text:
    Iris R. RENELT, Appellant, v. Lawrence N. KLINE, Appellee.
    No. AY-26.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.
    Rehearing Denied Nov. 28, 1984.
    Dale E. Rice, Crestview, for appellant.
    James H. Burke, Jr., of Dewrell, Blue & Brannon, Fort Walton Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Delgado v. Strong, 360 So.2d 73 (Fla.1978); Mossi v. Fuenzalida, 422 So.2d 971 (Fla. 3d DCA 1982); and Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970).

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


source: Caselaw Access Project

author: WIGGINTON, Judge.

license: Public Domain

text:
    Norene PARRISH, Appellant, v. O. Lee MULLIS, M.D., Appellee.
    No. AY-104.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1984.
    W. Dexter Douglass of Douglass, Davey, Cooper & Coppins, Tallahassee, for appellant.
    Richard Smoak and Jeffrey P. Whitton of Sale, Brown & Smoak, Chartered, Panama City, for appellee.
   WIGGINTON, Judge.

Appellant was an unsuccessful plaintiff in a medical malpractice action. Following the trial, appellee moved for an award of attorney’s fees pursuant to section 768.-56(1), Florida Statutes (1983). Appellant challenged the motion on several bases, most particularly that section 768.56 is unconstitutional as applied in this case. The trial court granted the motion and awarded an attorney’s fee of $11,844.50, and costs in the amount of $972.32. We reverse.

Section 768.56 became effective on July 1, 1980, and provides, “This section shall not apply to any action filed before July 1, 1980.” Section 768.56(2). (Emphasis added). Appellant’s suit was filed on April 22, 1981, but her cause of action accrued on February 16, 1980, almost five months prior to the effective date of the statute. In Stillwell v. Thigpen, 426 So.2d 1267 (Fla. 1st DCA 1983), we held that section 768.28(9)(a), Florida Statutes (Supp. 1980), may not constitutionally be applied to a cause of action which accrued prior to the effective date of the statute. The act became law on July 1, 1980, and was made applicable to all actions pending or filed after July 1, 1980. We reasoned that “constitutional considerations of due process preclude the retroactive application of section 768.28(9)(a).” Id. at 1268. For similar reasons we now hold that section 768.56 was unconstitutionally applied.

A litigant’s right to an attorney’s fee is a substantive right and a law creating that right may only be applied prospectively. Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982); Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980). When appellant’s cause of action accrued, she was not burdened with the potential responsibility to pay the successful party’s attorney’s fees and costs, and appellee was not entitled to that right. The right and responsibility were later created by the legislature in order that malpractice plaintiffs, faced with this burden, “will seriously evaluate the merits of a potential medical malpractice claim.” Chapter 80-67, Laws of Florida. In the instant case, it would be manifestly unfair to argue that plaintiff could have filed her lawsuit earlier to avoid operation of the statute, when, in February of 1980, she was totally unaware of the statute; it did not exist. Therefore, we hold that section 768.56 may not be retroactively applied to a cause of action which accrued prior to its effective date.

Because we have reversed the award of attorney’s fees on the issue of constitutional application, we need not reach appellant’s remaining points.

REVERSED.

JOANOS and BARFIELD, JJ., concur.

      . Section 768.56 provides in relevant part:
      (1) Except as otherwise provided by law, the court shall award a reasonable attorney’s fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization; however, attorney’s fees shall not be awarded against a party who is insolvent or poverty-stricken ....


author: PER CURIAM.

text:
    The TRAVELERS INDEMNITY COMPANY, Appellant, v. Q.M. II CHARTERS, INC., etc., Appellee.
    No. 84-1234.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1984.
    Rehearing Denied Dec. 5, 1984.
    Steven R. Berger and Amy N. Dean of Steven R. Berger, P.A., Miami, and Law Offices of James M. Henderson, West Palm Beach, for appellant.
    Michael B. Small of Small, Oakes, Berris, Clark & Kohl, Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of Rubenstein v. Richard, Fidlin Corf., 346 So.2d 89 (Fla. 3d DCA 1977).

ANSTEAD, C.J., and HERSEY and DELL, JJ., concur.


text:
    Francis T. HEATH, Appellant, v. STATE of Florida, Appellee.
    No. AV-50.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Michael Allen, Public Defender, and Steven L. Bolotin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. Waddell v. State, 458 So.2d 1140 (Fla. 5th DCA 1984).

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


text:
    PURITY CONDIMENTS, INC., and Claims Center, Appellants, v. Essie Mae BURCKS, Appellee.
    No. AX-457.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    R. Ty Hodges of Miller, Hodges & Ka-gan, Miami, for appellants.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellee.
   PER CURIAM.

The uncontroverted medical testimony at the hearing below is that the claimant reached maximum medical improvement (MMI) on February 16, 1981. The deputy commissioner’s (deputy) order is modified to provide that the claimant reached MMI as of February 16, 1981. The deputy’s award of temporary partial disability benefits from that date to June 14, 1982 is vacated. Claimant may file claims for wage loss benefits from February 16, 1981 and thereafter for such periods of time during which wage losses were sustained.

The order, as modified, is affirmed.

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. ANSWERITE PROFESSIONAL TELEPHONE SERVICE and South Carolina Insurance Company, Appellees.
    No. AZ-219.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1984.
    Mary E. Ingley, Tallahassee, for appellant.
    Daniel L. Hightower of Green, Simmons, Green, Hightower & Gray, Ocala, for appel-lees.
   PER CURIAM.

In this workers’ compensation case, the Special Disability Trust Fund (Fund) challenges an order granting the employer/carrier reimbursement from the Fund. The deputy commissioner found that the employer reached an informed conclusion that the claimant’s preexisting condition was permanent and was or was likely to be a hindrance to employment as required by Section 440.49, Florida Statutes (1979), and ordered the employer/carrier be reimbursed by the Fund. This finding is supported by competent, substantial evidence. Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). The employer knew claimant had back problems and, for that reason, hired him for a light job rather than one that would require heavy lifting. The testimony of Mr. Ed Smith, President of the employer company, Answerite Professional Telephone Service, reflects that, in his opinion, the claimant’s back condition was of a permanent nature rather than temporary. In view of the obvious purpose of the Fund, encouraging the hiring of the handicapped, there is no reason to disturb the finding of the deputy. The order below is therefore affirmed.

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    Johnnie RIVER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2335.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.

      Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and William P. Thomas and Henry R. Barksdale, Asst. At-tys. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Faison v. State, 426 So.2d 963 (Fla.1983).


text:
    S.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2269.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Smith v. State, 441 So.2d 1162 (Fla. 2d DCA 1983), pet. for rev. granted, No. 64,678 (Fla.1984); State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA), pet. for rev. granted, No. 63,451 (Fla.1983). But see State v. Holliday, 431 So.2d 309 (Fla. 1st DCA), pet. for rev. granted, No. 63,832 (Fla.1983); State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982).


text:
    Gail Sandra COHAN, Appellant, v. Vaughn Dennis COHAN, Appellee.
    No. 83-2719.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Kathleen Phillips, Joel V. Lumer, Miami, for appellant.
    No appearance for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

We agree with the appellant/wife’s contention that the trial court erred in receiving ex parte evidence affecting her duties as a custodial parent. We, therefore, strike paragraphs 3 and 4 of the order since there is no competent evidence to support them. See In the Interest of Brown, 246 So.2d 166 (Fla.3d DCA 1971).

The order in all other respects is affirmed as modified.


author: DANIEL S. PEARSON, Judge.

text:
    Selma SMILOWITZ, Appellant, v. Leonard H. RUSSELL, Appellee.
    No. 84-220.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Whitman, Wolfe & Gross and Andrew Newman and Irving J. Whitman, Miami, for appellant.
    Adolfo Del Castillo, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The issue in this case is whether, as the court below ruled, the shop rule exception to the dangerous instrumentality doctrine recognized in Castillo v. Bickley, 363 So.2d 792 (Fla.1978), relieves the vehicle owner of liability to an injured party where, as here, the injury-causing operation of the vehicle occurred not during the servicing or service-related testing of the vehicle, but rather as a necessary concomitant to the service to be performed.

The facts are not in dispute. Smilowitz, a pedestrian, was struck by a vehicle owned by Russell. At the time of the accident, the vehicle was operated by one Edward Spring, the owner of Seat Cover King, Inc., a car upholstery company, to whom Russell had given the vehicle for the purpose of replacing the convertible top, seat covers and interior carpeting. While the vehicle was in Spring’s custody, a radiator hose in the vehicle broke. Spring drove the vehicle to his friend’s gas station to have the hose repaired. According to Spring, putting the engine into working order was essential to the job he had undertaken:

“... you got to run the engine, because you’ve got to keep putting the top up and down. It runs the battery down, plus the electric seats and stuff.
“So when the time came for us to work on the car, we couldn’t do it without getting the hose fixed. So then I took it over to my friend and he fixed the hose.”

The accident occurred when Spring was returning the vehicle to his shop after the hose repair had been completed.

In Castillo v. Bickley, 363 So.2d 792, the Florida Supreme Court held:

“that the owner of a motor vehicle is not liable for injuries caused by the negligence of the repairman or serviceman with whom the vehicle has been left, so long as the owner does not exercise control over the injury-causing operation of the vehicle during the servicing, service-related testing, or transport of the vehicle, and is not otherwise negligent.”

