text:
    The STATE of Florida, Appellant, v. Waldo TOYOS, Appellee.
    No. 81-17.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 14, 1984.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Sams, Gerstein & Ward and Paul M. Rashkind, Miami, for appellee.
    Before NESBITT, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The state appeals an order discharging defendant pursuant to the speedy trial rule, Florida Rule of Criminal Procedure 3.191 (1980). We agree that under no view of the facts herein can the order be sustained. The salient events are that:

1. On March 28, 1980, defendant was arrested and the applicable 180-day speedy trial period commenced to run.

2. On June 2, 1980, defendant’s counsel was “down the hall” when the case was called for trial. Counsel for a co-defendant, purporting to speak for all the defendants, moved for a continuance. The court charged the continuance to all defendants.

3. Defendant’s counsel thereafter failed to immediately inform the court that he opposed the co-defendant’s motion for corn tinuance and that defendant was indeed ready for trial, and he did not move to sever his client’s trial from that of the co-defendants.

4. On August 11, 1980, when the case was called for the second time, defendant’s counsel (while refusing to waive speedy trial) still did not inform the court that counsel for the co-defendant had been without authority or permission to move for continuance on behalf of defendant.

5. On November 26, 1980, defendant filed a motion for discharge. On that same date, however, he also filed two motions seeking to invoke additional discovery to include the statements of the state’s material witnesses.

6. On December 1, 1980, defendant filed a first demand for speedy trial.

The trial court heard the motion for discharge on December 11, 1980, and entered a written order of discharge on December 18, 1980. In reversing the order of discharge, we rely on the following cases, collectively, as authority for our holding that defendant was not continuously available for trial between June 2, 1980, and December 1, 1980. See Turner v. State ex rel. Pellerin, 272 So.2d 129 (Fla.1973) (where defendant sought further discovery two days after moving for speedy trial, defendant failed to meet requirement that he be prepared for trial at time of filing motion for speedy trial); Gonzalez v. State, 447 So.2d 381 (Fla. 3d DCA 1984) (acquiescence to co-defendant’s motion for continuance operates as waiver of speedy trial where counsel is aware of co-defendant’s motion, participates in subsequent discovery, and takes no affirmative action to inform the trial court of his desire to go to trial); State v. Exposito, 327 So.2d 836 (Fla. 3d DCA 1976) (where counsel for defendant is “down the hall” when case is called for trial, defendant is not continuously available for trial); State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975) (speedy trial waived where defendant’s attorney consents to or acquiesces in a continuance of the trial).

Reversed.

      . We previously reversed the order granting discharge by opinion filed October 6, 1981, wherein appellee was not represented by counsel. The Florida Supreme Court found that appellee was denied effective assistance of appellate counsel and directed us to grant a new and expedited appeal. Our opinion was withdrawn from the bound volume of the Southern Reporter. See 404 So.2d 790.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Darnell GARDNER, Appellant, v. The STATE of Florida, Appellee.
    No. 83-607.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 11, 1984.
    Bennett H. Brummer, Public Defender, and Gitlitz, Keegan & Dittmar and James Keegan, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran and Rene Ruska, Asst. Attys. Gen., for appellee.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Holland v. State, 432 So.2d 60 (Fla. 1st DCA 1983); Hodge v. State, 419 So.2d 346 (Fla. 2d DCA 1982); Coral Plaza Corporation v. Hersman, 220 So.2d 672 (Fla. 3d DCA), cert. denied, 229 So.2d 867 (Fla.1969).

Review Dismissed, Fla., 450 So.2d 486.


text:
    KENDALL SKATING CENTERS, INC., and Empire Fire and Marine Insurance Company, Appellants, v. Timothy MARTIN, Appellee.
    No. 83-1128.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 11, 1984.
    Larry Klein, Solomon & Flanagan, West Palm Beach, for appellants.
    Horton, Perse & Ginsberg and Edward Perse and Lawrence Rodgers, Miami, for appellee.
    High, Stack, Lazenby, Palahach & Laca-sa and Philip J. Cole, Coral Gables, for Dade County Police Benevolent Ass’n as amicus curiae.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Contrary to the trial court’s assertion that there are “no bounds” during closing argument we hold that there are indeed bounds which in this case were grossly exceeded. The plaintiff’s characterization of the defendants as despicable and his assertion that both they and their lawyers were liars compels a reversal. See Schreier v. Parker, 415 So.2d 794 (Fla. 3d DCA 1982).

Because this case must be retried we address one other point raised by the appellants and hold that the trial court properly refused to apply the fireman’s rule. See Wood v. Camp, 284 So.2d 691 (Fla.1973); Price v. Morgan, 436 So.2d 1116 (Fla. 5th DCA 1983).

Reversed and remanded for a new trial.


text:
    Sue BROMLEY, Appellant, v. Harold BROWN d/b/a Kendall Mall, and Aetna Casualty and Surety Co., Appellees.
    No. 83-2128.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 11, 1984.
    Neil Carver, Coral Gables, for appellant.

      Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellees.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).


author: FERGUSON, Judge.

text:
    Rose L. TEPPER, an incompetent, By and Through her Guardian Donald D. MICHELSON, Appellant, v. CITIZENS FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 83-2285.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.

      David M. Garvin and Philip T. Weinstein, Miami, for appellant.
    Stuzin & Camner and Barry Jay Warsch, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The sole question presented is when does the statute of limitations begin to run against a drawer in an action for wrongful dishonor of a check — on the date of issuance of the cheek or the date of presentment and dishonor?

Rose Tepper (appellant) was adjudicated an incompetent in December, 1982. On examination of her personal effects, a court-appointed guardian discovered a check for the sum of $6,068, dated January 4, 1974. The check was drawn to Rose Tepper by Citizens Federal Savings and Loan Association against its account with Jefferson National Bank. See Exhibit.

On December 20, 1982, appellant’s representative presented the check to the drawee bank, Jefferson National (not a party to this action), which refused payment. The representative then advised the drawer, Citizens Federal (appellee), of the dishonor. Citizens Federal orally notified appellant’s representative that it would neither honor nor refund the instrument. The guardian instituted this action against the drawer on July 12, 1983.

The trial court dismissed the guardian’s complaint on appellee’s motion, holding that “the statute of limitations began to run on the date of issuance of the check herein sued upon, [so the] action is barred by the applicable five year statute of limitations.” We reverse upon a holding that the statute of limitations begins to run against a drawer of a check on the date of presentment and dishonor.

Although there seems to be a dearth of Florida case law on the issue presented, appellant has found all the law necessary to a correct resolution. The decision here is based upon an application of clear statutes and is supported by several treatises.

A draft is a three-party instrument whereby the drawer orders the drawee to pay money to the payee. See J. White and R. Summers, Uniform Commercial Code § 13-1 (2d ed. 1980). A draft is also called a check when the drawee is a bank and the instrument is payable on demand. § 673.104(2)(b), Fla. Stat. (1983). A drawee is not liable on the instrument until there has been an acceptance. § 673.409. The drawee may, by accepting in writing on the instrument, agree to honor it as presented. § 673.410. By contrast, a drawee may reject the instrument, as by stamping insufficient funds on a check where the drawer’s deposited funds are less than the amount of the instrument. The act of accepting the instrument renders the drawee primarily liable as an acceptor. See § 673.414(1). Because there are no conditions precedent to its liability, a cause of action accrues against an acceptor in the case of a demand instrument on the date of the instrument or date of issue. § 673.122(l)(b)l.

The drawer, on the other hand, is only secondarily liable on the instrument, in that there are conditions precedent to liability. W. Hawkland, Commercial Paper 52 (2d ed. 1979). The normal conditions precedent include presentment to the drawee, dishonor, and notice of dishonor. Id.; see § 673.501. Therefore, a cause of action against the drawer of a draft accrues only upon demand following dishonor of the instrument. § 673.122(3). Notice of dishonor constitutes a demand. Id. This latter section is clearly dispositive of the issue presented, as a cause of action against the drawer herein, Citizens Federal, thus did not accrue until appellant’s representative received notice of dishonor from the drawee, Jefferson National Bank.

Florida case authority for the proposition that the statute of limitations begins to run against an issuing bank on a cashier’s check at the moment of issuance, Atlantic National Bank of West Palm Beach v. Havens, 45 So.2d 342 (Fla.1950), is distinguishable. A cashier’s check is a check on which the issuing bank acts as both the drawer and the drawee. Its own act of issuance renders the bank a drawee who has accepted the draft; thus the issuing bank becomes primarily liable as an acceptor. J. White and R. Summers, Uniform Commercial Code § 17-5 (2d ed. 1980). Presentment of a negotiable instrument is not necessary in order to establish liability against parties who are primarily liable. In such a case the statute of limitations begins to run on a demand instrument at the moment of issuance. W. Hawkland, Commercial Paper 42-43 (2d ed. 1979). As to parties secondarily liable, however, such as the drawer herein, there is no instant liability and thus no cause of action until demand following presentment and dishonor. H. Bailey, Brady on Bank Checks § 4.12 (5th ed. 1979).

