author: PER CURIAM. GLICKSTEIN, Judge,

text:
    STATE of Florida, Appellant, v. Clarence WHITE, Appellee.
    No. 83-1072.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 29, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting:

All of us on the bench, even this conscientious trial judge, can occasionally make a ruling when we might do better first to take a walk around the block. Here, the record reflects that the trial judge had spent a frustrating week in which numerous witnesses under subpoena had failed to appear. In this case the police officer did not appear until after the trial judge had made up his mind — which decision I believe is directly tied to the late arriving officer. The record further establishes that the decision was made before the prosecutor’s argument — which was solid and should have been determinative.

The question before the trial court was whether the search and seizure were lawful. In my mind they were.

Recently, the Third District Court of Appeal was faced with a motion to suppress evidence in State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982). In Valdes, as in this case, there was a stop made to a car, and a valid arrest, after which the car was searched. The Valdes court made no mention of any movement that could be interpreted as furtive, so obviously did not rely on protection of the officer. In reversing the motion to suppress, the Valdes opinion expressed two important holdings. The first was that the search was justified as an incident of lawful arrest of the defendant, who had been a recent occupant of the vehicle, and it did not matter that the defendant was removed from the vehicle and would thus be no threat to the officer. The second was that the “validity of the search as incident to the arrest is unaffected by the fact that the police officers classified their actions as an inventory search.”

In so holding, our companion court expressly relied on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In the Belton decision, the court set out guidelines as follows:

Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. [Footnote omitted.]

Id. at 460, 101 S.Ct. at 2864, 69 L.Ed.2d at 775. Further explaining its decision, the Court said:

“The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” [Quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 440-41 (1973).]

453 U.S. at 461, 101 S.Ct. at 2864, 69 L.Ed.2d at 775-76.

It is important to note here that in Bel-ton, Valdes, and in the current case, the search was pursuant to a lawful arrest. This point is the one upon which Hochstetler v. State, 400 So.2d 974 (Fla. 4th DCA 1981), petition for review denied, 413 So.2d 876 (Fla.1982), departs from this appeal. The dissent by Judge Anstead in Hochstetler expressed concern that the court had impermissibly extended the limited search allowed in a stop and frisk situation. Stop and frisk, of course, applies only where there has been no valid arrest. Thus the courts are more protective of the reasonableness of the search. It makes more sense in a stop situation where there is insufficient cause for arrest for courts to permit searches only in limited circumstances, such as where the suspect moves toward a possible weapon. Where, however, the search is contemporaneous with an arrest, Belton expressly sanctions search of the passenger compartment of the car.

The PCA in this Case approves an incorrect decision made in an unfortunate circumstance, rather than reversing it with an opinion.


source: Caselaw Access Project

author:
GRIMES, Acting Chief Judge. LEHAN, Judge, PER CURIAM.
      LEHAN, Judge,

license: Public Domain

text:
    Fenton L. GILBERT, Appellant, v. Betty J. GILBERT, Appellee. SOUTHEAST BANK, N.A., formerly known as Southeast Bank Trust Company, Appellant, v. Betty J. GILBERT, Appellee.
    Nos. 83-501, 83-821.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.
    Rehearings Denied March 21, 1984.

      Larry Helm Spalding of Lewis & Spald-ing, Sarasota, for appellant Fenton L. Gilbert.
    George R. McLain of Harnden, McLain, Spivey & Dart, Chartered, Sarasota, for appellant Southeast Bank.
    Arthur D. Ginsburg of Ginsburg, Byrd, Jones & Dahlgaard, Sarasota, for appellee Betty J. Gilbert.
   GRIMES, Acting Chief Judge.

Among other points, this appeal poses, for the first time in Florida, the question of whether the assets of a spendthrift trust may be garnished for arrearages in alimony.

In the judgment of dissolution, the court ordered the husband to pay permanent periodic alimony of $2,500 per month and lump sum alimony in the amount of $35,000 payable in six-month installments of $3,500. The court also required that he be responsible for reasonable and necessary medical expenses of the wife attributable to her multiple sclerosis and that he pay her attorney’s fees of $24,750. The husband never paid the attorney’s fees and later stopped paying alimony and the wife’s medical expenses. The court entered a writ of ne exeat and held him in contempt, but these actions proved futile because he fled the jurisdiction. He is now thought to be living in England. The husband also removed his assets from the state, thereby thwarting the wife’s efforts to collect the arrear-ages.