Id. at 793.

This exception to vehicle-owner liability has been held applicable to an injury caused when the vehicle is being driven by the repairer to test it, see Bickley v. Castillo, 346 So.2d 625 (Fla. 3d DCA 1977), aff'd, Castillo v. Bickley, 363 So.2d 792; Harfred Auto Imports, Inc. v. Yaxley, 343 So.2d 79 (Fla. 1st DCA 1977); when the vehicle is being driven as a necessary preliminary to servicing it, see Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla. 2d DCA 1963); and when the vehicle has been returned to the premises for servicing after its owner has been driven home, see Patrick v. Faircloth Buick Company, 185 So.2d 522 (Fla. 2d DCA 1966). But where the operation of the vehicle is primarily for the accommodation or convenience of the owner, see, e.g., Jack Lee Buick, Inc. v. Bolton, 377 So.2d 226 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 638 (Fla.1980); Jordan v. Kelson, 299 So.2d 109 (Fla. 4th DCA 1974), cert. denied, 308 So.2d 537 (Fla. 1975), or otherwise totally unrelated to its repair, see, e.g., Lopez v. DeMaria Porche-Audi, 395 So.2d 199 (Fla. 3d DCA 1981), courts have refused to apply the shop rule exception to owner liability.

In the present case, it is clear that Russell exercised no control over the offending vehicle; that at the time of the injury to the appellant, the vehicle was being operated solely in furtherance of its eventual repair; that the operation of the vehicle was not primarily for the accommodation or convenience of the owner; and that the owner was not otherwise negligent. The trial court correctly concluded that, under these circumstances, the defendant Russell was as a matter of law not liable to the plaintiff by virtue of Russell’s ownership of the vehicle. Accordingly, the judgment entered on a directed verdict in favor of Russell is

Affirmed.


author: GLICKSTEIN, Judge.

text:
    Calvin HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1580.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a judgment of guilt as to sexual battery with slight force, robbery with a deadly weapon, armed burglary of a structure and aggravated battery and the sentences resulting therefrom. We reverse and remand for new trial because the state failed to prove by clear and convincing evidence that the victim’s in-court identification was based on her observation of appellant at the scene of the crime and not dependent on the unnecessarily suggestive pretrial procedures that were used in this case. See United States ex rel. Moore v. People of Illinois, 577 F.2d 411 (7th Cir.1978), cert. denied, 440 U.S. 919, 99 S.Ct. 1242, 59 L.Ed.2d 471 (1979); Simons v. State, 389 So.2d 262 (Fla. 1st DCA 1980); and State v. Sepulvado, 362 So.2d 324 (Fla. 2d DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979).

We find no other error in the trial court, but mention the stipulation for the use of the polygraph examination for two reasons. First, we remind counsel that by stipulating to its use, the defendant waives the underlying objection to reliability, thus mooting reliability as an issue. See DeLap v. State, 440 So.2d 1242, 1247 (Fla.1983). Second, we suggest that stipulations such as used here — namely, if an accused passes the examination, he takes a walk, and if he fails, he responds to the charges — should spell out in detail to what the parties have agreed: that the issue of .reliability has been waived by its execution; and that the stipulation and result will be received into evidence if unfavorable to the accused. With such recitations, together with execution by the accused and counsel, the trial can proceed without subjecting the jury to a debate on the pro and con of polygraph examinations. More important, the written word will eliminate uncertainty in the accused’s mind as to the stakes and the ramifications if he fails.

LETTS and HERSEY, JJ., concur.


text:
    John Michael JOSWICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-2445.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Although we believe the better practice would have been to allow the appellant the privilege of reserving his opening statement until after the state had rested, we find no prejudicial or reversible error in the trial court’s decision not to do so. Hawkins v. State, 199 So.2d 276 (Fla.1967), vacated in part, 408 U.S. 941, 92 S.Ct. 2857, 33 L.Ed.2d 765 (1972). We also find no error in the admission of photographs of the deceased victim.

Accordingly, the judgment and sentence of the trial court are affirmed.

ANSTEAD, C.J., and DELL and WALDEN, JJ., concur.


author: DELL, Judge.

text:
    AMERICAN CAST IRON PIPE COMPANY, Appellant, v. FOOTE BROTHERS CORPORATION, a Florida corporation, M & C Venture, Sonny Lloyd, Inc., Sonny Lloyd, individually, Jeffrey Collins, Inc., Jeffrey Collins, individually, Biscayne Federal Savings & Loan Association, Aetna Casualty and Surety Company, and American Centennial Insurance Company, Appellees.
    No. 83-2491.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Dennis G. King of Dennis G. King, P.A., Miami, for appellant.
    Eve N. Wagner of Cooper, Shahady, Frazier & Pugatch, Fort Lauderdale, for appel-lees.
   DELL, Judge.

Appellant, the prevailing party in a mechanic’s lien foreclosure action, challenges the amount awarded as attorney’s fees pursuant to Section 627.756, Florida Statutes (1981).

On September 17, 1982, appellant filed a mechanic’s lien foreclosure action against certain defendants who are not parties to this appeal. On October 18,1982, appellant amended his complaint to name appellee, American Centennial Insurance Company, the surety on a payment bond, as an additional party defendant. The trial court entered summary judgment on the payment bond in favor of appellant and awarded appellant attorney’s fees limited to twelve and one-half percent (1272%) of the judgment pursuant to Section 627.756, Florida Statutes (1981).

Chapter 82-243, Florida Laws eliminated the 12½% limitation on attorney’s fees effective October 1, 1982. Appellant contends that the statute repealing the 12½% limit on attorney’s fees is remedial and may be enforced retroactively.

Judge Pearson set forth a succinct statement of the law governing retroactive application of statutes in Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157, 1164-65 (Fla. 3d DCA 1984):

While it is true that in the absence of an express legislative declaration that a statute have retroactive effect, the statute will be deemed to operate prospectively only, Fleeman v. Case, 342 So.2d 815 (Fla.1976); Thayer v. State, 335 So.2d 815 (Fla.1976); Larson v. Independent Life & Accident Insurance Co., 158 Fla. 623, 29 So.2d 448 (1947), and that even a clear expression of retroactivity will be ignored if the statute impairs vested rights, creates new obligations, or imposes new penalties, Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla.1978); Fleeman v. Case, 342 So.2d 815; accord, State v. Lavazzoli, 434 So.2d 321 (Fla.1983), neither of these rules of statutory construction applies where the statute is solely remedial or procedural, Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961); McCord v. Smith, 43 So.2d 704 (Fla.1949); Department of Transportation v. Cone Brothers Contracting Co., 364 So.2d 482, 486 (Fla. 2d DCA 1978), reversed, 384 So.2d 154 (Fla.1980) (“A curative or remedial statute is necessarily retrospective in character.”); Grammer v. Roman, 174 So.2d 443, 446 (Fla. 2d DCA 1965) (“Remedial statutes are exceptions to the rule that statutes do not come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes”). Cf. Village of El Portal v. City of Miami Shores, 362 So.2d 275 (remedial statute with specific retroactivity provision). [Footnote omitted.]

Remedial statutes include statutes which confer a remedy, “and the remedy is the means employed in enforcing a right or in redressing an injury,” Grammer v. Roman, supra, at 446; those which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, City of Lakeland v. Catinella, supra; those which do not affect vested rights or create new obligations, Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980); and those which affect only the measure of damages for vindication of a substantive right, Walker & LaBerge, Inc. v. Halligan, supra.

Appellee relies on Tuggle v. Government Employees Insurance Co., 220 So.2d 355 (Fla.1969), to support its argument that the date appellant filed its initial complaint determines which version of the statute applies. The amendment considered in Tug-gle, however, was not a remedial measure affecting only the measure of damages. It granted parties the right to collect attorney fees when they prevailed in appellate proceedings. The grant of this right, which did not exist prior to amendment, accomplished a change in the substantive law which could not apply retroactively. Appellant, however, previously had the substantive right to recover attorney fees, Section 627.756, Florida Statutes (1981). The repealer act affected only the amount of money appellant could collect pursuant to that right.

Therefore we hold that the amendment to Section 627.756 is a remedial statute which may be applied retroactively and that the trial court erred when it limited appellant’s attorney’s fees to I2V2% of the judgment or decree awarded under the bond. Accordingly, we reverse and remand this cause with directions to the trial court to determine and award appellant attorney’s fees as provided in Section 627.-756 as amended effective October 1, 1982, Florida Statutes (Supp.1982).

REVERSED and REMANDED.

LETTS and GLICKSTEIN, JJ., concur.

      . 627.756 Bonds for construction contracts; attorney fees in case of suit. — Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under the laws of Florida to indemnify such owners, subcontractors, laborers and material men against pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiff's attorney shall not be more than 12.5 percent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation), nor shall it be less than f 100 where the judgment or decree is for more than $500 nor less than $50 where the judgment or decree is $500 or less. Such owners, subcontractors, laborers and material men shall be deemed to be "insureds" or "beneficiaries” for the purposes of this section.

