clause SECOND. The paragraph A devise would pass under the lapse statute to the surviving named beneficiaries if they were residuary beneficiaries. See section 732.604. However, notwithstanding the unequivocal introductory language of Clause SECOND (“I give, devise and bequeath all the rest, residue and remainder of my estate ... ”), they are not residuary beneficiaries. A residuary clause disposes of the portion of the estate remaining after the satisfaction of bequests. See Luxmoore v. Wallace, 145 Fla. 325, 336-37, 199 So. 492, 496 (Fla.1941); Husson v. Bensel, 124 Fla. 304, 307, 168 So. 395, 396 (Fla.1936). Clause SECOND is not a residuary clause because it disposes of the testator’s entire distributable estate. In re Levy’s Estate, 196 So.2d 225 (Fla.3d DCA 1967). The provision in Clause FIRST for the payment of debts and funeral expenses does not constitute a bequest because section 733.707, Florida Statutes (1979), requires that debts and funeral expenses be paid out of the estate. Clauses THIRD and FOURTH obviously are not residuary clauses. The devise described in paragraph A thus descends under the applicable intestate statutes.

The portion of the trial court’s order disposing of the devise outlined in paragraph A pursuant to the lapse statute is, accordingly, reversed and the cause is remanded with directions that the paragraph A devise pass under intestacy.

AFFIRMED in part, REVERSED in part and REMANDED.

BOARDMAN and DANAHY, JJ., concur.

      . Similarly, he opted to use the phrase “my surviving named grandchildren” in paragraph C instead of “his or her surviving siblings” to demonstrate his intent that a predeceased grandchild’s portion would be divided among surviving siblings only if the predeceased grandchild’s surviving siblings survived the testator. Further, he chose to employ the phrase “my surviving nephew” in paragraph D instead of “his surviving brother” to show his intent that a predeceased nephew’s share would pass to the other nephew only if the deceased nephew’s surviving brother survived the testator.

      . Since the testator died without a surviving spouse, the paragraph A devise descends entirely to his lineal descendants, per stirpes. See sections 732.103, 732.104, Fla.Stat. (1979). Thus, the testator’s two nephews named in paragraph D cannot share in the paragraph A devise.


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Joseph BRUCE, Appellant, v. The CITY OF DEERFIELD BEACH, etc., Appellees.
    No. 81-1867.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Jan. 5, 1983.

      Burton L. Bruggeman, Orlando, and Robert Dyer of Duckworth, Allen, Dyer & Pet-tis, P.A., Orlando, for appellant.
    Andrew Maurodis, Deerfield Beach, and Bruce E. Wagner, Fort Lauderdale, for ap-pellee, City of Deerfield Beach.
    Robert E. Ferris, Jr., of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauderdale, for appellees, Shullaw, Canna-dy and Bosley.
   BERANEK, Judge.

This is an appeal from a final summary judgment in a suit for damages and other relief brought by a builder against a municipality and the individual building and zoning officials of that municipality. We find error in the summary judgment and reverse.

The complaint alleged that the defendants were guilty of extreme negligence, bad faith, and misconduct in stopping construction on plaintiff’s project for insufficient reasons. Furthermore, it was alleged that the defendants intentionally subjected plaintiff to a protracted series of meetings, plan revisions, variance proceedings, appearances before city building boards and commissions, and other administrative hurdles, all in a bad faith effort to stop construction on a building which had been approved by the city years before. In the very early stages of the controversy, a building inspector visited the job site and placed a “red tag” on it. This red tag recited violations of (1) “no licensed contractor,” (2) “site work not as per plans,” and (3) “plans not up to date and safety.” The red tag also stated that the project should be stopped until the violations could be resolved and that Mr. Shullaw (a city building official) should be called immediately for an appointment. The builder immediately complied by calling Mr. Shullaw and arranging a meeting among various city building officials. The builder complied with all City requests and received tentative approval from the building officials. Thereafter, formal approval was denied and the administrative nightmare alluded to above began and continued over several months. Finally, after the City continually interposed a barrage of new, allegedly illegal obstacles designed to halt construction, the plaintiff lost patience, and sued for damages. The trial court found a cause of action had been stated and denied a motion to dismiss the complaint. Defendants then made a motion for summary judgment asserting numerous grounds including failure to exhaust administrative remedies. The trial court agreed and granted a final summary judgment in favor of all defendants on the ground that the plaintiff had failed to exhaust his administrative remedies by not appealing the initial red tag.

The summary judgment was error. Even if plaintiff failed to exhaust certain administrative remedies, that alone does not dictate summary judgment for defendants. Based upon the record, city officials constantly assured plaintiff, orally and in writing, that all problems could be resolved by one more meeting, one more revision, one more modification, or one more appear-anee before a city board. As soon as plaintiff satisfactorily complied and remedied one problem, a new and different problem not previously mentioned would be raised by the City, and the compliance process would begin anew. On appeal, the defendants basically urge that plaintiff rather stupidly attempted to cooperate with the City, when he should have simply appealed the red tag. The City contends that there were at least six to eight final agency actions which plaintiff could have appealed. The City contends the original red tag put the City, its officials, and the builder in an adversary position, and that the failure to appeal the initial red tag bars the entire suit.

In applying the doctrine here the trial court erroneously used an all or nothing approach. “The doctrine of administrative exhaustion is not a strict jurisdictional matter but a flexible concept tailored to the administrative statutes and circumstances.” Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 865 (5th Cir.1975). As noted by the United States Supreme Court in McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969), “The doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions.” We conclude that the doctrine of equitable estoppel is one such exception which may well apply to the circumstances presented in this case. The red tag stated that work had to stop until the violations were resolved and specifically ordered that plaintiff call a building official for an appointment. The clear import of the red tag and the meeting which followed was that the builder should cooperate with the city officials. Having led plaintiff into believing that he should cooperate with them even to the extent of giving tentative approval, the officials should not now be allowed to take advantage of his failure to appeal by claiming that he foolishly cooperated with them.

In addition to equitable estoppel there were obvious factual issues as to whether an appeal of the initial red tag would have been a futile or useless act. The factual pattern was that of repeated compliance with City demands followed by Board and Commission approvals and then further new demands. After remedying the deficiencies noted in the initial red tag the frustrated builder was met with a continuous string of new and different alleged deficiencies preventing the resumption of building. It would have been futile to have appealed the initial red tag under these circumstances. The problems noted in that tag had been remedied and a new set were being faced.

The City contends that the issues of es-toppel and futility could not be considered because those labels were not used in plaintiff’s pleadings. The affirmative defense of exhaustion was denied in a Reply and a Motion to Strike filed by plaintiff. As argued below by plaintiff, the complaint itself constituted an avoidance of the exhaustion defense. This same defense had been raised and rejected in a previous Motion to Dismiss the complaint and we conclude that the issues of estoppel and futility were sufficiently established in the pleadings to have required their consideration in the summary judgment proceedings. This conclusion is supported by resort to the transcript of the summary judgment hearing where the futility issue was specifically argued.

We caution that we are not excusing plaintiff from his failure to exhaust his administrative remedies. We are merely saying that the trial court could not grant defendants’ summary judgment on the grounds of exhaustion because the disputed facts may dictate the nonapplication of the doctrine.

REVERSED AND REMANDED.

HERSEY, J., concurs.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that the summary judgment should be reversed. In essence the appellant has alleged that the appellees willfully conspired to obstruct the completion of his building project by intentionally and repeatedly filing false objections to the project. In addition, the appellant seeks no relief other than damages for the delay caused by the appellees’ alleged malicious actions and damages are not available through the administrative process.