The distinction between a cashier’s check where the issuing bank is primarily liable and other drafts, where the drawer is secondarily liable, is stated:

[Ujnder the Code, a cause of action against a certifying bank or a bank issuing a cashier’s check accrues on the date of the check (or date of issue if the check is undated). This means that the statute of limitations begins to run at that time and suit against the bank will be barred after the statute of limitations has run. But a cause of action against a drawer of a check does not accrue until demand following dishonor. This theoretically means that the time for bringing action against the drawer may be deferred indefinitely if there is no presentment for payment. H. Bailey, Brady on Bank Checks § 4.12 (5th ed. 1979).

Under Florida law an action may not be deferred indefinitely in all instances; instead, a drawer will be discharged from its liability if presentment is unreasonably delayed and the drawee bank becomes insolvent during the delay. § 673.502(1)(b); see also Robinson v. Brunson, 383 So.2d 964 (Fla. 2d DCA 1980).

In that appellee herein was the drawer of the instrument which is the subject of this action, and therefore only secondarily liable, a cause of action did not accrue against it until after demand following presentment and dishonor on December 20, 1982. The action for wrongful dishonor of the instrument was commenced timely.

Reversed and remanded.


author: WALDEN, Judge.

text:
    FLORIDA POWER AND LIGHT COMPANY, a Florida corporation, Appellant, v. FIRST NATIONAL BANK AND TRUST COMPANY OF RIVIERA BEACH, as Trustee, et al., Appellees.
    Nos. 82-2516, 83-9.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing and Motion to Certify Question of Importance Denied May 14, 1984.
    William E. Sadowski and Barry R. Davidson of Steel, Hector & Davis, Miami, for appellant.
    Paul A. Turk, Jr., of Gunster, Yoakley, Criser & Stewart, Palm Beach, for appel-lees.
   WALDEN, Judge.

This is an eminent domain proceeding. The condemnor was Florida Power and Light Company, a private, investor-owned electric utility. The property owner was Hobe Groves, Inc. The trial court ruled that Florida Power was a “public body” within the definition found in Section 73.-071(3)(b), Florida Statutes (1981). Based upon that ruling, Hobe Groves received an award of $99,000.00 as business damages. Additionally, Hobe Groves received an award of attorney’s fees in the sum of $45,000.00, which award was enhanced by the mentioned ruling. Florida Power appeals. We reverse the award of business damages. We reverse the award of attorney’s fees and remand for a new hearing as to it to be conducted without regard to the award of business damages and the attorney’s work done in that connection.

There is no challenge as to constitutionality in this appeal.

The critical statute allowing business damages is Section 73.071(3)(b), Florida Statutes (1981) which provides:

(3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include:
(b) Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including, when the action is by the Division of Road Operations of the Department of Transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy ' an established business of more than 5 years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause; any person claiming the right to recover such special damages shall set forth in his written defenses the nature and extent of such damages;

The dispositive point is whether or not Florida Power is a “public body” within the definition and intendment of the above statute. We hold that it is not such a body and, hence, is not liable to pay the con-demnee business damages.

It is to be remembered that the right to business damages is strictly a matter of legislative grace, not constitutional imperative. Lost profits and business damages are intangibles which generally do not constitute “property” in the constitutional sense. Jamesson v. Downtown Development Authority of the City of Fort Lauderdale, 322 So.2d 510 (Fla.1975); Matthews v. Division of Administration, State of Florida, Department of Transportation, 324 So.2d 664 (Fla. 4th DCA 1975). 27 Am.Jur.2d, Eminent Domain, § 285 explains:

Many authorities have assumed or held that injury to a business is not an appropriation of property for which compensation must be made. While no doubt a business may be property in a broad sense of the word, and .property of great value, and while it may be assumed that there might be such a taking of it as required compensation, yet a business is less tangible in nature and more uncertain in its vicissitudes than the rights which the Constitution undertakes absolutely to protect. The diminution of its value is a vaguer injury than the taking or appropriation with which the Constitution ordinarily deals. A business might be destroyed by the construction of a more popular street into which travel was diverted, as well as by competition, but generally there would be as little claim in the one case as in the other. Ordinarily, the case stands no differently when the business is destroyed by a taking of the land on which it was carried on, except so far as it may have enhanced the value of the land. Accordingly, it may be stated as the view which has been followed by most of the authorities that injury to a business or loss of profits or the inconvenience of carrying on business in a new location, are not to be considered elements of damages in eminent domain proceedings in the absence of a statute expressly allowing such damages, even under a constitutional provision allowing just compensation for property taken, injured, or destroyed. This view applies not only where the property on which the business is conducted is taken but also where the property is damaged but not taken.

Entitlement to business damages under the statute clearly requires the taking be a public body, i.e., by a governmental agency or political subdivision of the State. Florida Power and Light not being within that class could not be required to pay business damages.

We find the statute in question to be clear and unambiguous and hence not subject to enlargement or construction. Thus, while we may agree that facially it is unfair for a property owner upon having his property taken by eminent domain to be subject to different standards of compensation depending upon the identity of the condemnor, we feel that the remedy belongs within the legislative domain.

We reverse the award of business damages. We reverse the award of attorney’s fees and remand for new hearing to be conducted without regard to the award of business damages.

REVERSED AND REMANDED.

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


author: HURLEY, Judge. GLICKSTEIN, Judge,

text:
    BEACHWOOD VILLAS CONDOMINIUM, Appellant, v. Earl S. POOR and Iris E. Poor, his wife, and Sanford I. Kartzman and Francine L. Kartzman, his wife, Appellees.
    No. 83-188.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing Denied May 16, 1984.
    James D. McFarland of Anderson, Dun-gey & McFarland, P.A., Stuart, for appellant.
    Martin D. Kahn of Martin D. Kahn, P.A., North Miami, for appellees.
   HURLEY, Judge.

At issue is the validity of two rules enacted by a condominium board of directors. The trial court invalidated both rules because it determined that the board exceeded the scope of its authority. We reverse.

The board of directors of the Beachwood Villas Condominium Association enacted rules 31 and 33 to regulate unit rentals and the occupancy of units by guests during the owner’s absence. Rule 31, the rental rule, requires that: (1) the minimum rental period be not less than one month, (2) the number of rentals not exceed six per year, (3) the occupancy rate not exceed a specified number which is calculated to the size of the unit, (4) tenants not have pets without the approval of the board, and (5) a processing fee of $25.00 be paid. Rule 33, the guest rule, requires: (1) board approval for the “transfer” of a unit to guests when the guests are to occupy the unit during the owner’s absence, (2) that the number of transfers (either by rental or guest occupancy) not exceed six per year, and (3) that the occupancy rate not exceed a specified number which is calculated to the size of the unit. The trial court found that the board lacked authority to enact either rule. We respectfully disagree.

Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637 (Fla. 4th DCA 1981), suggested that condominium rules falling under the generic heading of use restrictions emanate from one of two sources: the declaration of condominium or the board of directors. Those contained in the declaration “are clothed with a very strong presumption of validity _,” id. at 639, because the law requires their full disclosure prior to the time of purchase and, thus, the purchaser has adequate notice. See Section 718.503(2)(a), Florida Statutes (1983). Board rules, on the other hand, are treated differently. When a court is called upon to assess the validity of a rule enacted by a board of directors, it first determines whether the board acted within its scope of authority and, second, whether the rule reflects reasoned or arbitrary and capricious decision making. See, e.g., Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975); Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971); see generally Note, Condominium Rule-making — Presumptions, Burdens and Abuses: A Call for Substantive Judicial Review in Florida, 34 U.Fla.L.Rev. 219 (1982); Note, Judicial Review of Condominium Rulemaking, 94 Harv.L.Rev. 647 (1981).

The reasonableness of rules 31 and 33 was not questioned below and, therefore, we are concerned only with the scope of the board’s authority. Inquiries into this area, as we indicated in Juno by the Sea North Condominium, Inc. v. Manfredonia, 397 So.2d 297 (Fla. 4th DCA 1980) (on rehearing), begin with a review of the applicable statutes and the condominium’s legal documents, i.e., the declaration and bylaws.

By express terms in the statute and in the declaration the association has been granted broad authority to regulate the use of both the common element and limited common element property.
In general, that power may be exercised as long as the exercise is reasonable, is not violative of any constitutional restrictions, and does not exceed any specific limitations set out in the statutes or condominium documents.

Id. at 302.

