text:
    BROWARD MARINE, INC., Appellant, v. Edward P. BERNIER, Appellee.
    No. 83-2600.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1984.
    Rehearing Denied Aug. 24, 1984.
    Thomas D. Lardin of Weaver, Weaver & Lardin, P.A., Fort Lauderdale, for appellant.
    Captain Edward R. Fink, Fort Lauder-dale, for appellee.
   PER CURIAM.

Broward Marine, Inc. appeals from a partial summary judgment finding it liable for conversion of appellee’s vessel. We reverse.

In May, 1967, appellee Bernier brought his yacht, “the Dagon” (a 14 ton 1933 “classic” gas screw documented vessel), to Broward Marine for storage. Subsequently in 1974, the yacht was hauled from the water and placed in dry dock storage. It remained in this state for approximately six years during which time Mr. Bernier failed to pay any storage bills. Finally, in April, 1980, Broward Marine resorted to self-help. Claiming a valid possessory lien under sections 713.58(1) and 713.60, Florida Statutes (1983), Broward Marine sold “the Dagon” pursuant to section 85.031(2), Florida Statutes (1983). Thereafter, Mr. Bernier instituted suit, alleging that the sale constituted a conversion. He asserted that Broward Marine erred by not proceeding under federal admiralty law. The trial court agreed, holding that 46 U.S.C.A. § 975 (West 1975) preempts the operation of section 85.031(2). Consequently, the court granted partial summary judgment finding that Broward Marine is liable in damages to Mr. Bernier.

On summary judgment, “the movant must show conclusively the absence of any genuine issue of material fact.” Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30 (Fla.1977). “[T]he movant must prove a negative — the nonexistence of a genuine issue of material fact.” Ibid. “[I]f the evidence raises any doubt on an issue of material fact, or is such as will permit different reasonable inferences bearing on the existence of such an issue, summary judgment is not proper.” First Mortgage Investors v. Boulevard National Bank of Miami, 327 So.2d 830, 832 (Fla. 3d DCA 1976). In the case at bar, the extended period of dry storage coupled with other evidence about the dismantling of the ship’s engine raised a reasonable inference that “the Dagon” had become a “dead” vessel, i.e., unnavigable, removed from navigation or commerce and, thus, outside the ambit of 46 U.S.C.A. § 975. See generally, Murray v. Schwartz, 175 F.2d 72 (2d Cir. 1949); Frank B. Hall & Co. v. S. S. Seafreeze Atlantic, 423 F.Supp. 1205 (S.D.N.Y. 1976); Buck Kreihs Co. v. United States, 427 F.2d 770 (Ct.Cl.1970); 7A J. Moore and A. Pelaez, Moore’s Federal Practice ¶ .230[1] (2d ed. 1983). Since the movant, Mr. Bernier, failed to negate this inference, he cannot prevail on a motion for partial summary judgment.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

HURLEY, DELL and WALDEN, JJ., concur.

      . Liens for labor or services on personal property.—
      (1) In favor of persons performing labor or services for any other person, upon the personal property of the latter upon which the labor or services is performed, or which is used in the business, occupation, or employment in which the labor or services is performed.

      . Liens for labor on or for vessels.— In favor of any person performing for himself or others, any labor, or furnishing any materials or supplies for use in the construction of any vessel or watercraft; and in favor of any person performing for himself or others, any labor or service of any kind, on, to or for the use or benefit of a vessel or watercraft, including masters, mates and members of the crew and persons loading or unloading the vessel or putting in or taking out ballast; upon such vessel or watercraft, whether partially or completely constructed and whether launched or on land, her tackle, apparel and furniture.

      . Remedies against personal property only; all lienors.—
      (2) BY SALE WITHOUT JUDICIAL PROCEEDINGS. — When any person entrusts to any mechanic or laborer, materials with which to construct, alter or repair any article of value, or any article of value to be altered or repaired, and if the article is completed and not taken away, and the reasonable charges not paid, such mechanic or laborer may sell it after 3 months from the time such charges become due at public auction for cash but before the sale the mechanic or laborer shall give public notice of the time and place thereof, by notices posted for 10 days in 3 public places in the county, one of which shall be at the courthouse, and another in some conspicuous part of his shop or place of business. The proceeds of the sale, after payment of charges for construction or repair with the costs of the sale, shall be deposited with the clerk of the circuit court for the county, if the owner is absent, where they shall remain subject to the order of the person legally entitled thereto. The clerk shall be entitled to receive 5 percent on the proceeds for the care and disbursement thereof. Any person claiming a lien under s. 713.65, of part II of chapter 713, may enforce it by sale without judicial proceedings in the manner set forth herein after 1 month after the time the charges for which a lien is claimed become due.

      . This chapter shall supersede the provisions of all state statutes conferring liens on vessels, insofar as such statutes purport to create rights of action to be enforced by suits in rem in admiralty against vessels for repairs, supplies, towage, use of dry dock or marine railway, and other necessaries.


source: Caselaw Access Project

author: RYDER, Chief Judge.

license: Public Domain

text:
    M.J.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-2314.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1984.
    Jerry Hill, Public Defender, Bartow and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

In August of 1983, a petition for delinquency was filed charging that on July 12, 1983, M.J.S. committed trespass to a conveyance in violation of section 810.08, Florida Statutes (1983). M.J.S. filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), arguing that the construction backhoe upon which he was sitting on July 12 was not a conveyance under the statute. The state filed a traverse stating that M.J.S. was seen on the equipment, in the operator’s seat, working and moving the controls/levers, and that the equipment was a conveyance. The trial court denied the motion to dismiss. Following the denial of the motion, M.J.S. changed his plea of not guilty to that of nolo contendere, specifically reserving his right to appeal the denial of the motion to dismiss. M.J.S. was adjudicated delinquent. We reverse.

On appeal, M.J.S. argued that the trial court erred in denying his motion to dismiss because the statutory definition of “conveyance” does not include heavy construction equipment such as a backhoe. “Conveyance” is defined in section 810.-011(3), Florida Statutes (1983), as “any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car....” “Motor vehicle” is defined in section 316.003(21), Florida Statutes (1983), as “any vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, but not including any bicycle or moped as defined in subsection (2).” In subsection 316.003(75), Florida Statutes (1983), “vehicle” is defined as [e]very device, in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” Similar definitions of motor vehicles and vehicles are found in sections 320.01, 322.01, and 520.02(7), Florida Statutes (1983). Chapter 316, Florida Statutes (1983), also contains a definition of special mobile equipment in section 316.-003(49):

SPECIAL MOBILE EQUIPMENT. — Any vehicle not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway, including, but not limited to, ditchdigging apparatus, well-boring apparatus, and road construction and maintenance machinery, such as asphalt spreaders, bituminous mixers, bucket loaders, tractors other than truck tractors, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth-moving carryalls and-scrapers, power shovels and drag-lines, and self-propelled cranes and earth-moving equipment. The term does not include house trailers, dump trucks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached. (Emphasis added).

Obviously, by enacting section 316.003(49), the legislature does not consider vehicles for construction use to be “motor vehicles” as they have assigned such vehicles to a “special” category.

A backhoe, generally, is a tractor which is used for digging pipelines, ditches, holes, swimming pools, and so forth. Such equipment is not run on the streets and is not used for transporting people. The state argued that because sections 316.003(21) and 322.01 provide definitions which broadly include every vehicle which is self-propelled, the backhoe should be deemed a motor vehicle within the statutory definition of a conveyance. In Montanez v. State, 377 So.2d 980 (Fla. 2d DCA 1979), Montanez was charged and convicted of grand theft of a motor vehicle after he stole a Caterpillar motor grader. This court held that a motor grader is not a motor vehicle under the statutory definition of section 320.01(l)(a), Florida Statutes (1977), which specifically excluded traction engines.

Although the legislature did not specifically exclude backhoes in the definitional section on motor vehicles, it did tractor. A backhoe is a tractor which does not qualify as a motor vehicle because it is not designed or primarily used for the transportation of persons or property and, in addition thereto, is, in this case, a ditcher. A backhoe may be self-propelled, but such movement is only incidental to its main function. Such construction equipment is for all practical purposes within the definition of special mobile equipment, and should not be considered a conveyance.

In this case, the state failed to establish that a backhoe is a conveyance, and thus failed to establish each and every element of the crime charged. Thus, we REVERSE and set aside the conviction and sentence herein.

SCHOONOVER and LEHAN, JJ., concur.


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

text:
    John S. GATINS, etc., Appellant, v. SEBASTIAN INLET TAX DISTRICT, et al., Appellees.
    No. 83-706.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 1984.

      Barbara J. Compiani of Montgomery, Ly-tal, Reiter, Denney & Searcy, P.A., and Edna L. Caruso, P.A., West Palm Beach, for appellant.
    George A. Meier, III, and Craig L. Brams of Pitts, Eubanks, & Ross, P.A., Orlando, for appellees Beindorf & Associates and Reliance Ins. Co.
    No appearance for appellee Sebastian Inlet Tax Dist.
   FRANK D. UPCHURCH, Jr., Judge.

•In July, 1981, John S. Gatins, individually and as personal representative of his daughter’s estate, sued to recover damages for her wrongful death. His daughter, Mary Ellen Gatins, was killed on September 1, 1980, when she fell through an opening in a guardrail on a pier at the Sebastian Inlet State Park. It was alleged that Sebastian Inlet Tax District owned, maintained and controlled the pier. On August 16, 1982, Gatins filed a second amended complaint, adding Doctors Sarnowski and Lozito as defendants and alleging that his daughter had been provided with improper or inadequate medical care following her fall.

On August 31, 1982, just one day before expiration of the two year statute of limitations for wrongful death, the District answered the second amended complaint and filed a third party complaint against Bein-dorf and Associates, Inc., an engineering and construction firm which had constructed the pier. The District alleged that Bein-dorf had failed to properly carry out the District’s instructions concerning the erection of a barrier across the opening in the pier railing.