      . The doctrine of equitable estoppel has been repeatedly held applicable against Florida municipalities. See Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976), and City of Coral Springs v. Broward County, 387 So.2d 389 (Fla. 4th DCA 1980).

      . The doctrine of exhaustion of administrative remedies is subject to the broad limitation that no person is required to take a step which is futile. Southern Bell Tel. & Tel. Co. v. Mobile America Corp., 291 So.2d 199 (Fla.1974) and Miami Beach v. Jonathon Corp., 238 So.2d 516 (Fla. 3d DCA 1970).


author: BERANEK, Judge.

text:
    WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. TURNBERRY CORPORATION and Charles Honey, et ux., Appellees.
    No. 81-1950.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Jan. 5, 1983.
    C. Robert Murray, Jr., of Lane, Mitchell & Harris, P.A., Miami, for appellant.
    Joseph S. Kashi of Conrad, Scherer & James, Fort Lauderdale, for appellee, Turn-berry Corp.
   BERANEK, Judge.

Westinghouse Electric Corporation, defendant and third party plaintiff in the trial court, appeals from the adverse summary judgment on its third party complaint against Turnberry Corporation, third party defendant, seeking indemnity in compensating one Charles Honey, a worker in the employ of Turnberry, allegedly injured as the result of the wrongful doing of Westinghouse Corporation. We reverse.

Westinghouse, a sub-eontractor, entered into a written contract with Turnberry, the owner and developer of a 16-story condominium, under which Westinghouse was to supply and install elevators for the condominium project. Pursuant to a “temporary acceptance” agreement, Westinghouse installed and delivered the elevators 13 months ahead of schedule. Charles Honey was injured when one of the elevators malfunctioned. Honey brought suit against Westinghouse alleging negligence, breach of warranty, and strict liability. Westinghouse filed a third party action against Turnberry claiming indemnification and contribution under the written temporary acceptance agreement. The agreement reads as follows:

We desire to have possession and use of the elevators (electric stairways) upon which you are working under contract with us, dated_in the building known as Turnberry Isles.
As these elevators are to be used by us prior to completion and inspection, and as we recognize that you have had no opportunity to inspect and determine the character of the work you have performed, or the condition of the elevators, in consideration of your turning them over to us in an incomplete condition we agree to operate them at our risk and expense; to provide a competent operator in the car; to use your service for maintenance including 24 hour emergency call-back service and pay you therefor $75.00 per month during temporary use of the elevator. We further assume complete responsibility for any accident to persons or property, howsoever caused, and will indemnify and save you harmless against all loss, damage, claims, liability or expense arising therefrom irrespective of whether such were due to the possession, use, operation or condition of the elevators, appurtenances or hatchways, or through failure to comply with any building laws or to any other cause.
The permission hereby granted shall not affect the terms of the contract mentioned above and may be revoked upon twenty-four hours notice in writing. Any agreement thereunder to furnish supplies or care of the elevators is not to commence until the signing of the final acceptance.
Monthly Maint to be invoiced to Turn-berry Corp. at $75.00 per month.

On motion for summary judgment, the trial court determined the agreement was unenforceable. The court held that the agreement did not obligate Turnberry to indemnify Westinghouse for Westinghouse’s own wrongdoing and further that it failed to meet the requirements of Section 725.06, Florida Statutes (1979). Summary judgment was entered in favor of Turnber-ry on the third party action.

Section 725.06, Florida Statutes (1979), sets out the requirements for indemnity agreements in construction contracts. The statute reads as follows:

725.06 Construction contracts; limitation on indemnification. — Any portion of any agreement or contract for, or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appaliance, including moving and excavating connected with it, or any guarantee of, or in connection with, any of them, between an owner of real property and an architect, engineer, general contractor, subcontractor, subsubcontractor, or materialman, or between any combination thereof, wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party arising from the contract or its performance shall be void and unenforceable unless:
(1) The contract contains a monetary limitation on the extent of the indemnification and shall be a part of the project specifications or bid documents, if any, or
(2) The person indemnified by the contract gives a specific consideration to the indemnitor for the indemnification that shall be provided for in his contract and section of the project specifications or bid documents, if any.

Furthermore, indemnity contracts are generally unenforceable unless they specifically set out in clear, unequivocal terms an intent to indemnify the indemnitee for his own wrongdoing. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Company, 374 So.2d 487 (Fla.1979).

Only one of the sub-sections of Section 725.06 need be satisfied since the statute reads in the disjunctive. Westinghouse admits that the contract failed to meet the requirements of subsection (1). Westinghouse maintains, however, that the requirements of subsection (2) have been met. We agree. Specific consideration was provided for in the form of early delivery of the elevators. The developer received the benefit of the contract some 13 months before the due date. This was sufficient consideration which appeared on the face of the contract. The agreement also specifically states in clear and unequivocal terms that Westinghouse is to be indemnified for its own wrongdoing.

Based on the above, we find the trial court erred in concluding that the contract was unenforceable as a matter of law. The final summary judgment is thus vacated and the matter remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. Jerome Alexander JOWAIS, Appellee.
    No. 82-164.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    Leon B. Cheek, III, Altamonte Springs, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order of discharge in a criminal case. F.R.Crim.P. 3.191.

Appellee was not brought to trial within 180 days of his arrest for a felony charge so he filed a motion for discharge pursuant to the speedy trial rule mentioned above. The trial judge granted the motion and ordered appellant discharged.

The state filed a Motion to Set Aside the Order of Discharge before the discharge order was rendered but after the court had announced its intention to grant the motion. Although the trial judge recognized in his “Order on Motion to Set Aside Discharge” that he had erred in orally granting the motion and later signing the discharge order, he felt he was without authority to grant the motion to set aside.

We agree with the trial judge and the appellant that it was error to discharge the appellee. Although the 180 days from arrest had elapsed the appellee was not entitled to discharge because the 180 day rule, Rule 3.191(a)(1), Florida Rule of Criminal Procedure, did not apply to him. Rule 3.191(g), Florida Rule of Criminal Procedure is the rule which governs this case because during the post-arrest/pre-trial period the appellee took an appeal. The effect of his having taken an appeal is to extend the speedy trial time until 90 days after receipt of the mandate (or order, or notice) from the appellate court. That time period had not run, so the court erred in discharging appellee.

The order of discharge is quashed and this cause is remanded for further proceedings.

ORDER REVERSED.

COWART, J., and DANIEL, C. WEL-BORN, Associate Judge, concurs.

      . Rule 3.191(g), Florida Rule of Criminal Procedure:

        Effect of Mistrial, Order of New Trial. A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.


text:
    The WACKENHUT CORPORATION, Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 82-1175.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Jan. 7, 1983.
    See also, Fla.App., 418 So.2d 1013.
    Claudia B. Greenberg and Richard H.W. Maloy, Coral Gables, for appellant.
    Ress, Gomez, Rosenberg & Howland and Mark J. Mintz, North Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the judgment which limited the appellant, The Wackenhut Corporation, to a recovery of $10,619.95 in attorney’s fees against its insurer, Aetna Casualty & Surety Company.