      . 627.756 Bonds for construction contracts;
      attorney fees in case of suit. — Section 627.428 applies to suits brought by owners, subcontractors, laborers, and materialmen against a surety insurer under payment or performance bonds written by the insurer under the laws of this state to indemnify against pecuniary loss by breach of a building or construction contract. Owners, subcontractors, laborers, and materialmen shall be deemed to be insureds or beneficiaries for the purposes of this section.
      § 627.756, Fla.Stat. (Supp.1982).


text:
    Jim WHARTON and ETH-WHA, INC., Appellants, v. Georgia F. DuBOSE, Appellee.
    No. 84-1074.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    G. Russell Petersen of G. Russell Petersen, P.A., Vero Beach, for appellants.
    Clifford M. Miller of Miller & Miller, Vero Beach, for appellee.
   ON MOTION TO DISMISS

GLICKSTEIN, Judge.

We dismiss this appeal of the trial court’s order granting a motion for rehearing because it is an interlocutory appeal of which this court lacks jurisdiction. The First District Court of Appeal dismissed a similar appeal on the same ground in Ford Motor Company v. Averill, 355 So.2d 220 (Fla. 1st DCA 1978). We are aware of no change in the law since the Averill decision that would affect the outcome.

Appellant contends that an order granting a motion for rehearing either is a final order and thus immediately appealable, or is the equivalent of an order for a new trial, governed by section 59.04, Florida Statutes (1983), and post-Averill revisions of Rules 9.130(a)(4) and 9.140(c)(1)(C), Florida Rules of Appellate Procedure, as explicated by In re Emergency Amendments to Rules of Appellate Procedure, 381 So.2d 1370 (Fla.1980). We are not persuaded. Grant of a motion for rehearing is clearly not a final order, nor is it within the contemplation of the above authorities cited by appellant. Because it also falls outside the rubrics of Rule 9.130(a)(3), Florida Rules of Appellate Procedure, which specifies immediately appealable non-final orders, we cannot hear this appeal at this time.

DOWNEY and LETTS, JJ., concur.


text:
    Warren R. WROBLESKI, Sr., Petitioner, v. Lottie WROBLESKI, Respondent.
    No. 84-1087.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Louis B. Vocelle, Jr., of Moss, Henderson & Lloyd, Vero Beach, for petitioner.
    Calvin B. Brown, Vero Beach, for respondent.
   PER CURIAM.

This is a petition for writ of common law certiorari addressed to the trial court’s order which denied the defendant’s motion to disqualify the plaintiff’s attorney, Calvin Brown, and his law firm, Collins, Brown, Caldwell & Carter. We have jurisdiction to consider the petition pursuant to Article V, Section 4(b)(3), Florida Constitution. The trial court refused to rule on the merits of the motion. We hold that the refusal to consider the merits of that motion is a departure from the essential requirements of the law. Pantori, Inc. v. Stephenson, 384 So.2d 1357 (Fla. 5th DCA 1980).

Accordingly, certiorari is granted, the order quashed and the cause remanded for further proceedings consistent with this opinion.

LETTS, HURLEY and WALDEN, JJ., concur.


author: DELL, Judge. HERSEY, Judge,

text:
    David MEEK, Petitioner, v. DEAN WITTER REYNOLDS, INC., Respondent.
    No. 84-1841.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.

      Petition for writ of certiorari to Circuit Court, Broward County; J. Cail Lee, Judge.
    Charles D. Franken of Law Offices of Gerald Beyer, P.A., Fort Lauderdale, for petitioner. ■
    Robert A. Ware of English, MeCaughan & O’Bryan, Fort Lauderdale, for respondent.
   DELL, Judge.

Petitioner David Meek seeks review by petition for writ of certiorari of an order directing him to produce documentation supporting his contention that he is entitled to invoke the fifth amendment privilege against self-incrimination.

After entry of a final judgment in its favor, respondent sought to take petitioner’s deposition in aid of execution. Petitioner, in compliance with a court order, appeared at the deposition but responded only to questions requesting his name and address and thereafter asserted his Fifth Amendment privilege to the remaining questions. Respondent moved to compel discovery. After hearing argument the court denied respondent’s motion to compel discovery but ordered petitioner to produce copies of documentation to support his contention that he was under investigation by government agencies or documentation that he has been indicted for a criminal act. The court issued a second order directing petitioner to produce the documentation to respondent’s attorney for inspection only.

Petitioner argues that the circuit court departed from the essential requirements of law by requiring him to document that he is under investigation, or has been indicted for a criminal act, and by directing him to produce that information to opposing counsel rather than the court. We agree.

Our sister court in DeLisi held that when a trial court is presented with [an assertion of a fifth amendment privilege] ... it must exercise its discretion and determine whether it is reasonably possible that answers to either interrogatories or deposition questions could evoke a response “forming a link in the chain of evidence which might lead to criminal prosecution.” DeLisi, supra, at 938.
Justice Marshall in his concurring opinion in Pillsbury Co. v. Conboy, 459 U.S. 248, 266 n. 1, 103 S.Ct. 608, 619, n. 1, 74 L.Ed.2d 430, 445-446 n. 1 (1983), reiterated the same test:
A witness is generally entitled to invoke the Fifth Amendment privilege against self-incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him. Moreover, the Fifth Amendment forbids not only the compulsion of testimony that would itself be admissible in a criminal prosecution, but also the compulsion of testimony, whether or not itself admissible, that may aid in the development of other incriminating evidence that can be used at trial....
The privilege is inapplicable only “if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.” [Citations omitted.]
See also Lewis v. First American Bank of Palm Beach County, 405 So.2d 300 (Fla. 4th DCA 1981); Litehford, The Privilege Against Self-Incrimination in Civil Litigation, 57 Florida Bar Journal 139, 140 (1983).

DeLisi v. Bankers Insurance Co., 436 So.2d 1099, 1101 (Fla. 4th DCA 1983); see also DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982), petition for review denied, 434 So.2d 887 (Fla.1983).

The trial court’s order requires petitioner to prove, as a condition precedent to invoking his Fifth Amendment privilege, that he is actually under indictment or investigation. Respondent has failed to cite any case which supports the trial court’s action and we have found none. A “witness need only show a realistic possibility that his answer will be used against him.” Pillsbury, 103 S.Ct. at 619 n. 1. The trial court should have referred to the deposition questions and determined whether there was a reasonable possibility that the answers may evoke a response “forming a link in the chain of evidence which might lead to criminal prosecution.” DeLisi, 436 So.2d at 1101.

Accordingly, we grant the petition for writ of certiorari and quash the trial court’s order directing petitioner to produce the documentation that he is under indictment or investigation and we remand this cause for further proceedings consistent herewith.

CERTIORARI GRANTED.

LETTS, J., concurs.

HERSEY, J., concurs specially with opinion.

HERSEY, Judge,

concurring specially.

If petitioner is unwilling (or unable) to document his contention that he is under investigation by government agencies or that he has been indicted for a criminal act, the trial court will be justified in disbelieving that contention and, in the absence of some reasonable basis, could logically conclude that there has been shown no justification for Fifth Amendment protection.


author: PER CURIAM. GLICKSTEIN, Judge, BARKETT, Judge,

text:
    Marlene ZELTZER, Appellant, v. Jack ZELTZER, Appellee.
    No. 83-1435.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellant.
    Ronald Sales of the Law Office of Ronald Sales, P.A., West Palm Beach, for ap-pellee.
   PER CURIAM.

affirmed:

SCOTT, ROBERT C., Associate Judge, concurs.

GLICKSTEIN and BARKETT, JJ„ concur specially with opinions.

GLICKSTEIN, Judge,

concurring specialty-

I write solely because of the points raised by Judge Barkett’s concurrence, although I choose not to comment further on our being informed at oral argument of a matter dehors the record, other than to repeat that you cannot unring the bell.

Appellant sought and obtained three extensions of time in which to file appellant’s briefs; appellee obtained two. As a result, the appeal commenced on July 7, 1983, and could not be argued until July '26, 1984. Had the record reflected a ease which required a detailed majority opinion, still more time would have elapsed.

The busiest lawyers generally are so busy because of their competence and reputation. Those involved here are no exception to that observation. Nevertheless, I respectfully suggest that extensions should be sought in these plenary appeals of matrimonial cases only under extraordinary circumstances. Being very busy should not be considered as one of those circumstances. As long as multiple extensions are being sought by lawyers, their clients’ rights have a greater risk of being considered in a setting that may no longer be applicable. While another client’s interests may compel the attorney to request the extension, the ripple effect may work to the detriment not only of the client whose argument is delayed but also of another party ready for argument without extension.

This court has recently approved a notice to attorneys that reads in part:

RIGHTS OF CHILDREN: The court has adopted a policy of being favorably disposed to grant Motions to Expedite where a genuine issue on appeal involves custody of children, visitation privileges or other interests of children.