Since there has not been any suggestion that either rule violates the Condominium Act, Section 718, Florida Statutes (1983), we begin by viewing the Beachwood Villas declaration of condominium. Article X provides that “[t]he operation of the condominium property shall be governed by the ByLaws of the Association which are ... made a part hereof.” In turn, Article IV of the by-laws states that “[a]ll of the powers and duties of the Association shall be exercised by the board of directors .... ” More specific is Article VII, Section 2, which states that “[t]he Board of Directors may, from time to time, adopt or amend previously adopted rules and regulations governing and restricting the use and maintenance of the condominium units .... ”

It is obvious from the foregoing that the board of directors is empowered to pass rules and regulations for the governance of the condominium. The question remains, however, whether the topics encompassed in rules 31 and 33 are legitimate subjects for board rulemaking. Put another way, must regulations governing rental of units and occupancy of units by guests during an owner’s absence be included in the declaration of condominium. At least one court has held that “[u]se restrictions to be valid, must be clearly inferrable [sic] from the Declaration.” Mavrakis v. Playa Del Sol Association, No. 77-6049, slip op. at 4 (S.D.Fla. May 11, 1978). This test is rooted in the concept that declarations of condominium are somewhat like covenants running with the land. See Pepe v. Whispering Sands Condominium Association, 351 So.2d 755 (Fla. 2d DCA 1977). Even so, we believe that this test is too stringent. A declaration of condominium is “the condominium’s ‘constitution’.” Schmidt v. Sherrill, 442 So.2d 963, 965 (Fla. 4th DCA 1984). Often, it contains broad statements of general policy with due notice that the board of directors is empowered to implement these policies and address day-to-day problems in the condominium's operation through the rulemaking process. It would be impossible to list all restrictive uses in a declaration of condominium. Parking regulations, limitations on the use of the swimming pool, tennis court and card room — the list is endless and subject to constant modification. Therefore, we have formulated the appro-Í priate test in this fashion: provided that a board-enacted rule does not contravene either an express provision of the declaration or a right reasonably inferable therefrom, it will be found valid, within the scope of the board’s authority. This test, in our view, is fair and functional; it safeguards the rights of unit owners and preserves unfettered the concept of delegated board management.

Inasmuch as rules 31 and 33 do not contravene either an express provision of the declaration or any right reasonably in-ferable therefrom, we hold that the board’s enactments are valid and plainly within the scope of its authority. Accordingly, we reverse the order on appeal and remand the cause for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WALDEN, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting.

I agree with the trial court and disagree with my colleagues, recognizing that judicial decisions in condominium cases are like congressional legislation in that nobody is happy with the result. The basis of my dissent is in my reading of Article XIII B.9 of the Declaration of Condominium vis a vis Article VII, Section 2 of the By-Laws. The former provides:

9. Regulations

Reasonable regulations concerning the use of condominium property and recreational facilities may be made and amended from time to time by the Association in the manner provided by its Articles of Incorporation and By-Laws. Copies of such regulations and amendments shall be furnished by the Association to all unit owners and residents of the condominium upon request. [Emphasis added.]

“Condominium property” is described in Section 718.103(11), Florida Statutes (1981), as follows:

“Condominium property” means the lands, leaseholds, and personal property that are subjected to condominium ownership, whether or not contiguous, and all improvements thereon and all easements and rights appurtenant thereto intended for use in connection with the condominium.

The subject section of the By-Laws says:

Section 2. As to Condominium Units. The Board of Directors may, from time to time, adopt or amend previously adopted rules and regulations governing and restricting the use and maintenance of the condominium units, provided, however, that copies of such rules and regulations are furnished to each unit owner prior to the time the same become effective. [Emphasis added.]

If the trial judge’s interpretation of the foregoing is reasonable, I doubt that we can substitute our judgment for his. He obviously felt the Association was the proper party to make tftS'regulations as to use of the condominium units because (1) that is what the Declaration required; and (2) the By-Laws fall if they conflict with the Declaration. It is hard to quarrel with his conclusion.

      . In Tower House Condominium, Inc. v. Millman, 410 So.2d 926 (Fla. 3d DCA 1981), the court invalidated a condominium bylaw because it was inconsistent with the declaration. Likewise, Scarfone v. Culverhouse, 443 So.2d 122 (Fla. 2d DCA 1983), invalidated board action which was authorized by and inconsistent with the declaration. In the same vein, a facially neutral rule or board decision may be attacked on the ground that it places an unreasonable or arbitrary limitation on a use permitted by the declaration. See Lyons v. King, 397 So.2d 964 (Fla. 4th DCA 1981). As indicated, however, this allegation has not been raised in the case at bar.


text:
    Michael BENDE, t/a Michael Properties, Appellant, v. Richard P. McLAUGHLIN, Appellee.
    Nos. 83-567, 83-1434.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing Denied May 17, 1984.
    Arnold F. Kurzinger, Boca Raton, and Larry Klein, West Palm Beach, for appellant.
    Anthony E. Pucillo of Pucillo & Schilling, West Palm Beach, for appellee.
   PER CURIAM.

This was an action for specific performance of a contract for the sale of land. Defendant prevailed and was awarded attorney’s fees. Plaintiff appeals. We affirm.

As to attorney’s fees, we affirm upon authority of Sousa v. Palumbo, 426 So.2d 1072 (Fla. 4th DCA 1983). We acknowledge that a contra view is expressed in Leitman v. Boone, 439 So.2d 318 (Fla. 3d DCA 1983). Thus, the two cases are in conflict.

AFFIRMED.

HURLEY and WALDEN, JJ., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.


author: DELL, Judge.

text:
    In re The FORFEITURE OF $106.00 UNITED STATES CURRENCY and 1981 Isuzu Automobile, etc.
    No. 83-1613.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing Denied May 10, 1984.

      Nancy Little Hoffmann of Hoffmann & Burris, P.A., Fort Lauderdale, for appellant Eileen Lavalle.
    Philip J. Montante, Jr., Pompano Beach, for appellees City of Pompano Beach and City of Pompano Beach Police Department.
   DELL, Judge.

Eileen Lavalle f/k/a Eileen Murray appeals from an order and final judgment in proceedings resulting in the forfeiture of a 1981 Isuzu automobile.

Appellant allegedly loaned her Isuzu automobile one evening to her ex-husband, James J. Trombino. The police arrested Trombino that night and seized the car. Four days later appellant registered the car in her name (title was previously registered in Trombino’s name). On June 21, 1982, the State of Florida issued a certificate of title to appellant.

On June 24, 1982, the City of Pompano Beach began forfeiture proceedings. The City published notice of the proceedings, and sent notice by mail to James Trombino and the lien holder. The City did not send notice to appellant. No one appeared at the hearing to claim an interest in the car and the court granted a final order of forfeiture in favor of the City.

James Trombino subsequently filed a motion to set aside the final order of forfeiture. Upon agreement between counsel to set aside the order, the trial court reset the case for trial.

At the calendar call on May 16, 1983, appellant filed a motion to intervene alleging that she purchased the car on March 20, 1982, and obtained an executed certificate of title on that date; that she did not receive notice of the forfeiture proceedings; and that she had possession of the car. The trial court denied her motion.

Appellant contends the trial court abused its discretion in refusing to permit her to intervene. She relies on Florida Rule of Civil Procedure 1.230 which provides that “[ajnyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention_” Appellant recognizes, however, that it is generally too late to intervene after entry of a decree, unless the interests of justice require it. Maryland Casualty Co. v. Hanson Dredging, Inc., 393 So.2d 595 (Fla. 4th DCA 1981); Wong v. Von Wersebe, 365 So.2d 429 (Fla. 3d DCA 1978).

The City argues that on the date of the seizure, record title listed James Trombino as owner of the vehicle. Thus the City contends that it properly sent notice of the forfeiture proceedings to the registered owner pursuant to Section 932.704(2), Florida Statutes (Supp.1982). We disagree.

Section 932.704(2) states that “the seizing agency shall be obligated only to make diligent search and inquiry as to the owner of the subject property .... ” Appellant registered the 1981 Isuzu and the state issued title in her name prior to the commencement of the forfeiture proceeding. Had the City checked the motor vehicle records immediately prior to filing the forfeiture proceeding it would have discovered registration of the vehicle in appellant’s name. Therefore, the City had at least constructive notice of appellant’s alleged interest in the automobile and with the exercise of reasonable care, could have had actual notice.

The trial court should have permitted appellant to intervene because the City failed to make a diligent inquiry as to the owner of the vehicle and failed to furnish appellant with notice as required by Section 932.704(2). Therefore, we reverse the order denying appellant’s motion for intervention and remand this cause for further proceedings consistent herewith.

REVERSED and REMANDED.

HURLEY and WALDEN, JJ., concur.

      . However, the record does not indicate that the trial court ever entered a formal order setting aside the final order of forfeiture.


text:
    CHEMICAL BANK OF NEW YORK, a New York Banking corporation, Appellant, v. Sherman POLAKOV and Flora Polakov, Appellees.
    No. 83-1731.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing Denied May 16, 1984.
    Alan M. Fisher of Hayt, Hayt & Landau, Miami, for appellant.
    Fred Boruchov, Hollywood, for appellees.
   PER CURIAM.