The undisputed evidence reveals that Wackenhut, as was its custom during its long-standing relationship with its attorney, agreed to pay him a reasonable fee for his services in this case. The mere fact that the attorney had already billed and been paid by Wackenhut fees in the amount of $10,619.95 based on an hourly billing rate did not, contrary to the reasoning of the trial court, establish either an agreement to be limited to that amount or the outer limits of reasonableness, compare Trustees of Cameron-Brown Investment Group v. Tavormina, 385 So.2d 728 (Fla. 3d DCA 1980) (contractual obligation can limit amount of attorney’s fee), with Zorovich v. Stoller, 293 So.2d 788 (Fla. 3d DCA 1974) (in absence of a contract or statute fixing amount, an attorney is entitled to recover reasonable value of his services), since (a) as noted, the agreement was to pay a fee in a reasonable amount, with the attorney submitting the issue of reasonableness for the court’s determination; and (b) the bill reflecting an hourly rate was partial only and took no account, for example, of the nature of the litigation, the difficulty and novelty of the issue, the skills demanded of counsel, and the results accomplished. See Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982); Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977).

While the range of opinions of experts called by the parties as to a reasonable fee was from $25,000 to $40,000, the trial court’s failure to make any finding of reasonableness within that range requires us to remand the cause for that purpose. Accordingly, the cause is reversed and remanded with directions that the trial court, based on the expert testimony previously submitted and on any new evidence it deems necessary to receive, assess a reasonable attorney’s fee, including a fee for the services of Wackenhut’s attorney on this appeal, and enter judgment in favor of Wackenhut for the amount assessed.

Reversed and remanded.

      . The trial court stated that if no bill at all had been submitted to Wackenhut, its attorney “might have been entitled to everything.” But the bill only had meaning if it represented the totality of the agreement between the attorney and Wackenhut. When Wackenhut’s representative testified that no fee beyond that amount had been agreed upon, the clear reference was to a fee in a specified amount in light of his further testimony that Wackenhut would pay any further bills rendered by the attorney.

      . The case ultimated in the carrier being held liable for $226,580.34 in punitive damages recovered against Wackenhut in Canty v. Wackenhut Corp., 311 So.2d 808 (Fla. 3d DCA 1975). See Aetna Casualty and Surety Co. v. The Wackenhut Corp., 418 So.2d 1013 (Fla. 3d DCA 1982).


author: HERSEY, Judge.

text:
    Tom L. SCHEUERMANN, Appellant, v. Karen J. SCHEUERMANN, Appellee.
    Nos. 81-2258, 81-2364.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Jan. 5, 1983.
    Alan J. Braverman of Braverman & Holmes, Fort Lauderdale, for appellant.
    Gary M. Farmer of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee.
   HERSEY, Judge.

With one exception we affirm on all of the issues involved in these consolidated appeals. The parties agree that a grant of exclusive possession of the marital residence for purposes of support must terminate upon remarriage of the possessor. Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). We remand to permit modification in this respect and as so modified the Final Judgment and the Order Taxing Costs and Attorneys’ Fees are affirmed.

AFFIRMED AS MODIFIED.

ANSTEAD and BERANEK, JJ., concur.


text:
    Donald LAZENBY, Appellant, v. CHAS. P. IRWIN YACHT BROKERAGE, INC., Appellee.
    No. 82-149.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Jan. 5, 1983.
    Kenneth G. Stevens of Dale & Stevens, Fort Lauderdale, for appellant.
    Robert J. Cousins of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant, plaintiff in the trial court, sued appellee, an escrow holder, for the return of monies which appellee held as a deposit toward the purchase of a yacht. The trial court, without making findings of fact, entered final judgment in favor of the appellee. This appeal ensued.

Applying the presumption of correctness which attaches to the judgment of a trial court, we conclude that the record contains competent substantial evidence to support an implied finding that the seller and purchaser of the yacht orally agreed that the monies on deposit with the escrow holder would constitute liquidated damages in the event of a default by the purchaser. Inasmuch as the record also unequivocally demonstrates a default by the purchaser/appellant, the judgment on appeal is

AFFIRMED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.

      . Universal Building Specialties v. Apelquist, 378 So.2d 851 (Fla. 4th DCA 1979).


text:
    Linda VOGEL, a/k/a Linda Vogel Pizzo, Appellant, v. PALM BEACH NEWSPAPERS, INC., Unemployment Appeals Commission, et al., Appellees.
    No. 82-298.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 27, 1982.
    Stuart E. Soff and Abbey Hairston, Legal Intern, of Florida Rural Legal Services, Inc., Bartow, for appellant.
    John F. Law, Palm Beach, for appellee Palm Beach Newspapers, Inc.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee Unemployment Appeals Com’n.
   PER CURIAM.

We conclude that the Unemployment Appeals Commission erred in overturning a factual determination by the hearing examiner that the appellant had not been guilty of employee misconduct that would disqualify her from entitlement to unemployment compensation benefits. Our review of the record demonstrates the existence of competent, substantial evidence to support the examiner’s findings. See Venetian Shores Home and Property Owners v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976) and Fredericks v. Florida Department of Commerce, 323 So.2d 286 (Fla. 2d DCA 1975).

Accordingly, the order of the Commission is hereby reversed and this cause is remanded with directions to enter an order approving the examiner’s findings.

DOWNEY, ANSTEAD and BERANEK, JJ., concur.


author: COBB, Judge.

text:
    William W. BRUCE, M.D., Appellant, v. Marianne BYER, as Personal Representative of the Estate of Abner Byer, Deceased, Appellee.
    No. 82-88.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 16, 1982.

      Andrew G. Pattillo, Jr., and Russell W. LaPeer of Pattillo & McKeever, P.A., Ocala, for appellant.
    T.G. LaGrone of LaGrone & Felice, P.A., Orlando, for appellee.
   COBB, Judge.

Abner Byer originally filed a malpractice action against appellant, Dr. William W. Bruce, on March 13,1980. On February 13, 1980, a medical liability mediation claim was filed pursuant to section 768.44, Florida Statutes (1979). Dr. Bruce, a dermatologist, had treated Mr. Byer from August, 1972, until October, 1977. Mr. Byer alleged that Dr. Bruce had prescribed “extensive overdoses of steroid medication” which resulted in injury, and that Mr. Byer did not discover the negligence until March 20, 1978.

Mr. Byer died on March 28, 1981, and his widow and personal representative of his estate, Marianne Byer, was substituted as claimant in the action. In an amended complaint filed on May 21, 1981, Mrs. Byer alternatively pleaded a survival action and a wrongful death action. In his answer, Dr. Bruce denied the allegations in the complaint and asserted affirmative defenses of contributory negligence and statute of limitations.

The trial began on October 26, 1981, at which time Mrs. Byer expressed her intention to proceed only upon the wrongful death action, withdrawing the survival action. Dr. Bruce then requested the court to rule that given a sufficient evidentiary predicate, section 95.11(4)(b), Florida Statutes (1979), the statute of limitations for malpractice actions, would apply to bar the wrongful death action. The statute provides in relevant part:

Actions other than for recovery of real property shall be commenced as follows:
(4)(b) An action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; ... An ‘action for medical malpractice’ is defined as a claim in tort ... for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.... (Emphasis added.)

The trial court construed section 95.-ll(4)(b) as barring wrongful death claims grounded in medical malpractice brought more than two years after the discovery of the medical negligence. As applied to the facts in this case, this construction of the statute would operate to bar the wrongful death action prior to the death itself. Perceiving this dilemma, the trial court concluded that section 95.11(4)(b) as so applied in a wrongful death action is unconstitutional, hence he applied section 95.11(4)(d), the subsection pertaining to wrongful death actions in general, not just those arising from medical malpractice. He therefore held that the statute of limitations of two years as provided by subsection (d) had not run, and sustained the action.