Accordingly, where, as here, custody and visitation are of central concern to the case, the parties would do well to speed up the judicial process for the reasons which this writer recited in French v. French, 452 So.2d 647, 651 (Fla. 4th DCA 1984) (Glickstein, J., concurring in part and dissenting in part), which I quote:

I think it inappropriate for this court to enter any determinative order on the issue of visitation in May, 1984, more than two years since the entry of Final Judgment. The children have not been frozen in time, waiting for the square wheels of justice to bump along to a conclusion in the case, although they may have been existing in an emotional vacuum for over two years because of the lengthy period of time in finalizing this matter. As of the present date, there is no evidence whatsoever before us of the present circumstances which could affect their welfare upon the issue of visitation.
Among the diverse matters this court must address, the rights of children deserve first priority. I hope in the future the attorneys in this district will move to expedite appeals involving the status and rights of a child for the reasons recited in the Model Statute for Termination of Parental Rights (National Council of Juvenile and Family Court Judges 1976), and quoted in part by Judge John R. Milligan and Ellen Loth, Permanency Placing for Children (A New Ballgame in Appellate Courts), in Appellate Court Administrative Review 37, 38-39 (1983), wherein the authors say:
A child’s time is not an adult’s time. The Model Statute for Termination of Parental Rights specifically recognizes this in Section One:
Unlike adults, who measure the passing of time by clocks and calendars, children have their own built-in time sense based on the urgency of their instinctual and emotional needs. What seems like a short wait to an adult can be an intolerable separation to a young child to whom a week can seem like a year and a month forever ... the purpose of this act is ... to acknowledge that the time perception of children differs from that of adults.
(Footnote omitted.)

Further, this court said in Gulf Life Insurance Company v. Newell's Incorporated, 226 So.2d 858, 859 (Fla. 4th DCA 1969):

An appeal should be dismissed where no practical result could be obtained by reviewing the question therein contained. DeHoff v. Imeson, 1943, 153 Fla. 553, 15 So.2d 258.

If appellant believes dismissal is inappropriate, notwithstanding a material change in circumstances which affects the trial court’s final judgment, it is incumbent upon appellant to call the matter to this court’s attention immediately by appropriate motion, seeking relinquishment of jurisdiction. Alternatively, appellant should seek relief in the trial court pursuant to Florida Rule of Appellate Procedure 9.600(c). See Hilsman v. Hilsman, 421 So.2d 770 (Fla. 4th DCA 1982).

BARKETT, Judge,

concurring specially.

The decision of this court at this time appears to be academic since we were informed at the oral argument that during the pendency of this appeal the wife had returned to Palm Beach County as a permanent resident. The decisions of the trial court were clearly primarily based on the wife’s refusal to even consider living in Palm Beach County. We obviously cannot consider these new circumstances since they are dehors the record. But this decision appears to be a wasted effort when the matter is apparently to be relitigated’ because of a substantial change in circumstances between the time of the final judgment and the termination of the appeal. This illustrates the continuing need to explore reforms in handling domestic relations matters in trial and appellate courts.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Raymond E. VEGA, Appellant, v. Linda VEGA a/k/a Linda Fischer, Appellee.
    No. 84-705.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Ernest A. Kollra of Wagner & Kollra, P.A., Fort Lauderdale, for appellant.
    Lois B. Carlton of Scherer, Fishman & Carlton, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY and HERSEY, JJ„ concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

I write to express two views in this case wherein the trial court property entered judgment against the former husband for $15,347.25 in arrearages for child support. First, the former husband sought, unsuccessfully, to establish waiver and estoppel to the claim of the former wife. I find it unreasonable that a child, not represented by a guardian ad litem, could lose the financial support due that child because of some act by the custodial parent to which a guardian ad litem might have objected, had there been one. Child support is a daily reality. It determines if and what a child eats; what a child wears; the education the child is receiving; the daily care the child has or does not have; medical, dental, opto-metric or other benefits the child obtains or does without; the activities in which the child does or does not engage; and the intellectual and emotional growth which the child enjoys or of which the child is deprived. In case after case in which the child has no representation, the mother’s decision which constitutes waiver and es-toppel could be in direct conflict with the child’s interest. What about the child whose mother does not want to go through the trauma of more litigation with her former spouse or who may be unaware of interstate enforcement proceedings or of legal assistance through legal aid? In short, for waiver and estoppel to preclude a child from recovery of what that child needs, I suggest waiver should arise only when the child’s interests were directly represented when the acts constituting waiver took place.

Second, child support is a constant, daily obligation. Time and again, we see the cruel maxim to which a child is victim; namely, out of sight, out of heart. Fathers appear, leave and reappear without maintaining that ongoing presence, financially and emotionally, which is a child’s birthright. The late Oliver Wendell Holmes could well have likened children to puppies when he observed that even the latter know the difference between being kicked and being tripped over. If all fathers were truly sensitive to their children’s ongoing needs, the adult financial delinquency involved here might never have occurred.


text:
    Darrold Duane CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 84-318.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    James B. Gibson, Public Defender, Larry B. Henderson, Asst. Public Defender, and
    Kenneth Witts, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

We affirm on the authority of Cigelski v. State, 453 So.2d 840 (Fla. 1st DCA 1984).

AFFIRMED.

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


text:
    Carl Kenneth BLAND, Appellant, v. STATE of Florida, Appellee.
    No. 84-499.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Hackney v. State, 456 So.2d 1209 (Fla. 5th DCA 1984).

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


author: DAUKSCH, Judge.

text:
    GRAHAM CONTRACTING, INC., etc., a Florida corporation, and Aetna Casualty & Surety Co., etc., Petitioners, v. FLAGLER COUNTY, Respondent.
    No. 84-1248.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    Christopher J. Weiss, of Maguire, Voo-rhis & Wells, P.A., Orlando, for petitioners.
    Peter B. Heebner, of Van Wert, Heeb-ner, Baggett, Bohner & Prechtl, Daytona Beach, for respondent.
   DAUKSCH, Judge.

This matter is before us on a petition for certiorari. It is the second time this lawsuit has reached this court before trial. The last time we found error and quashed an order denying arbitration requested by Graham. Graham Contracting, Inc. v. Flagler County, 444 So.2d 971 (Fla. 5th DCA 1983). Now Aetna, Graham’s surety, seeks review of an order denying a stay of the proceedings against it until the arbitration is completed. We grant the writ and order the proceedings stayed until arbitration is completed. Post Tensioned Engineering Corporation v. Fairways Plaza Associates, 429 So.2d 1212 (Fla. 3d DCA 1983); Von Engineering Company v. R.W. Roberts Construction Co., 457 So.2d 1080 (Fla. 5th DCA 1984).

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


author: CAMPBELL, Judge.

text:
    In re the ESTATE OF Gwyneth Lewis CORDINER, Deceased.
    No. 84-100.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.

      Gregory G. Jones and Deborah H. Ross of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant Jean Cordiner Dougherty.
    Lee D. Gunn, IV, and Charles P. Sehropp of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee Thomas P. Evans, as Administrator Ad Litem of the Estate of Gwyneth Lewis Cordiner, Deceased.
    Robert D.W. Landon, II, and Carolyn A. Pickard of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellee Nancy Cordiner Judge.
   CAMPBELL, Judge.

Appellant, Jean Cordiner Dougherty, seeks review of an amended order appointing an administrator ad litem. We affirm.

Appellant was one of four children of the decedent who were all, to some extent, beneficiaries of the deceased’s estate. Decedent Gwyneth Lewis Cordiner died December 22,1982. Appellant, her sister, Sal-lianne Cordiner Lione, and decedent’s attorney during her lifetime, Gordon D. McCut-cheon, Jr., were appointed co-personal representatives of the estate on January 14, 1983. Thereafter, appellant resigned as co-personal representative.

On May 6, 1983, the trial court entered an order continuing the appointment of the remaining two co-personal representatives. On August 3, 1983, Nancy Cordiner Judge, another daughter and heir of the decedent, filed a Petition for Appointment of Administrator Ad Litem. That petition alleged, among other things, that appellant had occupied a close and confidential relationship with the decedent and that appellant had caused to be wrongfully transferred, from decedent to appellant and members of her immediate family, substantial cash and real property. The transfers were alleged to exceed two million dollars. The petition further alleged that the decedent’s estate had substantial claims against appellant and members of her family that must be pursued to the extent of litigation, if necessary, to recover the cash and other properties. The petition also alleged that the co-personal representative McCutcheon had served as decedent’s attorney, prepared many of the deeds effecting the transfers and would likely be a necessary witness in any litigation. The co-personal representative Lione was pointed out by the petition as being a sister of appellant and, as such, would have a natural reluctance to litigate claims against her sister, the appellant. The petition asked the court to appoint an administrator ad litem to “be authorized and directed to investigate and pursue all proper claims of the estate arising in any way from the conduct of any one or more of Jean Cordiner Dougherty, her husband and/or children.”

On August 4,1983, the co-personal representatives Lione and McCutcheon also filed a Petition for Appointment of Administrator Ad Litem. In their petition, they alleged that for some three years prior to the death of the decedent, there were numerous financial transactions between the decedent and appellant. They alleged that their investigation of those transactions substantiated that many of the transactions had been in the nature of loans to appellant, which had not been repaid, and that there were disagreements between them and appellant as to what should be repaid.

Their petition further alleged that in addition to the loan transactions, there were, in 1982, numerous conveyances of land from decedent to appellant and her children. It was alleged the conveyances were for an inadequate consideration and at a time when decedent was without sufficient mental capacity to understand the nature of the conveyances. According to the petition, the transactions resulted from the undue influence of appellant. The petition alleged that those conveyances in 1982, should be rescinded and that lawsuits had been filed for that purpose.

