author: MILLS, Judge.

text:
    In the Interest of [C. M. H.], a child.
    No. AE-88.
    District Court of Appeal of Florida, First District.
    April 15, 1982.

      David R. Fletcher of Fletcher & Fletcher, Jacksonville, for appellant.
    Jeffrey B. Morris, Jacksonville, for appel-lee.
   MILLS, Judge.

Carolyn Henry contends the trial court erred in entering a final order terminating her parental rights and permanently committing her daughter to the custody of the Department of Health and Rehabilitative Services (HRS) for subsequent adoption. We disagree and affirm.

The trial court’s final judgment is so well reasoned and written that we adopt it as the opinion of this Court. The pertinent parts of the final judgment are as follows:

This case is before the Court on the sworn petition of HRS praying that the above child be permanently committed to HRS for subsequent adoption. The petition alleges that the child was adjudicated a dependent child in Clay County, Florida, Juvenile Case No. 76-26-CJA. The petition further alleges that the natural mother, Carolyn Elean Shivler Henry, has neglected the minor child within the meaning of Florida Statutes Chapter 39.

Father of child duly executed a surrender, consent and waiver of notice form.

Mother of child contests the petition through her court-appointed attorney.

The Court has taken judicial notice of Case No. 76-26-CJA, Clay County, Florida, under Section 90.202(6), F.S. Such records reflect:

(a) A sworn petition of dependency filed on 2/23/76, alleging “said child’s parents are unable to provide a stable home environment at this time” (Exhibit 3 in evidence). Section 39.01(10), F.S., 1975, defines a “dependent child” under subsection (c) as one who “has not proper parental support, maintenance, care or guardianship” and under subsection (e) as one who “is living in a condition or environment such as to injure him or endanger his welfare”.

(b) On March 4, 1976, an order was entered by Circuit Court Judge Clifford B. Shepard reciting that the parents were personally before the Court, and “that said children [C.M.H. and S.H.] are dependent because the allegations of the Petition were substantiated.” It was further ordered that the children “be awarded to the Office of Social and Economic Services” (Exhibit # 3 in evidence).

(c) A Supplemental Petition for Review was filed by HRS on 12/29/77. A motion for continuance was filed on 2/21/78 by Christina Zawisza, Jacksonville Legal Aid, on behalf of the mother. The motion requested a home study of mother’s current residence in Beaver Falls, PA. Circuit Court Judge Lamar Winegeart entered an order on 2/21/78 continuing the temporary care, custody and control of child in Office of Social and Economic Services.

(d) A Supplemental Petition for Review was filed by HRS on 1/9/80, and a notice of hearing was set. A copy was mailed to Ms. Carolyn Henry, mother, at 426 Park Street, Rochester, Pennsylvania and to Mr. Richard Jacobs, Esq., Beaver Falls Plaza 1008 Seventh Avenue, Beaver Falls, Pennsylvania 15010. Mr. Jacobs is an attorney for a legal aid group in Beaver Falls, PA. and at one time had conferred with Ms. Henry. A home study of mother’s residence received from Beaver County Children & Youth Services, dated 11/19/79 was filed in the case. Included in the report is the following evaluation.

In completing this home evaluation, I found Mrs. Henry to be reasonably friendly and co-operative. She responded quite freely to my questions regarding her marital situation, financial status, health, and present social activities. She did, however, become quite anxious and perhaps upset when I brought up the subject of a psychological evaluation. She became very defensive and refused to even consider the possibility that such an evaluation might be beneficial to her. Mrs. Henry also became rather tense when I began to ask her about her involvement with [C.M.H.]. She said it has been over three years since she has visited with this child, but added that she has written a few letters to her in recent weeks. I asked Mrs. Henry what her reason was for not visiting with [C.M.H.] and she stated, “If they want me to come down there (meaning to Florida), they will have to make arrangements for me.” I asked her what she meant by this, and she said that they would have to find a place for her to live and provide her with public assistance benefits. I then asked Mrs. Henry if she had contacted your agency to discuss this matter, and she stated that someone had called her several months ago but that she didn’t really want to talk to anyone from the agency. Mrs. Henry then stated that I should call the agency in Florida and make arrangements for [C.M.H.] to come to Pennsylvania for a visit with her. She said that it was my job to do this for her. I again explained to Ms. Henry that I was there only to do a home evaluation and that any visitation arrangements or other inquiries about [C.M.H.] would be her responsibility and not mine. At this point Mrs. Henry became very angry and indicated to me that the interview was over as far as she was concerned.
In my opinion, Mrs. Henry has a very limited understanding of the concept of responsibility especially as it applies to the role of being a parent to her children. She allowed her son, [S.H.] to leave home in July of 1978 (at age 16) without even knowing what his destination would be and with full knowledge that he would not be receiving any adult supervision. Although [S.H.] is now living close by in Rochester, Pennsylvania, the situation remains relatively unchanged in regard to his care and supervision.
In regard to [C.M.H.], Mrs. Henry admits that it has been over three years since she has even seen the child. She did not, in my opinion, offer any type of valid excuse for not fulfilling her responsibilities in this regard, and even stated to me that she could manage to get to Florida if necessary. On the contrary, she seems to be blaming your agency for the fact that [C.M.H.] is still in placement.

(d) On 3/5/80, Teresa J. Sopp, Jacksonville Legal Aid, filed a Notice of Appearance for mother. On 3/7/80, Circuit Court Judge Lamar Winegeart entered an order that the child ... shall be continued in the temporary care, custody and control of the Office of Social and Economic Services.

(e) On 3/12/80, there was filed a letter from HRS Counselor Charlotte Gaskins to Judge Winegeart which starts: “We are responding to your request for a written statement regarding the progress of Permanent Commitment proceedings for the above named child.” It explains that the agency was in the process of making diligent search for the child’s father. In each of the prior supplemental reviews, an affidavit had been filed alleging that father’s residence was unknown.

CONTENTIONS

HRS contends:

(1) The finding of neglect which was the basis of the dependency adjudication in Case No. 76-26-CJA is sufficient to sustain the neglect required for permanent commitment.

(2) Notwithstanding neglect, the testimony proves “abandonment” and therefore the order of permanent commitment should be entered on this ground, if not neglect.

Mother contends:

(1) The finding of neglect in the adjudicatory hearing cannot be used in the permanent hearing because the degree of proof is different.

(2) HRS has not amended its petition to allege abandonment, and even if the Court deems such amendment not necessary, the Court cannot consider abandonment as a ground since it would be prejudicial to mother and was objected to by mother’s counsel.

CENTRAL ISSUE

In order to answer the contentions of the litigants herein, it is necessary to make a determination of the nature of a permanent commitment proceeding. Is it an adjudicatory hearing or a dispositional hearing or some type of hybrid hearing?

The issue raised by mother is a perplexing one. The statute is not clear and the cases are difficult to understand since there is no case which has ruled specifically on this point.

CASES

1. In a recent case of Interest of D.A.H. and S.L.H., 390 So.2d 379, (Fla. 5th DCA 1980), wherein a permanent commitment order was reversed, the appellate court stated that “it is clear that those (abandonment or neglect) are among the required findings necessary to support a judgment of permanent commitment”. The appellate court found that “although there is evidence to support the court’s finding that termination of parental rights of the mother was manifestly in the best interest of the children, this is not enough under the applicable statute which requires the existence of one of the stated statutory grounds”. The appellate court found evidence as to “abandonment” was not proven by the required “clear and convincing proof”.

The dissenting opinion indicates that the trial court considered testimony which involved facts which predated placement of the child voluntarily in foster care. A voluntary placement in foster care does not require an adjudication of dependency. Therefore, in this case, it was necessary for HRS to prove the abandonment as one of the essential elements of permanent commitment. The appellate court stated that this element must be proven by “clear and convincing evidence”.

Comment: In the situation of a voluntary placement, where there has been no prior court adjudication of dependency, the hearing for permanent commitment must take on aspects of adjudication and dependency because the powers of disposition in Section 39.41(1) are available only “when any child is adjudicated by a court to be dependent — ”

2. In the Interest of J.F., 384 So.2d 713 (Fla. 3d DCA 1980), the trial court’s granting of an order of permanent commitment was affirmed by the appellate court. Although the bulk of the opinion is devoted to a discussion of “abandonment” (as are many of the opinions written on permanent commitment orders), this case did involve an order of temporary custody awarding the child to HRS. On 11/2/76 the child was voluntarily relinquished to HRS by mother for temporary assistance and foster care. On 1/5/77, HRS petitioned the Court for temporary custody which was granted by order entered 1/14/77, based upon a waiver, consent and joinder executed by the mother.

The opinion states “the findings of the trial court that abandonment occurred under Section 39.41(l)(d) and 39.01(1) or 39.-ll(l)(d) are supported by clear and convincing evidence.” Citing Estate of C.K.G., 365 So.2d 424 (Fla. 2d DCA 1978).

Comment: There must have been an adjudication at time of temporary custody order. Fact that it was based on consent does not make it less of an adjudication. Trial judge in this case must have held another adjudicatory hearing as to abandonment. Why?

3. In the Interest of C.K.G., 365 So.2d 424, (Fla. 2d DCA 1978), an order of permanent commitment was reversed because the lower court resolved the conflicting evidence concerning fitness of appellant as mother and best interests of the children on basis of preponderance of evidence, when the correct standard of proof is “clear and convincing” evidence to deprive parents of offspring.

Comment: No facts recited as to basis of adjudication of dependency. Appellate court suggested that on remand court “may consider all evidence previously admitted as well as any further evidence which may be submitted on relevant events occurring since the last hearing." (emphasis added) This leads me to conclusion that appellate court considered the hearing a disposition hearing at which additional testimony could be heard by the Court. If it were an adjudication hearing, the appellate court could have determined from the evidence if the evidence met the correct standard and no additional evidence would be heard.