We agree with the result reached by the trial court in ruling that the statute of limitations had not run, but disagree with his construction of subsection (b) and his determination of its constitutionality. The general rule is that a cause of action for wrongful death accrues upon the date of the decedent’s death. Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976). In Perkins v. Variety Childrens Hospital, 413 So.2d 760 (Fla. 3d DCA 1982), the Third District construed section 95.11(4)(d), Florida Statutes (1979) (the general limitations provision for wrongful death actions), as follows:

Since the right does not exist until death occurs, the only reasonable interpretation is that wrongful death actions must be brought within two years from the time of the death of the injured party and not within two years from the time of the injuries of that party.

Id. at 764. In Perkins, the defendant hospital claimed that plaintiff’s father had no right of action for wrongful death because the statute of limitations for a personal injury action had expired prior to the time of his son’s death.

The effect of prior court decisions is to construe section 95.11(4)(b) as commencing the two-year period on the date of the death upon which the wrongful death action is based. In Hickox v. University Community Hospital, Inc., 384 So.2d 160 (Fla. 2d DCA 1980), the lower court had dismissed a wrongful death action on the statute of limitations ground, applying section 95.-ll(4)(d). Appellant argued section 95.-ll(4)(b) should govern his action. Reversing, the court stated that it was unnecessary to address the question of which wrongful death time period would apply because under either section appellant’s wrongful death claim was timely, as it was filed within two years after appellant’s decedent’s death.

Similarly, in Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979), the court interpreted the section 95.11(4)(b) language “within two years from the time the incident giving rise to the action occurred ...” as meaning the date of plaintiff’s decedent’s death in a wrongful death action. In Eland, the plaintiff did not bring the action within two years of the date of the death, so the court determined that in order for appellee to prevail in his summary judgment motion based on the statute of limitations, appellee was required to demonstrate that plaintiff’s/appellant’s complaint was filed beyond two years from the time the incident was or should have been discovered.

In Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979), the plaintiff also failed to file her wrongful death action within two years of the death. Plaintiff’s husband had died on May 29, 1974, and his widow had filed on July 25, 1977. The lower court rendered a final summary judgment in favor of the physician, holding that the action was barred by the two-year limitation. Recognizing that the statute of limitations had not run on the wrongful death action when the 1975 amendments to section 95.-11(4) became effective, which amendments operated, inter alia, to postpone the running of the period on undiscovered causes of action for wrongful death by medical malpractice, the court found that the legislative lengthening of the statute of limitations period enured to the benefit of the plaintiff. The court observed that the record contained no pleading or evidence suggesting when the plaintiff discovered or should have discovered her asserted cause of action for her husband’s death on May 29, 1974, and reversed the lower court’s summary judgment in favor of the physician.

Based on the foregoing, it appears that the two-year period for wrongful death actions based on medical malpractice commences upon death, and that the 1975 legislation which included in section 95.11(4)(b) actions based on death from medical malpractice postpones the running of the period on undiscovered causes of action for wrongful death by medical malpractice. In the instant case, Mr. Byer died on March 28, 1981, and the wrongful death action was filed on May 21, 1981, clearly within the two-year period of section 95.11(4)(b) as we interpret it.

The second issue raised by appellant concerns the propriety of a $46,000 damage verdict to the estate returned by the jury, and the trial court’s denial of a motion for remittitur. The appellant argues that under the Florida Wrongful Death Act, section 768.21(6), Florida Statutes (1980), there are three elements of recoverable damages for an estate: (1) loss of earnings, (2) loss of net accumulations, and (3) funeral expenses. Appellant contends the evidence established $3,856 as the lost net accumulations and funeral expenses of $1,955, but that there was no substantive evidence concerning the element of lost earnings; therefore, appellant would be entitled to either a remittitur or new trial on damages. Nowicki v. School Board of Broward County, 400 So.2d 199 (Fla. 4th DCA 1981).

The appellee concedes the evidence aggregates only $5,811 in regard to the second and third elements, but contends there was sufficient evidence in regard to loss of earnings to sustain the verdict. In other words, the jury verdict represents an award to the estate for loss of earnings of slightly in excess of $40,000.

The decedent, Abner Byer, was treated by the defendant, Dr. Bruce, from August, 1972 to October, 1977. Byer died in March, 1981. There were several periods that Byer was hospitalized for testing and treatment during the later years of his life as a result of his steroid problem. The total time he was hospitalized between 1977 and his death in 1981 was seventeen days. Subsequent to November, 1977, Byer was under treatment by other physicians until his death. There was medical testimony that he was weak and fatigued during this period. During the same period, however, the evidence is uncontroverted that Byer’s annual income progressively increased. His annual income was $11,847 in 1977; $12,570 in 1978; $17,905 in 1979; and $34,003 in 1980.

Under these facts, we cannot find substantive evidence to support an award for loss of earnings of some $40,000. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Loftin v. Wilson, 67 So.2d 185 (Fla.1953). Had the jury used the relatively few days that Byer missed work (10 days in 1978 and 7 days in 1980) as a basis for lost earnings, any such prorated amount would have been substantially less than $40,000. Therefore, we reverse for a new trial on the issue of damages.

Since the amount of recovery is a factor properly considered in a judicial determination of an attorney fee under section 768.56, Florida Statutes (1980), which became effective July 1, 1980, we reverse the award of an attorney’s fee for reconsideration following determination of a new damage award. We make no finding at this time, however, as to whether or not the amount originally awarded was excessive. Cf. LaFerney v. Scott Smith Oldsmobile, Inc., 410 So.2d 534 (Fla. 5th DCA 1982).

REVERSED and REMANDED FOR NEW TRIAL.

COWART, J., and DANIEL, C. WEL-BORN, Associate Judge, concur.

      . No challenge as to the constitutionality of this attorney fee statute was raised in this case; therefore, that legal issue is not considered. But see Article I, Section 2, Florida Constitution.


text:
    Ralph William MEIXELSPERGER, Appellant, v. STATE of Florida, Appellee.
    No. 81-2037.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Rehearing Denied Dec. 14, 1982.

      Davis G. Anderson, Jr., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Our review of the record and the law fails to demonstrate any merit to appellant’s points on appeal except as to appellant’s point one concerning the submission of the prosecutor’s trial brief to the jury during their deliberations. We reverse on that point and remand for a new trial.

At the conclusion of the trial of this case, the prosecutor’s trial brief containing the state’s entire case against the appellant somehow reached the jury during their deliberations, apparently at the time the various exhibits were handed the jury. The trial brief included, but was not limited to, various notes of the prosecutor, xeroxed cases and statutes, a list of exhibits and witnesses, and various other incriminating documents. In addition, the court’s bailiff observed at least one juror examining the contents of the trial brief in the deliberation room.

We are not of the opinion, nor do the circumstances suggest, that the trial brief reached the jurors through an intentional act of any party connected with the trial below. The inclusion of the trial brief was obviously unintended and inadvertent, although “assessing fault” or “placing blame” does not concern us here. We are, however, deeply concerned with an incurable violation of fundamental justice and fair play.

Whether or not one or more of the jurors were influenced by the inclusion of this brief is not readily apparent nor necessary to our decision. It clearly appears that at the very least, the jury was subjected to an extraneous influence which we consider fundamentally improper. State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951). One of the most sacred and carefully protected elements of our system of criminal — or civil, for that matter — justice is the sanctity of an impartial jury that has not been infected by unlawful or improper influences. This is absolutely vital to the guarantee of a fair trial to an accused. The safeguarding of that ideal must be zealously guarded.

Accordingly, we reverse and set aside the conviction and sentence of the appellant and remand for a new trial.

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


author: SCHEB, Acting Chief Judge.

text:
    Andy BEKE, Appellant, v. STATE of Florida, Appellee.
    No. 82-488.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Rehearing Denied Dec. 22, 1982.