The trial court dismissed this action for lack of prosecution. Plaintiff appeals. We affirm.

The trial court, one day short of a year following record activity, filed a sua sponte motion and order to show cause why the action should not be dismissed for lack of prosecution pursuant to Rule 1.420(e), Florida Rules of Civil Procedure. Plaintiff did not file its notice of good cause at least five (5) days prior to the hearing as provided by the mentioned Rule. It did not file a pleading in prosecution of the action during this period. Thus, at the time of the hearing upon the court’s motion, substantially more than one year had elapsed during which there was no record activity. Incidentally, we hold that the filing of the court’s motion in administration of Rule 1.420(e), Fla.R.Civ.P., is not such record activity as will prevent dismissal for failure to prosecute.

Obviously, the court should not have, miscalculated the time and should have waited an additional day before entering the order to show cause. Johnson v. Mortgage Investors of Washington, 410 So.2d 541 (Fla. 2d DCA 1982). However, a plaintiff faced with this situation has only to file a pleading designed toward prosecution plus file its notice of good cause within the requisite five (5) day period before hearing, pointing out the miscalculation, which action would forestall dismissal.

AFFIRMED.

HURLEY and WALDEN, JJ„ concur.

DELL, J., dissents without opinion.


author: DOWNEY, Judge.

text:
    SOL B. CORPORATION, d/b/a Holiday Beach Motel, Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 83-2021.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing Denied May 9, 1984.
    Bruce S. Rogow, Fort Lauderdale, for appellant.
    Louisa E. Hargrett, Tallahassee, for ap-pellee.
   DOWNEY, Judge.

Appellant was the owner of an alcoholic beverage license. As a result of charges filed against it involving, among other things, the sale of intoxicants to minors and the improper surrendering of control of portions of licensed premises, the administrative hearing officer recommended that appellant’s license simply be revoked. Thereafter, without an opportunity to review the complete record, the Director of the Division of Alcoholic Beverages & Tobacco entered a final order which provided that “respondent’s [appellant] alcoholic beverage license No. 16-637S, Series 4-COP, be revoked with prejudice as provided in Section 561.58, Florida Statutes, for multiple violations of the Beverage Law.”

Appellant seeks reversal of the final order because the agency has increased the penalty recommended by the hearing officer from simple revocation to “revocation with prejudice as provided in Section 561.-58, Florida Statutes” without reviewing the complete record, contrary to the provisions of section 120.57(l)(b)9, Florida Statutes (1983).

If revocation of appellant’s license “with prejudice as provided in Section 561.58, Florida Statutes,” constitutes an increase in the penalty of revocation recommended by the hearing officer, then appellant’s point appears well taken. That the addition of such language does increase the penalty seems clear from the wording of section 561.58, Florida Statutes (1983), which provides:

When a license is revoked by the division-it may prohibit or permit a license to be issued for the location of the place of business formerly operated under such revoked license. The maximum period of time that any such license shall be prohibited by the division from any such place of business shall be 2 years from the succeeding license renewal date as fixed by the division following such revocation.

If the final order had followed the hearing officer’s recommendation and simply revoked appellant’s license, the property could be leased to new tenants who, upon being properly licensed, could engage in the sale of intoxicating beverages. As entered, the final order may well be construed to allow the agency to prohibit the use of the premises for the sale of intoxicating beverages for a period up to two years — a much more onerous penalty.

Accordingly, the language “with prejudice as provided in Section 561.58, Florida Statutes,” is stricken from the final order under review, and as so modified the final order is affirmed.

AFFIRMED AS MODIFIED.

HERSEY and DELL, JJ., concur.


author: THOMPSON, Judge. SHIVERS, Judge,

text:
    CITY OF TAMPA, Self-Insured, Appellant, v. Samuel JONES, Jr., Appellee.
    No. AU-78.
    District Court of Appeal of Florida, First District.
    April 11, 1984.
    Rehearing Denied May 9, 1984.

      Stephen M. Barbas, Asst. City Atty., Tampa, for appellant.
    Susan R. Whaley of Macfarlane, Ferguson, Allison & Kelly, Lawrence Anzalone, Tampa, for appellee.
   THOMPSON, Judge.

The employer appeals a compensation order holding that an injury sustained by the claimant while he was participating in a city league basketball game was compensa-ble. We reverse.

The claimant, a police officer employed by the City of Tampa (City), is a leader and active member of a basketball team known as the Tampa Police Department basketball team. The team has been in existence since prior to 1974, the year claimant joined the Tampa Police Department (Department). Team membership is ordinarily limited to members of the Department but non-members of the Department have participated in city league games in past years. Although the team uniforms bear the legend “Tampa Police,” neither the City nor the Department sponsored the team. The costs of uniforms and equipment, and other expenses such as league fees are paid by the players, by independent organizations such as the Fraternal Order of Police, or by corporate sponsors. The team’s organizational meeting for the 1982-1983 season was held at police headquarters, and an announcement of the meeting was circulated through Department channels. However, neither games nor practice sessions were held in the police gymnasium, and it was undisputed that participation on the team was entirely voluntary.

Although the team was apparently formed for the purpose of participating in city league basketball activities, the evidence shows that on five occasions between 1974 and 1982 the team played “special games” for the Department’s benefit. The “special games” were in the nature of exhibition games played for the purposes of aiding police recruiting efforts and for improving police-community relations. On occasions when the “special games” were played, team members who wished to participate were placed on special duty status by the Department, which permitted those officers scheduled to be on duty at the time of the game to participate in the game rather than to carry out their usual duties. The officers placed on special duty continued to receive their regular pay notwithstanding that they were playing basketball rather than performing their usual work. However, team members not scheduled to be on duty at the time “special games” were to be played were not placed on special duty status and did not receive pay for the time they participated in the games. Although the chief of police categorically denied that team members were ever given time off with pay so they could participate in city league games, pointing out that such practice would violate Department rules and the provisions of the Department’s collective bargaining agreement with its officers, claimant’s testimony provides competent substantial evidence this occurred occasionally. It was uncontradict-ed that no officer was ever placed on special duty status so that he could participate in a city league basketball game, and it was similarly undisputed that claimant’s injury occurred while he was off duty and was playing in a city league game.

At the hearing, the chief of police testified that the “special games” played for the benefit of the Department were considered official Department functions, and that any injuries which a Department team member might sustain in such a game would be considered compensable. The claimant testified that in his opinion, the team’s participation in the city league constituted “practice” for the special games, and that participation in the city league games should therefore be considered an official activity or duty, with any injuries sustained therein being also compensable. This testimony is not competent substantial evidence. It is merely opinion and to so hold would require a finding that the team played nine full seasons of city league basketball over a nine year period as practice for “special games” held in 1974, 1975, 1981, and 1982. There is no evidence in the record that any authorized special duty game was played for five consecutive years and it is neither logical nor reasonable that the team would play five full seasons of city league basketball as practice for a “special game.”

In the order appealed, the deputy commissioner (deputy) correctly stated the issue as being whether the claimant’s injury arose out of and in the course of his employment, and further correctly relied on Professor Larson’s three-part test for determining when recreational or social activities are to be considered within the scope of employment. See 1A A. Larson, The Law of Workmen’s Compensation § 22.00 (1982); Brockman v. City of Dania, 428 So.2d 745 (Fla. 1st DCA 1983). The three-part test requires consideration of the following:

1. Whether the activities occur on the employer’s premises during a lunch or recreation period as a regular incident of the employment; or
2. Whether the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
3. Whether the employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

The deputy specifically found in the order that a police officer’s participation in “special games” would meet the Larson criteria, while participation in city league games would not. We agree with this finding. He made no finding as to whether the city league games constituted “practice” for “special games.” He also specifically found that the City derived no direct benefit from the city league games. Notwithstanding the finding that injuries sustained during participation in city league play would not meet the Larson test for com-pensability, the deputy ruled the injury sub judice compensable upon his finding that:

[A]s long as the City of Tampa allows a group of its officers to hold themselves out as a City of Tampa Police Department Basketball Team, and in the course of that team’s endeavors, from time to time, orders them to take part in certain basketball contests which aid the police department, that the members of the team must be covered by Workers’ Compensation for all games, (emphasis added).

This case does not involve an issue of apparent agency, and the fact that the City allowed a group of its officers to hold themselves out as a City of Tampa Police Department Basketball Team has no legal effect on whether the claim is compensable.