4. In Carlson v. HRS, 378 So.2d 868 (Fla. 2d DCA 1979) parental rights were terminated by the lower court, but reversed on appeal as to parent who was showing interest in child. The facts are:

(1) Between 1968-1972, Roland and Sharon Carlson had 3 children, Pamela, Roland Jr. and Eric, now aged 11, 9, 8.

(2) Subsequently, Sharon married Carr and had one child, Jason, now aged 5.

(3) On 1/10/77, Sharon placed Roland Jr. in voluntary custody of HRS because she was no longer financially capable of caring for him.

(4) On 4/4/77, she also voluntarily placed Pamela and Jason with HRS.

(5) The Carrs permanently separated in late 1977, after which Sharon resumed her relationship with Roland Carlson. They were not able to marry until November, 1978 following entry of the final decree dissolving Sharon’s marriage to Carr on 10/30/78.

(6) Prior to Sharon’s marriage to Carlson, Sharon and Carr, while cohabiting, entered into an agreement with HRS in November, 1977, which required compliance by 3/26/78.

(7) On 9/12/78 HRS petitioned for permanent commitment of all 4 children [Note —only 3 had been voluntarily placed with HRS, and no mention is made of prior petition on Eric].

(8) Carr did not appear at 11/16/78 hearing, but Roland and Sharon Carlson appeared and contested HRS petition. HRS presented evidence showing that during time Sharon was married to Carr, they failed to comply with requirements of their agreement with HRS. Carlsons presented evidence of their attempts to comply with conditions established by HRS for Sharon and Carr. They also attempted to show their present competency as parents.

The Court in reversing as to Sharon stated that the right of a parent to the custody of his or her children can be severed only on a finding supported by clear and convincing evidence “that the parent has abandoned, abused or neglected the child — ” and “that it is manifestly to the best interest of the child — to sever parental rights”.

The Court stated that the testimony presented by HRS failed to take into account the Carlsons’ current situation, and that HRS should have investigated and evaluated the circumstances in the Carlson household from December 1977 until the time when HRS petitioned to sever parental rights.

The Court concluded “Since the evidence before the trial court did not include an evaluation of the current family unit of Sharon and Roland Carlson and their present competency as parents, we do not believe that it was sufficiently clear and convincing to require termination of their parental rights.” (emphasis added)

The case was remanded for a new hearing on the petition for permanent commitment at which the Carlsons will be permitted to present evidence concerning the stability of their relationship and their ability to provide for the children.

Comment: There is no prior adjudicatory hearing mentioned in the opinion. The opinion emphasizes testimony as to present living situation of parents as being of utmost relevance. This leads to conclusion that the court was addressing itself to the issue of the best interest of the child when it spoke of the standard of proof. The case did not involve abandonment, abuse or neglect, but voluntary placement of child and failure of parents to abide by terms of HRS agreement.

The only reference that I can find in reported cases concerning the difference between adjudicatory and disposition hearings is in the case of Davis v. Page, 442 F.Supp. 258 (S.D.Fla., 1977), cited with approval in Interest of R.W.H., 375 So.2d 321 (Fla. 2d DCA 1979). Such reference occurs incidentally in the case which deals primarily with right to appointed counsel by parents:

“[T]he ‘temporary’ custody which plaintiff believed would last a few weeks to enable her to find a job can potentially last for another 16 years. Subsequent proceedings are categorized as disposition hearings rather than adjudicatory hearings ; while traditional rules of evidence govern adjudicatory hearings, virtually no evidentiary rules limit the receipt of evidence at disposition hearings. While the State bears the burden of proof in an adjudicatory hearing, the parent bears the burden of proof in a disposition hearing and must prove that restoration of custody is in the best interests of the child.” (emphasis supplied)
Comment: It appears that this explanation of a disposition hearing would not be applicable to a permanent commitment disposition because HRS bears the burden of proof in a disposition hearing for permanent commitment.

CONCLUSION

A study of Chapter 39 leads me to the conclusion that a permanent commitment hearing must be considered as a dispo-sitional hearing because:

(1) Permanent commitment is included in Section 39.41, F.S. “Powers of Disposition”. Therefore, it is another form of disposition and is not an adjudication.

(2) Section 39.40(2), F.S., states that when the Court obtains jurisdiction of any child found to be dependent, the Court shall retain jurisdiction, unless relinquished by its order until the child reaches 18 years of age.

This is repeated in Section 39.41(l)(d) F.S., which covers commitment to the temporary legal custody of HRS. The statute states: “The term of said commitment shall continue until terminated by the Court or until the child reaches the age of 18.”

These two provisions inform me that once adjudicated a dependent, the child remains adjudicated dependent until age 18 or unless the case is dismissed by the Court. Thus, the initial adjudication of neglect satisfies the first criteria of permanent commitment and it is not necessary to again prove that the child was abandoned, neglected or abused.

(3) One of the fundamental rules of construction is that the legislative intent must be ascertained and effectuated. The Courts will not ascribe to the legislature an intent to create absurd or harsh consequences, and so an interpretation avoiding absurdity is always preferred. (City of St. Petersburg v. Siebold, et al., Florida Supreme Court, 1950, 48 So.2d 291).

Section 39.41(l)(f)la requires that the “Court finds that the parent has abandoned, abused or neglected the child” as one of the criteria for permanent commitment.

Since the statute specifically mentions “neglect” and “abuse”, how would it be possible for a parent to be guilty of either of these criteria if the child were removed from the home? Obviously, it would be impossible. Therefore, the only way in which “neglect” or “abuse” could form the criteria is if HRS were to commence a permanent commitment initially. Such action by HRS would be contrary to the aim of the Legislature in attempting to preserve the integrity of the family. As suggested in the opinion in the case of Interest of J.F., supra, in another context “ — such a proposition would have a chilling effect on the Department and dissuade it from ever extending grace to parents to afford them an opportunity to become rehabilitated. The delicate inter-relationship between a parent and a child shall be fostered and encouraged by the Department.”

Testimony concerning abandonment is discussed in the cases generally involves the actions of the parent that relate to the issue of whether the permanent commitment is manifestly for the best interest of the child because it is the evidence whereby a trial judge can measure the validity of the current claim of parent to retain child by the parent’s actions since the child has been separated from the parent.

If a child has never been adjudicated a dependent, such as when voluntary placement was involved, then the hearing for permanent commitment must become both a dispositional hearing and an adjudicatory hearing because the Court can’t dispose of a case unless there is a child who is adjudicated dependent.

This is not the situation before the Court.

(4) Finally, the conclusion that a permanent commitment is a dispositional hearing, is reinforced by the doctrine of “res judica-ta.”

This doctrine is explained in 19 Fla.Jur. Section 104, as a rule adopted by the Court for expediency, justice and public tranquility. Public policy and the interests of litigants all require that there be an end to litigation, which, without the doctrine, would be endless. Therefore, once the Court determined in 1976 that the child was dependent by reason of neglect, such dependency became res judicata during all further proceedings. For example, in the two review hearings held since the adjudication, the fact of dependency by reason of neglect was not an issue.

STANDARD OF PROOF

The statutory criteria for a permanent commitment order has one additional feature, other than the adjudication of dependency, and that is the requirement of 39.41(l)(f)l, namely: “If the Court finds that it is manifestly to the best interest of the child to do so.” What standard of proof does this require?

The statutory language of Section 39.-408(l)(b):

“In a hearing on a petition in which it is alleged that the child is a dependent a preponderance of evidence will be required to establish the state of dependency.” (emphasis supplied)

is not applicable to the permanent commitment hearing because that hearing is not one to determine dependency.

There is no statutory language in Chapter 39 which mentions the amount of proof required in any dispositional hearing. Therefore, case law supplies the answer. The logical conclusion to be reached by a review of the cases heretofore cited is that the standard of proof to permanently sever the parental relationship is “clear and convincing” evidence. Therefore, the Court in making a determination as to whether the order of permanent commitment is “manifestly to the best interest of the child” hears testimony as to the post adjudication actions of the parent, including current actions and the current living situation of the parent. The Court must determine from all the testimony by a clear and convincing evidence that severance of the parental ties to the child is manifestly for the best interest of the child. The parent is protected by the requirement of a higher standard of “clear and convincing” evidence to have the child permanently committed. To have the child adjudicated a dependent in a proceeding which only involved temporary custody, the statutory lesser standard of “preponderance of evidence” is used.

To summarize, in the instant case when HRS filed a dependency petition in 1976 it was solely for the purpose of having the child adjudicated a dependent, and only temporary care, custody and control of the child was considered by the Court. There is no evidence that permanent commitment was urged by HRS or considered by the Court at the time of the initial dependency hearing. Therefore, proof of the allegations of dependency based upon neglect in accordance with the statutory definition then in effect required only a preponderance of the evidence. Once the child was legally adjudicated a dependent, the issue of dependency was laid to rest, and it is not necessary for HRS to reprove the allegations of neglect in review hearings or in a permanent commitment hearing.

At the hearing before the Court for a permanent commitment, having proved the adjudication of dependency by reason of neglect, HRS has the additional burden of proving by clear and convincing evidence that the permanent commitment is manifestly to the best interest of the child.

To make such determination, a review of the testimony is pertinent.

TESTIMONY

There were two hearings. At the first hearing, held on 11/17/80, the Court heard from Charlotte Gaskins, HRS Counselor; the child, [C.M.H.]; and Judy Whitter, HRS Counselor, and considered exhibits on behalf of HRS. The mother presented testimony from Christina Zawisza, Legal Aid attorney, who represented mother in prior hearings.

Following the initial hearing, the Court received a telephone call from [S.P.H.], brother of [C.M.H.]. The Court held a second hearing on 12/15/80 at which the brother testified as the Court’s witness.

From the testimony and exhibits introduced into evidence, the Court makes the following findings of fact:

1. The child, ... on March 4, 1976, was adjudicated dependent by reason of neglect in Case No. 76-26-CJA, Clay County, Florida, and placed in the temporary care, custody and control of HRS. Since such adjudication, mother has never had the child in her custody.