      Jack T. Edmund and Marshall Glenn Slaughter of Edmund, McDaniel & Holmes, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Andy Beke was convicted of trafficking in cannabis and conspiring to traffic in cannabis. The court sentenced him to twelve years imprisonment for trafficking and ten years for conspiracy, the sentences to run concurrently. Beke raises two points on appeal, but we find merit only to his contention that the evidence was insufficient to support his conviction for conspiracy.

Beke was found guilty of both offenses after a jury trial. The state’s evidence established that while on routine patrol, Deputy Harrison of the Highlands County Sheriff’s Department observed Beke and two other individuals in a field. Harrison had previously received information from the Belle Glade Police Department and from local farmers that the field was being used as an airstrip for drug trafficking. Harrison observed two trucks leaving the field together. Beke was driving a white Dodge truck with a camper top; Wesley Rivers and Donald McSwain were in a black Ford truck. Harrison drove to a gate where the trucks would be exiting and called for back-up assistance. The black Ford reached the gate first and was stopped at gunpoint by Harrison. Beke’s vehicle was then a quarter mile behind the Ford, but reached the gate shortly after the deputy stopped Rivers and McSwain.

After back-up units arrived Harrison looked in the Ford and saw a radio, walkie-talkie, and life rafts. He also found a slip of paper with the name of Beke’s employer on it. Harrison then found another walkie-talkie in the front seat of Beke’s truck. Later testimony revealed that the radio and walkie-talkie in the two trucks were set on different frequencies.

Bales of hay were stacked in the rear of Beke’s truck. The officers could smell marijuana through the open windows of the camper top, so they searched Beke’s truck. They then discovered approximately 500 pounds of marijuana. At that point Beke, McSwain, and Rivers were arrested. The state charged each with trafficking and conspiring with one another to traffic in cannabis.

We find no merit to Beke’s challenge of his conviction for trafficking in cannabis. We agree, however, that the facts established by the state are insufficient to support his conviction for conspiracy.

Section 777.04(3), Florida Statutes (1981), defines conspiracy as follows:

Whoever shall agree, conspire, combine, or confederate with another person or persons to commit any offense commits the offense of criminal conspiracy ....

Thus, the crime of conspiracy consists of two necessary elements: (1) an agreement, and (2) an intention to commit an offense. Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1201 (Fla.1980). Once the intent is formed and the agreement made, the conspiracy is complete. There is no requirement that there be an overt act. Etheridge v. State, 415 So.2d 864 (Fla. 2d DCA 1982).

The state recognizes there was no proof of a formal agreement between Beke and the other two men. Still, it argues this is not necessary if the conspiracy can be inferred from circumstantial evidence indicative of an overall plan. Resnick v. State, 287 So.2d 24 (Fla.1973); Borders v. State, 312 So.2d 247 (Fla. 3d DCA 1975). We agree. However, conspiracy is a separate and distinct crime from the offense which is the object of the conspiracy. Therefore, it is incumbent upon the state to offer proof other than commission of the substantive offense. Ramirez v. State.

Here, the only connection between the two trucks was that they were both traveling in the same direction on the same road at the same time. Beke’s truck contained marijuana, but there were no drugs in the other truck. The radio and walkie-talkies in the trucks were set at different frequencies, so Beke was unable to communicate with Rivers and McSwain while they were in the other truck. The state did not introduce any evidence to show any plan or agreement among the parties, or any evidence of gestures, discussions, or relationships on the part of Beke with either McSwain or Rivers from which the jury could infer such an agreement.

The gravamen of the offense of conspiracy is the criminal intent to commit a substantive offense framed by and through a confederation or agreement of two or more persons. State v. Burkett, 344 So.2d 868 (Fla. 2d DCA 1977). The evidence on which the jury found Beke guilty of conspiracy fails to meet such requirement.

Accordingly, we reverse Beke’s conviction for conspiracy. We affirm his conviction and sentence for trafficking in cannabis.

RYDER and SCHOONOVER, JJ., concur.


text:
    Judith A. CREEL, Appellant, v. Joe M. CREEL, Appellee.
    No. 81-2457.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 7, 1983.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul Louis and John L. Zavertnik, Miami, for appellant.
    Reinman, Harrell, Silberhorn, Moule, Boyd & Graham and Rex Moule, Melbourne, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Two years subsequent to the parties’ dissolution of marriage, the former wife filed a petition for modification seeking: (1) increased child support; (2) an extension of rehabilitative alimony; and (3) an increase in the amount of rehabilitative alimony payments. The former husband filed a cross-petition seeking to decrease the amount of child support. After a full evi-dentiary hearing, the trial court denied both parties’ petitions as well as the wife’s request for attorney’s fees. The wife appeals and the husband cross-appeals, each seeking to vindicate their respective positions before the trial court.

We find that the denial of the petitions for modification was well within the trial court’s discretion. However, we view the denial of the wife’s request for attorney’s fees in defense of the husband’s petition for reduction of child support to be an abuse of discretion. The income, assets, and relative financial positions of the parties, Canakaris, v. Canakaris, 382 So.2d 1197 (Fla.1980); Hicks v. Hicks, 313 So.2d 64 (Fla.4th DCA 1975), as well as the husband’s substantially nonmeritorious petition for reduction in child support, Jaffee v. Jaffee, 394 So.2d 443, 447 (Fla.3d DCA 1981), require that the husband be responsible for paying the wife’s attorney’s fees. For the same reason, we find that the wife is also entitled to her attorney’s fees before this court in defending against the husband’s cross-appeal.

Consequently, we remand the case to the trial court to fix and determine reasonable fees to be awarded the wife for the services of her counsel in defending against the husband’s cross-petition and cross-appeal.

Affirmed in part and reversed in part with directions.


text:
    L.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-704.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 10, 1983.
    Bennett H. Brummer, Public Defender, and Mark R. Baer, Sp. Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and Paul Mendel-son and Marti Rothenberg, Asst. Attys. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reject L.J.’s contention that he is entitled to discharge upon speedy trial grounds pursuant to Rule 8.180(c), Florida Rules of Juvenile Procedure. The trial court found, and we agree, that the witness’s unavailability was not attributable to the state. See State v. Daniels, 413 So.2d 1256 (Fla. 5th DCA 1982); Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981). L.J.’s reliance on In the Interest of B.L.G., 414 So.2d 1085 (Fla. 4th DCA 1982), is misplaced. In that case no motion for an extension of time was made by the state or granted by the trial court. In the case sub judice a motion for continuance was timely made, granted by the trial court and the requisite findings were made of record. See M.M. v. State, 407 So.2d 262 (Fla. 3d DCA 1981).

Affirmed.


text:
    ROYAL FROZEN FISH COMPANY, INC., a New York corporation, Appellant, v. AMER SEAFOODS, INC., a Florida corporation, Appellee.
    No. 82-1607.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 10, 1983.
    Richard N. Friedman, Miami, for appellant.
    Fels & Fels and Leonard R. Fels, Coral Gables, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982).


author: COWART, Judge.

text:
    FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellant, v. The CANAL AUTHORITY OF the STATE OF FLORIDA, a body corporate under the laws of the State of Florida, Appellee.
    Nos. 81-1202, 81-1203.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.
    Rehearing Denied Dec. 20, 1982.

      Barry R. Davidson and Lewis F. Murphy of Steel, Hector & Davis, Miami, for appellant.
    Jim Smith, Atty. Gen., and Louis F. Hu-bener, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   COWART, Judge.