The petitioner, Lione, alleged she was unable to represent the estate in regard to the transactions alleged because appellant was her sister and because petitioner was also co-personal representative of decedent’s estate and a beneficiary of the estate. The petitioner, McCutcheon, alleged he could not continue to represent the estate in regard to the transactions alleged because, as an attorney, he had handled some of the transactions when they occurred and would be a necessary witness in any action concerning them. Both petitioners requested the court appoint an administrator ad litem to proceed with the lawsuits and investigate the financial transactions referred to and “take such action as may be necessary in order to assert the Estate’s rights with respect thereto.”

On August 17, 1983, the court below entered an order appointing appellee, Thomas P. Evans, as administrator ad litem of decedent’s estate. That order appointed appellee Evans to represent the estate for the following purposes:

1. The investigation of the financial transactions between the decedent, GWYNETH LEWIS CORDINER, and JEAN CORDINER DOUGHERTY prior to the decedent’s death and to take such action as may be necessary in order to assert the Estate’s rights with respect to said transactions.
2. To proceed in the place of the Co-Personal Representatives with the lawsuits heretofore filed by the Estate against the following parties:
JEAN CORDINER DOUGHERTY WARD LEWIS DOUGHERTY JANET LEE DOUGHERTY JOSEPH WARDLE DOUGHERTY JESSE MORALES and SHARON MORALES
MICHAEL TRIMIS and DIANE DOUGHERTY TRIMIS

That order was not appealed.

On December 2, 1983, appellee Evans petitioned the court below for an amendment to the order appointing him administrator ad litem.

In his petition to amend, he re-alleged most of the matters earlier alleged in the original petitions of petitioners Lione, McCutcheon and Judge. He further alleged that he was unsure of the extent of his authority “to make and continue investigation which may lead to discovery of evidence relative and admissible into the six pending lawsuits.” He alleged it would be more efficient “for one party to pursue discovery and, if found necessary, litigation as to all of the transactions that GWYN-ETH LEWIS CORDINER made during the later years of her life.” A hearing was held on appellee’s petition at which he appeared with his attorney. Also appearing were attorneys for appellant, the co-personal representatives, Lione and McCutcheon, and Nancy Cordiner Judge.

As a result of that brief hearing, the Amended Order Appointing Administrator Ad Litem was entered. The essential part of that order provided that the appellee Evans was given authority to “represent the above-captioned estate for the purpose of investigating any and all transactions, events, circumstances, and conditions affecting or involving property, both real and personal, in which decedent, GWYNETH LEWIS CORDINER, had an interest and to amend existing pleadings and to take all such actions as may be necessary in order to assert, protect, and preserve the rights of the estate....”

Only the appellant, Jean Cordiner Dough-erty, has appealed from that order. We have some concern as to whether appellant has standing to maintain this appeal. Florida Rule of Probate and Guardianship Procedure 5.100, provides that all orders and judgments “determining rights of any party” may be appealed. While the supreme court in In Re Estate of Baker, 327 So.2d 205, 207 (Fla.1976), held that Rule 5.100 does not limit right to appeal only to a “party,” it did seem to hold that the person appealing had to have some interest. Florida Rule of Probate and Guardianship Procedure 5.040(a)(1), provides that when formal notice is required, a petition or other pleading shall be served “on any interested person.” Florida Rule of Probate and Guardianship Procedure 5.120, relating to appointment of an administrator ad litem provides, however, that the court may appoint an administrator ad litem without notice. Our main concern, however, about the standing of appellant, derives from the fact that from the allegations of the petitions below, her “interest,” if any, is contrary to the interest of the estate if those allegations are true. Regardless of our concern about appellant’s standing, however, we determine it more prudent to address the issues here on their merits.

Appellant states her issues as follows: WHETHER THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN ENTERING THE AMENDED ORDER?
A. WHETHER THE ORDER STRIPS THE PERSONAL REPRESENTATIVES OF THEIR ADMINISTRATIVE POWERS WITHOUT CAUSE?
B. WHETHER THE ADMINISTRATOR AD LITEM IS VESTED WITH AUTHORITY ALLOWABLE UNDER FLORIDA LAW?
C. WHETHER THE PROBATE COURT MAY APPOINT AN ADMINISTRATOR AD LITEM FOR MORE THAN ONE PROCEEDING?

Appellant basically premises her argument on assertions that the amended order appointing the administrator ad litem is too broad and effectively removes the co-personal representatives. While the final language of the amended order is somewhat broad, we consider that it must be read in conjunction with the allegations of the petitions for appointment and amendment. The duties of appellee appear to us to be limited to investigation and follow-up action to assert the estate’s interest in any properties which the decedent may have improperly or improvidently disposed of during her lifetime, whether because of mental deficiencies or undue influence. In addition, there is presented an issue as to whether some transfers were, in fact, loans which are still outstanding. There seems to us to be no question that the purposes of the orders here were to vest appellee with as much authority as necessary to safeguard the interests of the estate where those interests have been jeopardized by transfers and where the co-personal representatives have possible deterrents which might prohibit them from zealously pursuing those assets. Woolf v. Reed, 389 So.2d 1026 (Fla. 3d DCA 1980).

The co-personal representatives continue to be responsible for all other aspects of the estate’s business. Woolf at 1028. We cannot hold, as appellant would have us do, that an administrator ad litem must always be confined to the pursuit of a single matter of litigation. If proper investigation leads to 'the necessity of several causes of action, the orders of the trial court have properly authorized such actions. It would be illogical to appoint such an administrator to investigate multiple transfers, but not allow effective pursuit of matters disclosed. After all, Rule 5.120 provides for the appointment of an administrator ad litem when it is necessary that an estate be represented by reason of the adverse interest of the personal representatives or when “the necessity otherwise arises.” Finally, we observe that an administrator ad litem is always subject to the supervision of the appointing court. If the administrator ad litem should stray afield from the scope of his authority, that court is available to exercise the necessary restraints.

Affirmed.

BOARDMAN, A.C.J., and OTT, J., concur.


author: LEHAN, Judge.

text:
    Alejandro Ernesto LIMA, Appellant, v. STATE of Florida, Appellee.
    No. 84-296.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.
    James V. Caltagirone of James V. Calta-girone & Associates, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

We affirm the trial court’s denial of defendant’s motion to suppress cocaine found on the person of defendant after a search incident to his arrest. We disagree with defendant’s argument that the police lacked probable cause to arrest defendant who was present in a house where and when a drug transaction took place and who, after being detained, was identified by an accomplice as the drug supplier.

RYDER, C.J., and CAMPBELL, J., concur.


author: DANAHY, Judge.

text:
    Frederick RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 84-556.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Defendant, Frederick Russell, challenges concurrent five-year prison sentences imposed outside the recommended sentencing guidelines for eleven counts of uttering a forged instrument contrary to section 831.-02, Florida Statutes (1983), four, counts of grand theft contrary to section 812.014, Florida Statutes (1983), and three counts of burglary contrary to section 810.02(3), Florida Statutes (1983). Defendant’s sentence exceeds the recommended guideline range by two steps. We affirm.

At the time of defendant’s sentencing on February 17, 1984, the guideline scoresheet stopped at “4+” for additional offenses and for prior record. Fla.R.Crim.P. 3.988. Therefore, although defendant was being sentenced for numerous instant offenses and had numerous prior convictions, his guideline points were low and corresponded to a recommended sentence of between twelve and thirty months. The trial court, disturbed with this result, exercised its discretion to depart from the recommended sentence and expressly wrote on the sentencing scoresheet as reasons for departure, “Defendant had 15 3rd° felonies that were additional offenses at conviction. Also defendant had 14 prior 3° felonies. The above amounts exceed the number of offenses taken into consideration in calculating the guidelines score. Also considered was the variety of offenses.”

Of course, defendant’s additional convictions and prior record cannot be considered as factors in calculating the applicable sentencing range. But that does not mean that these factors cannot be considered by the court as reasons for departing from the guidelines. Townsend v. State, 458 So.2d 856 (Fla. 2d DCA 1984), and eases cited therein. As we stated in Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984):

The only limitation on reasons for deviating from the guidelines is found in subsection (d)(ll) which reads: Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.
There is nothing in rule 3.701 to suggest that matters excluded for purposes of guideline computation cannot be considered as reasons for departure from the guidelines.

Id. at 1029.

Considering the merits of the case before us, we believe the trial judge stated clear and convincing reasons for sentencing defendant above the recommended range. We find no abuse of the judge’s discretion has been demonstrated. See Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984).

Defendant further contends he was not properly credited with time served while awaiting the imposition of the sentences. We do not find merit in his argument because he has provided us with no record to substantiate such contention. We also note that the sentences imposed were all concurrent. However, in Case No. CRC8000728CFANO-C the judgment and sentence reads “shall run concurrent with ... CRC8000728CFANO-C. ” This appears to be a clerical error.

Accordingly, we remand this case for correction of the clerical error in defendant’s written sentence as to Case No. CRC8000728CFANO-C but affirm the court’s sentencing decisions in all other respects.

OTT, A.C.J., and SCHOONOVER, J., concur.

      . We note in passing that rule 3.988 has been amended and provides a changed form for computation which allows additional points to be assessed for every conviction "above 4.” See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984). However, the amended rule cannot now be retroactively applied to defendant because it would be an ex post facto application of the rule as to him. See Vileta v. State, 454 So.2d 792 (Fla. 2d DCA 1984); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984).


text:
    Robert L. DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 84-682.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Attorney General, Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, Robert L. Dunbar, appeals his conviction and sentence for sexual battery and robbery in violation of sections 794.-011(3) and 812.13(2)(a), Florida Statutes (1983). We affirm.