Beindorf answered and denied liability and on December 2, 1982, with leave of court, Gatins filed a third amended complaint adding Beindorf as a party defendant. On February 11, 1983, Gatins moved to amend to add as a defendant Beindorf’s insurer, Reliance Insurance Company.

Beindorf answered the third amended complaint, denied any negligence and raised as an affirmative defense the statute of limitations. Beindorf subsequently moved for summary judgment based on expiration of the limitations period. The trial court entered summary judgment in favor of Beindorf and denied Gatins’ motion to add Reliance as a party defendant.

The precise question raised here is whether the statute of limitations operates as a bar to the direct claim brought by Gatins against Beindorf after the limitations period had expired, even though Bein-dorf was impleaded as a third party defendant by the District within the limitations period.

Research has revealed no eases in Florida directly on point. Of the jurisdictions that have considered the issue, most have held that such claim is barred despite the fact that the party sought to be added was impleaded as a third party defendant within the limitation period. See Laliberte v. Providence Redevelopment Agency, 109 R.I. 565, 288 A.2d 502 (1972); J.G. Boyd’s Good Housekeeping Shops, Inc. v. General Sec. Serv., 483 S.W.2d 826 (Tex.Civ.App. 1972); Higginbotham v. Fearer Leasing, Inc., 32 Mich.App. 664, 189 N.W.2d 125 (1971); Trybus v. Nipark Realty Corp., 26 App.Div.2d 563, 271 N.Y.S.2d 5 (1966); Abate v. Barkers of Wallingford, Inc., 27 Conn.Supp. 46, 229 A.2d 366 (1967); Holmes v. Capital Transit Co., 148 A.2d 788 (D.C.1959); Hankinson v. Pennsylvania Railroad Co., 160 F.Supp. 709 (E.D.Pa. 1958). Some of these cases, however, are distinguishable from the instant case. For instance, in Higginbotham, the Michigan appellate court emphasized that the plaintiff knew of the third party defendant’s involvement in the automobile accident but failed to name him as a principal defendant until after the limitation period had expired. Here, the record indicates that Ga-tins was unaware of Beindorf’s potential liability until the District filed its answer which was one day before expiration of the period. Likewise, in Capital Transit, the plaintiff only sought to add the defendant after trial when the jury found for the original defendant and by special interrogatory found that the third party defendant was negligent. Nevertheless, in most of these cases, the courts indicated that the plaintiff’s desire to amend to add a third party defendant as a party defendant was tantamount to stating a new cause of action which was barred by the statute of limitations. See, e.g., Hankinson v. Pennsylvania Railroad Co. (“The amended complaint began the plaintiff’s action on his claim against the [third party defendant] too late. It is of no avail to the plaintiff that the [defendant] began its action on its claim against the [third party defendant] in time”).

Gatins relies on what appears to be the minority view in this area, which consists of a series of New Jersey cases. The first of these cases, DeSisto v. City of Linden, 80 N.J.Super. 398, 193 A.2d 870 (Law.Div.1963), involved a suit by the plaintiff against the City of Linden for injuries suffered when the plaintiff’s car struck a protruding manhole cover. Within the limitation period, the City filed a third party complaint against Dilorio, the contractor doing paving and sewer repairs for the City. Just before trial and outside of the limitation period, plaintiff's counsel sought and was granted leave to amend to join Dilorio as a party defendant. On appeal, the New Jersey appellate court approved with the following observations:

[Pjlaintiff is not seeking to add a new cause of action, for the essential ground or object of the action and the wrong alleged are the same. Nor is a new party being added, for third-party defendant is already a party defending against plaintiff’s claim on all of the same issues. The one difference is that plaintiff never asserted a claim directly against third-party defendant until after the running of the statutory period. Third-party defendant was notified of the claim by process and a pleading in time....
******
A new party may not be added after the statute has run. A new claim different in character arising out of other circumstances than those set forth in the original pleading may not be added. However, a new claim based on the occurrences and the same wrong against an existing party may be asserted when that party has become a party and has been alerted to the claim before the running of the statute. While the question is a troublesome one and by no means clear, it would seem that the amendment in this case constitutes a mere amendment of legal theory and should be allowed.

193 A.2d at 874-75.

In Greco v. Valley Fair Enterprises, 105 N.J.Super. 582, 253 A.2d 814 (App.Div. 1969), the court followed DeSisto and held that a third-party defendant who is joined as such prior to expiration of the limitation period may, on plaintiff’s motion to amend, be made a direct defendant after the expiration of that period provided the amended complaint is based on the same occurrence and the same wrong referred to in the pending third-party complaint against him. The Greco court added:

[TJhis holding accords with the spirit of our rules and is consistent with the objectives of repose and freedom from the burden of defending stale claims sought to be achieved by statutes of limitation.... As is readily apparent, when defendant has had timely notice that the plaintiff sets up and is seeking to enforce a claim against him because of specified conduct in which he has participated the reason for the statutory limitation no longer exists.

253 A.2d at 816.

In Lawlor v. Cloverleaf Mem. Park, 56 N.J. 326, 266 A.2d 569 (1970), the New Jersey Supreme Court approved the holdings of DeSisto and Greco and held that the amendment to the complaint must be deemed to relate back at least to the time of the filing of the third-party complaint. The court explained that:

When the third-party complaint was filed, the [third-party defendants] were made formally aware that they were being charged with negligence in the care of [plaintiff] and that they were being sought to be held liable for the damages suffered by [plaintiff] as the result of their negligence. From that point on they could not lie in repose but were called upon to prepare and defend. They had full and timely opportunity to do so and at no point did the negligence claims against them become stale. Though the plaintiff did not amend the complaint at the time of the filing of the third-party complaint so as to join the [third-party defendants] as direct defendants, the court rules and DeSisto were in the books and later amendment of the complaint with relation back should readily have been anticipated. The plaintiff’s delay in amending the complaint did not in anywise prejudice the [third-party defendants] and we see no reason why it should now bar a just adjudication on the merits of the plaintiff’s claims against them.

266 A.2d at 578.

Finally, in the later ease of Ioannou v. Ivy Hill Park Section Four, Inc., 112 N.J. Super. 28, 270 A.2d 295 (Law.Div.1970), the New Jersey appellate court was confronted with a situation where service of the third-party complaint was not made on the third-party defendants until after the expiration of the limitation period. The court held that neither actual service nor filing of the third party complaint within the statutory period was essential and the making of a motion to serve the third-party complaint within the limitation period rendered the Lawlor doctrine applicable, despite the fact that the third-party defendants may have actually been unaware of the plaintiff’s action during the statutory period. The court rejected any claim that Lawlor and its predecessors were founded on the existence of notice. Rather the court declared:

The basic premise upon which the Law-lor, DeSisto and Greco holdings rest is that the third-party action had been “commenced” and that the third-party defendant was a ; “party”- to the overall litigation within the meaning of our rules of civil practice prior to the expiration of the statutory period. Having concluded that this was so in each instance, the court held in each case that the policy of the statute of limitations was satisfied and that the third-party defendant was therefore subject to the broad provisions of the rules without any qualification or limitation upon the plain meaning thereof imposed by the statute. It was held in each instance that the plaintiffs new direct claim against the third-party defendant was deemed to have arisen out of the “same transaction or occurrence” that was the subject matter of the plaintiff’s claim against the third-party plaintiff, within the meaning of R.4:8-l(b) or its predecessor rule, and that it was deemed to have arisen out of the “conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading” so that there was relation back, at least to the third-party complaint as an “original pleading,” pursuant to the general rule as to relation back contained in the [rules of civil practice].
The important thing was that the third-party action had been commenced, as far as the third-party defendant was concerned, prior to the expiration of the statutory period, in accordance with our court rules, and that there was an original pleading, i.e., the third-party complaint, which antedated the running of the statute, to which there was relation back. There is no indication that actual service or notice were deemed to have supplanted the objective standards as to commencement of actions contained in the rules.

270 A.2d at 299-800.

We conclude that the New Jersey view is consistent with the principles governing limitations of actions in our state and with the philosophy behind our rules of civil procedure.

Case law in this state indicates that our limitation periods are designed to protect defendants against unusually long delays in filing of lawsuits and to prevent unexpected enforcement of stale claims. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Employers Fire Ins. Co. v. Continental Ins. Co., 326 So.2d 177 (Fla.1976). If a third party complaint is filed within the applicable limitation period and the third-party defendant is made aware that it may be held liable for the plaintiff’s damages, these purposes are satisfied and the fact that the plaintiff is permitted to amend outside the limitation period to formally make the third party defendant a party defendant is not inconsistent with these purposes, at least where, as here, the plaintiff’s claim concerns the same issues as are raised in the third party complaint.

As in Ioannou, we find that our “relations back” of amendments to pleadings provision, Florida Rule of Civil Procedure 1.190(c), supports our conclusion here. We emphasize that the amended pleading here did not actually introduce a new defendant but rather adjusted the status of an existing party. See I. Epstein & Bros. v. First Nat. Bank of Tampa, 92 Fla. 796, 110 So. 354 (1926).

Finally, in light of our conclusion above, Gatins was entitled to add Bein-dorf s insurer, Reliance, as a party defendant. See Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980) (cause of action against insurer whose liability is purely derivative does not accrue for limitations purposes until entry of judgment against tortfeasor).

REVERSED.

COBB, C.J., and ORFINGER, J., concur.

      . Beindorf contends that Peneschi v. National Steel Corp., 295 S.E.2d 1 (W.V.1982) also supports this view but in that case the court, while affirming the denial of the plaintiffs motion to amend to add a claim against the third party defendant, declared that had the cause of action against the third party defendant only been discovered during the development of the lawsuit, it would be within the trial judge’s discretion to determine whether the amendment should be allowed.