The finding that the Department orders team members to participate in “special games” was apparently founded on language in only one official Department memorandum concerning a “special game,” which was quoted in the Deputy’s order as follows:

“The following officers will participate in a recruiting effort by playing a basketball game. * * * ”

Although it might appear at first glance that this is the type of evidence which is within the deputy’s sole province to evaluate, we are unable to find that it constitutes competent substantial evidence to support the ruling of compensability under the circumstances of this case. The quoted statement from the memorandum is patently ambiguous and the deputy’s interpretation of the statement as an order requiring certain officers to participate in a basketball game is directly contrary to the unambiguous and unequivocal testimony of both the claimant and the police chief that participation on the basketball team was entirely voluntary. In addition, the police chief testified that the above quoted memorandum was not an order requiring the named officers to play in the “special game,” but was directed to the Department supervisors in order to notify them that certain officers who had elected to play in the “special game” should be placed on special duty status during the period when the game was scheduled to be played. All other official memoranda relating to “special games” provided that the named officers were authorized to participate in or represent the Department in a basketball game. More importantly, even if we could approve the deputy’s finding that the Department occasionally ordered officers to play in “special games,” the order appealed sets forth no rationale for the determination that the Department’s actions with respect to “special games” justify holding the Department responsible for securing workers’ compensation coverage in connection with city league games, which the deputy specifically found did not meet the Larson criteria and did not directly benefit the City. Here, as in Brockman, the claimant has failed to demonstrate a sufficient nexus between his injury and his employment to warrant a finding of compensability.

REVERSED.

JOANOS, J., concurs.

SHIVERS, J., dissents.

SHIVERS, Judge,

dissenting:

I respectfully dissent and would affirm this close question. There appears to be a sufficient nexus between claimant’s injury while a member of the “Tampa Police” basketball team and claimant’s employment to warrant the deputy’s finding of com-pensability.


author: DANAHY, Judge.

text:
    Donald E. HALPIN, a/k/a Charles W. Engle, Appellant, v. STATE of Florida, Appellee.
    No. 83-1406.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.

      Elliott C. Metcalfe, Jr., Public Defender, and Alan R. Dakan, Asst. Public Defender, Sarasota, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The appellant appeals a second denial by the trial judge of the appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. For the reasons expressed below, we reverse and remand for further hearing.

The appellant, who is indigent, was convicted of several offenses and appealed his convictions to this court. This court affirmed. Thereafter the appellant filed a pro se motion under rule 3.850 for postcon-viction relief. The trial judge denied the motion and an appeal to this court followed.

This court issued an opinion finding that of the four points raised in the appellant’s motion, there was possible merit in the point that the appellant was denied effective assistance of counsel because his trial counsel failed to comply with the appellant’s request that he subpoena a particular witness. 428 So.2d 703. The court noted that the trial judge had failed to conduct an evidentiary hearing on the rule 3.850 motion or to attach portions of the record which refute the appellant’s allegation. The court specifically found that the trial judge was correct in denying the appellant's motion as to the other points raised therein.

This court, therefore, reversed in part the trial judge’s denial of the appellant’s motion and remanded the case for further consideration pursuant to our mandate. The court directed that the trial judge either again deny the motion as to that one point and attach to his order those portions of the record which conclusively show that the defendant is not entitled to relief, or hold an evidentiary hearing and then rule on the point raised in the motion.

On remand from this court, the trial judge held a hearing at which the appellant was present but not represented by counsel although an assistant public defender was present as “standby defense counsel.” The proceedings at the hearing are reflected in a three-page transcript. Neither the appellant nor the state offered any evidence on the issue which the trial judge was to determine; that is, the one possibly meritorious point which this court had previously found to be stated in the appellant’s 3.850 motion.

The appellant asserts on this appeal that he should have been afforded counsel and that the hearing was simply inadequate. We agree. The Supreme Court of Florida has specifically held that although there is no absolute right to counsel in postconviction relief proceedings, the court before which the proceedings are pending must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant. Graham v. State, 372 So.2d 1363 (Fla.1979). In that case the court quoted the following language from an earlier opinion:

The question in each proceeding of this nature before this Court should be whether, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner’s claims. Of course, doubts should be resolved in favor of the indigent petitioner when a question of the need for counsel is presented. Each case must be decided in the light of the Fifth Amendment due process requirements.

Id. at 1365.

The court went on to say that the adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research, are all important elements which may require the appointment of counsel. The court commented that there is no right to counsel unless the application for post-conviction relief reflects on its face a color-able or justiciable issue or meritorious grievance. In the instant case, this court has previously held that the appellant has presented one point which may have merit. Thus it is appropriate to consider whether, in the light of due process requirements of fairness, counsel should have been afforded the appellant for presentation of his claim at the hearing held pursuant to this court’s mandate. We believe that the adversary nature of the proceeding, its complexity, and the need for an evidentiary hearing, require the appointment of counsel in this case. We agree with the appellant that he did not effectively waive his right to counsel. Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983).

Accordingly, we reverse and remand with directions that a further hearing be held on the appellant’s 3.850 motion, limited to the one point found by this court to have possible merit, and at which the appellant is afforded counsel.

REVERSED and REMANDED.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


text:
    RESIDENTIAL COMMUNITIES OF AMERICA, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Don Boyett, Therlene Boyett, Stanley Oliver, Marie Oliver, Raymond Oliver, Henry A. Nobles, Jr., Rosewitha Nobles, Henry Nobles, Sr., Bonnie Nobles, Terry Nelson and Susan Nelson, Appellees.
    No. AP-143.
    District Court of Appeal of Florida, First District.
    April 13, 1984.
    Thomas G. Pelham and J.D. Boone Kuer-steiner of Akerman, Senterfitt & Eidson, Tallahassee, for appellant.
    J. Alan Cox, Asst. General Counsel, Tallahassee, for appellee DER.
    Stanley Oliver, pro se.
    Don Boyett, pro se.
    Stephen W. Metz and Robert M. Rhodes of Messer, Rhodes & Vickers, Tallahassee, for amicus curiae Florida Home Builders Association.

       Judge Barfield replaced Judge R. Smith who was on original panel that heard oral argument.

   PER CURIAM.

This case concerns the extent of DER’s chapter 403 regulatory powers over a landowner’s dredge and fill activities, associated with upland development, in the historic bed of a lake gone partially or completely dry in recent years. In that respect this case is similar to Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982), rev. den., 436 So.2d 98 (Fla. 1983), although, unlike Falls Chase, this is a conventional section 120.68 appeal from DER’s order entered after section 120.57 proceedings before a hearing officer of the Division of Administrative Hearings.

The question is whether the appellant developer is subject to DER regulatory powers and responsibilities over dredge- and-fill at a site in Lake Meadow, in Orange County, where the developer began building an earthen berm. Nearby the developer has built, as its name implies, a residential community from which surface drainage would carry pollutants deeper in the Lake Meadow basin were the run-off not otherwise disposed of or retained at some point in the drain field. The berm site is well within “Lake Meadow” as that water body is conceived. But most of the historic lake bed is now dry, or at least was dry in May 1982, when a section 120.57 hearing was conducted by a hearing officer of the Division of Administrative Hearings. The surface of the dry land at the berm site is dominated by dog fennel, a species intolerant of water.

Because the surface area at the berm site is dominated by vegetation not listed among water-tolerant species found in DER’s Rule 17-4.02, Fla.Admin.Code, DER in free-form dealings with the developer disclaimed chapter 403 regulatory responsibility over the berm site, and construction began. Chapter 120 proceedings were then initiated by the intervenors, other residents and landowners in the locale who object to the diminution of Lake Meadow as they conceive it. Despite DER's continued disclaimer of site jurisdiction, the intervenors through evidence and argument convinced DOAH’s hearing officer that DER indeed has regulatory responsibility, and the officer’s recommended order proposed to DER an interpretation of the applicable statute and rules, in the circumstances shown by the record, that would sustain DER’s regulatory responsibility in Lake Meadow. DER adopted the recommended order with inconsequential revisions.

The developer thus appeals, asserting four grounds for reversal, among them that DER’s rule definition of the term “dominance,” Rule 17-3.021(8), Fla.Admin. Code, so expands the application of Rule 17-4.02(17), listing water-tolerant species that must be “dominant” for DER to have jurisdiction, section 403.817(2), Fla.Stat. (1981), that the rule is deprived of its authority in the statute. On this section 120.-68 appeal the court may well consider such a rule-challenge and decide it, instead of remitting the parties to new rule-challenge proceedings before a DOAH hearing officer. State ex rel. Department of General Services v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977); Corp. v. Division of Beverage, 348 So.2d 934, 936 (Fla. 1st DCA 1977). But in this case we do not reach the rule-challenge, for assuming the rule’s validity we still find no adequate record foundation here for DER’s exposition, by the final order, of its site jurisdiction under the statute and various rules.

Encouraged by the hearing officer’s recommended order, DER found that DER has regulatory powers at the berm site because, despite the surface dominance of dog fennel, numerous subterranean tubers of water-tolerant species, such as cattails, are also found in the area. Thus, in light of Lake Meadow’s history and its future prospects, DER finds in these subterranean tubers a kind of “dominance” by water-tolerant vegetation that triggers DER’s responsibility over dredge-and-fill in “the waters of the state.” We find that DER’s order lacks the necessary evidentiary foundation for this reasoning. We therefore REVERSE DER’s order asserting regulatory powers over dredge-and-fill at this site in Lake Meadow.