In her efforts to enforce the dissolution judgment, the wife sought to garnish the husband’s interest in a trust established by Emily H. Gilbert for the benefit of various beneficiaries and administered by Southeast Bank as trustee. The trust contained the following paragraph:

5.2 — Spendthrift Provision; the interest of each beneficiary in the income or principal of each trust hereunder shall be free from the control or interference of any creditor of a beneficiary or of any spouse of a married beneficiary and shall not be subject to attachment or susceptible of anticipation or alienation.

Notwithstanding this provision, the court entered judgment in garnishment against the bank as trustee for $50,500 arrearages in alimony and medical expenses and $18,-000 in attorney’s fees. The court also entered a continuing writ of garnishment directing the bank to pay to the wife out of the trust the periodic and lump sum alimony as it becomes due.

The language of paragraph 5.2 appears adequate to constitute a spendthrift trust which would protect the beneficiaries’ interests from invasion by their creditors. See Waterbury v. Munn, 159 Fla. 754, 32 So.2d 603 (1947). Though the quoted provision does not specifically exclude the claim of ex-spouses, the spendthrift language does not suggest any intent on the part of the settlor to make an exception for unpaid alimony. The bank contends that assets in the hands of a trustee under the terms of a spendthrift trust cannot be garnished for the collection of alimony.

The resolution of this issue involves a choice between competing interests. The cardinal rule of construction in trusts is to determine the intention of the settlor and give effect to his wishes. Cartinhour v. Houser, 66 So.2d 686 (Fla.1953). Thus, in refusing to permit the invasion of a spendthrift trust for alimony, it has been said that “[w]hen unrestrained by statute it is the intent of the donor, not the character of the donee’s obligation which controls the availability and disposition of his gift.” Erickson v. Erickson, 197 Minn. 71, 78, 266 N.W. 161, 164 (1936). Accord Bucknam v. Bucknam, 294 Mass. 214, 200 N.E. 918 (1936); Dinwiddie v. Baumberger, 18 Ill.App.3d 933, 310 N.E.2d 841 (1974). On the other hand, there is a strong public policy argument which favors subjecting the interest of the beneficiary of a trust to a claim for alimony. Clay v. Hamilton, 116 Ind.App. 214, 63 N.E.2d 207 (1945); O’Connor v. O’Connor, 3 Ohio Op.2d 186, 141 N.E.2d 691 (Ohio Ct.Com.Pl.1957); Shelley v. Shelley, 223 Or. 328, 354 P.2d 282 (1960); Dillon v. Dillon, 244 Wis. 122, 11 N.W.2d 628 (1943). As one court stated, the obligation to pay alimony “is a duty, not a debt.” Safe Deposit & Trust Co. v. Robertson, 192 Md. 653, 65 A.2d 292 (1949).

The weight of authority permits the invasion of spendthrift trusts to collect unpaid alimony. See Annot., 91 A.L.R.2d 262 (1963). According to 2 A. Scott, The Law of Trusts § 157.1 (3d ed. 1967) (footnotes omitted):

Dependents of the beneficiary. Whether or not ordinary contract creditors can reach the interest of the beneficiary of a spendthrift trust, it has been held in a number of cases that his interest can be reached by his wife or children to enforce their claims against him for support. There are statutes in several states so providing. There are several grounds on which the dependents have been given protection.
In the first place, it has been held in a number of cases that a provision in the terms of the trust that the interest of the beneficiary should not be subject to the claims of creditors was not intended to apply to dependents of the beneficiary. They are not “creditors” of the beneficiary, and the liability of the beneficiary to support them is not a debt....
Even though it is clear that the settlor intended to exclude the beneficiary’s wife and children from enforcing their claims for support against his interest in the trust, it has been held in some cases that they are not thereby precluded from reaching the trust estate. This result has been reached on the ground that it is against public policy to permit the beneficiary to have the enjoyment of the income from the trust while he refuses to support his dependents whom it is his duty to support. The claim of a wife and dependent children to support is based upon the clearest grounds of public policy. They are in quite a different position from ordinary creditors who have voluntarily extended credit. It would be shocking indeed to permit a husband to receive and enjoy the whole of the income from a large trust fund and to make no provision for his needy dependents.

Accord Restatement (Second) of Trusts § 157 (1959). However, some of the cases representing the majority rule are controlled by statute and others authorize the court which has jurisdiction over the trust to exercise its discretion to determine the extent of the alimony to be paid from the trust. E.g., Shelley v. Shelley; Restatement (Second) of Trusts § 157, comment on clause (a) (1959).