Appellant raises one point on appeal, asserting that the trial court erred in allowing the prosecutor to comment during closing argument on appellant’s failure to call certain witnesses. He contends that these comments infringed on his constitutional right to remain silent, as well as his right to be presumed innocent until proven guilty. We find no merit in appellant’s argument.

Reference by a prosecuting attorney to a defendant’s failure to call certain witnesses may be prejudicial if it refers to a defendant’s exercise of his right to remain silent or if the comments indicate that the defendant has the burden to come forward with evidence and prove his innocence. Romero v. State, 435 So.2d 318 (Fla. 4th DCA 1983), cert. denied, 447 So.2d 888 (Fla.1984). However, it is not improper for a prosecuting attorney to refer to a defendant’s failure to call certain witnesses when defense counsel indicates in opening statements that those witnesses would be called to testify. Romero; Dixon v. State, 206 So.2d 55 (Fla. 4th DCA 1968).

In this case, the issue arose because of appellant’s counsel’s comments in opening statements that certain witnesses would testify during trial. Subsequently, these witnesses were not called by either party, and appellant’s counsel commented on the state’s failure to call them. The prosecutor then responded that appellant could have called the witnesses as well. In Dixon v. State, the fourth district held that where defense counsel commented on the state’s failure to call a witness, a response by the prosecuting attorney that the defense had an equal ability to present the witness, was not prejudicial to defendant’s right to a fair trial. Therefore, we affirm on the authority of Romero and Dixon.

Affirmed.

RYDER, C.J., and CAMPBELL and LE-HAN, JJ., concur.


text:
    AUTO CLUB INSURANCE ASSOCIATION, a foreign corporation, Appellant, v. Julius MEYER, Appellee.
    No. 84-1714.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.

      William Rugter of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Clear-water, for appellant.
    C. Samuel Newman of L.D. Beltz & Associates, St. Petersburg, for appellee.
   LEHAN, Judge.

We reverse the trial court’s denial of defendant insurance company’s motion to dismiss for lack of personal jurisdiction under the Florida long-arm statute, section 48.193 Florida Statutes (1983). We agree with Kight v. New Jersey Manufacturers Insurance Co., 441 So.2d 189, 190 (Fla. 5th DCA 1983) that

A foreign insurer’s contract entered into in a foreign state insuring a foreign resident against liability resulting from an automobile accident occurring anywhere in the United States does not constitute such a minimum contact with all such states as is required by the federal constitutional due process requirement in order to confer in personam jurisdiction over the foreign insurer in any state where an accident may occur and liability arise.

As did the Fifth District Court of Appeal in Right,'we express direct conflict with National Grange Mutual Insurance Co. v. Fondren, 433 So.2d 1276 (Fla. 4th DCA 1983).

The complaint against the insurance company should have been dismissed because it failed to allege that the requirements of section 48.193(l)(d) were met, to wit, that the insurance company had insured a driver or his vehicle located within Florida at the time the insurance contract was entered into. Nettles v. White, 439 So.2d 1048 (Fla. 2d DCA 1983).

Reversed and remanded for proceedings consistent herewith.

RYDER, C.J., and CAMPBELL, J., concur.


text:
    Terry Lynn BECK, Appellant, v. STATE of Florida, Appellee.
    No. AX-220.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Duncan v. State, 450 So.2d 242 (Fla. 1st DCA 1984); McGrath v. State, 454 So.2d 694 (Fla. 1st DCA August 6, 1984).

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


text:
    Dave E. MITCHELL, et al., Appellants, v. James Allen NICHOLS, et al., Appellees.
    No. AY-411.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1984.
    Richard Smoak of Sale, Brown & Smoak, Panama City, for appellants.
    John D. O’Brien, Panama City, for appel-lees.
   PER CURIAM.

AFFIRMED. See Tyson v. Edwards, 433 So.2d 549 (Fla. 5th DCA), review denied, 441 So.2d 633 (Fla.1983).

JOANOS, WIGGINTON and BAR-FIELD, JJ., concur.


author: PER CURIAM. BASKIN, Judge

text:
    Joe O. YOUNG, as Guardian over the property of Joe O. Young, Jr., Appellant, v. GREINER ENGINEERING SCIENCES, INC., a foreign corporation; and Easco Engineering Corp., a foreign corporation, Appellees.
    No. 83-1257.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Donald J. Post, Green & Cooper and Mark Cooper and Sharon L. Wolfe, Miami, for appellant.
    Carey, Dwyer, Cole, Eckhart, Mason & Spring and Harriet Lewis, Miami, for appel-lees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Smith v. Whidden, 87 So.2d 42 (Fla.1956); Bessett v. Hackett, 66 So.2d 694 (Fla.1953); Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Fruehauf Corp. v. Aetna Insurance Co., 336 So.2d 457 (Fla. 1st DCA 1976); Menard v. O’Malley, 327 So.2d 905 (Fla. 3d DCA 1976).

BASKIN, Judge

(dissenting).

I disagree with the majority’s affirmance of the trial court’s refusal to instruct the jury on appellant’s theory of his case.

Joe 0. Young, Jr. was injured on Rickenbacker Causeway as he tried to drive past a car on the drawbridge. His car crossed the concrete median strip and struck an oncoming car. In appellant’s lawsuit to recover damages, he asserted that Greiner Engineering Services, Inc. [Greiner], consulting engineer to Dade County, should have been more forceful in recommending its proposals to remedy the dangerous conditions. Appellant alleged that Greiner remained liable for its own negligence despite negligence on the part of the county and requested jury instructions concerning his theories for establishing Greiner’s liability. The trial court refused to grant appellant’s requests, and a judgment favorable to Greiner resulted.

In Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981) this court stated:

When evidence exists to support a litigant’s theory of the ease, he is entitled to a jury instruction to that effect, even though evidence of the opposing party controverts the theory.

Morganstine, 407 So.2d at 943. See also Corbett v. Dade County Board of Public Instruction, 372 So.2d 971 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1192 (Fla.1980); Menard v. O’Malley, 327 So.2d 905 (Fla. 3d DCA 1976). The requested jury instructions were necessary for an appropriate resolution of the issues and fully met the standards for instructions as to a litigant’s theory of his case. Davis v. Charter Mortgage Co., 385 So.2d 1173 (Fla. 4th DCA 1980).

For these reasons, I would reverse and remand for a new trial.


text:
    Alice Marie POITIER, Appellant, v. Bernard Carlton POITIER, Appellee.
    Nos. 83-1394, 83-2622.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Daniels & Hicks and Patrice A. Talisman, Game & Gaine, Miami, for appellant.
    Simon, Schindler & Hurst and Thomas M. Pflaum, Miami, for appellee.
    Before HUBBART and NESBITT, JJ., and DELL, JOHN W., Associate Judge.
   PER CURIAM.

No error or abuse of discretion has been demonstrated with respect to the trial court’s rulings concerning lump sum alimony, special equity or costs. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980), review dismissed, 399 So.2d 1142 (Fla.1981). The court did err, however, by ordering the partition and sale of real property held by the parties as tenants by the entireties in the absence of an appropriate request and compliance with the requirements of Chapter 64, Florida Statutes (1983). Sanders v. Sanders, 351 So.2d 1126 (Fla. 2d DCA 1977). See Muhlrad v. Muhlrad, 375 So.2d 24 (Fla. 3d DCA 1979); § 689.15, Fla.Stat. (1983). Accordingly, the portion of the judgment ordering the partition and sale of the real property held by the entireties is reversed; in all other respects, the judgment is affirmed.


text:
    Marvin L. POPKIN, Appellant, v. HEUVEL, B.V., a Netherlands corporation, Appellee.
    No. 84-242.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Steven S. Saber, Hollywood, for appellant.
    Richard J. Burton, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Having carefully considered the record in this action to foreclose a mortgage, the briefs and arguments of counsel, we conclude that no reversible error has been demonstrated.

Affirmed.


text:
    Harold MARTIN, Appellant, v. R & L LOUNGE, a corporation, d/b/a Coral Gate Inn and Kent Insurance Company, Appellee.
    No. 84-452.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Charles J. Pasek, Coral Gables, for appellant.
    No appearance for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See Banat v. Armando, 430 So.2d 503 (Fla. 3d DCA 1983), rev. denied, 446 So.2d 99 (Fla.1984).


text:
    Miriam Rebeca MOREJON, individually and as Personal Representative of the Estate of Carlos Morejon, and as Guardian for Marilyn Morejon, a minor child, Appellant, v. JOHNSTON FINANCIAL CORPORATION, a Georgia corporation authorized to do business in Florida, a/k/a Johnstown Properties S.E., and Allstate Insurance Company, Appellees.
    No. 84-882.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    Diaz & Batista and Reemberto Diaz, Hialeah, for appellant.
    Anthony Reinert, Coral Gables, and Debra Kornbluh, Miami, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The order vacating the default entered against the appellees and the subsequent summary judgment entered in their favor are affirmed. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Duckworth v. Duckworth, 414 So.2d 562 (Fla. 3d DCA 1982); B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345 (Fla. 3d DCA 1981); Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979).


text:
    GULFSTAR, INC., Appellant, v. Carl E. STRIDFELDT, Jr., Appellee.
    No. 84-1488.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    James E. Deakyne, Jr., St. Petersburg, for appellant.
    Demos & Carter and Richard Carter, Miami, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. §§ 47.041, 47.051, Fla.Stat. (1983).


text:
    PALM BEACH COUNTY, Florida, Appellant, v. LASSITER CONSTRUCTION COMPANY, INC., Appellee.
    No. 83-894.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    David M. Wolpin, Asst. County Atty., West Palm Beach, for appellant.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellee.
   PER CURIAM.