2. Following the adjudication, mother went to Miami; that on her way back from Miami to Pennsylvania in February, 1977, she stopped in Jacksonville, Florida to consult with the HRS counselor. At that time she attempted to see the child but was unable to do so.

3. The mother has written to the child four times since the adjudication in 1976, the last time being between January and April of 1979. The mother has made four telephone calls to the child the last being around April 1979. Of the four telephone calls once she identified herself, once she had the brother call, once she said she was the aunt and once she said she was the grandmother.

4. Mother has not acknowledged the child’s birthday in the last several years. Mother did not send Christmas gifts for 1976, 1977, 1978, but in 1979 she sent a scented candle.

5. In 1978 Ms. Christina Zawisza of the local Legal Aid represented mother. She wrote a letter on February 15 and on April 6 to HRS to which she received no response. On November 13,1978 she wrote a letter to HRS and she received a response from a Ms. Gionet saying that Ms. Gionet could not deal with the attorney but would have to correspond with the mother direct. During this period of time HRS had a unit on Park Street in Jacksonville which was disbanded and there was no one that Ms. Zawisza could contact concerning Ms. Henry. Ms. Zawisza testified that each letter had been written at the request of the Beaver Falls Legal Services, which had been contacted by the mother whenever she was told by Ms. Gionet generally that the mother would have to stabilize her living conditions, get better residential facilities and that a home study would be asked for.

6. Ms. Gaskins, HRS Counselor, wrote letters to mother asking her cooperation. The letter dated 5/11/79 (Exhibit # 1A) advised mother of child’s interest in being adopted. Another letter was written on 8/31/79 (Exhibit # IB). Another letter was written on 3/10/80 (Exhibit # 1C) in which it was pointed out that HRS intended to proceed with permanent commitment. This letter contained a copy of the Judicial Review Order at which Legal Aid represented mother.

7. The local Legal Aid Society appeared on behalf of the mother as late as March, 1980 at a foster care review hearing. Continuation of foster care was not contested.

8. On December 7, 1979, Ms. Gaskins, the foster care counselor, made a telephone call to the mother in which she told her that she wanted to enter into a plan which would require her to receive mental health evaluation, suitable living situation and for her to maintain contact with her daughter. The mother told her at that time that she wanted [C.M.H.] but refused to obtain the mental health evaluation. Ms. Gaskins then sent a letter which is Exhibit # 1(d) to confirm the telephone conversation and there was no response. In addition to that she sent another letter on March 10, 1980 and there was no response.

9. Ms. Whitter, HRS counselor in the permanent commitment section, stated that she spoke to the mother by telephone on April 28,1980, at which time she told mother that she had received no contact concerning the plan. The mother told her at that time HRS had no right to take the child without her consent and that as far as she was concerned Florida should just put the child on an airplane and return the child to her.

10. Ms. Whitter testified that she recommended the permanent commitment because the mother had abandoned the child for over six months (Comment — this will be discussed later); had not formulated a contract or plan that would evince a settled purpose to have the child with her; failed to support the child in the customary manner; unwilling to cooperate, did not maintain regular contact with the child. She testified on cross-examination that she was sure the mother understood the current proceedings.

11. There was no investigation made as to any alternative placement with relatives including grandparents nor did any grandparents ever come forth to attempt to have the child placed with them.

12. There was no order for Ms. Henry to pay support for the child though Mr. Henry, the father, was ordered to pay support. Mr. Henry, the father, has signed a waiver in surrender of the child.

13. While in Pennsylvania, the mother has been receiving welfare assistance, food stamps and qualified for the medicaid program which is for people who are considered under the poverty level. She has relatives in Pennsylvania. Based upon a social study of mother prepared by Pennsylvania authorities, placement of child with her was disapproved.

14. The child is doing well in the foster home of Mr. and Mrs. Charles Jones. She has been there for four years and wants to remain there. The child goes to school regularly and makes A’s and B’s. She has two older brothers but is not in touch with them. She knows that one is in the Navy and does not know where the other is. (This testimony was before second hearing). The child wants to have the relationship with her mother terminated.

15. The brother [S.H.], now 19 years old, last lived with his mother between March 1979 and December 1979. He received a letter from his mother several weeks prior to his appearing as a witness in which she stated she was trying hard to make arrangements to come to Jacksonville. He left his mother’s home and returned to Phoenix, Arizona where he enlisted in the Navy on 4/28/80. He testified that he thought it would be in best interest of child to be reunited with mother. However, in the Court’s view, he gave no valid reasons for such opinion and the Court received the impression that the family unit was not a loving, caring, closely knit unit. His purpose of returning home in 1979 was “to save” his mother because of his religious experience while he had run away, but she did not think she needed “saving”. His explanation for his running away from his mother’s home was a biblical quotation, something to the effect that “a person is not wanted in his own home”.

CONCLUSION

1. The Court finds that the child has heretofore been adjudicated as a dependent child by reason of neglect and remains a dependent child thereby.

2. It has been proven by clear and convincing evidence and the Court finds that it is manifestly to the best interest of the child to enter the permanent commitment petitioned for because:

(a) Her mother has exhibited little, if any, interest in child.

(b) Her mother has not exhibited the stability that would be required for child to be reunited with mother. This conclusion is reached because of mother’s failure to cooperate with HRS counselors concerning her medical records and to respond to their request for the entry of a plan so that she can have the child rejoin her.

(c) Child has been in the home of the foster parents for 4 years, is well adjusted, is doing well in school, is pleasant to talk to, and is entitled to the security of knowing that her future is not dependent upon an erratic mother.

(d)Child is a candidate for adoption by the foster parents so child would be part of a loving and caring family.

3. The Court further finds that it is manifestly to the best interest of the child to permanently commit her to the agency hereinafter named for subsequent adoption, said agency being authorized under the laws of the State of Florida to receive permanent commitment of said child and place said child in an adoptive home and to consent to the adoption of said child, and that said agency is willing to receive said child; that no legal custodian has been appointed by any Court for said child.

FURTHER COMMENTS

The testimony of Ms. Whitter was to the effect that the mother had abandoned the child. In exhibit # 2, page 2, she states “The natural mother, Carolyn Eleanor Shiv-ler, has abandoned and neglected said child in that she has not cooperated with the Department of Health and Rehabilitative Services to formulate a plan that would evince a settled purpose toward return of her child to her, nor has she provided support for said child in a repetitive, customary manner.”

However, the definition of “abandonment” in Section 39.01 is the same in the 1979 and the 1980 statute. It reads:

“Abandoned” means a situation in which a parent who, while being able, makes no provision for the child’s support and makes no effort to communicate with the child for a period of 6 months or longer. If a parent’s efforts to support and communicate with the child during such a 6 month period are, in the opinion of the Court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the Court may declare the child to be abandoned.”

In this case, the mother is on welfare. Under the first sentence can she be said to be “while being able”?

The case of Interest of D.A.H., 390 So.2d 379, (Fla. 5th DCA 1980), involved a permanent commitment on the basis of abandonment which occurred prior to the 1978 amendment to Chapter 39. However, the majority opinion includes the following dicta:

“The 1978 amendments reinforce these decisions by making it necessary for the Court to find the ability to support the child and provide it with the proper environment before it can declare an abandonment or neglect, unless the Court finds that the parent does not evince a settled purpose to assume all parental duties. Under either statute, the Court must also find that severing parental rights is manifestly in the child’s best interest.” (emphasis in opinion)

I understand this to mean that if the Court finds the second sentence of the definition to be applicable, then the financial ability is not a factor.

In this case, the clear and convincing evidence is that mother did abandon her child by reason of her failure to contact child within 6 months prior to the filing of the petition on July 9, 1980, and her failure to make even marginal effort to evince a settled purpose to have the child rejoin her.

For reasons previously stated, it is not necessary for the Court to find abandonment as a criteria, but there is clear and convincing evidence that the child has been abandoned by the mother, for the following reasons:

(1) There have been no visits with child (the 1976 visit was an attempt to have child run away with mother).

(2) Only 4 written communications to child, the last of which was in 1979.

(3) Only 4 telephone calls from mother, the last of which was about April 1979. The mother only spoke once, the other 3 times a brother, aunt and grandmother called.

(4) No birthday cards or presents on child’s birthday.

(5) No Christmas presents for 1976, 1977 and 1978; a candle for 1979.

(6) Mother’s attitude as expressed to the local HRS counselors and to the Pennsylvania social worker.

(7) At each review hearing, mother was represented by legal counsel. There is no record of any petitions filed on her behalf seeking change of custody. Mother seemed satisfied to permit the State of Florida to take care of her child; and was not interested in making any effort to have the child returned to her.

Such testimony as to abandonment does not prejudice mother’s defense. Her defense must rely on the facts, not a name tag such as neglect or abandonment. For mother to claim that she was prepared to defend against neglect but not abandonment is not logical.

ORDERED AND ADJUDGED that the dependency of said child, [C.M.H.], is hereby affirmed and said child is hereby permanently committed to the Florida Department of Health and Rehabilitative Services, for subsequent adoption.

Affirmed.

LARRY G. SMITH and SHAW, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Melvin Douglas SAYAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-859.
    District Court of Appeal of Florida, Fourth District.
    April 21, 1982.
    Rehearing Denied May 20, 1982.

      Robert J. Fogan, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980).

DOWNEY, ANSTEAD and HERSEY, JJ., concur.


author: FERGUSON, Judge.

text:
    Eugene MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-700.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg and Andrew M. Kassier, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Eugene Martinez appeals from two orders of the trial court: an order revoking his probation and imposing concurrent sentences of fifteen years and five years incarceration for the original charges of burglary of a dwelling and grand theft in the second degree, and an order of final judgment of conviction and sentencing entered following a nolo contendere plea to charges — filed by information — of armed robbery and kidnapping committed while he was on probation. Testimony on the robbery and kidnapping charges was presented at the probation violation hearing. At the subsequent hearing on the plea of nolo con-tendere, pursuant to Florida Rule of Appellate Procedure, 9.140(b)(1), Martinez specifically reserved the right to appeal the issue of whether the robbery and kidnapping were foreseeable consequences of a conspiracy to sell a large amount of marijuana— over $85,000.00 worth.