This is an appeal from a denial of a motion for relief from judgment filed by appellant in 1981 pursuant to Florida Rule of Civil Procedure 1.540(b)(4). The motion attacked judgments entered in condemnation cases in 1967. The motion alleged that, because the condemnation petitions upon which the judgments were based did not have attached thereto authorizing resolutions of the condemning authority (as required by Tosohatchee Game Preserve, Inc. v. Central and Southern Florida Flood Control District, 265 So.2d 681 (Fla.1972)), the trial court lacked jurisdiction and, consequently, such judgments were void. We affirm.

While a void judgment can be attacked at any time, we do not believe the trial court lacked jurisdiction as to render its judgments void. Tosohatchee certainly holds that “a petition [for condemnation] unaccompanied by an authorizing resolution is susceptible to a motion to dismiss for failure to state a cause of action,” 265 So.2d at 683, and “... in order to withstand a motion to dismiss, a petition in condemnation must be accompanied by an authorizing resolution.... ” 265 So.2d at 684. However, the decision in Tosohatchee is not based on lack of jurisdiction in the trial court and we do not agree with an interpretation that Tosohatchee requires a petition for condemnation to have an attached authorizing resolution before the trial court acquires jurisdiction of the cause, although this suggestion has been made by the First, Fourth and Third District Courts of Appeal. These characterizations of the Toso-hatchee opinion are dicta since each district court of appeal opinion dealt with a direct appeal from cases wherein the deficient complaint had been timely attacked by motions to dismiss. Unfortunately, these district court of appeal decisions have caused the appellant in this case to misconceive the law.

For a court’s action to be valid it must have certain jurisdiction and must acquire other aspects of jurisdiction and exercise it within certain limitations. Specifically, the court must have what could be called potential or inchoate jurisdiction but what is more commonly and properly called “jurisdiction over the subject matter.” This is jurisdiction in the abstract and is that sovereign authority, conferred upon a court by constitution, either directly or by authorized statute, to make adjudications, or binding decisions, as to controversies within a certain class of cases or causes. Such subject matter jurisdiction must be properly invoked and perfected. A court’s jurisdiction is generally invoked in a given case by a party filing a proper pleading which alleges material facts demonstrating (1) the existence of a judicial controversy (a right in dispute between two or more parties) within the subject matter jurisdiction of the court and (2), when a binding judicial determination requires the court to act directly on an object (a res), that such court has, or can acquire, jurisdiction over such res. After the court’s jurisdiction has been properly invoked, it is perfected by a proper service of sufficient process on all indispensable parties. This is called acquiring “jurisdiction over the person.” Justice Brown, in the early Florida case of Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927), addressed these aspects of jurisdiction when he cogently stated:

There is some confusion in the use of this term “subject-matter” in some of the cases dealing with the question of jurisdiction. Sometimes it is applied with reference to the power of the court to deal with the class of cases to which the particular case belongs, and sometimes it is applied to the res within the court’s control or under its jurisdiction, or to the rights — that is, the questions of personal or property rights, the controversy — before the court in the particular case. The rule that jurisdiction of the subject-matter, in the general abstract sense — the power of the court to adjudicate the class of cases to which the particular case belongs — cannot be conferred by the acquiescence or consent of the parties is so universally recognized as to require no citation of authority. The kind of jurisdiction referred to by this rule is the power conferred on the court by the sovereign — which means with us the Constitution or statute, or both — to take cognizance of the subject-matter of a litigation and the parties brought before it, and to hear and determine the issues and render judgment upon the issues joined. Brown on Jurisdiction, § 2 (2d Ed¡); 35 C.J. 426; 16 C.J. 723, 734. “The power to hear and determine a cause is jurisdiction; it is ‘coram judice,’ whenever a case is presented which brings this power into action.” United States v. Arredondo, [31 U.S. 691], 6 Pet. 709, 8 L.Ed. 547. “Jurisdiction of the subject-matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power.” Foltz v. St Louis, etc., R. Co., 60 F. 316, 8 C.C.A. 635. But before this potential jurisdiction of the subject-matter— this power to hear and determine — can be exercised, it must be lawfully invoked and called into action; the parties and the subject-matter of the particular case must be brought before the court in such a way that it acquires the jurisdiction and the power to act. There must be a right in dispute between two or more parties; a proceeding commenced under the proper rules of law; process must be served on the opposite party or parties in order that they may have an opportunity to be heard, or the property, if that be the subject-matter of the action, must be within such jurisdiction, and the owner or person having the right to claim it, or to be heard, must be notified as required by law of the pendency of the proceeding. Brown on Jurisdiction, §§ 2 and 9; 15 C.J. 734, 797. The jurisdiction and power of a court remain at rest until called into action by some suitor; it cannot by its own action institute a proceeding sua sponte. The action of a court must be called into exercise by pleading and process, prescribed or recognized by law, procured or obtained by some suitor by filing a declaration, complaint, petition, cross-bill, or in some form requesting the exercise of the power of the court. If a court should render a judgment in a case where it had jurisdiction of the parties, upon a matter entirely outside of the issues made, it would, of necessity, be arbitrary and unjust as being outside the jurisdiction of the subject-matter of the particular case, and such judgment would be void and would not withstand a collateral attack, for upon such matter a presumption would arise that the parties had had no opportunity to be heard. The pleading bringing the matter before the court need not necessarily be sufficient in law to withstand the test of a demurrer, but as a general rule it must state, at least inferentially, each material fact necessary to warrant the court to deliberate thereon and grant the relief accorded, which must usually be the relief prayed, or at least not foreign thereto — though as to the latter, the form of relief, when different from that asked, the judgment or decree may be merely voidable, but not void. Brown on Jurisdiction, § 2a; Ingram-De-kle Lumber Co. v. Geiger, 71 Fla. 390, 71 So. 552, Ann.Cas. 1918A, 971. So that, when it is said that a court has jurisdiction of the subject-matter of any given cause, if these words are to be given their full meaning, they imply, generally speaking: (1) That the court has jurisdictional power to adjudicate the class of cases to which such case belongs; and (2) that its jurisdiction has been invoked in the particular case by lawfully bringing before it the necessary parties to the controversy; (3) the controversy itself by pleading of some sort sufficient to that end; and (4) when the cause is one in rem, the court must have judicial power or control over the res, the thing which is the subject of the controversy. This, in a general way, is what we mean when we say that a court has “jurisdiction of the subject-matter and the parties” to a cause.
112 So. at 775-76. (emphasis in the original).

As noted in the above quote from Lovett v. Lovett, the test for whether a pleading sufficiently involves the jurisdiction of a court is not as stringent as the test as to whether or not the pleading is subject to a motion to dismiss for failure to state a cause of action. See, e.g., State ex rel. Campbell v. Chapman, 145 Fla. 647, 1 So.2d 278 (1941).

Even if at the time the petitions for condemnation in this case were filed the failure of the condemning authority to attach resolutions to their petitions for condemnation made those petitions subject to motions to dismiss, such deficiencies in the pleading invoking the jurisdiction of the trial court did not deprive the court of jurisdiction. Clearly the trial court in the instant cases, being the circuit court, had subject-matter jurisdiction over the class of cases known as condemnation suits. The petitions followed the statute and set out all allegations including the authority of the condemnee, the use for which the property was to be acquired, that the property was necessary for that use, the estate to be acquired, description of the property and other allegations necessary to clearly give the parties notice of the issues to be litigated in the instant cases. The trial court ruled on the issues framed by the pleadings and all necessary and indispensable parties had an opportunity to be heard on those issues. Therefore, the original trial court had jurisdiction in the condemnation actions and the present trial court properly denied appellant’s motion for relief from the judgments in those actions and is hereby

AFFIRMED.