      . Florida Rule of Civil Procedure 1.190(c), provides as follows:
      Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

      . Because Ms. Gatins' death occurred prior to October 1, 1982, section 627.7262, Florida Statutes, which deals with nonjoinder of insurers is inapplicable here. VanBibber v. Hartford Accident and Indemnity Ins. Co., 439 So.2d 880 (Fla.1983).


author: BARFIELD, Judge.

text:
    Lynn PRESHER, Appellant, v. J. QUICK TRUCKING, Appellee.
    No. AV-115.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1984.
    Phyllis P. Riewe, Merritt Island, for appellant.
    Jere E. Lober, Merritt Island, for appel-lee.
   ON MOTION FOR REHEARING

BARFIELD, Judge.

This ease is before the court on appel-lee’s motion for rehearing. The motion is granted. The opinion previously filed on May 15, 1984 is withdrawn.

In this workers’ compensation case the claimant appeals the decision of the deputy commissioner finding that the injury claimant sustained occurred outside the scope of his employment and that the medical treatment received resulted from that injury and not an earlier one four days preceding the questioned injury. We reverse.

Claimant received a compensable injury on December 12, 1982. Four days later claimant was again injured, but the deputy commissioner found at the conclusion of claimant’s case that claimant’s activities at the time of injury were outside the scope of his employment.

Claimant was employed as a truck driver. On the morning of December 16, 1982 he went to his place of employment to get his paycheck. The explanations of claimant and his employer conflict concerning claimant’s presence on the work site. The employer says claimant received his check immediately and was waiting for the bank to open, while the claimant says employer forgot to bring the check to work and had to go get it. It does not matter which version is correct. In either case, the claimant was legitimately on the employer’s premises.

A co-worker who was a mechanic and whose job it was to change wheel seals on trailers was changing a wheel seal on a trailer. It was not claimant’s job to change wheel seals. Claimant observed that the co-worker was having difficulty in getting a tire off the trailer to change the wheel seal. Claimant went to his aid and while pulling on the tire injured or reinjured his back.

We disagree with the deputy commissioner that the foregoing activities preclude a finding that claimant acted within the scope of his employment. He presented a prima facie case that he was furthering the cause of his employer. It was reasonable to expect him to go to the aid of a co-worker if, as contended by claimant, that was in fact the custom in this employment. Julian v. Port Everglades Terminal Co., 135 So.2d 423 (Fla.1961); Orendorff v. Refrigerated Transport, Inc., 216 So.2d 453 (Fla. 1968).

The decision of the deputy commissioner is REVERSED and the case REMANDED for further proceedings consistent with this opinion.

WENTWORTH and ZEHMER, JJ„ concur.


author: PER CURIAM.

text:
    Claude ROBBINS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2522.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1984.
    Jerry Hill, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Defendant was convicted of grand theft. He appeals the trial court’s denial of his Motion for Discharge on speedy trial grounds. We reverse.

There is no dispute that more than 180 days from defendant’s arrest on September 24, 1984, had expired when defendant’s motion was filed. The only question is whether the 180-day requirement was inapplicable because defendant had been unavailable for trial under Fla.R.Crim.P. 3.191(e). The state, citing Singleton v. Gross, 436 So.2d 132 (Fla. 3d DCA 1983), contends that defendant was unavailable in Hillsbor-ough County because he was incarcerated in Pinellas County. The state, citing Rule 3.191(e)(1), also contends that defendant failed to attend proceedings where his presence was required, to-wit: three scheduled arraignments in Hillsborough County. We disagree.

Here, unlike in Singleton, Hills-borough County authorities were aware that defendant was incarcerated in Pinellas County. An accused is entitled to discharge under Rule 3.191 even though during the speedy trial period he was incarcerated in another county. Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972). His failure to attend the scheduled arraignments in Hillsborough County occurred while he was incarcerated in Pinel-las County. It was the responsibility of Hillsborough County authorities, not defendant, to arrange for defendant’s presence at Hillsborough County proceedings.

We therefore reverse defendant’s judgment of conviction and direct that he be discharged.

GRIMES, A.C.J., and OTT and LEHAN, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Alfredo CHAO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-606.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.

      Bennett H. Brummer, Public Defender and Mary V. Brennan, Sp. Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Alfredo Chao appeals his conviction for attempted first-degree murder. His sole point on appeal is that the trial court erred in admitting the testimony of Detective Rigdon that Pedro Mendez, while interpreting questions asked by the detective and responses given by the defendant, related that the defendant said he shot the victim “because he loves her and wants no other man to have her.” Finding no error in the admission of this testimony, we affirm.

Mendez, the defendant’s uncle by marriage, was present when Rigdon arrested the defendant. Rigdon neither spoke nor understood Spanish; the defendant neither spoke nor understood English; Mendez spoke and understood both Spanish and English. Accordingly, Rigdon asked Mendez to translate the conversation between Rigdon and the defendant. Mendez testified that at Rigdon’s request, he read the Miranda warnings to the defendant, and the defendant acknowledged that he understood his Miranda rights. Mendez could not remember what the ensuing questions and answers were, but stated that he truthfully translated the “questions and answers between Detective Rigdon and the defendant.” Thereafter, Rigdon’s testimony was elicited over the defendant’s hearsay objection.

Concededly, the authorities in this country are not in agreement as to whether testimony recounting a translated conversation is hearsay. See Annot., 12 A.L. R.4th 1016 (1982). However, as we recently observed in Henao v. State, 454 So.2d 19 (Fla. 3d DCA 1984), we are compelled by the lone and unaltered binding authority of Meacham v. State, 45 Fla. 71, 33 So. 983 (1903), to hold that such testimony is not hearsay. While it might well be argued that the holding in Meacham should be confined to a situation in which, as here, the person whose translated statements are being introduced selected or participated in the selection of the translator, we find no such qualification in the rule announced in Meacham, which, in essence, is that the very act of speaking through an interpreter constitutes an adoption of the interpreter’s words as one’s own.

Affirmed.

      . The victim, who was the defendant's girlfriend until a short time before the shooting incident, testified that the defendant came to her house, pointed the gun at her and shot her. The defense was that the gun, which the defendant admitted carrying but not pointing, discharged accidentally. Only the defendant and the victim were present when the shooting occurred. Thus, the testimony of Rigdon, which so obviously undermined the accident defense, was critical to the case, and had we found the admission of this testimony to be error, such error could hardly be considered harmless as the State suggests.

      . We reject the State’s claim that the defendant failed to preserve his asserted error. At the outset of the prosecutor's questioning of Rigdon, defense counsel objected on the stated grounds that there was no predicate laid that Mendez was a qualified interpreter or translator and that anything that Mendez said to Rigdon would be hearsay. The court sustained the lack of predicate objection, and shortly thereafter, apparently satisfied that a proper predicate had been laid by Rigdon’s testimony that he could see no reason why Mendez would not translate truthfully and that Mendez seemed to understand Rigdon’s questions and the defendant’s answers, permitted Rigdon to relate what Mendez had told him.
      Despite the State’s urging that the defendant’s failure to renew his hearsay objection after the trial court’s ruling constituted a waiver of the objection, we believe that under the circum- • stances of this case the defendant’s initial objection adequately preserved the point for appellate review. Here, the defendant’s hearsay objection went to the admissibility of Rigdon’s testimony in its entirety. A ruling favorable to the defendant on hearsay grounds would have concluded all questioning of Rigdon as to the translated questions and answers, no matter what predicate was laid, that is, no matter how qualified Mendez was shown to be as an interpreter. Thus, when the trial court sustained the defendant’s objection solely on the ground of improper predicate, this constituted an overruling of the hearsay objection and obviated the necessity of, and made futile, a further hearsay objection. In sum, defense counsel had adequately apprised the trial court of his position that what Mendez said to Rigdon was inadmissible hearsay, and the trial court, so apprised, ruled adversely to the defendant.

      . We are not at liberty to follow Rosell v. State, 433 So.2d 1260 (Fla. 1st DCA 1983), rev. denied, 446 So.2d 100 (Fla.1984), or State Farm Mutual Automobile Insurance Co. v. Ganz, 119 So.2d 319 (Fla. 3d DCA 1960), both of which overlook Meacham and suggest a contrary rule. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . It follows from this rule that Mendez’s testimony that he accurately translated the conversation between Rigdon and the defendant was not a required predicate to the introduction of Rigdon's testimony, but was nonetheless admissible as going to the weight to be given to the translated words.


text:
    Luis F. COLON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-684.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

We reverse the defendant’s conviction and sentence for unlawful possession of phencyclidine because the law enforcement agency, which seized the suspect drug from the defendant, subsequently lost the drug due to its own negligence, and thereby deprived the defendant of an opportunity to chemically analyze the suspect drug upon a proper discovery request made below. Inasmuch as the suspect drug forms the entire basis for the charge of unlawful possession of phencyclidine, the negligent loss of the suspect drug required the trial court to dismiss this charge against the defendant upon proper motion. Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980); see G.E.G. v. State, 417 So.2d 975, 977-78 (Fla. 1982); State v. Herrera, 365 So.2d 399, 401 (Fla. 3d DCA), cert. denied, 373 So.2d 459 (Fla.1979), citing People v. Taylor, 54 Ill. App.3d 454, 12 Ill.Dec. 76, 369 N.E.2d 573 (1977).

The law enforcement agency herein provided no facilities for the storage of the suspect drug after it had been seized from the defendant and analyzed. It, accordingly, authorized the arresting patrolman in the case to take the drug home and place it in a refrigerator in the patrolman’s private apartment. The landlord of the apartment subsequently removed the refrigerator while the patrolman was on vacation and the suspect drug was lost. We think the state’s handling of this vital piece of evidence was, to say the least, extremely careless. The subsequent loss of same was entirely due to the state’s negligence in not providing for adequate storage facilities for the suspect drug and in allowing the patrolman herein to store it in his private residence.