Martinez along with Alex Garcia had arranged for the sale of marijuana between David McConnell, the buyer and “victim,” and sellers Leigh Carracino and Marty Cohen. At Martinez’s suggestion, McConnell, carrying $85,000.00 in a brown paper bag, met with Martinez, Martinez’s girlfriend, Garcia, Leigh, and Marty in the Hotel Mutiny to complete the transaction. The “sellers” failed to produce the marijuana and instead pulled a gun on McConnell. Marty and Leigh then handcuffed and bound the legs of McConnell and Garcia. Marty, Leigh, Martinez and his girlfriend left with the money. Martinez drove the group to the Carriage House. Martinez was given $5,000.00 of that money.

The general rule is that a co-conspirator is criminally responsible for a crime committed in pursuance of the common purpose or which results as a natural and probable consequence of the conspiracy. This is so even if the criminal act was not intended as part of the original design or the co-conspirator did not participate in the act. A co-conspirator is not responsible, however, for an act in which he did not participate if that act is not the natural and probable outcome of the common design, but is instead an independent act of some of the party, conceived by others and outside the common purpose. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); United States v. Sullivan, 578 F.2d 121 (5th Cir. 1978), United States v. Moreno, 588 F.2d 490 (5th Cir. 1979), cert. denied, 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 666 (1979); Pope v. State, 84 Fla. 428, 94 So. 865 (1922); State v. Lamb, 348 So.2d 403 (Fla. 3d DCA 1977); Davis v. State, 275 So.2d 575 (Fla. 1st DCA 1973), cert. denied, 280 So.2d 684 (Fla.1973). It is a question of fact, as to whether there is a conspiracy, see, e.g., McCain v. State, 390 So.2d 779 (Fla. 3d DCA 1980), pet. for rev. denied, 399 So.2d 1144 (Fla.1981); Bass v. State, 172 So.2d 614 (Fla. 2d DCA 1965), and whether the act charged is a natural and probable consequence of that conspiracy, see United States v. Moreno, supra; United States v. Monroe, 552 F.2d 860 (9th Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1069 (1977). See, e.g., El Ranco, Inc. v. First National Bank of Nevada, 406 F.2d 1205, 1216 (9th Cir. 1969); Berry v. State, 248 Ga. 430, 283 S.E.2d 888 (Ga.1981), citing Gore v. State, 162 Ga. 267, 134 S.E. 36 (1926); The Anarchists’ Case, Spies v. People, 122 Ill. 1, 12 N.E. 865 (Ill.1887); Lusk v. Mississippi, 64 Miss. 845, 2 So. 256 (1887). For cases applying the sufficiency of evidence test to appellate review of conspiracy cases, see generally United States v. Marszalkowski, 669 F.2d 655 (11th Cir. 1982); United States v. Gonzalez, 661 F.2d 488 (5th Cir. 1981); United States v. Martino, 648 F.2d 367 (5th Cir. 1981).

The trial court acting as trier of fact found that Martinez had entered into a conspiracy with Leigh and Marty to obtain money from McConnell by unlawful means, specifically, that Martinez was a co-conspirator for the unlawful sale of controlled substance, marijuana. The court also found as a matter of fact that in this case the robbery and kidnapping were a foreseeable consequence of the planned sale of a large quantity of marijuana. Giving appropriate consideration to experience in this community, we think the court’s second factual finding — that robbery and kidnapping are a foreseeable consequence of a conspiracy to effect a large drug transaction — was legally permissible.

Affirmed.

      . The trial court sentenced Martinez to fifteen years incarceration for armed robbery and fifteen years incarceration for kidnapping. The sentences were to run concurrent with each other and with the sentences for burglary of a dwelling and grand theft.


author: JORGENSON, Judge.

text:
    Nancy Mary LOCKE, Appellant, v. Andrew Jackson LOCKE, Jr., Appellee.
    No. 81-1187.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Thomas G. Sander, Miami, for appellant.
    Robert W. Shaughnessy, Perrine, for ap-pellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

Nancy Mary Locke appeals from a final judgment dissolving her marriage to Andrew Jackson Locke. The final judgment directed the sale of the marital home, with the proceeds to be evenly divided between the parties and attorney’s fees to be paid from those proceeds. We agree that the trial court abused its discretion and, accordingly, reverse. The facts are as follows.

The parties were married in June, 1953. Four children were born of this marriage, all of whom have reached their majority. The principal asset of the marriage is the marital home, having an estimated value of between $65,000 and $80,000. The residence is encumbered by a mortgage in amount of $14,000. Mrs. Locke is sixty-two years old and, from the unrebutted testimony, is a controlled diabetic, suffering also from hypertension and peripheral vascular disease. Mrs. Locke receives a retirement of $51.00 per month and Social Security of $179.00 per month. Mrs. Locke worked intermittently throughout the marriage, contributing her salary to the family. She is presently unemployed and, according to the medical testimony, not able to work at this time. It is undisputed that she will need continuing medical care.

Mr. Locke, on the other hand, is fully employed, enjoys a military pension, has no medical expenses by virtue of his military retirement, and nets $1,264.00 per month. As a result of the dissolution, Mrs. Locke will lose the privileges she enjoyed as a military dependent, including medical benefits.

In determining the propriety of a lump sum alimony award, one must always return to the seminal case of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Unlike Canakaris, there is no substantial accumulation of wealth in this case. However, we are guided by Canakaris principles when determining whether or not lump sum alimony is appropriate in any given case. Canakaris, supra; Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980). In a marriage of twenty-eight years, such as this one, coupled with the parties’ disparate financial positions, we conclude that Mrs. Locke was entitled to lump sum alimony in the form of the husband’s interest in the marital domicile. Canakaris, supra; Hartley v. Hartley, 399 So.2d 1126 (Fla. 4th DCA 1981); Colucci, supra; Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980).

We turn next to the issue of attorney’s fees. The reasonableness of the amount of the fee is not an issue in this appeal. It is undisputed on this record that the husband has a superior financial ability and that the wife has almost no ability to generate funds to pay her attorney’s fees. Accordingly, we reverse that portion of the trial court’s order which, in essence, directed each party to bear its own costs and, instead, instruct the trial court to follow Canakaris and award attorney’s fees to the wife. Canakaris, supra at 1205; Dominik v. Dominik, 390 So.2d 81 (Fla. 3d DCA 1980); Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980). It necessarily follows that the charging lien on the marital property is not enforceable as against the wife. Conroy v. Conroy, 392 So.2d 934 (Fla. 2d DCA 1981); Barranco, Darlson, Daniel & Bluestein v. Winner, 386 So.2d 1277 (Fla. 3d DCA 1980).

As to the other point raised on appeal, we find no error and affirm. We reverse the trial court’s denial of lump sum alimony and remand with directions to award the wife the husband’s equity in the marital home, award attorney’s fees to the wife, and discharge the charging lien of the husband’s attorney.

Affirmed in part, reversed in part, and remanded with directions.


text:
    Robert Edward ASHLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1239.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 383 So.2d 722 (Fla. 1st DCA 1980); Gereca v. State, 336 So.2d 709 (Fla. 4th DCA 1976).


text:
    William CARTHY, Appellant, v. Max R. SIMON and Boca Properties, Inc., Appellees.
    No. 81-1256.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Beyer, Lerner & Harris and Charles D. Franken, Fort Lauderdale, for appellant.
    Max R. Simon, in pro. per., Anthony E. Pucillo, West Palm Beach, for appellees.

      Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellees having demonstrated the nonexistence of any genuine issue of material fact and the appellant having failed to come forward with evidence of any such material issue of fact, the final summary judgment appealed from is affirmed. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965); Proprietors Insurance Co. v. Siegel, 410 So.2d 993 (Fla. 3d DCA 1982); Arlen Realty Inc. v. Penn Mutual Life Insurance Co., 386 So.2d 886 (Fla. 1st DCA 1980); Fla.R.Civ.P. 1.510.


author: SCHWARTZ, Judge.

text:
    JOCKEY CLUB, INC., Appellant, v. BLEEMER, LEVINE & ASSOCIATES ARCHITECTS AND DESIGNERS, INC., Appellee. BLEEMER, LEVINE & ASSOCIATES ARCHITECTS AND DESIGNERS, INC., Appellant, v. JOCKEY CLUB, INC., Appellee.
    Nos. 81-1281, 81-1354.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.

      Floyd, Pearson, Stewart, Greer & Weil, P. A., and Larry S. Stewart and Ellen C. Freidin, Miami, for Jockey Club, Inc.
    Arnold Nevins, Miami Beach, for Bleemer, Levine & Associates Architects and Designers, Inc.
    Before SCHWARTZ, BASKIN and JOR-GENSON, JJ.
   SCHWARTZ, Judge.