REVERSED.

SHIVERS, WIGGINTON and BARFIELD , JJ., concur.


author: MILLS, Judge.

text:
    Mark DeFRIEST, Appellant, v. STATE of Florida, Appellee.
    No. AW-211.
    District Court of Appeal of Florida, First District.
    April 13, 1984.
    Mark DeFriest, pro se.
    No appearance for appellee.
   MILLS, Judge.

DeFriest appeals the trial court’s denial of his Rule 3.850 motion without an eviden-tiary hearing. We affirm.

On 11 August 1980, DeFriest pled guilty to the charge of escape. On 22 September 1980, in another criminal case he was examined by a psychologist who concluded he was incompetent on that date to actively seek help and understand the sentencing situation before him.

DeFriest seeks an evidentiary hearing to determine his competency on 11 August 1980 and to determine whether his attorney was ineffective.

There is a legal presumption of sanity in criminal proceedings. Campbell v. Stoner, 249 So.2d 474 (Fla. 3d DCA 1971). There is nothing in the record to indicate that DeFriest was incompetent on 11 August 1980. In fact, he and his attorney stated under oath that they were not aware of any mental illness on his part in the past or present.

He also stated under oath that he was satisfied with the services of his attorney.

AFFIRMED.

WENTWORTH and BARFIELD, JJ., concur.


author: SMITH, Judge.

text:
    The SAINTS IN CHRIST, The TEMPLE OF The HOLY GHOST and J.D. Dixon, jointly and severally, Appellants, v. Tom R. FOWLER, a/k/a Thomas R. Fowler, Appellee.
    No. AW-364.
    District Court of Appeal of Florida, First District.
    April 13, 1984.
    Martin S. Page, Lake City, for appellants.
    Wade L. Griffin, Collins & Griffin, Lake City, for appellee.
   SMITH, Judge.

We affirm the summary final judgment of foreclosure entered subsequent to default judgment against appellants, but reverse the award of attorney’s fees, and order correction of the final judgment with respect to amounts stated as principal and interest due.

In their motion to set aside the default and resulting final judgment, appellants maintained as a defense to the foreclosure that the agreement for deed was unenforceable under Section 725.01, Florida Statutes (statute of frauds), because not signed by appellants or anyone on their behalf. The trial court correctly ruled that the statute of frauds was not a valid defense to the foreclosure. The complaint alleged, without denial or contest by appellants, that appellants had been and still remained in possession of the property. Possession is part performance which operates to satisfy the statute of frauds, entitling appellee to obtain equitable relief. 27 Fla.Jur.2d, Frauds, Statute of, § 12, page 449. See, also, Williams v. Faile, 118 So.2d 599 (Fla. 1st DCA 1960).

12] The award of attorney’s fees without notice to appellants was error, as appel-lee concedes, since attorney’s fees are unli-quidated damages, Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983), and appellants, even after default, were therefore entitled to the opportunity to be heard and to present evidence as to the amount to be awarded. By so ruling, however, we do not imply that an award of attorney’s fees is proper in this case, since the record before us is not sufficient for this court to make that determination. On remand, the trial judge shall determine entitlement to as well as the amount of any attorney’s fees, subject, of course, to appropriate review by this court if sought.

The parties agree that the final judgment incorrectly recited certain of the amounts due as principal, and as interest. The trial court is directed, upon application by the parties, to modify the final judgment so as to accurately state the proper amounts.

Finally, although the final judgment expressly reserves jurisdiction for entry of a deficiency judgment, should one occur after the foreclosure sale, none has yet been entered. Therefore, our review does not encompass any issues that may subsequently arise with respect to award of a deficiency judgment. We observe, however, that since a demand for a deficiency judgment was included in the complaint on which the default was entered, see, Trawick’s Florida Practice and Procedure (1983 Edition), § 27-4, page 395, the granting of such relief would be within the sound judicial discretion of the trial judge. Section 702.06, Florida Statutes; Lloyd v. Cannon, 399 So.2d 1095 (Fla. 1st DCA 1981). We observe further, that since in the awarding of a deficiency judgment consideration must be given, among other things, to the amount bid at the sale, appellants may be heard by timely application to the trial court with respect to any errors or irregularities affecting the sale. Section 45.031(7), Florida Statutes; Cf. Winfield v. Second National Bank of North Miami, 381 SO.2d 1160, 1161 (Fla. 4th DCA 1980).

REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings.

MILLS and NIMMONS, JJ., concur.


author: WENTWORTH, Judge.

text:
    PROFESSIONAL ADMINISTRATORS and Nationwide Ins. Co., Appellants, v. Gladys MACIAS, Appellee.
    No. AT-449.
    District Court of Appeal of Florida, First District.
    April 16, 1984.

      Heskin A. Whittaker, of Whittaker, Pyle, Stump & Webster, Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier seek review of a workers’ compensation order entered by deputy commissioner Johnson by which, following a settlement excluding medical but stipulating a January 1982 MMI date, claimant was awarded continuing chiropractic care “as long as necessary.” We affirm.

Section 440.13(1) requires the provision of medical care “as the nature of the injury or the process of recovery may require _” This includes not only remedial care, but also palliative treatment which mitigates the conditions or effects of the injury. See Lopez v. Pennsuco Cement and Aggregates Inc., 401 So.2d 875 (Fla. 1st DCA 1981). Such palliative treatment for the relief of pain is awardable after claimant has attained MMI. See Verdi’s Italian Restaurant v. Campanella, 423 So.2d 582 (Fla. 1st DCA 1982). In the present case Dr. Ferking has suggested that his chiropractic treatment is remedial in nature. However, claimant’s own testimony establishes that she is utilizing Dr. Ferking for the temporary relief of pain so as to enable her to more normally function; such utilization is a classic example of palliative care. The deputy should be entitled to accept claimant’s testimony, and deem Dr. Ferking’s care palliative and awardable after MMI.

In the present case the deputy was also entitled to accept testimony of claimant and Dr. Ferking as to the benefit of and need for further chiropractic care. Although the deputy awarded such care “as long as necessary,” this language should be construed as an award of such care only for such period as the nature of the injury may require, in the manner and for the time provided by law. See Automatic Data Processing v. Scarberry, 412 So.2d 927 (Fla. 1st DCA 1982); Western Liquors Corp. v. Studer, 391 So.2d 250 (Fla. 1st DCA 1980).

Affirmed.

ZEHMER and BARFIELD, JJ., concur.


text:
    Ruby McNEASE, d/b/a Tallahassee Pest Control, Appellant, v. George BONE and Carlene Bone, Appellees.
    No. AU-158.
    District Court of Appeal of Florida, First District.
    April 16, 1984.

      Mallory E. Horne and William L. Gros-senbacher of Horne, Rhodes, Jaffry & Horne, Tallahassee, for appellant.
    Joseph R. Boyd of Boyd & Smith, P.A., Tallahassee, for appellees.
   MILLS, Judge.

McNease, d/b/a Tallahassee Pest Control (Tallahassee Pest Control), seeks reversal of a final judgment awarding costs which the Bones incurred as a result of the negligence of Tallahassee Pest Control. We affirm.

The record shows that Robert L. Bell entered into a five-year contract with Tallahassee Pest Control for treatment of his home for termites. While the contract was still in effect, Bell and his wife agreed to sell their home to George and Carlene Bone. Among other things, the contract for sale required the Bells to furnish a termite inspection report to the Bones, which they did by having the house reinspected pursuant to the five-year contract with Tallahassee Pest Control. After making the inspection, Tallahassee Pest Control submitted a report indicating that it had inspected the premises and that there was “no active visable (sic) evidence of Subterranean Termites or other wood destroying oregin (sic).” In reliance upon that representation, the Bones moved into their new home.

Shortly thereafter, they heard from a neighbor that the house possibly had a mildew problem. Mrs. Bone had the house inspected by two contractors who found extensive damage to the subfloor caused by a fungal infestation. The Bones hired one of the contractors to perform the necessary repair work.

They subsequently filed suit against the Bells and Tallahassee Pest Control, alleging that Tallahassee Pest Control negligently performed the inspection, that the Bells fraudulently concealed the existence of material defects in the home, and that the Bells breached the contract for sale of the home by providing a defective termite inspection report. It was also argued at the- final hearing that the Bones were intended third-party beneficiaries of the termite inspection contract between the Bells and Tallahassee Pest Control. The trial court, without stating its reasoning, entered final judgment in favor of the Bones and against Tallahassee Pest Control for the amount expended by the Bones in repairing their home. No liability was found on the part of the Bells. This appeal by Tallahassee Pest Control ensued.