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

      . See, e.g., Tucker v. Dianne Elec., Inc., 389 So.2d 683 (Fla. 5th DCA 1980).

      . Gulf Power Co. v. Stack, 296 So.2d 572 (Fla. 1st DCA 1974).

      . Salfi v. Division of Admin., State Dep’t of Transp., 312 So.2d 781 (Fla. 4th DCA 1975).

      . Florida E. Coast Ry Co. v. City of Miami, 346 So.2d 621 (Fla. 3d DCA 1977).

      . If a court has jurisdiction in a case but simply errs in its decision, its action is merely voidable and, if not timely corrected, is final and binding. In contrast, when a court acts without jurisdiction, its action is void and subject to collateral attack. See, e.g., Gay v. McCaughan, 105 So.2d 771 (Fla.1958); Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926).

      . It is because judicial subject matter jurisdiction is a sovereign power that its lack cannot be remedied by the acquiescence or consent of the parties. Justice Whitfield notes these distinctions in an in-depth discussion of subject matter jurisdiction in Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926).

      . See Art. V, §§ 3(b), 4(b), 5(b), 6(b), Fla.Const.

      . The general principle that jurisdiction must be properly invoked in a given case has been applied to a variety of subjects such as mat--ters: in law, see, e.g., Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So.2d 743 (1947) (in a suit by plaintiff against defendant and defendant’s surety on an account stated, where attached bill of particulars indicated the account was solely against the defendant and not his surety, the trial court did not have jurisdiction to enter default against surety even though surety was served, and appeared but filed no pleading), in equity, see, e.g., Coffrin v. Sayles, 128 Fla. 622, 175 So. 236 (1937) (although equitable jurisdiction may be invoked generally, special jurisdiction of chancery court to render a money judgment in a mortgage foreclosure case must be specifically invoked, either by a special prayer for a deficiency decree in the bill, or by subsequent appropriate pleading or motion in the cause; absent such pleading, chancery court does not have jurisdiction to enter a deficiency decree), in domestic relations, see, e.g., Cortina v. Cortina, 98 So.2d 334 (Fla.1957) (where ex-husband initiated a contempt proceeding against ex-wife for failure to allow visitation, trial judge did not have power to modify the support provisions of the final decree sua sponte), in probate matters, compare State ex rel Campbell v. Chapman, 145 Fla. 647, 1 So.2d 278 (1941) (where writ of prohibition sought to prohibit a county judge from proceeding in a probate matter where initial pleading alleged venue was proper but subsequent pleading called venue into question, writ was properly denied since county judge’s jurisdiction was sufficiently invoked) with State ex rel McGreevy v. Dowling, 223 So.2d 89 (Fla. 3d DCA 1969) (where writ of prohibition sought to prohibit a Dade county judge from proceeding in a probate matter where the initial pleading showed facts that indicated that venue of the probate matter, as a matter of law, was in Broward County, not Dade County, writ was properly granted since county judge’s jurisdiction was not sufficiently invoked), and even condemnation suits. See, e.g., Cravero v. Florida State Turnpike Authority, 91 So.2d 312 (Fla.1956) (where part of land subject to contract for sale was condemned, the trial court did have jurisdiction to determine the disputed ownership rights in the condemned land, but did not have jurisdiction to determine disputed ownership rights in land not being condemned).

      . When the court’s jurisdiction depends on its power to act on a movable object such jurisdiction is acquired and preserved by having the object taken into the “custody of the law”— custodia legis.

      . Sometimes the term “subject-matter” jurisdiction is erroneously used to refer to the court’s control over a res.

      . The petitions for condemnation in this case were filed in the years 1965 and 1967; Tosohat-chee was not decided until 1972.

      . Similar jurisdiction arguments in condemnation suits have failed. See, e.g., Carlor v. City of Miami, 62 So.2d 897 (Fla.), cert, denied, 346 U.S. 821, 74 S.Ct. 37, 98 L.Ed. 347 (1953) (in condemnation suit, where petition sought a fee simple interest, order of taking granted a fee simple interest, and final judgment awarded a fee simple interest, failure of resolution to specify interest in land sought to be acquired did not go to jurisdiction and “when the original petition in eminent domain was filed, the circuit court acquired complete jurisdiction.”); Crill v. State Road Department, 96 Fla. 110, 117 So. 795 (1928) (writ of prohibition to stop a condemnation suit on the basis that the statute giving the State Road Department authority to condemn was unconstitutional was not a jurisdictional defect but simply a question of law; therefore writ denied); City of Clearwater v. Janet Land Corp., 343 So.2d 853 (Fla. 2d DCA 1977) (where resolution was attached to petition, court had jurisdiction and failure of condemning authority to offer resolution into evidence did not make the final judgment subject to collateral attack).


text:
    CAPE PUBLICATIONS, INC., and Scott Maclay, Appellants/Cross-Appellees, v. Hilda BRIDGES, Appellee/Cross-Appellant.
    Nos. 81-1552, 81-1566.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.
    Rehearing Denied Dec. 16, 1982.
    John B. McCrory and Robert C. Bernius, of Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., and Joe Teague Caruso and Jack A. Kirschenbaum, of Wolfe, Kir-schenbaum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellants/cross-ap-pellees.
    Edward A. Perse, of Horton, Perse & Ginsberg, Miami, and Nance, Cacciatore & Sisseron, Melbourne, for appellee/cross-appellant.
   DAUKSCH, Judge.

Appellee Bridges brought suit against appellants on the theories of invasion of privacy, intentional infliction of emotional distress, and trespass, alleging that appellant’s conduct in publishing a photograph of appellee was actionable. The news story reported the abduction of appellee by her estranged husband who came to her workplace and at gunpoint forced her to go with him to their former apartment. The police were alerted and after surrounding the apartment began efforts to free appellee. Her husband forced her to disrobe in an effort to prevent her escape. Her life was obviously in danger. This is a typical exciting emotion-packed drama to which news-people, and others, are attracted. It is a newsworthy story. Upon hearing a gunshot, the police stormed the apartment and rushed appellee outside to safety. Appellee was clutching a dish towel to her body in order to conceal her nudity as she was escorted to the police car in full public view. The photograph revealed little more than could be seen had appellee been wearing a bikini and somewhat less than some bathing suits seen on the beaches. There were other more revealing photographs taken which were not published. The published photograph is more a depiction of grief, fright, emotional tension and flight than it is an appeal to other sensual appetites. The jury awarded appellee $1,000.00 in compensatory damages and $9,000.00 in punitive damages.

It is settled law in Florida that the right of privacy does not necessarily protect a person against the publication of his name or photograph in connection with the dissemination of legitimate news items or other matters of 'public interest. Jacova v. Southern Radio and Television Company, 83 So.2d 34 (Fla.1955); Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944), on appeal after remand, 159 Fla. 31, 30 So.2d 635; Harms v. Miami Daily News, Inc., 127 So.2d 715 (Fla. 3d DCA 1961). At some point the public interest in obtaining information becomes dominant over the individual’s right of privacy. “It has been said that the truth may be spoken, written or printed about all matters of a private nature in which the public has a legitimate interest.” Cason v. Baskin, 20 So.2d at 251. Within the scope of legitimate public concern are matters customarily regarded as “news.”

In determining the extent of the right of privacy, the standard by which the right is measured is based upon a concept of the person of reasonable sensibility; the hypersensitive individual will not be protected.

An invasion of the right of privacy occurs not with the mere publication of a photograph, but occurs when a photograph is published where the publisher should have known that its publication would offend the sensibilities of a normal person, and whether there has been such an offense invasion of privacy is to some extent a question of law.