The conviction and sentence for unlawful possession of phencyclidine is reversed and the cause is remanded to the trial court with directions to dismiss this charge only, in the information filed below. The conviction and probationary order entered for resisting arrest, however, is affirmed, inasmuch as no attack has been made upon same in this appeal.

Affirmed in part; reversed in part.


text:
    BEK-NEW CHEMIST, INC. and Howard Newman, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY, Appellee.
    Nos. 83-2139, 83-2140
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Miller & Cliff, Richard M. Gale, .Miami, for appellants.
    Bruce D. Lamb, Tallahassee, for appel-lee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   PER CURIAM.

Appellants, Howard Newman, a pharmacist, and Bek-New Chemist, Inc., a pharmacy, were charged with dispensing a controlled substance without a prescription and failing to maintain accurate records of a controlled substance. At a brief hearing, which appellant Newman failed to attend, the hearing officer recommended to the Department of Professional Regulation that Newman’s license and Bek-New Chemist’s permit be revoked based upon evidence presented. The Department acted on the recommendation and the hearing concluded before Newman’s arrival. It appears that Newman arrived some twenty minutes late for the hearing and sought to vacate the default and schedule a rehearing. His efforts, however, were futile.

From a review of the record, it appears unduly harsh and oppressive to deprive Newman of his livelihood upon his default in this case. We note that Appellee’s counsel was granted a continuance earlier in the proceedings. Additionally, appellants’ failure to employ counsel to steer them through the procedural shoals should not be fatal to their appeal. We therefore reverse and direct that the cause be remanded for a hearing on the merits.


author: SCHWARTZ, Chief Judge.

text:
    LA REINA PHARMACY, INC. and Floriberto Laguna, Appellants, v. Carmen LOPEZ, Appellee.
    Nos. 83-2280, 83-2307.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.

      Walton, Lantaff, Schroeder & Carson and Sally R. Doerner, Jorge A. Sibila, Miami, for appellants.
    Busot, Mellman, Iglesias, Romero & Lamar and Maria Busot, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

The defendants in a slip-and-fall personal injury action appeal from an order granting the plaintiff Lopez a new trial after a jury verdict in their favor. We affirm.

The order was based on the following incident during Ms. Lopez’s cross-examination:

Q Did you ever go to the unemployment office after this accident and ask if they would help you find a job?
A Yes.
Q Is it not a fact, Mrs. Lopez, that you called the people scum and that’s why you would not let them help you get a job?
MR. MELLMAN [plaintiff’s counsel]: Objection, Your Honor.
THE COURT: Sustained.
MR. MELLMAN: This is highly improper impeachment. Those are not the words of my client.
THE COURT: I have just sustained the objection. The jury will be instructed to disregard the last question. Okay let’s go.
MR. JENKS [defense counsel]: I’d like to read again the deposition from page 43.
MR. MELLMAN: Please do, Counsel, please do.
THE COURT: Next outburst I get from either of you — Ms. Court Reporter, mark this part of the record please.
Q Page 43, line six: “Did you go to any employment agencies? Answer yes.
Q To 8th and 13th?
A 8th and 13th.
“I went there day before yesterday, I asked, ‘And this is for the scum that arrived now?’ ”
A No, that’s for the persons who have arrived lately.
Q Isn’t that your testimony, Mrs. Lopez, is that not what you said?
MR. BECKHAM [plaintiff’s counsel]: Your Honor this is—
THE COURT: I’m going to sustain the objection. I do not think that has anything to do with impeachment. The jury will be instructed to disregard it. Let us get on to something else.
MR. JENKS: Are you saying that I cannot ask Mrs. Lopez whether or not she said that on this deposition?
THE COURT: I have just ruled on it. You have read it. The jury has heard it and I want you to go on to something else now. I think the testimony as to that particular point has been consistent and I do not think it’s been impeachment.

In the order under review, the trial court stated:

Plaintiff’s Motion for New Trial is granted for the following reasons:
1. During trial, defense counsel asked the following question:
Q: Is it not a fact, Mrs. Lopez, that you called the people there [at the employment agency] scum and that’s why you would not let them help you get a job?
The Court sustained Plaintiff’s objection to this question and instructed the jury to disregard it. Nevertheless, defense counsel persisted and asked in jury’s presence: “Are you saying that I cannot ask Mrs. Lopez whether or not she said that on this deposition.” * This statement by defense counsel carried the clear inference that Mrs. Lopez in fact made the statement, i.e., it supplied the “answer” to the question which the Court had previously disallowed.
2. At trial, the Court reserved ruling on Plaintiff’s motion for mistrial based on defense counsel’s inappropriate reference to “scum”.
3. The Plaintiffs credibility was an important issue at trial. The defense counsel’s assertion that Plaintiff referred to people at the unemployment agency as “scum” does not attack her credibility in any legally proper manner. Instead, having viewed the circumstances and atmosphere in which the comment was made, the Court determines that the assertion had the effect of prejudicing the jury against the Plaintiff. An atmosphere was created in which the jury would dislike the Plaintiff because she made such a comment and then rule against the Plaintiff simply because they disliked her.
4. Such an inflammatory appeal which seeks to prejudice the jury against a party cannot be condoned. As stated in 32 Fla.Jur. Trial § 132 at 372:
Patently inflammatory appeals to prejudice before the jury may afford ground for reversal notwithstanding the attempt by the trial court to remove their effect by instructing the jury to disregard the remarks.
5. In Eastern Steamship Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA 1980), plaintiff’s counsel made comments unrelated to the issues in the case which were designed to prejudice the jury in favor of the plaintiff. The Third District reversed. It held that the remarks
were totally improper, inappropriate and irrelevant to the issues of the cause. They appear to have been made solely for the purpose of raising sympathy for the plaintiff based upon a tragic experience totally outside the realm of materiality in the instant case.
380 So.2d at 1072. Here, defense counsel’s reference to “scum” was “totally improper, inappropriate and irrelevant to the issues of the cause.” See also Apalachiola Northern R.R. Co. v. Tyus, 114 So.2d 33, 37 (Fla. 1st DCA 1959) (“counsel may not indulge in abuse or resort to a patently inflammatory appeal to prejudice”).
* The following occurred during Mrs. Lopez’s deposition:
Q: Did you go to any employment agencies?
A: Yes. To 8th and 13th, I went there day before yesterday. I asked and this is for the scum that arrived now.
MR. MELLMAN: This is for the—
THE INTERPRETER: Scum.
MR. SIBILA: I don’t think that—
Off the record.
(Discussion off the record).
MR. OBER: We will accept whatever translation you like to have and we will have them both.
It thus appears that some conflict existed as to the exact translation of what Mrs. Lopez said. But in any event, defense counsel’s question, otherwise improper, does not become proper merely because it attempts to parrot the witness’ deposition testimony. The question is irrelevant and prejudicial, and its genesis in Plaintiff’s deposition does not make it otherwise.

We agree that Ms. Lopez’s colorfully-expressed derogatory opinion of the unemployment office’s recently-arrived clients, as stated in her deposition, much less defense counsel’s incorrect statement that it related to the agency’s staff, was neither pertinent to any substantive issue in the case nor impeached any of her prior testimony and that the “scum” issue was therefore improperly interjected into the trial by the defendants. See Simmons v. Baptist Hospital of Miami, Inc., 454 So.2d 681 (Fla. 3d DCA 1984); cf., e.g., Bishop v. Watson, 367 So.2d 1073 (Fla. 3d DCA 1979) (new trial order based on legally insufficient or incorrect grounds reversed); National Western Life Ins. Co. v. Walters, 216 So.2d 485 (Fla. 3d DCA 1968) (same). And we find no abuse of discretion in the trial judge’s conclusion, which he is uniquely qualified to render as the judicial officer on the scene that the effect of that inflammatory influence was so great that a new trial was required. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Sosa v. Knight-Ridder Newspapers, Inc., 435 So.2d 821, 825 (Fla.1983); 38 Fla.Jur.2d New Trial § 79 (1982).

Affirmed.

      . The motion for mistrial, which was timely made at the conclusion of Ms. Lopez’s testimony, see Castor v. State, 365 So.2d 701 (Fla.1978) (and which was insisted upon by plaintiffs counsel, cf., Green v. Ed Ricke and Sons, Inc., 438 So.2d 25 (Fla. 3d DCA 1983), rev. granted, Case no. 64,483 (Fla., March 27, 1984)), distinguishes this case from several of those relied upon by the appellants, e.g., Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983), in which the issue was not preserved below.

      . The reference was plainly to the “Marielitos” who are present in large numbers in this community.

      . A statement concerning, for example, and as in this case, one’s personal feelings toward a person or group, which may reflect adversely upon him, but which has no demonstrated relevance to a triable issue in this case, does not become admissible merely because it is made by a party and appears in his deposition. 4A J. Moore, Federal Practice, ¶ 32.04 at 32-23 and ¶ 32.09 at 32-43 to 32-45 (2d ed. 1984). The character of a civil or criminal litigant is not ordinarily in issue and evidence concerning it is not ordinarily admissible into evidence. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940); compare Lay v. Kremer, 411 So.2d 1347 (Fla. 1st DCA 1982) (inflammatory racial epithets of defendant directed toward plaintiff admissible as directly relevant to disputed issue of intent). While appellants argue that the remark was relevant to the sufficiency of Ms. Lopez's job search, the only fact pertinent to that question is the undisputed one that she made only one such visit. Defense counsel was free to argue that this was insufficient without happily seizing on an inflammatory remark which was not related to that question.