The Jockey Club, Inc. appeals from a $150,000 jury verdict and judgment in favor of the appellee for architects’ services expended on a project which the club abandoned in midstream. We find no merit in either of its claims of error. Contrary to its position, the record contains ample and competent testimony to support the jury conclusion as to the reasonable value of the services in question. See Robinson v. Pinsker, 303 So.2d 706 (Fla.3d DCA 1974); see also, All-Star Ins. Corp. v. Scandia, Inc., 353 So.2d 171 (Fla.3d DCA 1977). The cases cited by the appellant for the proposition that a reasonable architectural fee may not be based solely upon a percentage of the total cost of an uncompleted structure, Scott v. Maier, 56 Mich. 554, 23 N.W. 218 (1885); Rowland v. Hudson County, 7 N.J. 63, 80 A.2d 433 (1951), are inapt because the plaintiff’s expert witness based his opinion upon the whole range of relevant factors, properly including but not limited to the percentage of the projected cost. See and compare, Travelers Ins. Co. v. Davis, 411 F.2d 244 (5th Cir. 1969); Insurance Co. of North America v. Welch, 266 So.2d 164 (Fla. 4th DCA 1972) with Penn-Florida Hotels Corp. v. Atlantic National Bank of Jacksonville, 126 Fla. 344, 170 So. 877 (1936); F. L. Stitt & Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927). Addressing the club’s second contention that the existence of settlement negotiations was somehow improperly implied, we are able to discern no prejudice in a witness’s generalized reference to discussions held between the parties after a claim of lien had been filed by the plaintiff. See Compania Dominicana de Aviacion v. Knapp, 251 So.2d 18 (Fla.3d DCA 1971), cert. denied, 256 So.2d 6 (Fla.1971).

By separate appeal, the architect cross-challenges the trial court’s refusal to grant its requested jury charge that it was entitled to prejudgment interest. We agree with this position. The Florida law is clearly that when a disputed express or implied contractual claim, including one for professional services, becomes, as it were, liquidated by a jury verdict as to the amounts recoverable, interest should be awarded from the date payment was due. Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla.2d DCA 1978) (architects’ services); Huntley v. Baya, 136 So.2d 248 (Fla.3d DCA 1962), cert. denied, 143 So.2d 492 (Fla.1962) (attorney’s fees; quantum meruit claim); see generally, Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955). Moreover, since the amount of interest is itself a liquidated, mathematically calculable sum, a retrial is not required to correct the error which may be remedied simply by adding the appropriate amount to the judgment. Broward County v. Sattler, 400 So.2d 1031 (Fla. 4th DCA 1981); see also, Electron Tubes International, Inc. v. Shell Containers, Inc., (N.Y.), 410 So.2d 660 (Fla.3d DCA 1982); Cantor v. Drapkin, 251 So.2d 542 (Fla.3d DCA 1971); see generally, Annot. — Power of Court to Add Interest to Verdict Returned by Jury, 72 A.L.R. 1150 (1931). Accordingly, the trial court after remand is directed to add to the judgment an award of interest calculated at six percent per annum from the date of the filing of the plaintiff’s claim of lien, September 29,1978, to the date of the judgment. With that exception, the judgment under review is affirmed.

Affirmed as modified.

      . Compare the situation in which the jury, although instructed on interest, does not include such an award in the verdict. In that instance, the trial court lacks authority itself to add interest to the verdict and judgment. Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502, 505 (Fla.3d DCA 1977), appeal dismissed, cert. denied, 362 So.2d 1051 (Fla.1978), and cases cited.

      . The trial court denied a motion to add prejudgment interest to the judgment upon the findings
      that this is a law suit based upon quantum meruit and upon the foreclosure of a statutory lien and not upon written or oral contract, and .. . that there was no specific prayer for prejudgment interest to which pretrial motions may have been addressed....

        Each prong of the first basis of the order was squarely rejected in Huntley v. Baya, supra, and in Peter Marich & Associates, Inc. v. Powell, supra, at 365 So.2d 765, respectively. We are similarly unable to agree with the second ground. Not only is a specific demand for interest procedurally unnecessary, see Southeastern Mobile Homes, Inc. v. Transit Homes, Inc., 192 So.2d 53 (Fla.2d DCA 1966), but the defendant can hardly have been prejudiced by being unable to make a motion which, under the law, would have to have been denied.


text:
    Barbara ROSENBERG, Appellant, v. NORTH AMERICAN BIOLOGICALS, INC., B & J Processing, Inc., and Special Nutrients, Inc., Appellees.
    No. 81-1284.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis, Bayard E. Heath and John L. Zavertnik, Miami, for appellant.
    Brown & Malman and Phyllis S. Bean, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The wife’s allegations, while perhaps imprecise, that, inter alia, she rendered beneficial services to the defendants B & J Processing, Inc., Special Nutrients, Inc. and North American Biologicals, Inc. (NABI) (companies in which the husband had a substantial interest) for which she was unpaid; and that NABI without her authorization issued 25,600 shares of its stock to her husband in exchange for the wife’s one share of stock in NABI’s predecessor corporation, stated a cause of action against such corporations, so that dismissal was unwarranted. See Barkett v. Hotsy Corporation, 399 So.2d 385 (Fla. 3d DCA 1981); Smallwood v. Moretti, 128 So.2d 628 (Fla. 3d DCA 1961). See also Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505 (5th Cir. 1971). Moreover, since the husband’s intimacy with the defendant corporations is such as to make the wife’s actions against them inextricably woven into the dissolution proceeding, it was error for the trial court to find that the actions against the corporation, even if viable, be brought and litigated in a separate proceeding. Fields v. Fields, 160 Fla. 561, 35 So.2d 722 (1948); Goldberg v. Goldberg, 309 So.2d 599 (Fla. 3d DCA 1975). See also Freidus v. Freidus, 89 So.2d 604 (Fla.1956); Feldman v. Feldman, 390 So.2d 1231 (Fla. 3d DCA 1981); Couture v. Couture, 307 So.2d 194 (Fla. 3d DCA 1975) (court not empowered to enter order against corporation not a party to the action).

Accordingly, the trial court’s order dismissing the wife’s action against the named corporations is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Alfredo TORRES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1303.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Torres’ convictions for burglary of a dwelling and grand theft are affirmed. § 901.18, Fla.Stat. (1979); Goodman v. State, 399 So.2d 1120 (Fla. 4th DCA 1981). See State v. Steffani, 398 So.2d 475 (Fla. 3d DCA 1981); Kirby v. State, 217 So.2d 619 (Fla. 4th DCA 1969). His concurrent ten-year sentence of imprisonment for grand theft is reversed as being in excess of the statutory maximum, see §§ 775.082 and 812.014, Fla.Stat. (1979), and the cause remanded to the trial court with directions to impose a sentence of not more than five years for such offense. See Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979). The defendant’s presence is not required when the new sentence is imposed.

Affirmed in part; reversed in part and remanded.


author: BASKIN, Judge. LETTS, GAVIN K., Associate Judge,

text:
    CHERRY, BEKAERT & HOLLAND, Appellant, v. A. L. Patrick LaSALLE, Jr., Appellee.
    No. 81-1327.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.

      Murai, Wald & Biondo and Gerald B. Wald, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellee.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   BASKIN, Judge.

At the conclusion of a non-jury trial involving the enforceability of LaSalle’s covenant not to compete with his former employer, the accounting firm of Cherry, Bek-aert & Holland (C, B & H), the court entered judgment in favor of appellee. Finding that the covenant constituted an unreasonable restraint of trade, was predicated upon inadequate consideration and imposed an oppressive penalty, the court refused to enforce or modify the agreement. We agree and affirm.

Although C, B & H had closed its Miami office and moved to Broward County, the covenant not to compete precluded LaSalle from soliciting or performing accounting services for any client or former client of C, B and H for a period of three years after the termination of his employment. If La-Salle served any former client of C, B & H, he would be required to pay a sum equal to two hundred percent of the fees charged those clients by C, B & H during the twelve months prior to his termination.

In addition to the concerns already mentioned, we note that the covenant purports to govern services to clients without regard to when clients may have received services from C, B & H and contains no definition of the area in which it is to apply. See Flammer v. Patton, 245 So.2d 854 (Fla.1971); Auto Club Affiliates, Inc. v. Donahey, 281 So.2d 239 (Fla. 2d DCA), cert. denied, 285 So.2d 28 (Fla.1973); § 542.12, Fla.Stat. (1979). For all these reasons, we agree with the trial court’s decision.

Affirmed.

LETTS, GAVIN K., Associate Judge,

specially concurring:

This particular covenant not to compete doesn’t even restrict LaSalle geographically for so much as one block away and he can ply his trade next door to his former employees if he wishes.

The only thing he cannot do is provide services for his former employers’ .clients for three years. It is true that the 200% of net fees provision is excessive, but so what? He is not supposed to do anything for C, B & H’s clients and he certainly does not have to do so.

Nevertheless I concur in the conclusion because I think certain conduct of C, B & H in this case was tantamount to a waiver of the covenant.

      . XIII. COVENANT NOT TO COMPETE
      In special consideration of his admission as a Special Partner by the Firm, the obligations of the Firm under this agreement and the compensation and other benefits to be received by and which may accrue to him hereunder, the sufficiency whereof is hereby acknowledged, the Special Partner covenants and agrees as follows.
      That for a period of three (3) years after the termination of his relationship with the Firm he will not solicit for himself or any other accountant or perform any bookkeeping, auditing, accounting, tax consultant work or accounting services of any other kind, either on his own account or for any other person, firm or corporation in any capacity or relationship, from or for any client or former client of the Firm, without prior consent of the Executive Board, except as a full time employee of any one client. The word "client” shall mean and include any person, firm or corporation for whom any such service or services have been performed by the Firm before, during or after the Special Partner was a member of the Firm and whether or not such person, firm or corporation is no longer being served by the Firm.
      The Executive Board may permit the Special Partner to serve clients or former clients of the Firm if it is deemed, in the judgment of the Executive Board, to be in the best interest of the Firm. If the Executive Board shall so decide, the Special Partner shall pay to the Firm an amount equal to two hundred percent (200%) of the net fees earned from said clients by Cherry, Bekaert & Holland for the twelve months prior to their termination with Cherry, Bekaert and Holland or for the twelve months prior to their being served by the Special Partner if they have not completely terminated the services of Cherry, Bekaert & Holland. These payments sháll apply to all clients or former clients of Cherry, Bekaert & Holland being served by the said Special Partner within a three (3) year period following the termination of his relationship with the Firm, and such payments shall be due in full, whether said clients become clients of the Special Partner on the first day or the last day of said three (3) year period.