We affirm the final judgment on the theory that Tallahassee Pest Control was negligent in making the inspection. Section 482.226(1), Florida Statutes (1981), requires that inspection reports submitted by persons licensed under Chapter 482, Florida Statutes (1981), be “in accordance with good industry practice and standards on a form prescribed, by the department_” (Emphasis added) In the administrative rule implementing the statute, Rule 10D-55.142(2)(c), Florida Administrative Code, the Department of Health and Rehabilitative Services required that licensees use HRS Form 1145 to report their findings. The Bones contend and Tallahassee Pest Control concedes that the use of HRS Form 1145 would have required the reporting of evidence of a fungal infestation such as was present in the Bones’ home. We conclude that the Bones, as buyers of the home, were within the class of persons intended to be protected by the statute and rule, that the harm which occurred was the type, of harm which the statute and rule were intended to prevent, and that the breach of the duty imposed by the statute and rule was the proximate cause of the Bones’ damages, de Jesus v. Seaboard Coastline Railroad, 281 So.2d 198 (Fla. 1973).

Tallahassee Pest Control also contends that there was no evidence showing the presence of a fungal infestation in the home on the date of the inspection. We find there was ample evidence of this fact to support the final judgment.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    John MILLS, Jr., Appellant, v. Shirley LAWHON, as Personal Representative of the Estate of Lesley James Lawhon, Deceased, Appellee.
    Nos. AU-171, AU-172.
    District Court of Appeal of Florida, First District.
    April 16, 1984.

      Roosevelt Randolph of Knowles & Randolph, Tallahassee, for appellant.
    William H. Davis of Wadsworth, Davis & Hinkle, Tallahassee, for appellee.
   MILLS, Judge.

In these consolidated appeals, Mills seeks reversal of the trial court’s denial of his motion to set aside a default judgment and of a final summary judgment on Lawhon’s creditor’s bill. We affirm in both cases.

Mills was tried, convicted, and sentenced to death for murdering Lesley James La-whon. Thereafter, Shirley Eileen Lawhon, the victim’s widow, filed a wrongful death action against Mills, who was on death row at Florida State Prison when the complaint was served. Mills filed no answer or other responsive pleading within 20 days, and default was subsequently entered. After a nonjury trial on the issue of damages, the trial court entered judgment against Mills in the amount of $800,000.

Lawhon attempted to levy on property owned by Mills in order to satisfy the judgment, but she met with no success. Thereafter, she filed a creditor’s bill under Section 68.05, Florida Statutes (1981), against the estate of Mills’ father, who had recently died, in an attempt to secure any interest which Mills might have in the estate.

Mills then filed a motion to set aside the $800,000 judgment pursuant to Rule 1.540(b), Florida Rules of Civil Procedure. After a hearing, the trial court denied the motion. The following day, the trial court entered final summary judgment in favor of Lawhon on her creditor’s bill.

A motion to set aside a default may be granted upon a showing of excusable neglect and a meritorious defense. Florida Aviation Academy v. Charter Air Center, 449 So.2d 350 (Fla. 1st DCA, 1984); Tallman Pools of Georgia, Inc. v. Wood, 399 So.2d 112 (Fla. 1st DCA 1981). The trial court is vested with broad discretionary power in ruling on a motion to set aside a default, and a gross abuse of that discretion must be shown in order to prevail on appeal. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). In this case, Mills has fallen far short of the requisite showing.

His “excusable neglect” in failing to answer the complaint was that he was “going through some changes” at the time the complaint was served. While the precise circumstances constituting excusable neglect are not well defined, Florida Investment Enterprises, Inc. v. Kentucky Company, 160 So.2d 733 (Fla. 1st DCA 1964), we hold that this meager showing is insufficient to constitute excusable neglect.

Mills’ “meritorious defense” is that, in his criminal trial, the State failed to present any direct evidence that he murdered the plaintiffs decedent. We can but assume that the jury which convicted him and recommended that he die in the electric chair would take issue with that statement.

Mills also attempts to argue that the complaint was not properly served. That issue was not raised below and therefore may not be raised now.

Finally, Mills contends that the final summary judgment on the creditor’s bill was erroneous because the claim upon which it was based, the $800,000 final judgment, had not been “reduced to judgment at law” as required by Section 68.05, Florida Statutes (1981). That contention is without merit. Rule 1.540(b), Florida Rules of Civil Procedure, specifically provides that a motion under the subsection “does not affect the finality of a judgment or decree or suspend its operation.” Therefore, the claim upon which Lawhon’s creditor’s bill was based was “reduced to judgment at law” for purposes of Section 68.05 on the day final judgment was entered for $800,000.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


text:
    Melvin Rudolph BARBOUR, Appellant, v. Winnie Sue BARBOUR, Appellee.
    No. AU-275.
    District Court of Appeal of Florida, First District.
    April 16, 1984.

      Gary A. Benson of Weil, Johnson & Benson, Jacksonville, for appellant.
    Eugene Loftin, Jacksonville, for appellee.
   MILLS, Judge.

The issue in this appeal is whether the trial court erred in awarding to wife and her attorney funds held in escrow from the sale of the marital home. We find no error and affirm.

Husband and wife were divorced after 15 years of marriage. The final judgment of dissolution provided for the marital home to be sold, with the proceeds to be split equally between the parties. Further, it was to be wife’s responsibility to make all payments on the home so long as she resided therein, but upon her vacating the home, husband was to be responsible for all mortgage payments until the house was sold.

Almost two years after the final judgment of dissolution, wife filed a motion for contempt, alleging that husband had vacated the marital home and had left the mortgage payments unpaid. The trial court entered an order on 7 April 1983, awarding wife a “special equity” over and above her one-half interest in the proceeds from the sale of the marital home in the amount of $3,485.86, the amount expended by her in attempting to avoid foreclosure by the mortgagee. Wife was also awarded $750 in attorney’s fees. No appeal was taken from that order.

Soon thereafter, wife found it necessary to file a second motion for contempt, this time alleging that the marital home had been sold and that the proceeds from the sale were being held in escrow, but that husband had refused to allow her to receive her “special equity.” On 14 July 1983, the trial court entered the order which is the subject of this appeal. In that order, the trial court found that wife had increased the amount of her “special equity” because of three additional mortgage payments she had made since the court’s order of 7 April, bringing her total “special equity” to $4,486.30. The trial court ordered that amount to be disbursed to wife from the funds held in escrow. The remaining $711.42 was ordered to be disbursed to wife’s attorney in satisfaction of the $750 awarded to him in the 7 April order.

Citing Mason v. Mason, 371 So.2d 226 (Fla. 2d DCA 1979), husband contends that the trial court erred in awarding wife a “special equity.” Specifically, it is contended that without an express reservation of jurisdiction, a trial court may not modify property rights after an adjudication of those rights has been made in the final judgment of dissolution. We find Mason inapposite. In Mason, the former wife filed an amended complaint praying for partition of property which she owned jointly with her former husband after the trial court had made an adjudication regarding that property in the final judgment of dissolution. Here, wife was simply seeking to enforce the terms of the final judgment of dissolution which had obligated husband to make all mortgage payments on the house until it was sold.

■ [2] Further, we agree with wife that husband’s real quarrel is with the order of 7 April. Because no appeal was taken from that order, husband may not now contest it.

AFFIRMED.

SMITH and NIMMONS, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    AQUARIAN FOUNDATION, INC., a foreign non-profit corporation, Appellant, v. SHOLOM HOUSE, INC., a Florida corporation, Appellee.
    No. 82-2016.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Gerald E. Rosser, Miami, for appellant.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

All is not peaceful at the Sholom House Condominium. In disregard of a provision of the declaration of condominium requiring the written consent of the condominium association’s board of directors to any sale, lease, assignment or transfer of a unit owner’s interest, Bertha Albares, a member of the board of directors, sold her condominium unit to the Aquarian Foundation, Inc. without obtaining such consent. Eschewing its right to ratify the sale, the association, expressly empowered by the declaration to “arbitrarily, capriciously, or unreasonably” withhold its consent, sued to set aside the conveyance, to dispossess Aquarian, and to recover damages under a clause in the declaration which provides that:

“In the event of a violation by the condominium [sic] by the unit owner of any of the covenants, restrictions and limitations, contained in this declaration, then in that event the fee simple title to the condominium parcel shall immediately revert to the association, subject to the association paying to said former unit owner, the fair appraised value thereof, at the time of reversion, to be determined as herein provided.”

The trial court, after a non-jury trial, found that Albares had violated the declaration of condominium, thus triggering the reverter clause. Accordingly, it entered a judgment for the association, declaring the conveyance to Aquarian null and void, ejecting Aquarian, and retaining jurisdiction to award damages, attorneys’ fees and costs after a determination of the fair appraised value of the property. Aquarian appeals. We reverse.

The issue presented by this appeal is whether the power vested in the association to arbitrarily, capriciously, or unreasonably withhold its consent to transfer constitutes an unreasonable restraint on alienation, notwithstanding the above-quoted reverter clause which mandates that the association compensate the unit owner in the event, in this case, of a transfer of the unit in violation of the consent requirement.