Jacova at 83 So.2d 36, 39.

Although publication of the photograph, which won industry awards, could be considered by some to be in bad taste, the law in Florida seems settled that where one becomes an actor in an occurrence of public interest, it is not an invasion of her right to privacy to publish her photograph with an account of such occurrence. Jacova, 83 So.2d at 36. Just because the story and the photograph may be embarrassing or distressful to the plaintiff does not mean the newspaper cannot publish what is otherwise newsworthy.

Likewise, the publication of the story and photograph does not meet the test of outra-geousness as required for the independent tort of intentional infliction of emotional distress. See Food Fair, Inc. v. Anderson, 382 So.2d 150, 153 (Fla. 5th DCA 1980).

Courts should be reluctant to interfere with a newspaper’s privilege to publish news in the public interest. The trial court erred in denying appellant’s Motions for Directed Verdict and Judgment Notwithstanding the Verdict, so we must reverse the judgment.

REVERSED.

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

      . The trespass claim was dismissed during trial.

      . Authorized publicity, customarily regarded as “news,” includes publications concerning crimes, arrests, police raids, suicides, marriages, divorces, accidents, fires, catastrophes of nature, narcotics related deaths, rare diseases, etc. and many other matters of genuine popular appeal. Restatement of (Second) Torts, § 652D Comment G (1977).

      . See Neff v. Time, Inc., 406 F.Supp. 858, 860 (W.D.Pa.1976) wherein the court noted:
      It seems to us that art directors and editors should hesitate to deliberately publish a picture which most likely would be offensive and cause embarrassment to the subject when many other pictures of the same variety are available. Notwithstanding, “[t]he courts are not concerned with establishing canons of good taste for the press or the public.” (citation omitted).

      .See Restatement of (Second) Torts, § 625D Comment F (1977), which explains that such accounts are not an invasion of privacy to:
      [tjhose who are the victims of crime or are so unfortunate as to be present when it is committed, as well as those who are the victims of catastrophes or accidents or are involved in judicial proceedings or other events that attract public attention. These persons are regarded as properly subject to the public interest, and publishers are permitted to satisfy the curiosity of the public as to its heroes, leaders, villains, and victims, and those who are closely associated with them. As in the case of the voluntary public figure, the authorized publicity is not limited to the event that itself arouses the public interest and to some reasonable extent includes publicity given to facts about the individual that would otherwise be purely private.


text:
    Virginia E. CAVALERE, David T. Cavalere and Allstate Insurance Company, Petitioners, v. John Russell GRAHAM, Respondent.
    No. 82-1139.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 1982.
    Rehearing Denied Dec. 20, 1982.
    Robert W. Mixson of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Orlando, for petitioners.
    H. Scott Bates of Richard W. Bates, P.A., and Robert J. Buonauro, Orlando, for respondent.
   COBB, Judge.

Petitioners, Virginia E. Cavalere, David T. Cavalere and Allstate Insurance Company, seek a writ of certiorari to review an order of the circuit court which granted respondent John Russell Graham’s motion to compel discovery from an adjuster for petitioner insurance company. We grant the petition for certiorari and quash the discovery order.

The lower court order compels the adjuster to answer questions propounded to her at a deposition, which were certified to the court following the deponent’s refusal to answer. Additionally, the order requires the production of Allstate’s complete file pertaining to Graham’s claim arising out of the auto accident.

An investigator employed by a party may not be required to produce the work product of his investigation except in unusual circumstances constituting compelling necessity for the discovery in order to reach the merits of the cause. Shawmut Van Lines, Inc. v. Small, 148 So.2d 556 (Fla. 3d DCA 1963). See also Seaboard Air Line Railroad Co. v. Timmons, 61 So.2d 426 (Fla.1952). The respondent has not presented any evidence in the record showing a compelling necessity for discovery. See Fla.R. Civ.P. 1.280(b)(2).

Graham claims that an exception is present based on the line of eases allowing for discovery in actions for bad faith against an insurance company for failure to settle within policy limits. This contention is spurious because this is not a bad faith case. Graham and Allstate had in fact settled the claim. Furthermore, no fiduciary relationship has existed at any time between Graham and Allstate, nor is this a situation wherein there is an implicit assignment of a cause of action by the insured to the third-party plaintiff. See Thompson v. Commercial Union Ins. Co. of N.Y., 250 So.2d 259 (Fla.1971); Boston Old Colony Ins. Co. v. Gutierrez, 325 So.2d 416 (Fla. 3d DCA), cert. denied, 336 So.2d 599 (Fla.1976).

The lower court’s order requiring discovery departs from the essential requirements of the law. Therefore, the Petition for Writ of Certiorari is granted, and the order compelling discovery is quashed.

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

      . The initial cause arose from a negligence action brought by Graham for injuries he received in an auto accident while a passenger in the Cavalere vehicle. Allstate (the insurer) answered by claiming accord and satisfaction in that Graham’s claim had been settled. Graham then responded by alleging bad faith in the settlement of the claim.


text:
    UNITED FACULTY OF FLORIDA, LOCAL 1847, Appellant, v. BOARD OF REGENTS, STATE UNIVERSITY SYSTEM, Appellee.
    No. AH-110.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1982.

      Steven A. Been, Tallahassee, and Ronald G. Meyer, Tallahassee, for appellant.
    Caesar J. Naples, Tallahassee, for appel-lee.
   ORDER GRANTING PARTIES’ JOINT MOTION TO RECALL AND MODIFY MANDATE AND FOR CLARIFICATION

PER CURIAM.

We issued an opinion in this case on July 27, 1982. See United Faculty of Florida, Local 1847 v. Board of Regents, State University System, 417 So.2d 1055 (Fla. 1st DCA 1982). No motion was made for rehearing or clarification and the mandate issued on August 27, 1982. Certiorari review was not sought from the supreme court. This joint motion was filed October 19, 1982, seeking relief from an apparent inconsistency in the opinion which caused difficulty in the agency’s implementation of the holding and directions of the court.

We have the power to recall our mandate so long as it is within the term during which the opinion was issued. See State Farm Mutual Automobile Insurance Company v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981). The applicable term commenced July 1,1982, and will conclude December 31, 1982.

Having considered the merits of the joint motion, we exercise this Court’s power and hereby withdraw the mandate and clarify the opinion previously published.

The parties direct the court’s attention to the holding in the case that “graduate assistants” are employees and as such are deleted from Section 447.203(3)(i), Florida Statutes (1981). Confusion exists in that the parties and lower tribunal have consistently used the term “graduate assistants” generically and collectively as representative and inclusive of all five job classifications encompassed by the certifications at issue, they being: graduate teaching assistants, graduate teaching associates, graduate research assistants, graduate research associates and graduate assistants. The certification was challenged with that understanding, the evidence and proof supported the inclusion of the collective group and the parties acknowledged such in their briefs.

We agree that the opinion is susceptible of inconsistent application and, to eliminate the perceived obfuscation, do modify the final paragraph of the opinion to read as follows:

Accordingly, the several categories of graduate students collectively and generically referred to as “graduate assistants” shall be deleted from Section 447.-203(3)(i), Florida Statutes (1981) (State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978)), which shall now provide:
(3)“Public employee” means any person employed by a public employer except:
(i) Those persons enrolled as undergraduate students in the State University System who perform part-time work for the State University System.
PERC’s order dated September 24, 1981, vacating certification numbers 501 and 502 in favor of UFF as bargaining agent for graduate research associates, graduate research assistants, graduate teaching associates, graduate teaching assistants and graduate assistants is hereby reversed.

JOANOS and WIGGINTON, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.