      . Renumbered as § 542.33, effective October 1, 1980.


text:
    Dorothy C. YANCEY, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Social and Economic Services Program and Kalar A. Bea, Appellees.
    No. 81-1358.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.

      Irene Redstone, Legal Aid Society, Miami, and Steven Taitz, Certified Legal Intern, for appellant.
    Valencia M. Abner, Elizabeth Auguste, Miami, for appellees.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

We reverse the trial court’s order dismissing with prejudice an amended petition for adoption of two minors filed by their guardian, Dorothy C. Yancey, upon a holding that (1) although the order of dismissal does not, as required by Section 63.-142, Florida Statutes (1979), “state with specificity the reasons for dismissal,” we glean from the record that the dismissal was apparently based on the trial court’s acceptance of the natural mother’s contention that a petitioner, as here, alleging that the children have been abandoned so as to excuse the lack of consent, see Sections 63.072 and 63.112(l)(h), Florida Statutes (1979), must obtain a judicial determination of abandonment as a predicate to the filing of the petition, a contention which, in our view, directly conflicts with the clear language of Section 63.112(l)(h) (directing that the “facts or circumstances that excuse the lack of consent” be contained in the petition itself) and finds no support elsewhere in the statute or any decided case; and (2) in the unlikely event that such dismissal were based on the natural mother’s alternative contention that the facts or circumstances of abandonment or any other necessary allegations were not fully and adequately set forth in the petition, the appropriate ruling would have been a dismissal with leave to amend, not a dismissal with prejudice. See, e.g., Enfield v. Held, 357 So.2d 772 (Fla.2d DCA 1978). See also In re Adoption of Scott, 344 So.2d 884 (Fla. 1st DCA 1977) (after neither the petition nor two amendments thereto, filed over the course of four months, alleged consent by or notice to the natural father, a dismissal without prejudice was not an abuse of discretion).

Reversed and remanded with directions to reinstate the amended petition for adoption and for further proceedings.

      . We think this “unlikely” because the allegations contained in the petition comply in all material respects with the requirements for a petition for adoption set forth in Section 63.-112, Florida Statutes (1979). The pertinent allegations respecting abandonment were:
      “4. That the minor children were abandoned by their natural mother and fathers and were left in the streets. That in August, 1973, the natural mother gave the children to Petitioner’s daughter saying that she did not want them and she could have them if she wanted them. The children were then brought to Petitioner, and she has had their care, custody and control for the past 5 years. That on September 24, 1975 the Petitioner was appointed legal Guardian of these children, under Case No. 75-4851, Probate Division.
      “5. That the natural mother has not furnished food, clothing, or any support whatever for these children in the past 5 years nor has she visited them voluntarily or made any contact with them....
      “6. That the whereabouts of the natural fathers, WILLIE DURHAM and LORENZO HUDSON, are unknown. The fathers have abandoned the children and have made no effort to contact them whatsoever in the past 5 years.”


author: JORGENSON, Judge. BASKIN, Judge

text:
    SOUTHEAST ALUMINUM SUPPLY CORP., d/b/a Signs of all Kinds, a corporation, Appellant, v. PLASTICS NORTH AMERICAN, INC., a corporation, Appellee.
    No. 81-1393.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Howard L. Kuker, Miami, for appellant.
    Maurer & Maurer and David E. Maurer, Fort Lauderdale, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

The single issue on this appeal is whether or not the trial court abused its discretion in denying Southeast Aluminum Supply Corporation, defendant below, a jury trial which was not requested in the original pleadings. We hold the trial court did not abuse its discretion and affirm.

The operative facts are as follows: Plastics North American, Inc. filed an amended complaint in June, 1980. Southeast Aluminum Supply Corporation, defendant below, filed its answer in June, 1980. Neither the complaint, nor the answer, demanded jury trial. The case was set by order of court for non-jury trial on May 28, 1981. On April 17, 1981, Southeast Aluminum Supply filed a motion to amend its answer, affirmative defenses and counterclaim. No demand for a jury trial was made in that pleading. On April 27, 1981, the court granted defendant’s motion to amend and permitted plaintiff ten days to respond to the amended answer, affirmative defenses and counterclaim. On May 7, 1981, plaintiff filed its reply to the affirmative defenses and answer to the counterclaim. On May 12, 1981, fourteen days prior to trial, Southeast Aluminum filed its demand for jury trial pursuant to Fla.R.Civ.P. 1.430(b). At time of trial, the court explained the basis for the denial:

THE COURT: In both the answer and the counterclaim, although the plaintiff, I believe, contested the defendant’s right to file an answer and a counterclaim so late, neither the answer nor the counterclaim asked for a jury trial.
The Court looked at the answer and the counterclaim, and said well, this will not delay the trial, even though it is now a year later. This defendant is coming in and attempting to amend its pleadings.
Since neither the answer nor the counterclaim seek a jury trial, I permitted the amendment, with the Court’s understanding that it would not delay the trial.
I now find that a couple of days before the case is to go to trial, the defendant has now filed a demand for jury trial.
I therefore ruled yesterday, that I would allow the defendant to have his jury trial on his counterclaim, and that I would consider his counterclaim as an affirmative defense to the complaint, and that we would proceed with the complaint without a jury.
Now you may proceed.

It is undisputed on this record that the granting of the amended answer, new affirmative defenses and counterclaim were within the sound discretion of the trial court. Appellant suggests that reversal is compelled by Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975), however, as we read that case, our Supreme Court concluded that the granting or denying of a demand for jury trial is discretionary and must be decided on a case by case basis. Our basis for review is, accordingly, whether or not the trial judge abused his discretion, and his order comes clothed with its usual presumption of correctness. Where, as here, the trial court exercises its sound discretion in granting leave to file supplementary pleadings with the understanding that the trial date will not be affected thereby, no abuse of discretion is demonstrated in denying the jury demand. The judgment under review is affirmed.

BASKIN, Judge

(dissenting).

I disagree with the majority holding that denial of the jury trial demand, filed within the allowable ten-day period following an amended pleading, was proper.

Florida Rule of Civil Procedure 1.430(a) “preserves to the parties inviolate” the right to trial by jury unless waived. Hollywood, Inc. v. City of Hollywood, 321 So.2d 65 (Fla.1975) expresses the view of the supreme court that questions concerning the right to a jury trial should be resolved, if possible, in favor of the party seeking the jury trial. The court reiterated the fundamental guarantee of trial by jury afforded by the Constitutions of the United States and of Florida. Reviewing analogous facts, the supreme court found that the filing of amended pleadings raising new issues, along with an apparent lack of prejudice to the opposing party, was sufficient to render denial of a jury trial an abuse of discretion. In my opinion, the Hollywood decision mandates reversal.


text:
    Carmelo RODRIGUEZ and Carmen Rodriguez, Appellants, v. Philip M. PHILIP and Anna Philip, Appellees.
    No. 81-1487.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.

      Morales, Rudolph & Hevia and Nestor Morales, Miami, for appellants.
    Rizzo & Koltun and Stewart G. Green-berg, Miami, for appellees.
    Before HUBBART, C. J., DANIEL S. PEARSON, J. and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The Philips, tenants in a small apartment complex, brought suit against the owners, the Rodriguezes. The plaintiffs alleged that the Rodriguezes were negligent by failing to make the premises secure and that such negligence proximately caused their damages when certain personalty was stolen from the Philips’ apartment during the absence of the tenants occasioned by the apartment complex being tented for fumigation. The Philips alleged that the owners “knew or in the exercise of reasonable care should have known, that when a building is being tented and thereby vacated, said building is a prime candidate for burglaries.”

At the ensuing non-jury trial, no testimony was elicited to prove that the intervening criminal act was foreseeable. Indeed, the unrebutted testimony of Mr. Rodriguez was that he knew of no prior burglaries in the area and had never heard of anyone breaking in under a fumigation tent. Compare Orkin Exterminating Company, Inc. v. Culpepper, 367 So.2d 1026 (Fla. 3d DCA 1979). However, the parties concede (although the incomplete record before us does not so reflect) that at the conclusion of the case and immediately prior to finding for the tenants, the trial court supplied the missing proof by, sua sponte, taking judicial notice of the fact that burglaries of structures tented for fumigation are so common in the community as to make that intervening criminal act reasonably foreseeable by the landlord. The court thus found the criminal act reasonably foreseeable and entered judgment for the tenants.

It may well be that this fact would have been susceptible of being judicially noticed. The problem here, however, is that before this evidence (in the form of a judicially noticed fact) is admissible, a court must “afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.” § 90.204, Fla.Stat. (1979). See generally R. A. v. State, 400 So.2d 1059, 1060 (Fla. 3d DCA 1981) (Pearson, Daniel, J., concurring specially). This was not done by the trial court, and accordingly, we must reverse the judgment below.

Reversed and remanded for a new trial.

      . The owners did not move to dismiss the complaint on the ground that the allegations of foreseeability were insufficient. See Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980).

      . It is also likely that the court could not have judicially noticed this fact without resort to a documentary source of information, such as newspaper reports or police statistics, which the court was required to make part of the record and give “each party reasonable opportunity to challenge such information, and to offer additional information” before taking judicial notice. See § 90.204(3), Fla.Stat. (1979).


text:
    James Leroy HOPKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1731.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    James Leroy Hopkins, in pro. per.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

When a petitioner alleges ineffective assistance of counsel, unless the motion and the files and record in the case conclusively show that he is not entitled to relief, the petitioner is entitled to an evidentiary hearing on his motion. Fla.R.Crim.P. 3.850. Meeks v. State, 382 So.2d 673 (Fla.1980); Cash v. State, 412 So.2d 420 (Fla. 3d DCA 1982).