It is well settled that increased controls and limitations upon the rights of unit owners to transfer their property are necessary concomitants of condominium living. See Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975); Holiday Out in America at St. Lucie, Inc. v. Bowes, 285 So.2d 63 (Fla. 4th DCA 1973); Chianese v. Culley, 397 F.Supp. 1344 (S.D.Fla.1975).

“[IJnherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.”
Hidden Harbour Estates, Inc. v. Norman, 309 So.2d at 181-82.

Accordingly, restrictions on a unit owner’s right to transfer his property are recognized as a valid means of insuring the association’s ability to control the composition of the condominium as a whole. See, e.g., Lyons v. King, 397 So.2d 964 (Fla. 4th DCA 1981); Coquina Club, Inc. v. Mantz, 342 So.2d 112 (Fla. 2d DCA 1977); Seagate Condominium Association, Inc. v. Duffy, 330 So.2d 484 (Fla. 4th DCA 1976); Kroop v. Caravelle Condominium, Inc., 323 So.2d 307 (Fla. 3d DCA 1975); Holiday Out in America at St. Lucie, Inc. v. Bowes, 285 So.2d 63; Chianese v. Culley, 397 F.Supp. 1344. See also White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1980). Indeed, it has been said of a restriction contained in a declaration of condominium that it “may have a certain degree of unreasonableness to it, and yet withstand attack in the courts. If it were otherwise, a unit owner could not rely on the restrictions found in the declaration of condominium, since such restrictions would be in a potential condition of continuous flux.” Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. 4th DCA 1981). Thus, strict enforcement of the restrictions of an association’s private constitution, that is, its declaration of condominium, protects the members’ reliance interests in a document which they have knowingly accepted, and accomplishes the desirable goal of “allowing the establishment of, and subsequently protecting the integrity of, diverse types of private residential communities, [thus providing] genuine choice among a range of stable living arrangements.” Ellickson, Cities and Homeowners Associations, 130 U.Pa. L.Rev. 1519, 1527 (1982).

However, despite the law’s recognition of the particular desirability of restrictions on the right to transfer in the context of condominium living, such restrictions will be invalidated when found to violate some external public policy or constitutional right of the individual. Hidden Harbour Estates, Inc. v. Basso, 393 So.2d at 639-40. See Pepe v. Whispering Sands Condominium Association, Inc., 351 So.2d 755 (Fla. 2d DCA 1977). Merely because a declaration of condominium is in the nature of a private compact and a restriction contained therein is not subject to the same reasonableness requirement as a restriction contained in a public regulation, see White Egret Condominium, Inc. v. Franklin, 379 So.2d 346, 350 (Fla.1980), where the restriction constitutes a restraint on alienation, condominium associations are not immune from the requirement that the restraint be reasonable. Thus, while a condominium association’s board of directors has considerable latitude in withholding its consent to a unit owner’s transfer, the resulting restraint on alienation must be reasonable. In this manner the balance between the right of the association to maintain its homogeneity and the right of the individual to alienate his property is struck.

The basic premise of the public policy rule against unreasonable restraints on alienation, see 7 Thompson On Real Property, § 3161 (1962); 31 C.J.S. Estates 8(b)(2) (1964), is that free alienability of property fosters economic growth and commercial development. Davis v. Geyer, 151 Fla. 362, 9 So.2d 727 (1942); Seagate Condominium Association, Inc. v. Duffy, 330 So.2d 484. Because “[t]he validity or invalidity of a restraint depends upon its long-term effect on the improvement and marketability of the property,” Iglehart v. Phillips, 383 So.2d 610, 614 (Fla.1980), where the restraint, for whatever duration, does not impede the improvement of the property or its marketability, it is not illegal. Id. at 615. Accordingly, where a restraint on alienation, no matter how absolute and encompassing, is conditioned upon the restrainer’s obligation to purchase the property at the then fair market value, the restraint is valid. Id. at 614-15, and cases collected.

The declaration of condominium in the present case permits the association to reject perpetually any unit owner’s prospective purchaser for any or no reason. Such a provision, so obviously an absolute restraint on alienation, can be saved from invalidity only if the association has a corresponding obligation to purchase or procure a purchaser for the property from the unit owner at its fair market value. Otherwise stated, if, as here, the association is empowered to act arbitrarily, capriciously, and unreasonably in rejecting a unit owner’s prospective purchaser, it must in turn be accountable to the unit owner by offering payment or a substitute market for the property. When this accountability exists, even an absolute and perpetual restraint on the unit owner’s ability to select a purchaser is lawful. See Chianese v. Culley, 397 F.Supp. 1344 (notwithstanding association’s right to approve any transfer except one to an existing unit owner, requirement that within sixty days association provide another purchaser or approve original purchaser creates a preemptive right in association and saves declaration of condominium from being an unlawful restraint on alienation).

The declaration of condominium involved in the instant case contains no language requiring the association to provide another purchaser, purchase the property from the unit owner, or, failing either of these, approve the proposed transfer. What it does contain is the reverter clause, which the association contends is the functional equivalent of a preemptive right and, as such, makes the restraint on alienation lawful.

In our view, the problem with the association’s position is that the reverter clause imposes no obligation upon the association to compensate the unit owner within a reasonable time after the association withholds its consent to transfer, and the clause is not therefore the functional equivalent of a preemptive right. Cf. Chianese v. Culley, 397 F.Supp. 1344. Instead, the clause and the association’s obligation do not come into effect until a violation of the restriction on an unapproved transfer occurs:

“In the event of a violation by the condominium [sic] by the unit owner of any of the covenants, restrictions and limitations, contained in this declaration, then in that event the fee simple title to the condominium parcel shall immediately revert to the association, subject to the association paying to said former unit owner, the fair appraised value thereof, at the time of reversion, to be determined as herein provided.”

The association’s accountability to the unit owner is illusory. There is no reasonable likelihood that a potential purchaser, apprised by the condominium documents that the consent of the association is required and that a purchase without consent vitiates the sale, would be willing to acquire the property without the association’s consent. Without a sale, there is no violation of the reverter clause. Without a violation of the reverter clause, the association has no obligation to pay the unit owner.

Effectively, then, the power of the association to arbitrarily, capriciously, and unreasonably withhold its consent to transfer prevents the activation of the reverter clause and eliminates the accountability of the association to the unit owner. Therefore, we conclude that the power of the association to arbitrarily, capriciously, and unreasonably withhold its consent to transfer is not saved by the reverter clause from being declared an invalid and unenforceable restraint on alienation. Accordingly, the judgment of the trial court is

Reversed.

      . The appellant does not challenge the clause itself as not serving the arguably legitimate purpose of screening out undesirable prospective transferees, as lacking in clarity, or as permitting arbitrary, capricious, or unreasonable action by the directors in contravention of the purpose to be served. The appellant’s point on appeal is that the invalidity of the clause lies not in its potential for unfair application, but rather in the fact that it is an unreasonable restraint on alienation.

      . The principle that the use of condominium property can be burdened with restrictions has received legislative sanction. See § 718.104(5), Fla.Stat. (Supp.1982) (providing that a declaration of condominium “may include covenants and restrictions concerning the use, occupancy, and transfer of the units permitted by law with reference to real property.").

      . On the other hand, post-formative actions of the association, such as rules promulgated by the board of directors, are subject to a test of reasonableness: that is, the board’s actions must be reasonably related to the promotion of the health, happiness and peace of mind of the unit owners. Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. 4th DCA 1981). It has been noted that cases applying this same reasonableness test to a restriction contained in the declaration of condominium, see, e.g., Seagate Condominium Ass’n, Inc. v. Duffy, 330 So.2d 484 (Fla. 4th DCA 1976), overlook the fact that a restriction appearing in a declaration of condominium owes its "very strong presumption of validity ... [to] the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed.” Hidden Harbour Estates, Inc. v. Basso, 393 So.2d at 639.

      . Similar provisions in Lyons v. King, 397 So.2d 964, and Coquina Club, Inc. v. Mantz, 342 So.2d 112, presumably would have been held to be lawful restraints on alienation had the question been reached. However, in each of these cases, it was held that the rejection of the prospective purchaser was based on a reasonable and narrow restriction on transfer, enabling the unit owner to alienate the property to others who were not within the restriction. Thus, the preemptive right of the association was not triggered.

      . We acknowledge, of course, that in this case a sale to Aquarian Foundation actually occurred. This does not, however, affect our view that such a sale would not ordinarily be expected to occur between parlies dealing at arm's length. The record does not reflect the relationship between Albares and Aquarian that may have been responsible for Aquarian acquiring the property. We can conceive of situations where parties could collude to effect a sale so as to create a violation and trigger the reverter clause. But the fact that this sale occurred hardly is evidence that other sales can be reasonably expected to occur.