While our state has no statute on the subject, certain Florida decisions suggest an inclination toward the majority rule. The court in City of Miami v. Spurrier, 320 So.2d 397 (Fla. 3d DCA 1975), cert. denied, 334 So.2d 604 (Fla.1976), held that it was against public policy to attempt to preclude the garnishment of a pension to satisfy an award of alimony, child support, and maintenance. In that case, an ex-wife was permitted to garnish monthly payments to the husband from the City of Miami’s retirement fund even though the enacting ordinance specifically exempted the pension funds from garnishment. In Page v. Page, 371 So.2d 543 (Fla. 3d DCA 1979), the court indirectly approved the invasion of a spendthrift trust by directing the trial judge to take into consideration the income received by the father from a spendthrift trust in determining the proper amount of child support.

In light of our strong public policy toward requiring persons to support their dependents, we hold that spendthrift trusts can be garnished for the collection of ar-rearages in alimony. We also believe that a claim for attorney’s fees awarded incident to the divorce is collectible in the same manner.

In our consideration of this appeal, we are hampered by the fact that the entire trust document was not made a part of the record. We are told by counsel, however, that the instrument provides for the husband to receive $50,000 from the corpus of the trust together with accrued income each December 10 until the corpus is exhausted. The lower court’s original restraining order against the bank was entered on November 6, 1981; consequently, by the time the garnishment judgment was entered on April 11, 1983, the bank was holding more than $100,000 which was payable to the husband under the trust. Because this sum exceeded the amount of the arrearages, there is no need to consider whether the court could have gone so far as to order payment to the wife of any portion of the trust not yet payable to the husband. The same court had jurisdiction over both the dissolution and the trust; therefore, we may presume that the court has exercised its discretion in determining that the entire arrearages should be paid out of the trust. See Safe Deposit & Trust Co. v. Robertson.

The husband also complains of that portion of the order representing a continuing writ of garnishment to pay future alimony. He points out that section 61.12(2), Florida Statutes (1981), which authorizes continuing writs of garnishment to enforce orders for alimony and child support, refers only to the garnishment of an employer. However, the same result could be obtained under the provisions of section 61.11, Florida Statutes (1981), which reads as follows:

61.11 Effect of judgment of alimony.—A judgment of alimony granted under s. 61.08 or s. 61.09 releases the party receiving the alimony from the control of the other party, and the party receiving the alimony may use his alimony and acquire, use, and dispose of other property uncontrolled by the other party. When either party is about to remove himself or his property out of the state, or fraudulently convey or conceal it, the court may award a ne exeat or injunction against him or his property and make such orders as will secure alimony to the party who should receive it.

The remedy is drastic but appropriate to cope with the husband’s misconduct. We, therefore, sustain the continuing aspect of the order in lieu of ne exeat as necessary to secure payment of alimony. The bank may continue to administer the trust according to its provisions, but to protect itself it will need to withhold all payments due to the husband in excess of alimony then due and owing in order to secure the future alimony payments. The bank is entitled to seek the court’s instructions, and the order is always subject to modification upon a proper showing by any interested party.

We also grant the wife’s motion for appellate attorney’s fees but only with respect to her attorney’s services in the husband’s appeal (case number 83-501). The trial court shall determine the appropriate amount of the fee and direct its payment from the monies owing the husband out of the trust.

The husband’s arguments on appeal that the court entered postjudgment enforcement orders which were unduly punitive are totally without merit.

AFFIRMED.

SCHOONOVER, J., concurs.

LEHAN, J., concurs in part, dissents in part, with opinion.

LEHAN, Judge,

concurring in part, dissenting in part.

I concur with the decision to permit invasion of the spendthrift trust by this ex-wife for alimony arrearages. But the majority opinion does not specifically limit other applications of that decision to cases with facts like those before us. I would specifically restrict the decision to this type of case, i.e., where the ex-wife has recourse for the payment of those arrearages against no property of the ex-husband, and invasion of the spendthrift trust is the last resort.

My main problem with the majority decision, however, is that the decision, because it does not specify otherwise, would apply not only to spendthrift trusts created hereafter but also to other similar trusts now in effect. I would specifically limit the application of this decision to the trust now before us, to other existing spendthrift trusts which are revocable and can be changed, and to spendthrift trusts created after the date of this decision. I do not concur with permitting retroactive application of this decision to other presently existing spendthrift trusts which are irrevocable by reason of the death of the settlors or for other reasons and which, therefore, cannot be amended by those settlors, if they would wish, in light of this decision.