Both the Rule 3.850 motion and the record in this case demonstrate that defense counsel elicited testimony from the defendant concerning previous arrests, and that counsel did so on the assumption that if he did not, the State would. However, the State was empowered to ask only whether the defendant had ever been convicted of a crime, Whitehead v. State, 279 So.2d 99, 100 (Fla. 2d DCA 1973), and not whether he had any prior arrests. Michaelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168, 177 (1948); Jordan v. State, 107 Fla. 333, 335, 144 So. 669, 670 (1932); Harmon v. State, 394 So.2d 121, 124-25 (Fla. 1st DCA 1980). Consequently, the defendant is entitled to an evidentiary hearing aimed at determining whether his attorney provided reasonably effective assistance under the standards set forth in Knight v. State, 394 So.2d 997 (Fla.1981).

Reversed and remanded for an evidentia-ry hearing.


text:
    Lorenzo E. BORREL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2058.
    District Court of Appeal of Florida, Third District.
    May 4, 1982.
    Casuso & McHale and Edward McHale, Coral Gables, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See, Lawson v. State, 251 So.2d 683 (Fla. 3d DCA 1971).


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

text:
    Frank O’CONNELL, Jr., a minor, Jo Ann O’Connell and Frank O’Connell, Appellants, v. WALT DISNEY WORLD COMPANY, etc., Appellee.
    No. 81-118.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.

      James H. Webb, Jr., of Maher, Over-chuck, Langa & Cate, Orlando, for appellants.
    John L. O’Donnell, Jr., and John H. Ward of DeWolf, Ward & Morris, P. A., Orlando, for appellee.
   ORFINGER, Judge.

This appeal arises from a summary judgment entered below in favor of defendant. The minor appellant, Frank O’Connell, Jr., and his parents filed this action against defendant, alleging that the minor was injured during a stampede proximately caused by the negligent acts of appellee’s employees in conducting a horseback ride. Appellants alleged that the negligence resulted from the failure to warn appellants of the dangerous nature of the ride, to instruct them about emergency procedures, to provide any safety device for children, and to appropriately train the horses to prevent stampedes. Because we find material issues of fact, we reverse for trial.

After paying the required admission fee, appellants went on a trail ride on horseback at Disney World. Mr. O’Connell signed a release form for Frank, Jr., for his younger daughter, for himself, and for his wife.

During the ride, the horses stampeded and Frank, Jr., was thrown from his horse, suffering severe injuries. His mother testified that prior to the stampede the horse of one of the cowboys conducting the ride was reáring and spinning and brushed against her horse five or six times. She believed that this was the cause of the stampede although she did not actually see or feel her horse brushed immediately before the incident. She testified that she was told by the cowboy that he was “rein-breaking” the horse; that no riding instructions were given before the ride began; and that her son was not provided with a set of short stirrups. She had been told that this was a walking ride and would not have taken the young children on the ride had she been told otherwise.

Mr. O’Connell, the minor’s father, testified that there was a horse which kept rearing and spinning; that the cowboys never discussed with him the possible dangers involved in the ride; that the employee who sold him the tickets stated the ride would be at a walking pace; that he signed the “hold harmless” agreement; and that the family went on the ride solely for pleasure.

The employee who had conducted the trail ride denied that he was “rein breaking” a horse on the trail, and that he had ever told anyone he was doing so. He stated that he had never seen any other cowboy rein break a horse on this ride and that such a practice would not be permitted because it would upset the other horses. He testified that he did show the patrons basically how to handle the horses and that appellant did have special short stirrups. He further testified that there was no special training to prevent horses from being startled by animals although he had trained them as thoroughly as possible not to be startled by things in general. However, there was no way to train a horse so that it would not be “spooked” by strange things. He also testified that he was riding in front of Mrs. O’Connell and that her horse ran into his, which caused his horse to jump and startle the horse in front of him; that he wasn’t certain about the cause of the stampede and that an examination of the horses and equipment after the incident revealed nothing which would have caused it.

Appellee moved for summary judgment, alleging that based on the pleadings and record there was no genuine issue of material fact and that appellants contractually assumed the risk and agreed to hold appel-lee harmless and indemnify appellee for any damages. The motion was granted, and final judgment was entered for defendant.

Appellants raise these issues on appeal: (1) that the waiver and hold harmless agreement is not sufficient, as a matter of law, to bar a recovery; (2) even if otherwise sufficient, a waiver and hold harmless agreement signed by a parent on behalf of a minor child is not sufficient, as a matter of law, to bar a recovery by the child based on defendant’s negligence; and (3) that there was no express assumption of risk by the minor in riding the horse such as would bar his recovery for defendant’s negligence proximately causing the minor’s injury.

Although there is a distinction in definition between an exculpatory clause and an indemnity clause in a contract, they both attempt to shift ultimate responsibility for negligent injury, and so are generally construed by the same principles of law. An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. An indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party (sometimes back to the injured party, thus producing the same result as an exculpatory provision).

While exculpatory clauses are enforceable, they are looked upon with disfavor; and any attempt to limit one’s liability for his own negligent act will not be inferred from an agreement unless such intention is expressed in clear and unequivocal terms. Tout v. Hartford Accident and Indemnity Company, 390 So.2d 155 (Fla.3d DCA 1980); Ivey Plants, Inc. v. F.M.C. Corporation, 282 So.2d 205 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974). Similarly, unless an indemnity agreement clearly and unequivocally provides for indemnification for the indemnitee’s own negligence, that obligation will not be inferred. Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So.2d 487 (Fla.1979).

In the agreement here, there is a complete absence of any language indicating the intent to either release or indemnify the defendant for its own negligence, so we will not read that language into it. Thus, as to these issues, the agreement did not, as a matter of law, bar plaintiffs’ recovery. Therefore, it is not necessary for us to decide whether the parent could waive the minor child’s right to recovery, or agree on behalf of the minor, to the indemnification provision here.

We therefore address the issue of assumption of risk. Appellee characterizes the issue in the case as whether or not appellant assumed the risks of horseback riding either by express contract or by participation in a sport.

An express, contractual agreement to assume the risk of injury or loss is covered by the same principles which apply to any other type of exculpatory clause. Tout. In order to be enforceable, the agreement must unambiguously indicate which risks are assumed and will not be interpreted to include losses resulting from the defendant’s negligence unless it is clear that the plaintiff so intended. Tout, citing Ivey Plants; Restatement of Torts, Second § 496B, comment d. Assuming again the right of the parent to contractually assume the risk for the child, a point not decided here, the only risks referred to in the agreement here were those “inherent in horseback riding.” Therefore, this provision would not bar recovery for injuries resulting from defendant’s negligence because it is not so expressly stated.

Appellee argues that there is no negligence when an activity has been made as safe as possible. Appellee’s employee testified that the only certain way to prevent a horse from being startled, would be to never have the ride at all. However, the conflicting evidence that no instructions were given to the riders, that the customary short stirrups were not used on the minor’s horse, and that rein-breaking took place which could upset the horses, raises a factual question as to whether the ride was made as safe as possible.

Appellee also characterizes appellants’ participation in the horseback ride as analogous to participation in a contact sport, relying on Strickland v. Roberts, 382 So.2d 1338 (Fla. 5th DCA 1980). In Strickland, the court upheld a summary judgment for defendant because plaintiff was engaging in an “aberrant” form of waterskiing, whereby he attempted to swing as close as possible to a dock and still miss it. A comparison of Strickland to the instant case appears to be inapposite, however, in that here there is no indication that appellant was intentionally engaging in an unusual or aberrant form of horseback riding. Also, the Strickland court actually held that the defendant’s action was not the proximate cause of the plaintiff’s injury.

We reiterate the principles of law applicable to summary judgment proceedings. A summary judgment should not be granted unless, construing all the evidence most favorably to the non-moving party, there is no issue of material fact and the movant is entitled to judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The movant has the burden of conclusively proving that there is no triable issue of fact and the burden does not shift to the opposing party until the movant has met that burden.

If we view appellee’s position to be that because there is an implied assumption of risk that horses will break and run when one engages in that activity and, therefore, appellants are barred from recovery even though appellee may have been negligent, it has already been determined that the affirmative defense of implied assumption of risk has been merged into the defense of contributory negligence and the principles of comparative negligence apply. Blackburn v. Dorta, 348 So.2d 287 (Fla.1977). We may also view appellee’s position to be that there is an express assumption of risk which arises from engaging in horseback riding. While we do not view horseback riding as a “contact” sport, there are risks inherent in any sport. However, before it can be said that one expressly assumes a risk, it must be shown that the particular risk was known or should have been known and appreciated by the person injured:

The doctrine of assumption of risk cannot be invoked unless it is clearly shown that the particular risk or danger shall have been known and appreciated by the person injured.

De Pew v. Sylvia, 265 So.2d 75, 76 (Fla. 1st DCA 1972). See also Bartholf v. Baker, 71 So.2d 480 (Fla.1954); Restatement of the Law of Torts, Second, § 496D. This court has recognized the viability of the defense of express assumption of risk as a bar to recovery in sport situations, but in those cases it was clear that the injured person fully appreciated the danger of the acts he was performing.

Furthermore, characterization of participation in contact or competitive sports as express assumption of risk appears to be based on the theory that plaintiff expressly and voluntarily consents to subject himself to actions by other persons which in other contexts would be tortious. Annot., 77 A.L. R.3d 1300, § 2; Restatement of Torts, Second, § 50, comment b. See Blackburn, 348 So.2d at 290. The risks to which the player subjects himself are circumscribed by the rules of the game, and, at least in some cases, a player who acts outside those rules and causes injury may be liable for the resulting injuries. Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975).

For an express assumption of risk to be valid — whether it arises from a contract or from voluntary participation in an activity such as a sport — it must be clear that the plaintiff understood that he was assuming the risk of the particular conduct by the defendant which caused his injuries. Restatement of Torts, Second, § 496B, comment d. No agreement to assume risks not known to the plaintiff will be inferred unless clearly intended. Restatement of Torts, Second, § 496 D, comment a. Therefore, in order to find a valid contractual assumption of risk in the instant case, it must be shown that appellant subjectively understood the “risks inherent in horseback riding” and actually intended to assume those risks.