      . If, for example, Ms. Lopez had stated on direct that she did not go to the agency more often because she was physically unable to do so, the “scum” remark might have been permissible to show another contrary motivation. But nothing of the kind occurred here.

      . Even assuming arguendo that some tangential relevance were established, it was heavily outweighed by the prejudicial effect of the remark. Sec. 90.403, Fla.Stat. (1983); Perper v. Edell, 160 Fla. 477, 44 So.2d 78 (1949).


author: BASKIN, Judge.

text:
    Terrence E. ROSENBERG, Appellant, v. Albert MILLER and E. Leora Miller, his wife, Appellees.
    No. 84-36.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Terrence E. Rosenberg, Miami, in pro. per.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

This is an appeal from an order dismissing appellant Rosenberg’s answer and counterclaim, striking his answer and counterclaim, and denying his motion for judgment on the pleadings. We reverse in part.

The Millers sued Rosenberg seeking to foreclose a mortgage. Rosenberg moved to dismiss the claim. The trial court denied the motion, and the Millers amended their complaint. In an order dated October 14, 1983, the trial court granted the Millers’ motion to amend the complaint and required Rosenberg to file his answer to the amended complaint within 15 days from the date of the order, that is, by October 29, 1983. Rosenberg’s answer and counterclaim were not served until November 22, 1983, were filed December 1, 1983, and were recorded March 7, 1984. Upon motion to strike filed by the Millers, the trial court entered an order striking and dismissing the answer and counterclaim.

The record in this case does not present the extreme case required to justify a sanction as severe as striking the pleadings. J.I.Case Co. v. Steel Fabricators, Inc., 438 So.2d 881 (Fla. 4th DCA 1983). Furthermore, because this case involves appellant’s failure to comply with a court order setting forth a specific time to file an answer rather than the existence of “redundant, immaterial or scandalous matter [in a] pleading_”, Fla.R.Civ.P. 1.140(f), the motion to strike should have been treated as a motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b)(1981).

Rule 1.420(b) provides, in pertinent part:

Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against him for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under Rule 1.090(d). (emphasis added)

The notice required by Rule 1.420(b) was not served. See Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA), review denied, 424 So.2d 763 (Fla.1982). We therefore reverse the portion of the order dismissing and striking Rosenberg’s answer and counterclaim. Finding no merit in the remaining points, we affirm the trial court’s denial of Rosenberg’s motion for judgment on the pleadings.

Affirmed in part; reversed in part and remanded for further proceedings.


text:
    Onelia Padron LOWY, Appellant, v. Carol ROBERTS and Betty Kessler, Personal Representative of the Estate of Robert E. Lowy, deceased, Appellees.
    No. 84-359.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.

      Albert P. Rosillo, Miami, for appellant.
    Sage, Grady, Todd & Sims and Stephen A. Lynch III and Stephen M. Cody, Alan S. Chotiner, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

Robert E. Lowy died on March 8, 1982. On March 24 of that year, a six page document purporting to be his will, executed on January 27, 1982, was admitted to probate by the Dade County Circuit Court. More than a year after notice of administration had been served upon her under Sec. 733.-212(1), Fla.Stat. (1981), the decedent’s widow, Onelia Lowy, commenced proceedings which sought to demonstrate that the first four pages of the probated document — excluding the final ones bearing the testator’s and the witnesses’ signatures — were not contained in the will actually executed by Mr. Lowy. Her amended petition, the sufficiency of which is now before us, alleged:

4. On January 27, 1982, the Decedent did execute, publish and declare a written document as his Last Will and Testament before STEVEN M. ROBEY and DEBORA K. OBERLIN, as attesting witnesses, when the Decedent was at least 18 years of age.
5. The Will of the Decedent executed on January 27, 1982, was subsequently changed and/or altered, improperly and without the required formalities, to show a change on paragraph Five (5) of the original Will. In order to procure the change on paragraph Five (5) of said Will, the first four pages were altered, and were subsequently restapled together with the remaining last two pages bearing the signatures of the Decedent and the attesting witnesses. The conformed copy attached shows, unequivocally, that the Testator had signed all six (6) pages of the Will, and not just the last two pages. (Attached hereto is conformed copy of the original Will dated, signed and attested on January 27,1982).
6. The purported Will, which was admitted to Probate in this Court on March 24, 1982, is not the true Will of the Decedent. The purported Will contains pages and provisions which have been changed, altered and/or substituted improperly and without the required formalities, the effect of which was to change the true Will and intent of the Testator, specifically Testator’s intent contained in paragraph Five of the Will.
7. The purported Will which has been admitted to Probate, along with the conformed copy attached hereto, together show that the first four pages were redone to change paragraph Five, while at the same time making the substituted pages consistently without conformed signatures or initials on the changed pages to make it appear unaltered.
8. Attached to and made a part of this Petition is an exact conformed copy of the unaltered or unchanged Will. Petitioner believes that this Will is the true Will of the Decedent.

On motions of the personal representative and the other beneficiary under the will, the trial court dismissed the amended petition with prejudice. We reverse.

It is clear that the face of the petition adequately states a claim upon which the relief sought may be granted. There is no question that no post-execution change in or to a will, whether accomplished without adherence to the statutory testamentary prerequisites by the testator himself, Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215 (1940); In re Shifflet’s Estate, 170 So.2d 96 (Fla. 3d DCA 1965); In re Estate of Bancker, 232 So.2d 431 (Fla. 4th DCA 1970), which is called an “alteration,” or— as it is strongly implied occurred in the present instance—by an unauthorized third person, e.g., In re Deane’s Estate, 153 So.2d 26 (Fla. 3d DCA 1963), which is referred to as “spoliation,” 2 Page on Wills § 22.5 (new rev. ed. 1960), has any legal effect whatever upon the will itself which must be probated as if it had not taken place. 79 Am.Jur.2d Wills § 562 (1975); 2 Page on Wills §§ 22.1-22.7 (new rev. ed. 1960); see cases collected Annot., Interline-ations and Changes Appearing on Face of Will, 34 A.L.R.2d 619 (1977).

In In re Deane’s Estate, we applied these principles to a situation very similar to this one by affirming a determination that a spoliation had taken place in

that pages one and three of the will admitted to probate were original pages of the testator’s will, but that page two was substituted for the original page two by the appellant after the death of the testator.

153 So.2d at 28. It was held that the county judges’ court correctly enforced the “actual will” by replacing the spurious with the original “reconstructed” page two as a portion of the document actually executed. This conclusion is in accordance with the universal rule that, in a case of alteration or spoliation, the court must, to the extent possible through the reception of relevant and competent evidence, determine and enforce the contents of the true, unaltered will. 3 Page on Wills §§ 29.164-29.166 (new rev. ed. 1960). See also, In re Smith’s Will, 161 Misc. 194, 291 N.Y.S. 878, 883 (Surr. Westchester Co., 1936) (“Having proof that the first sheet of the paper writing was not in existence or made on August 5, 1918, it becomes the duty of the court to remove it from its present fastening to the original second page by pasting and to re-annex the original first sheet to the second or executed sheet, and thus complete in original form the paper executed by the decedent.”)

Thus, the amended petition both adequately alleged that Lowy’s will had been altered or spoliated and sought the appropriate relief—that is, the enforcement of the fifth paragraph of that will through the replacement of the original for the altered pages of the instrument—to which she is entitled if the allegations are established at trial.

The appellees claim that the order of dismissal should be upheld on the ground of Ms. Lowy’s alleged non-compliance with the requirements imposed by Sec. 733.207, Fla.Stat. (1981) for the “establishment and probate of a lost or destroyed will.” We do not reach the merits of this contention because, in our view, the statute is totally inapplicable to the present case. The present action is not one to establish a “lost or destroyed” will — which necessarily implies an instrument different from the one already admitted to probate. Instead, the petitioner’s position presupposes that the January 27, 1982 probated-will is indeed the will of the testator. She seeks only to establish, not another one which was lost or destroyed, but rather what the true contents of that instrument were when it was executed by Mr. Lowy. The two types of proceedings are both conceptually and practically completely dissimilar. In re Deane’s Estate, supra; see and compare 79 Am.Jur.2d Wills §§ 556-562 (1975) (alteration of will) with 80 Am.Jur.2d Wills §§ 1071-1091 (1975) (lost or destroyed will).

For much the same reason, we likewise disagree with the contention that this action is barred by Sec. 733.212(l)(b), Fla. Stat. (1981), which requires the filing with-m 3 months of publication of an objection “that challenges the validity of the will.” [e.s.] An alteration or spoliation specifically does “not affect the validity of the will as originally executed.” [e.s.] Guerin v. Huat, 118 S.C. 32, 110 S.E. 71, 74 (1921); Annot., supra § 16. And, as we have seen, the present action does not question the validity, but only the true contents of the executed and probated will.

In sum, the present petition for the recon struction of the will is much more closely akin, if not indeed theoretically identical, to the familiar proceeding for the construction of a will, Hulsh v. Hulsh, 431 So.2d 658 (Fla. 3d DCA 1983), pet. for rev. denied, 440 So.2d 352 (Fla.1983) — as opposed to proceedings for revocation, see Sec. 733.109, Fla.Stat. (1981), or to establish either a lost or destroyed will or the invalidity of the probated document. In any event, no statutory or rule provision precludes its maintenance when, as here, it is brought prior to the closing of the estate. Cf., In re Estate of Killinger, 448 So.2d 1187 (Fla. 2d DCA 1984).

For these reasons, the order under review is reversed and the cause remanded for trial.

Reversed and remanded.