The basis of the majority’s decision is public policy. Although I concur with the majority’s public policy declaration, I have not readily arrived at that concurrence. As explained below, my unwillingness to agree to retroactive application of this decision is related to the existence of substantial arguments which can be made against the declaration of that public policy. The more established as a part of the law are principles and doctrines (and, therefore, the more reliance which has been placed upon them by citizens in planning their conduct), the less inclined courts should be to change the law on the basis of public policy, especially the less inclined they should be to retroactively change the law on that basis.

Accordingly, a court should use with circumspection its power to change the law on public policy grounds. Any other use of that power would be detrimental to what is generally recognized as a bedrock feature of our system of jurisprudence: stability and certainty of the law through decisions based upon established legal principles and doctrines. If courts felt entirely free to use their perceptions of “public policy” as grounds to decide disputes on a case by case basis without regard to established legal principles and doctrines, citizens and their lawyers would be hard-pressed to predict the legal consequences of their conduct or, with confidence, to accomodate their conduct to the law.

Therefore, although, in the final analysis, I concur with the result and reasoning of the majority in declaring the public policy, I believe it is significant that there are strong public policy arguments against allowing invasion of a spendthrift trust for alimony arrearages. The very closeness and difficulty of the decision to adopt the public policy declared here is a further reason to not permit its retroactive application.

The remainder of this opinion undertakes to outline arguments to be overcome before deciding that public policy is a proper ground for this decision and to then explain more specifically why and on what legal basis the decision should be made not retroactively applicable to other irrevocable trusts.

(A) Public Policy Is A Proper Ground For This Decision.

There are substantial arguments, pro and con, as to whether spendthrift trusts should be subject to the claims of an ex-wife for alimony. The majority opinion points out, with citations of authority, the argument which is most often made against that result: that the intent of the settlor should control the disposition of the gift.

The interest of that donor in the disposition of the property according to the terms of the trust is in the nature of a property right involving the right of the donor to not only select the person who will enjoy the donor’s bounty but to specify' how that bounty may not be used. This right has long been recognized in Florida which appellant argues has been a “strong” spendthrift trust state, in contrast to some other states which either do not recognize spendthrift trusts at all or which give such trusts limited recognition. See Waterbury v. Munn, supra; Croom v. Ocala Plumbing & Electric Co., 62 Fla. 460, 57 So. 243 (1911). “Spendthrift trusts are enforced and upheld as valid in Florida.” 33 Fla.Jur. Trusts § 45 (1960). “[T]he trust device is extremely flexible and readily lends itself to carrying out the intent of the settlor.... In ... [Waterbury v. Munn, supra ] the Florida court abandoned common-law abhorrence of the spendthrift trust.” Note, Spendthrift Trusts, 22 U.Fla.L.Rev., 402, 407 (1949). I believe that at least many Florida lawyers who draft wills and trusts advise their clients, when asked, that in the final analysis what is “right” for the clients to do in the disposition of their property is what the clients in good faith desire to do, so long as it is not contrary to law.

The intent and desire of the settlor in the type of provision involved here is neither ambiguous nor unclear. The ex-wife is separately and directly excluded from the benefits of the trust and is not simply presumed to be included within the general category of excluded “creditors.” Emily H. Gilbert, the settlor, for reasons which we must assume had validity to her, did not want the appellee to get the trust property. This court is approving precisely what the settlor directed should not happen. When the settlor incorporated those provisions into her will she had every reason under Florida law to believe that her wishes would be carried out. The very fact that Emily H. Gilbert is deceased and cannot appear or argue on her own behalf presents a persuasive argument for respecting her wishes. But at least this court has not engaged in speculation used in some opinions in other states, that the settlor, if alive, would have agreed that the interests of society in enforcing the obligations of ex-spouses for alimony should be paramount, notwithstanding the spendthrift provisions. See Note, Trusts: Limitations on the Immunities of Spendthrift Trusts: Support and Alimony Claims, 44 Calif.L.Rev. 615, 617, n. 22 (1956).

I believe that this type of spendthrift trust provision is not unique. The majority opinion overrides not only the intent of Emily H. Gilbert but also, by retroactive effect, that of other settlors who have created similar trusts and who may have even more specifically evidenced by formal written instrument their intentions to exclude beneficiaries’ husbands or wives.

Also, the property involved here was a gift and was not property accumulated by the ex-husband during the marriage; it is not the type of property to which an ex-spouse may be deemed entitled under the doctrine of equitable distribution in dissolution of marriage cases. The ex-wife had nothing to do with the accumulation of the property, and, for that matter, the ex-husband is not the legal title holder of the property which was given by the donor to the trustee.