We affirm all but two provisions of the final judgment. The parties agree that the claim for costs to purchase a builder’s risk insurance policy was settled prior to trial and, therefore, the sum of $1,271.00 should not have been included in the amount awarded to the plaintiff. Additionally, we find that the trial court erroneously determined an entitlement to attorney’s fees pursuant to section 57.105, Florida Statutes (1983). The record demonstrates that the proceeding below cannot be characterized as one in which there was “a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action was frivolous.” Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 505 (Fla.1982) (quoting Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980)). Accordingly, we instruct the trial court to enter an amended final judgment consistent with this opinion.

Affirmed in part; reversed in part.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    Katie Mae GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-1599.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions and sentences of first degree murder and burglary with assault. We reverse appellant’s conviction on the robbery charge and remand this cause to the trial court with directions to vacate the conviction and sentence imposed thereon. See State v. Pinder, 375 So.2d 836 (Fla.1979).

REVERSED IN PART; AFFIRMED IN PART and REMANDED.

DOWNEY, DELL and BARKETT, JJ., concur.


text:
    Wallace JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1858.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s conviction of attempted burglary. We affirm appellant’s convictions of first degree murder and robbery. However, the trial judge imposed a sentence in excess of that allowed by Sections 775.082(3)(c) and 812.13(2)(c), Florida Statutes (1983). See State v. Pinder, 375 So.2d 836 (Fla.1979). Therefore, we remand this cause to the trial court with directions to correct appellant’s sentence on the charge of robbery to 15 years and to vacate the cónviction and sentence on the charge of attempted burglary.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

j DOWNEY, DELL and BARKETT, JJ., concur.


text:
    Yoniz Brooks MOLINA, Appellant, v. STATE of Florida, Appellee.
    No. 83-1960.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We believe the trial court’s actions were within the bounds of discretion granted under Richardson v. State, 246 So.2d 771 (Fla.1971). Accordingly, we affirm appellant’s convictions.

ANSTEAD, C.J., and LETTS and HURLEY, JJ., concur.


text:
    James LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 83-2563.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Bruce David Green of Levine & Green, P.A., and Mark S. Solomon, Fort Lauder-dale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We are of the view that there was enough direct testimony, coupled with hearsay testimony, to support the trial judge’s decision to revoke the defendant’s probation. Wheeler v. State, 344 So.2d 630 (Fla. 2nd DCA 1977); Rathburn v. State, 353 So.2d 902 (Fla. 4th DCA 1977).

As a consequence, we do not find it necessary to address the provisions of Section 827.07(8), Florida Statutes (1983).

AFFIRMED.

ANSTEAD, C.J., and LETTS and HURLEY, JJ., concur.


text:
    Robert GIBBS, Appellant, v. The BRIGHTON CONDOMINIUM ASSOCIATION, INC., a Florida corporation, and Hobart Thurber, Appellees.
    No. 83-2686.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Howard I. Weiss of Sachs & Weiss, P.A., Boca Raton, for appellant.
    Anthony E. Pucillo of Pucillo & Schilling, West Palm Beach, for appellees.
   PER CURIAM.

Robert Gibbs appeals from an adverse final summary judgment in an action for tortious interference with a contractual relationship. After carefully reviewing the record we find that genuine issues of material fact exist which preclude the entry of a summary judgment in this case. See Barnett & Klein Corp. v. The President of Palm Beach — A Condominium, Inc., 426 So.2d 1074 (Fla. 4th DCA 1983); Hidden Harbour v. Basso, 393 So.2d 637 (Fla. 4th DCA 1981); Roll v. Talcott, 191 So.2d 40 (Fla.1966).

Accordingly, we reverse the final summary judgment entered in favor of the appellees and remand this cause for further proceedings.

REVERSED and REMANDED.

ANSTEAD, C.J., and DELL and WALDEN, JJ., concur.


text:
    STATE of Florida, Petitioner, v. William Eugene BURRS, Respondent.
    No. 84-854.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Jim Smith, Atty. Gen., Tallahassee and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

The state appeals a non-final order which suppresses in-court identification of the accused. We treat the appeal as a petition for certiorari, and deny it. See State v. Walker, 429 So.2d 1301 (Fla. 4th DCA 1983).

ANSTEAD, C.J., and GLICKSTEIN and DELL, JJ., concur.


text:
    B.F. GOODRICH COMPANY, Appellant, v. D & A TIRES, INC., a Florida corporation, d/b/a a partnership under the name of Ray’s Tires Company and Herbert Weiner, Appellees.
    No. 84-984.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Michael Fertig and Stuart J. McGregor of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, P.A., Miami, for appellant.
    Neil G. Frank of Frank & Flaster, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed on the authority of Hepworth v. Orlando Bank & Trust, 323 So.2d 41 (Fla. 4th DCA 1975); Bagel Break Bakery, Inc. v. Bagelman’s, Inc., 431 So.2d 676 (Fla. 4th DCA 1983); Motorola Communications and Electronics, Inc. v. National Patient Aids, Inc., 427 So.2d 1042 (Fla. 4th DCA 1983); Dependable Insurance Co. v. Landers, 421 So.2d 175 (Fla. 5th DCA 1982); Barnett v. Barnett Bank of Jack sonville, N.A., 345 So.2d 804 (Fla. 1st DCA 1977); Barnett Bank of Tallahassee v. Campbell, 402 So.2d 12 (Fla. 1st DCA 1981), petition for review denied, 412 So.2d 463 (Fla.1982).

DOWNEY, DELL and BARKETT, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    CITY OF WINTER HAVEN, a Florida municipal corporation, Appellant, v. RIDGE AIR, INC., a Florida corporation, Appellee.
    No. 83-2282.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Neal E. Young of Wheeler & Traviss, P.A., Winter Haven, for appellant.
    Joe L. Sharit, Jr. of Straughn, Sharit, Bunn & Chilton, P.A., Winter Haven, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant, the City of Winter Haven, challenges the trial court’s order construing the City’s lease of a portion of the Winter Haven Municipal Airport to appel-lee, Ridge Air, Inc., for the corporation’s use as a fixed base operation. We agree that the trial court erred in its construction and interpretation of the lease and, therefore, reverse.

In 1976, the City executed a five-year lease with Ridge Air which contained an option to renew for an additional five-year term. The lease specifically stated, however, that its terms were subject to renegó-tiation should the lessee elect to exercise the option and that the lessee would have to vacate the premises at the end of the original five-year period unless negotiations resulted in mutually satisfactory terms governing the renewal.

The lease incorporated, as part of the agreement between the City and Ridge Air, city resolution 68-27, which set forth the then-existing standards for fixed base operators and airport tenants (FBO standards). Although paragraph fourteen of those FBO standards made reference to periodic rent adjustments based upon the cost of living index, paragraph eighteen stated that the terms of the actual lease agreement would control over any conflicting standard.

Approximately one and one-half years before the expiration of the original term of Ridge Air’s lease, the City adopted a new airport lease policy which substantially increased the ground rental to be exacted under future airport leases. When Ridge Air later notified the City of its desire to renew its lease, the City responded that the new prevailing municipal policy would govern negotiation of the terms of such renewal.

Throughout the ensuing negotiations between Ridge Air and City officials, the lessee maintained that it could not afford to pay rental under the new city lease policy; yet, Ridge Air made no counterpro-posals of its own. When these negotiations failed to result in a new lease agreement, the City terminated Ridge Air’s tenancy of the airport property.

The lessee brought the instant action against the City, seeking a declaratory judgment of the parties’ rights under the original lease. The trial court’s judgment, which is the subject of this appeal, contained the following findings of fact, as pertinent to the issues raised:

1. The City did not negotiate seriously or in good faith;

2. The proposed lease submitted by the City to Ridge Air during the course of negotiations was not consistent with the FBO standards incorporated into the original lease; and

3. The exacting demands of the proposed lease had “a chilling effect on the negotiations between the parties, which resulted in [Ridge Air’s] not submitting a counterproposal.”

The trial court then concluded as a matter of law that paragraph fourteen of the FBO standards concerning future rent adjustments “governed the negotiations between the parties, or at least set a guideline for negotiations until clearly repealed,” and that “good faith required[d] the City to make offers within the reasonable expectations of the parties.” We find error in this conclusion of law.