      . The two documents were identical with the exception of "Paragraph Fifth.” The probated will provided:
      FIFTH: I hereby give, devise and bequeath unto my wife, ONELIA PADRON LOWY, all of my furniture and personal property and belongings within my residence located at 1420 South Bayshore Drive, Miami, Florida to be hers absolutely.
      The equivalent paragraph of the conformed copy, which had apparently been provided to the decedent by the attorney who prepared it and supervised its execution (and who was the designated personal representative), stated,

        FIFTH: I hereby give, devise and bequeath unto my wife, ONELIA PADRON LOWY, all of my furniture and personal property and belongings, to be hers absolutely.
      Since the residue was in each instance divided 60-40 between the widow and a niece, Carol Roberts, the effect of the alleged substitution of the "new” paragraph fifth decreasing the scope of the specific bequest to Mrs. Lowy was to increase the residue and thus the share of Ms. Roberts, who is the real party-appellee in interest here.

      . Ibid.

      . While we express no opinion as to what the evidence may show, see 3 Page on Wills §§ 29.161-29.166 (new rev. ed. 1960); Annot., supra §§ 8-14, and there is no question that only the facial sufficiency of the amended petition is or was properly in issue. Assemblies of God v. Garrido, 452 So.2d 1125 (Fla. 3d DCA 1984), the appellant filed below, and the parties have extensively referred to here, a report from an expert questioned documents examiner, which, after analysis of the wills, expressed the conclusions that

        The original signature and witness pages of the original Will were stapled together twice as one unit and hole punched once prior to the first four pages being affixed after which all were treated as one document. The first four pages of the original Will do not conform to the photocopy of Exhibit B-l in that no signature line is present at the bottom of each page and paragraph five on page two contains the additional line "within my residence located at 1420 South Bayshore Drive, Miami, Florida,”.
      Based upon the differences noted between the conformed copy of the Will, Exhibit B-l, and the original Will, Exhibit A-l, and the presence of additional staple holes and hole punches in the last two pages of the original Will it is the opinion of this examiner that the first four pages of the original Will were retyped and substituted for the original first four pages.
      It need hardly be said that the weight and effect of this expert opinion is initially for the finder of fact. We comment only that the expert’s statement that
      [plages 5 and 6 of the conformed copy were produced by photocopying pages 5 and 6 of the original Will in probate prior to signing or dating
      does not, as the appellees contended at oral argument, establish as a matter of law that the “conformed copy” was simply a draft rather than a copy of the actual will. Obviously the "copy” could well have been made while blank and then conformed with typing after the testator and the witnesses had signed the original.

      .733.207 Establishment and probate of lost or destroyed will.
      (1) The establishment and probate of a lost or destroyed will shall be in one proceeding. The court shall recite, and thereby establish and preserve, the full and precise terms and provisions of the will in the order admitting it to probate.
      (2) The petition for probate of a lost or destroyed will shall contain a copy of the will or its substance. The testimony of each witness must be reduced to writing and filed and shall be evidence in any contest of the will if the witness had died or moved from the state.
      (3)No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised. The content of the will must be clearly and distinctly proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

      . Thus, we do not decide whether the conformed copy of the will attached to the widow’s petition is a "correct copy” under § 733.207(3), see In re Estate of Parker, 382 So.2d 652 (Fla.1980); Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940) (“correct copy” need not contain copies of signatures of testator or subscribing witnesses); In re Estate of Maynard, 253 So.2d 923 (Fla. 2d DCA 1971) (same) or if, assuming that it is, the expert document examiner qualifies as the “one disinterested witness” required to prove it. See In re Estate of Maynard, supra.

      . Thus, the widow specifically adopts pages five and six of the probated document which contains the signatures of the testator and the witnesses respectively. In contending that this action is "really” one to establish a different or lost will, however, the appellees rely on the fact that the typed-in signatures and addresses in the conformed copy differ somewhat in order and form from those which were written and signed in the "original” pages five and six.
      While again, see n. 3, the weight of this argument is initially for the trier of fact, we note that the fact that a stenographer may, in "conforming” the document, have retyped the witnesses’ names and addresses in an immaterially different manner from the way they were placed on the instrument itself surely does not conclusively establish that two different instruments — or an original and a "draft” — were involved. See Stewart v. Johnson, supra; In re Estate of Maynard, supra.


text:
    LAYNE & BRILL, P.A.; Layne & Brill Properties, Inc.; Layne & Brill, North Carolina Properties, Inc.; Franklin Title Services, Inc.; Richard Bernstein; and B.J. Layne, Appellants, v. Herbert L. BRILL, Appellee.
    Nos. 84-699, 84-700.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Robert L. Koeppel, Miami, for appellants.
    Payton & Rachlin and Guy W. Turner, Miami, for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Stripped of immaterial factual considerations, this appeal raises a single question of law, i.e., whether a court may enter an injunction without prior notice of a hearing for that purpose, without factual findings in support of an injunction, and without providing for posting of a bond or setting forth reasons for waiving the bond requirement. We hold that it may not, on authority of Hotelerama Associates, Ltd. v. Bystrom, 449 So.2d 836 (Fla. 3d DCA 1984); Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1199 (Fla. 1980); Leopold v. Richard Bertram & Co., 265 So.2d 710 (Fla. 3d DCA 1972); and Florida Rule of Civil Procedure 1.610. That part of the order on review which prohibits refinancing and/or modification of an existing mortgage is reversed.

REVERSED AND REMANDED for further consistent proceedings.


text:
    Boris EDELMAN, Appellant, v. Ludmilla EDELMAN, Appellee.
    No. 84-848.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Greenfield & DuVal and Harvie S. Du-Val, North Miami, for appellant.
    Sue Rose Samuels, North Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Weiner v. Weiner, 403 So.2d 408 (Fla.1981).


text:
    QUALITY INNS INTERNATIONAL, INC., a foreign corporation, and Tamar Inns, Inc., a foreign corporation, Appellants, v. Tobel COSIOL and Jaime Cosiol, her husband, Appellees.
    No. 84-1075.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Talburt, Kubicki, Bradley & Draper and Betsy E. Hartley and Gail Kniskern, Miami, for appellants.
    Marks, Aronovitz & Leinoff and Tod Aro-novitz, Miami, for appellees.
    Before FERGUSON and JORGENSON, JJ., and WILLIAM A. NORRIS, Associate Judge.
   PER CURIAM.

Affirmed. See Enfinger v. Baxley, 96 So.2d 538 (Fla.1957); Groome v. Abrams, 448 So.2d 82 (Fla. 4th DCA 1984); Taylor v. Dasilva, 401 So.2d 1161 (Fla. 3d DCA 1981).


text:
    Robert R. WASKIN, Appellant, v. Gloria WASKIN, Appellee.
    No. 84-1349.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Schwartz, Klein, Steinhardt, Weiss & Weinstein and Alan Sackrin, North Miami Beach, for appellant.
    Bercuson, Cahan, Weksler & Lasky and Bernard Weksler, Coconut Grove, for ap-pellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Waskin v. Waskin, 452 So.2d 999 (Fla.3d DCA, 1984).


text:
    Ira Lee PICKETT, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1654.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Ira Lee Pickett, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Baker, 456 So.2d 419 (Fla.1984); State v. Baker, 452 So.2d 927 (Fla.1984); State v. Marshall, 455 So.2d 355 (Fla.1984); State v. Brown, 455 So.2d 356 (Fla.1984); State v. Burke, 455 So.2d 356 (Fla.1984).


text:
    Mack Gordon LEDLOW, Appellant, v. STATE of Florida, Appellee.
    No. AU-146.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.

      Michael E. Allen, Public Defender, Charlene Y. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant in this case was charged with aggravated battery and convicted of battery, based upon a guilty verdict on the lesser included offense against his wife. He received a one-year sentence and this appeal followed, urging errors (1) in denial of a motion in limine to suppress similar fact evidence; (2) in admitting photographs of the comatose victim taken three days after hospitalization; and (3) in denying motion for judgment of acquittal for insufficiency of proof, under standards applicable to circumstantial evidence. We affirm.

In response to a telephone request by appellant for emergency medical help for his wife, an ambulance was sent to his residence shortly after 10 p.m. on January 21, 1983. Appellant said his wife had fallen and she was found on the bedroom floor, severely injured and unconscious. She was immediately hospitalized for surgery but remained continuously comatose through the date of trial some months later. In a statement the day following this event appellant said he and his wife had been drinking, he went to sleep on the couch, heard the phone ring, found his wife on the floor and put her on the bed, was unable to stop her bleeding with ice, and called for help. He said that there had been no physical dispute, noted the lack of any disorder in the home, and said that his wife had apparently consumed a large amount of alcohol. Upon inquiry as to whether he knew how she got her bruises he said, “Yes, sir, I sure do. She’ll stumble over a table. Or like the black eye I gave to her, which I indicated that happened last Monday or Tuesday, family dispute, but the other bruises, she’ll hit the wall, she’ll bounce off, ricochet it, you look on her legs, hips.”

The record contains voluminous medical and scientific evidence, much of which is consistent only with a conclusion that many of the victim’s numerous injuries, new and old, were not incurred in an accidental fall. It is uncontroverted that she had a negative blood alcohol level upon hospital admission (.004 per deciliter).

Appellant contends that the trial court should have excluded certain testimony, comprising some 35 of the 500 pages of the record, from five witnesses who testified in part to (1) observation of appellant, a month previous to the date here in question, striking his wife on her head with his fist; (2) observation of appellant’s threatening gestures toward her, and report of his later statement, “I have got to quit beating her”; (3) a downstairs neighbor’s observation of the wife’s black eyes and bruises several months earlier, on the morning after a night of hearing fighting from above “like one was being thrown against the floor”; (4) observation of appellant following his wife during an argument when “there was a motion behind her ... a grab, push, and she fell,” resulting in laceration and stitches.

Argument by appellant on this point is primarily that “the circumstances of the collateral acts were not sufficiently similar to the crime charged so as to be relevant.” Citations are confined to numerous decisions holding that certain similar crime testimony did not establish “uniqueness or particularity about the perpetrator” so as to point unmistakably to his identity in a later charge. E.g., Flowers v. State, 386 So.2d 854 (Fla. 1st DCA 1980); Banks v. State, 298 So.2d 543 (Fla. 1st DCA 1974).