The theory which more appropriately applies to the instant case, is that of “primary —implied assumption of risk.” Blackburn, 348 So.2d at 291. This term was used to describe situations where there are certain risks which are inherent and unavoidable in a particular activity and, therefore, the defendant has no duty to protect the plaintiff from those risks and simply is not negligent. Id.; Meistrlch v. Casino Areana Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959) [defendant skating rink operator liable where ice was improperly prepared, causing plaintiff to fall]. If, however, the defendant’s actions increase or add new risks not normally inherent in the activity, a duty arises and he may be found negligent. Blackburn; Meistrich. This is the theory on which plaintiffs rely.

Appellee did not carry its burden of establishing, for summary judgment purposes, that appellants fully understood the risks and dangers involved in riding a horse. Neither did appellee carry the burden of demonstrating that appellants understood and agreed to assume the risk of appellee’s negligence in conducting the ride. There is evidence in the record from which a jury could conclude that the injury was caused, not by any inherent characteristic of the horses, but by negligent conduct of appel-lee’s employees, so it was not proper to conclude the action by summary judgment. We cannot say, as a matter of law, that a nine-year old child with little or no experience as a rider could realize and appreciate the risk of a stampede if he participated in a walking trail ride. See Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959).

In the face of the evidence here, the appellants could not be found, as a matter of law, to have understood and appreciated the danger of the minor plaintiff being thrown from a horse during a stampede. The evidence in the record that appellants were assured that this would be a walking ride under close supervision and the conflicting evidence to the effect that negligent conduct on the part of appellee’s employees caused the horses to break, precludes the entry of summary judgment.

The summary final judgment in favor of appellee is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

REVERSED and REMANDED.

DAUKSCH, C. J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., J.,

dissenting:

I believe the release is sufficient. It was clearly and unequivocally intended to limit appellee’s liability. As there was no suggestion that the child’s injuries were the result of intentional acts, appellee’s only possible liability would have been for the negligent acts of its employees. The waiver referred to “any claims or causes of actions.” The “hold harmless” clause refers to “any and all claims.” While it is possible to be more specific, the language used certainly requires no inference. I would affirm.

      . Nine years old at the time of the accident giving rise to this suit.

      . The release signed on behalf of the minor appellant says, in pertinent part:
      I consent to the renting of a horse from Walt Disney World Co. by Frankie, a minor, and to his/her assumption of the risks inherent in horseback riding. I agree, personally and on his/her behalf, to waive any claims or causes of action which he/she or I may now or hereafter have against Walt Disney World Co. arising out of any injuries he/she may sustain as a result of that horseback riding, and I will hold Walt Disney World Co. harmless against any and all claims resulting from such injuries.
      The releases signed on behalf of the individual parents are worded essentially the same, except that they omit the reference to a minor.

      . There was a statement by one of the employees that an armadillo had spooked the horses, but the employee who had heard this also testified that she knew of no one who had seen an armadillo prior to the accident, nor had she ever heard of an armadillo spooking these horses.

      . Where an agreement is drawn by the defendant and passively accepted by the plaintiff, the terms will be strictly construed against the defendant. Restatement of Torts, Second, § 496B, comment d.

      . Appellee also asserts that any negligence on the part of appellee in causing the stampede is not material because appellant did not specifically allege in the complaint that the cause of the stampede was the cause of the injury. This argument is specious, since appellant alleged in the complaint that he was injured when thrown from a horse during a stampede and that the negligent acts of appellee’s employees caused his injuries.

      . Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenantee’s negligence, as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport. Blackburn v. Dorta, 348 So.2d 287, 290 (Fla.1977).

      . Kuehner v. Green, 406 So.2d 1160 (Fla. 5th DCA 1981); Strickland v. Roberts, 382 So.2d 1338 (Fla. 5th DCA 1980).


author:
PER CURIAM.
      DAUKSCH, Chief Judge,

text:
    SUN FIRST NATIONAL BANK OF ORLANDO, a national banking association, Appellant, v. Susan POPE, Appellee.
    No. 81-279.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    Patrick T. Christiansen, of Akerman, Sen-terfitt & Eidson, Orlando, for appellant.
    Kenneth D. Morse and Janet E. Messer-vey, Mathias & Mathias, Orlando, for appel-lee.
   PER CURIAM.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion there was inadequate evidence to support the conclusions of law reached by the trial court. I am of the opinion the appellant presented sufficient legal evidence to prove that appellee and her husband engaged in a scheme to defraud the creditors of the husband and his corporation. Appellant is one of those creditors and is entitled to have the fraudulent conveyances set aside so that it can levy upon the property.


author: COWART, Judge.

text:
    MELODY TOURS, INC., M & M Services, Inc., Mixson, Mitchem & Company, Inc., Mixson & Mitchem Omniglobals, C. A. Mitchem and John B. Mixson, III, Appellants, v. GRANVILLE MARKET LETTER, INC., Appellee.
    No. 81-310.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    John B. Liebman and J. Gary Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellants.
    Richard W. Hennings of Cauthen, Robuck & Hennings, Tavares, for appellee.
   COWART, Judge.

This case involves the right of a litigant to avoid admissions resulting from failure to timely answer a request for admissions served under Florida Rule of Civil Procedure 1.370.

Appellants’ counsel inadvertently neglected to timely file answers to requests for admissions, which admissions covered all of the factual allegations of the appellee’s complaint. Appellants responded to the requests for admissions 77 days late. Appellants moved for permission to file a belated response to the requests for admissions; ap-pellee moved for summary judgment based on the admissions. The trial court ruled that in determining whether a belated response to requests for admissions should be permitted the standard should be the same as in setting aside a default judgment and that, mere inadvertence being insufficient for the latter, it was insufficient for the former. Accordingly, the trial court denied appellants an opportunity to avoid the effect of the admissions and relied on the admissions to enter the summary judgment against appellants which is the subject of this appeal.

There is sound logic in the trial judge’s reasoning analogizing the legal problem of granting relief from the result of a failure to timely answer a request for admissions with the similar legal problem of granting relief from a default which was the result of a failure to timely answer a complaint. The trial judge’s reasoning would be compelling in this case but for the fact that the law seems to have developed in another, more liberal, direction.

The trial court’s holding is in accordance with Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972), in which the Florida Supreme Court held that noncompliance with rule 1.370 could not be excused “on a base allegation of inadvertence.” Farish, 267 So.2d at 327. However, all of present section (b) of rule 1.370, authorizing courts to permit withdrawal or amendment of answers to requests for admissions when that action will serve the presentation of the merits and the party who obtained the admissions fails to satisfy the court that such withdrawal or amendment will prejudice him in maintaining his action or defense on its merits, was added after Farish, effective January 1, 1973. Accordingly, in light of this rule amendment, Farish is of doubtful applicability as authority. See Love v. Allis-Chalmers Corp., 362 So.2d 1037 (Fla. 4th DCA), cert. dismissed, 366 So.2d 879 (Fla.1978).

Since appellants’ counsel did not intend to admit the facts in question, the withdrawal of their technical admissions would, of course, serve to facilitate the presentation of the case on its evidentiary merits. Ap-pedants’ response to the requests for admissions, while very late, was made before the pleadings were closed, before the entry of a pre-trial order and before any trial date had been set. Appellee presented no other matter in an attempt to satisfy the trial court that a withdrawal of the technical admissions would prejudice it in maintaining its action on its merits. Accordingly, following Love, we reverse the summary judgment and remand the cause with directions to allow appellants to file their sworn answers to the requests for admissions and for further proceedings.

REVERSED and remanded.

ORFINGER and SHARP, JJ., concur.

      . See In re Rules of Civil Procedure, 265 So.2d 21, 36-37 (Fla.1972).


author: SHARP, Judge.

text:
    In the Interest of G. L., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 81-520.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.

      James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Appellant, reserving his right to appeal the denial of his motion for discharge on speedy trial grounds, pled no contest to a delinquency petition. The trial court withheld adjudication and placed the appellant on community control for one year.

The record reflects that the appellant was never in custody before the petition was filed; the adjudicatory hearing was held within ninety days of the date the petition was filed. We affirm. See Fla.R.Juv.P. 8.180(a).

AFFIRMED.

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


author: PER CURIAM. DAUKSCH, Chief Judge,

text:
    Lee M. POTTER, as Personal Representative of the Estate of Helen L. Potter, Deceased, Appellant, v. FLORIDA HIGHWAY PATROL, DEPARTMENT OF HIGHWAY SAFETY, AND MOTOR VEHICLES, Appellee.
    No. 81-676.
    District Court of Appeal of Florida, Fifth District.
    May 5, 1982.
    Gregory L. Macy of Hamilton & Douglas, P. A., Tampa, for appellant.
    L. Edward McClellan, Jr., of McClellan, Raster & Vostrejs, P. A., Ocala, for appel-lee.
   PER CURIAM.

AFFIRMED.

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

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion there was sufficient lawful evidence presented in the plaintiff’s case to warrant a reversal of the order directing a verdict for the appellee. This case involves a highway patrol trooper who was driving his car at an excessive rate of speed, seventy miles per hour, without using his blue light or siren while he was apparently attempting to clock a speeder. Whether he was operating his car prudently, safely and reasonably under the circumstances is a jury question. When he saw the decedent (who was killed, along with her passenger, in the accident) driving her car into a potentially dangerous position he took evasive actions which were unsuccessful and ran into the decedent’s car, impacting at approximately fifty-four miles per hour. There is some evidence, and proper inferences from the evidence, that had the trooper taken different evasive actions the collision might have been avoided or the force of impact upon the decedents lessened. It is generally not up to the judge to decide negligence issues, that is left to the jury. There is a question of comparative negligence involved here and even if the relative fault is 99-1 the appellant is entitled to have the jury say so. When two moving cars collide it is rare that one party is 100% at fault. It is a jury decision, at the least.