Although the trial court undoubtedly attempted to reach a result which it deemed fair and equitable both to Ridge Air and to the City, it was not free to rewrite the parties’ agreement or to substitute its judgment for that of the lessor and lessee. See Saha v. Aetna Casualty & Surety Co., 427 So.2d 316, 317 (Fla. 5th DCA 1983); Steiner v. Physicians Protective Trust Fund, 388 So.2d 1064, 1066 (Fla. 3d DCA 1980), petition for review denied, 397 So.2d 779 (Fla.1981); Lane, Gelety, Woolsey & Centrone, P.A., Inc. v. Woolsey, 377 So.2d 743, 745 (Fla. 4th DCA 1979), cert. denied, 388 So.2d 1120 (Fla.1980). As this court recognized in Bay Management, Inc. v. Beau Monde, Inc., 366 So.2d 788, 791 (Fla. 2d DCA 1978), “When a contract is clear and unambiguous, ... the court cannot give it any meaning beyond that expressed.” Accord Saha, 427 So.2d at 317; Ranger Insurance Co. v. Harrell, 286 So.2d 261, 262 (Fla. 2d DCA 1973).

Paragraph three of the City’s lease to Ridge Air provided, in part, as follows: “Lessee may apply for an additional term of five (5) years ... and any such renewal shall be subject to a renegotiation of the terms hereof.” This plain, unambiguous language constitutes the best evidence of the parties’ intentions regarding renewal, see Department of Motor Vehicles v. Mercedes-Benz of North America, Inc., 408 So.2d 627, 629 (Fla. 2d DCA 1981); Schweitzer v. Seaman, 383 So.2d 1175, 1178 (Fla. 4th DCA 1980); Boat Town U.S.A., Inc. v. Mercury Marine Division of Brunswick Corp., 364 So.2d 15, 17 (Fla. 4th DCA 1978), and the trial court was required to follow it. Ridge Air possessed only the right to negotiate for renewal of its lease. The terms of renewal remained totally open to negotiation, without limitation either by the lease paragraph granting the option or by any other portion of the agreement.

Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.

DANAHY and LEHAN, JJ., concur.

      . Paragraph fourteen states:
      Beginning with the effective date of this Resolution, leases to Fixed Base Operators and Airport Tenants shall be limited to a maximum of [blank] years. In addition, leases shall, at the discretion of the City, be subject to review and re-evaluation at the end of each five (5) year period thereof, in relation to the national cost of living. In this regard, when at the end of each of said five (5) year periods the Department of Commerce Consumer Price Index is determined by the City to be five (5) or more per cent higher than at the date the lease became effective, the rental terms thereof may be increased to such percentage of increase or of said cost of living index. If at the end of such five (5) year periods the said cost of living index has changed less than five (5) per cent, then the City shall take no action to review or reevaluate the lease.
      We agree with the City’s assertion that this clause provides for discretionary rent escalation under a predetermined formula at the end of each five-year period of an airport lease which extends beyond a five-year term. Consequently, the clause appears to have no application to the lease presently before us.

      . Paragraph eighteen provides: "In the event of any conflict between the terms of these minimum standards and the provision of any lease of a portion of the Airport property, the terms of the lease shall be controlling."


text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, and the Pinellas County Planning Council, Appellants, v. CITY OF GULFPORT and United States Steel Corporation, Appellees.
    No. 83-2476.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.

      W. Gray Dunlap, County Atty. and Steven M. Seibert, Asst. County Atty., Clear-water, for appellants.
    Gary A. Carnal of Law Offices of Alan R. Williams, St. Petersburg, for amicus curiae, Pasadena Golf Club Estates Civic Group, Inc.
    Jerry D. Bell, St. Petersburg, for appel-lee City of Gulfport.
    Adrian S. Bacon of Bacon & Bacon, P.A., St. Petersburg, and Dennis P. Thompson of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, P.A., Clearwater, for appellee United States Steel Corp.
   CAMPBELL, Judge.

Appellants, Pinellas County and the Pi-nellas County Planning Council (PPC), seek review of the order dismissing their second amended complaint.

The primary issue on appeal is whether appellants alleged sufficient facts to support their claim that a county-wide development plan was binding on appellee, the City of Gulfport, pursuant to the Local Government Comprehensive Planning Act, sections 163.3161-163.3211, Florida Statutes (1981) (hereinafter LGCPA), and chapter 73-594 as amended by chapter 74-584, Laws of Florida (hereinafter chapter 73-594).

This case involves a development known as the Pasadena Yacht and County Club (PYCC), built by the second appellee, United States Steel Corporation. When PYCC was originally proposed, the property to be developed was unincorporated. The county plan allowed for a density of 977 units on the property. The master plan for PYCC called for a density of 2400 units. The City of Gulfport (Gulfport) annexed the property in December of 1982. The property was then rezoned by Gulfport. 8.80 acres were designated “CR-1” and 327.99 acres were designated as a Planned Unit Development (“P.U.D.”), pursuant to City of Gulfport ordinances 82-9 and 82-10. PYCC’s 2400 unit development was also incorporated into ordinance 82-10.

Appellants filed suit for declaratory and injunctive relief. In Count I of their second amended complaint, Pinellas County alleged that Gulfport is “precluded from enacting land development regulations or taking action in regard to development orders which are not consistent with the lawfully and properly adopted comprehensive plan by Section 163.3194, Florida Statutes.” Pinellas County has alleged that under section 171.062, Florida Statutes (1981), the county had the right to approve zoning changes for two years after annexation .of the property by the municipality.

In Count II, the PPC alleged that the development activities of appellees required express approval from the PPC because the property at issue was part of the countywide land use plan under chapter 73-594, Laws of Florida.

The trial court dismissed the second amended complaint on the basis that “under the law and ordinances which form the basis for Plaintiffs’ [appellants] complaint, there is no controversy requiring resolution by the Court.”

To determine whether the allegations are sufficient to support appellants’ complaint, we must examine chapters 163 and 171, Florida Statutes, and chapter 73-594, Laws of Florida. In particular, we must determine whether appellants have sufficiently alleged the existence of a county plan which could bind Gulfport.

The LGCPA (sections 163.3161-163.3211) provides for adoption of a comprehensive plan by a county, by a municipality, or by both entities acting together. § 163.3171, Fla.Stat. (1981). Unless the municipalities and county combine so as to jointly exercise their powers under the LGCPA, the county controls only the unincorporated areas and the municipality controls only the land incorporated into the municipality. See § 163.3171(1)(2) and (3).

Thus, it appears that under the LGCPA, an allegation that Gulfport and Pinellas County acted together to adopt the county plan is necessary to support a claim that the Pinellas County land use plan controlled the City of Gulfport.

In paragraph sixteen of the second amended complaint, Pinellas County alleged that “prior to annexation by the City, and after extensive public hearing, the Pi-nellas County Board of County Commissioners lawfully and properly adopted planning and zoning and approved related site-plan requirements establishing maximum density at a unit count of 977 units on the property referred to in the above-referenced ordinances 82-9 and 82-10.”

We find that because there is no allegation of joint action between the municipality and the county, the claim for relief under LGCPA cannot be supported.

The PPC bases its claim on chapter 73-594. Under chapter 73-594, the PPC is authorized to propose a county-wide comprehensive plan. The PPC is given extensive powers under section five of chapter 73-594, but. the PPC does not have independent authority to establish zoning codes which would be binding within the municipalities in Pinellas County. The county plan proposed by the PPC may become binding upon a municipality when it is approved and adopted by all the units of local government pursuant to section nine of chapter 73-594. Here, the PPC merely alleges in paragraphs sixteen and thirty-four, that the county adopted a comprehensive plan and an overall development policy. There is no allegation that the units of local government have approved and adopted this plan. Therefore, the PPC’s allegations do not indicate that the planning documents could have any effect in the City of Gulfport. The claims for relief against appellees’ development plans based on an alleged violation of the PPC’s plan cannot stand.

Appellants maintain that under section 171.062, Florida Statutes, a municipality is precluded from increasing or decreasing the density allowed by a county for two years after annexation. Appellants contend that Gulfport violated this section by rezoning the property where PYCC is to be built. We note that ordinance 82-10 zoned 327.99 acres as a “P.U.D.” City of Gulf-port ordinance 82-3 controls “P.U.D.s” and provides, as does section 171.062, that absent county approval, the city shall not increase or decrease the density of annexed property for two years after annexation. We believe, therefore, that ordinances 82-3 and 82-10, read together, comply with the provisions of section 171.062.

For these reasons, we find that the second amended complaint does not allege sufficient facts to survive the motion to dismiss. Accordingly, we affirm the decision of the trial court dismissing the second amended complaint.

DANAHY, A.C.J., and LEHAN, J., concur.


text:
    Thressia IVEY, Appellant, v. HULL & COMPANY, INC., a Florida corporation, Appellee.
    No. 84-377.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 1984.
    Bonnie L. Earley Freeman of Chambers & Salzman, P.A., St. Petersburg, for appel-' lant.
    Maureen Emmet-Miller of Riden, Watson & Goldstein, P.A., St. Petersburg, for ap-pellee.
   LEHAN, Judge.

Notwithstanding the well presented argument on behalf of plaintiff we affirm the trial court’s judgment for defendant notwithstanding the verdict. Defendant had furnished to the insurance broker who dealt with plaintiff an insurance application blank containing the name of defendant as “Insurance & Reinsurance Intermediaries.” Under the facts of this case the broker did not thereby become an agent of defendant or have apparent authority from defendant to issue on behalf of defendant an automobile insurance policy to plaintiff. See AMI Insurance Agency v. Elie, 394 So.2d 1061, 1062 (Fla. 3d DCA 1981).

Affirmed.

RYDER, C.J., and DANAHY, J., concur.