Such argument entirely omits consideration of the relevance of the questioned testimony on the central point in issue: the reasonability of any hypothesis that the victim’s injuries were accidentally self-inflicted in a drunken state. Appellant’s contention on this point is similar to that asserted in King v. State, 436 So.2d 50 (Fla.1983):

Appellant contends the trial court improperly allowed testimony that he had severely beaten the victim twenty-three days prior to the killing. Appellant asserts that the circumstances of this beating were not similar to those of the killing and that the beating was too remote in time to be relevant to the case. Consequently, he argues, this evidence was admitted in violation of Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), because it was utilized only to show propensity and not to prove an element essential to this offense. We disagree. We believe that the testimony was not remote in time, ... and was proper for identification since one of the theories of appellant’s defense was to imply that the victim’s present husband could have been the killer. Under these circumstances, we find the testimony admissible.

The remaining contentions are similarly lacking in substance.

The judgment should be and is affirmed.

SMITH, L., WENTWORTH and WIG-GINTON, JJ., concur.


text:
    Cathy MITCHELL, as natural guardian of Bryan Keith and Felecia Latonya, dependent minor children of Carrington Wise, deceased employee, Appellants, v. E.L. COPELAND BUILDERS, and Aetna Life and Casualty Company, Appellees.
    No. AV-463.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.
    John N. Bryant, Jacksonville, for appellants.
    John J. Schickel of Coker, Myers & Schickel, Jacksonville, for appellees.
   PER CURIAM.

AFFIRMED. See City of Miami v. Wright, 414 So.2d 24 (Fla. 1st DCA 1982).

ERVIN, C.J., and JOANOS & NIM-MONS, JJ., concur.


author: MILLS, Judge. SHIVERS, Judge,

text:
    AMOCO CONTAINER COMPANY, Appellant, v. Maria AVILES, Appellee.
    No. AW-160.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1984.

      Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellant.
    George J. Adler, Orlando, for appellee.
   MILLS, Judge.

The issue raised by this worker’s compensation appeal is whether Aviles sustained a compensable injury. She did not and we reverse the deputy’s order.

Aviles was working in Amoco Container’s warehouse on 19 August 1982 when a machine exploded and caught fire approximately 50 feet away from her. She was the only one in the area at the time. As she attempted to flee the scene, she struck her head, bruised her arm, and injured her wrist. However, she did not receive any medical treatment for these physical injuries.

Dr. Suarez, a psychiatrist, examined Aviles on 20 August 1982 and found her to be very anxious and disoriented. After the initial visit, Dr. Suarez did not see Aviles again until 9 June 1983. At this time he found that she was still in a state of high anxiety and prescribed medication for the condition. He also testified that Aviles never mentioned any physical trauma to him. The most that Dr. Suarez ever testified to was that Aviles’ psychiatric condition was related to “the incident.”

Approximately one week after the fire, Aviles returned to work. She continued to work for approximately nine months thereafter. She took a leave of absence on 27 May 1983 because of chest pains and has not returned to work since then.

Dr. Leiva, another psychiatrist who examined Aviles, testified that her condition was caused by the fear associated with the explosion.

Dr. Dow whose deposition was used at the hearing never expressed an opinion on the causation issue.

Aviles failed to demonstrate that her psychiatric condition was causally related to any compensable injury. Rather, the evidence shows that her condition was one caused by fright or excitement only, and it is therefore not compensable. Section 440.-02(18), F.S. (1983).

Aviles argues that this case is controlled by Prahl Brothers, Inc. v. Phillips, 429 So.2d 386 (Fla. 1st DCA 1983). Prahl Brothers is distinguishable. In that case, the evidence clearly established that the claimant’s psychiatric impairment was precipitated by the employment-related robbery, and that a gun being placed to the claimant’s head and a ring being physically removed from her finger were significant circumstances in the causal etiology of her mental injury. There was no such evidence here.

The deputy relied on the testimony of Dr. Suarez and Dr. Dow on the issue of causation. Dr. Dow never expressed an opinion on that issue. Moreover, the most that Dr. Suarez ever testified to was that the psychiatric condition as of 9 June 1982 was related to “the incident.”

The facts of this case are more similar to those in Horse Haven v. Willit, 438 So.2d 123 (Fla. 1st DCA 1983). Although the claimant in Horse Haven did suffer a com-pensable back injury, there was no clear evidence showing that claimant’s psychiatric condition was the direct and natural result of the compensable primary injury.

REVERSED.

WIGGINTON, J., concurs.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

dissenting:

I respectfully dissent.

If the machine explosion, which caused no direct physical impact or injury, was the only event which caused claimant’s psychiatric condition, reversal would be required under section 440.02(18), Florida Statutes. This, however, is not the ease. The record supports the finding of the deputy commissioner that the claimant, in attempting to flee the scene of the explosion, struck her head, bruised her arm and injured her wrist. Although the claimant never mentioned the physical trauma to Dr. Suarez, on deposition Dr. Suarez was asked the following hypothetical and gave the following answer:

Q Doctor, I’d ask you to assume, if you would, that in the commotion and the fright following the fire and the explosion and while she was still located in the plant where the explosion occurred, that she struck her head, resulting in a bump on the head, and that she also suffered bruises and scrapes on her arms. I’d ask you if these would be important factors in determining why she had such a severe reaction to the explosion.
MR. RINGERS: Object to the hypothetical.
A I think someone, you know, hit the floor and become numb and become overwhelming by pain and confuse and arrive in a hurry to emergency room and there she still disoriented and confused, I think that will contribute anxiety reaction some way, somehow. So I think someone with a traumatic experience like that and she has like this type fall and result of the fall this become very confused, I think she will be more panicky still. Will be a tremendous amount of anxiety due to the fact that she cannot recognize the place where or the time, you know, around her. And the pain also probably will numb that person to, you know, a certain — to know or recognize the places around, you know. That probably will enlarge an amount the anxiety to her. [sic]

I think that this testimony by Dr. Suarez, although not eloquent, constitutes competent, substantial evidence that at least some portion of claimant’s psychiatric condition was causally related to the physical impact of the fall and the non-disabling physical injuries. I deem it legally irrelevant that the major portion of claimant’s psychiatric condition may have been due to her fright and excitement from the explosion. As this court stated in Prahl Brothers, Inc. v. Phillips, 429 So.2d 386, 387 (Fla. 1st DCA), rev. denied, 440 So.2d 353 (Fla.1983):

As in Watson, in the present case the non-disabling physical trauma was a significant causative factor in the claimant’s ensuing psychiatric impairment. As the deputy in the present case determined, in such circumstances the disability is not due to fright or excitement only, and § 440.02(18) therefore does not preclude compensability for the ensuing mental or nervous injury.

Likewise, in the instant case the disability is not due to fright or excitement only. The record provides competent, substantial evidence to support the findings of the deputy commissioner, and the law supports his conclusion. See Oolite Concrete Co. v. Carver, 145 So.2d 733 (Fla.1962); Prahl Brothers, Inc. v. Phillips, supra; City of Tampa v. Tingler, 397 So.2d 315 (Fla. 1st DCA 1981); Watson v. Melman, Inc., 106 So.2d 433 (Fla. 3d DCA 1958), cert. denied, 111 So.2d 40 (Fla.1959).

I would affirm.


text:
    Everett Ray WEEKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 82-2014.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The sole question presented on this appeal is the validity of appellant’s sentence to life imprisonment with a twenty-five year minimum on two counts of sexual battery by a person over eighteen; years of age on a victim eleven years or younger. That question has recently been set to rest by the Supreme Court of Florida in Rusaw v. State, 451 So.2d 469 (Fla.1984), and State v. Hogan, 451 So.2d 844 (Fla.1984). In those cases the Supreme Court ¡held that the penalty for the crime of sexual battery of a person eleven years or youriger by a person over the age of eighteen years, proscribed by section 794.011(2), Florida Statutes, is still a life sentence without eligibility for parole for twenty-five y^ars, notwithstanding the inapplicability of the death penalty to that crime.

Accordingly, the sentence appealed from is affirmed.

AFFIRMED.

DOWNEY, LETTS and WALDEN, JJ., concur.


text:
    Herbert M. GELFAND, as Operating General Partner of De Anza Properties-X, a California Limited Partnership, Appellant/Cross Appellee, v. MORTGAGE INVESTORS OF WASHINGTON, a Maryland Business Trust, Appellee/Cross Appellant.
    No. 82-2356.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.

      James B. Tilghman, Jr., Herman J. Rus-somanno, and Bertha Claire Lee of Floyd, Pearson, Stewart, Richman, Greer & Weil, P.A., Miami, for appellant/cross appellee.
    Gregory G. Jones of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee/cross appellant.
   PER CURIAM.

This controversy arose as the result of the sale of a mobile home park known as the Colonies of Margate (Colonies). The appellant, De Anza Corporation (De Anza), purchased the Colonies from the appellee, Mortgage Investors of Washington (MIW), for $5,750,000 in 1978. At the time of the sale, the Colonies consisted of three phases. Phases I and II were already built and occupied by tenants, while Phase III was still in the process of construction and was to be completed by MIW.

Subsequent to the closing of the transaction, De Anza filed a multi-count complaint against MIW alleging various breaches of the contract and breaches of certain warranties. MIW counterclaimed seeking declaratory relief concerning an easement agreement entered into by the parties. After a nonjury trial, De Anza was awarded $148,929.42 in damages. The court also held that the easement in question was nonexclusive.

De Anza appeals, raising several issues and MIW cross appeals. We reverse in part and affirm in part.

The Colonies is located near State Road 7 in western Broward County. The only means of ingress and egress to the Park is an entrance road that runs from State Road 7 across surrounding land owned by MIW. Two months after MIW sold the Colonies to De Anza, the parties entered into an agreement whereby, among other things, MIW conveyed to De Anza an easement over the roadway for ingress and egress to the mobile home park. De Anza maintains that this agreement created an exclusive easement so that MIW and all third parties have no right, title or interest in the roadway. MIW, on the other hand, contends that, while third parties may be prohibited from any use of the road, MIW may continue its use of the roadway as the grantor servient owner.

In Wiggins v. Lykes Bros. Inc., 97 So.2d 273, 276-77 (Fla.1957), the court stated that “no intention to convey an exclusive easement ... can be imputed to the grant- or of the easement in the absence of a clear indication of such intention_” Professor Boyer reaches a similar conclusion:

In determining the scope of easements as in construing deeds generally, the court is aided by various rules of construction. One of these rules is that the presumption is in favor of a non-exclusive easement. An exclusive easement is one for the sole benefit of the easement holder and excludes use thereof by the grantor servient owner. A non-exclusive easement, on the other hand, permits use by the servient owner. Hence, if there is any doubt, the court will conclude that the grantor likewise may make use of the land subject to the easement so long as he doesn’t interfere with the use thereof by his grantee.
In determining the scope of the easement, the court may, if it concludes the . words of the instrument the least ambig-, uous, resort to extraneous matters to arrive at the probable intent of the parties. Thus, the purpose of the easement, the location of the realty, the situation of the parties, and all surrounding circumstances may be considered.

1 R. Boyer, Florida Real Estate Transactions, § 23.04 (footnotes omitted). The easement agreement provides:

D. It is further the intentions of the parties by this Agreement to create an easement across Parcel One [MIW] as a roadway for ingress and egress to and from Parcel Two [DeAnza]....
3. MIW hereby grants to DE ANZA an irrevocable, exclusive and perpetual easement for ingress and egress purposes for Parcel Two over, along and across said Roadway (Exhibit “D”). The obligation and right of maintenance of said Roadway shall be that of the Owner of Parcel Two.

In addition, the easement agreement provided that MIW could move the roadway in connection with the development of Parcel One if a substantially similar road is substituted. The issue thus framed is whether use in the granting instrument of the term “exclusive” forecloses further consideration of the nature, extent and exclusivity of the interest created.

One might suppose, despite the contrary presumption, that the term “exclusive” would be determinative of the issue at hand. In keeping with what we believe to be the better view we hold, as did the trial court, that it is not. Thus, in the case of Weggeland v. Ujifusa, 14 Utah 2d 364, 384 P.2d 590 (1963), the court held that a grant of “an exclusive right of way for roadway purposes as a private driveway” did not allow the plaintiff to preclude the owner of the servient estate from utilizing the right of way.

The difficulty with the plaintiffs contention is that if it were sound, the conveyance of the right of way would be tantamount to a conveyance of the land in fee simple. This would be inconsistent with the usual nature of a right of way. Ordinarily the purpose of granting a right of way over land, rather than making an outright conveyance of it, is to retain the ownership in the servient estate (defendants) and to allow a privilege of limited use to the dominant estate (plaintiff). The accepted rule is that the language of the grant is the measure and the extent of the right created; and that the easement conveyed should be so construed as to burden the servient estate only to the degree necessary to satisfy the purpose described in the grant.

Id. at 591 (footnote omitted). The rule is explained more fully and followed in a comprehensive majority opinion, which we approve, in Latham v. Garner, 105 Idaho 854, 673 P.2d 1048 (1983). On the question of use of the term “exclusive,” that court points out:

An instrument which is reasonably subject to conflicting interpretation is ambiguous. See Rutter v. McLaughlin, 101 Idaho 292, 293, 612 P.2d 135, 136 (1980). The phrase “exclusively for their use” lends itself, without contortion, to a number of interpretations. The instrument could be interpretated as (1) the grant of an easement right of way to the grantee, the defendants herein, to the exclusion of all others, except the grant- or; or (2) the grant of an easement right of way excluding all others, including the grantor; or, (3) as the grant of a fee simple estate to the grantee. Thus, the instrument is reasonably subject to conflicting interpretations and as such is ambiguous.

Id. at 1052 (footnote omitted).

Here the trial court found the instrument ambiguous, considered extrinsic evidence and determined that use of the easement was not to exclude use by the grantor servient owner. Finding that holding supported by substantial competent evidence, we affirm as to it.

The second point, relating to prejudgment interest, requires reversal in part. On appeal, De Anza argues that it should have been awarded prejudgment interest on various liquidated damages. The trial court found that the damages were unliquidated and denied an award of prejudgment interest on all damages.

A review of the record indicates that, with the exception of the award of $15,000 for certain landscaping, De Anza’s position at trial was that the damages were unliq-uidated, and it is only on appeal that it is alleged that the other damages are liquidated as well. Therefore, we find no error in the court’s over-all determination that the damages were unliquidated and that De Anza was not entitled to prejudgment interest. We do find, however, that the $15,-000 awarded to De Anza for landscaping an area known as the Greenbelt was liquidated since there was an exact amount due and owing at a particular time. Bryan and Sons Corp. v. Klefstad, 265 So.2d 382 (Fla. 4th DCA 1972). At trial De Anza alleged that this portion of the damages was liquidated. Therefore, prejudgment interest should have been awarded on the $15,000.

We have reviewed the remaining issues and the cross appeal, and we find no additional errors. The matter is therefore remanded for further proceedings consistent herewith.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

DOWNEY, HERSEY and BARKETT, JJ., concur.


author: DELL, Judge. HURLEY, Judge,

text:
    Ronald HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-858.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Appellee charged appellant with the theft of an automobile. After the jury returned a guilty verdict, the court withheld adjudication and placed appellant on probation.

The information alleged that the theft occurred on March 23, 1980. The statement of particulars alleged that the theft occurred between March 23 and May 16. However, at trial, appellee elicited testimony from the driver and from the owner of the car that the theft occurred on March 20. Appellee presented no evidence that the theft occurred between March 23 and May 16 and made no effort to amend either the information or the statement of particulars. The court denied appellant’s motion for judgment of acquittal.

Appellant contends the trial court should have granted his motion for judgment of acquittal because appellee failed to prove the crime charged in the information and the statement of particulars. On the other hand, appellee contends that where the record does not demonstrate prejudice to appellant, this court should affirm, relying upon Hoffman v. State, 397 So.2d 288 (Fla.1981).

In State v. Beamon, 298 So.2d 376 (Fla. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975), the court held

When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other, under that particular Information .... Nor may the State remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.

Id. at 378-79.

The Supreme Court revisited Beamon in Hoffman v. State, supra, and qualified that portion of Beamon which precluded amendment. The court held that the State may amend its statement of particulars at trial. However, if the State seeks to amend,

it is incumbent on the state to demonstrate a lack of prejudice to the defendant. In other words, it is essential that the circumstances establishing no prejudice affirmatively appear in the record. When such amendment is requested, the trial court should inquire into the surrounding circumstances to determine whether the amendment would result in harm or prejudice to the defendant.

397 So.2d at 290.

The court approved this court’s affirmance of Hoffman’s conviction because the trial court conducted the proper inquiry and established on the record that the defendant suffered no prejudice. Accord, Taylor v. State, 444 So.2d 931 (Fla.1983). In Stang v. State, 421 So.2d 147 (Fla.1982), however, circumstances establishing no prejudice did not affirmatively appear on the record, and the court quashed this court’s affirmance of the defendant’s conviction.

In their arguments, the parties have overlooked the State’s failure to move to amend the statement of particulars. In State v. Jefferson, 419 So.2d 330 (Fla.1982), proof of the date of the offense did not conform to the date alleged in the statement of particulars. The defendant moved for judgment of acquittal on that basis. The State never moved to amend, but the trial court denied the motion for judgment of acquittal. The district court reversed the conviction, 391 So.2d 747 (Fla. 5th DCA 1980), holding that the case fell squarely within the holding of Beamon. The Supreme Court approved:

There is a significant distinction, however, betw.een the facts of Hoffman and those in the instant case. In Hoffman, the state moved to amend the statement of particulars, which motion the trial court granted, and the case proceeded to conviction. No such motion was made in the instant case at the time the state realized that its proof did not conform to the ... statement of particulars.
The failure of the prosecutor to move to amend the statement of particulars to conform with the proof adduced at trial sufficiently distinguishes the instant case from Hoffman so that Hoffman does not apply.

419 So.2d at 331-32.

Therefore, if the State attempts to introduce evidence of an offense occurring on a date outside that alleged in the statement of particulars, and if the defendant objects, then the State is limited to proof of the date appearing in the statement particulars. Beamon. The State may overcome this limitation by moving to amend the statement of particulars. Hoffman. If the State elects to amend, it bears the burden to demonstrate that the defendant will not suffer prejudice as a result of the amendment. Hoffman. If the State does not seek amendment, and the evidence of the date of the offense does not conform to the allegations in the statement of particulars, the defendant’s motion for judgment of acquittal should be granted. Jefferson.

The judgment of the trial court is accordingly reversed.

REVERSED and REMANDED.

DOWNEY, J., concurs.

HURLEY, J., concurs with opinion.

HURLEY, Judge,

concurring:

A reversal is mandated by the Supreme Court’s holding in State v. Jefferson, 419 So.2d 330 (Fla.1982). See also Smith v. State, 434 So.2d 18 (Fla. 5th DCA 1983). Today’s decision, however, does not preclude a new prosecution for any crime which occurred before or after the period between March 23rd and May 16th, 1980,— the period specified in the bill of particulars in the case on appeal. See State v. Beamon, 298 So.2d 376 (Fla.1974).