On the other hand, among the arguments for permitting the invasion of a spendthrift trust to pay the alimony claims of an ex-spouse are those well presented in the majority opinion. The obligation to pay alimony has been said to be not a debt, therefore the ex-wife is in a status entirely different from that of creditors. The legal unity of marriage has been said to impose a duty transcending mere contractual obligations which are rejected by the spendthrift provision. Most compelling is the argument that it would be not only unjust but would shock the conscience of the court and of any right-minded person to enable the beneficiary, as here, to enjoy the benefits of wealth without being subject to the responsibility to support those whom it is his legal obligation to support and who have no source for the payment of that obligation except the trust. See Spendthrift Trusts, 10 Gonz.L.Rev. 1 (1974); A Rationale for the Spendthrift Trust, 61 Colum.L.Rev. 1323 (1964); Note, Trusts: Limitations on the Immunities of Spendthrift Trusts: Support and Alimony Claims, supra.

The very existence of these arguments, pro and con, underline the difficulty of the issue and give reason for pause for thought as to the application of public policy as a ground upon which to resolve the issue. Also, there is a view that a decision like the one we make here should be left to the legislative branch of government. There are at least two arguments for that view which could apply here: (1) legislation is commonly not retroactive and, therefore, if the legislature were to permit the invasion of a spendthrift trust for payment of alimony arrearages, the intentions and justified expectations under prior Florida law of settlors of other existing, irrevocable spendthrift trusts would not be defeated; and (2) public policy decisions are more appropriately made by legislatures than the courts because legislatures are better equipped than courts to make those types of decisions. See Aldisert, The Judicial Process 333 (1976), quoting from Hopkins, Public Policy and the Formation of a Rule of Law, 37 Brooklyn L.Rev. 323, 323-25 (1971).

Yet the use of public policy by American courts as a valid ground for decision making is attested by the repeated use of that type of ground over many years. See White, Judicial Activism and the Identity of the Legal Profession, 67 Judicature 246-47 (1983). It may well be an abdication of a court’s responsibility if it engaged in wishful thinking that the legislative branch of government would promptly, if at all, deal with a pressing matter which has been directly presented to a court. Courts no longer simply redress completed injuries and are generally recognized, especially through the declaratory judgment procedure, of having “a role also as general organs of public administration, competent to exercise a preventative jurisdiction through their declarations of rights.” Schaefer, Precedent and Policy, 34 U.Chi. L.Rev. 3, 17 (1966). One interesting point of view is that legislatures are generally slow to modify established doctrines, and “individual victims of outworn and inequitable judicial doctrines have no lobby; for them, the court is a more promising forum than the legislature.” Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N.Y.U.L.Rev. 631, 640 (1967).

I share in principle the view that, generally speaking, although courts may at times declare public policy which they perceive to already exist, they should not create public policy except in the most urgent circumstances which abundantly manifest a public necessity by reason of basic, essential justice and fairness. This view is not entirely dissimilar to a more extreme view that a court should not use public policy as a basis for a decision when there exist substantial arguments pro and con, i.e., “It is only when a given policy is so obviously for or against the public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.” Aldisert, supra, at 334-35, quoting Hopkins.

Under that “extreme view,” the result of the majority opinion, with most of which I concur, might be considered to be ill-advised because the issue before us is certainly legitimately debatable as outlined above. But, consistent with the reasoning of the majority opinion, I believe that our decision constitutes a proper declaration of public policy because, after weighing the arguments, the decision is required by considerations of basic justice and fairness with which the great bulk of those who have pondered the subject with disinterest would agree. In addition, all the law review articles and treatises to which we have been cited, as well as the Restatement (2d) of Trusts, support the majority result. In any event, judicial declarations of public policy ultimately can be acted upon by the legislative branch if it desires.

(B) This Decision Should Not Be Retroactively Applied to Other Irrevocable Spendthrift Trusts.

While I agree with the basic result reached in this case, I am disturbed (as indicated above) by the effect of this decision upon not only the Emily H. Gilbert Trust but upon similar spendthrift provisions in other existing irrevocable trusts which were created to express the settlors’ intent and desire and were based upon what I believe to have been an accurate perception of Florida law at the time they were created. I believe that our decision in this case should be limited under the doctrine of “prospective overruling” so that it does not apply to other irrevocable spendthrift trusts.

Under prospective overruling, “a court overrules one of its own precedents but limits in some manner the customary retroactive sweep of its overruling decision.” Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, supra, at 631. As the majority opinion points out, this is a case of first impression in Florida. Therefore, it may be argued that the “prospective overruling” doctrine, strictly speaking, might not be precisely applicable. Nonetheless, the reasons for application of that doctrine to the instant case are, to me, extremely persuasive. Although we do not purport to overrule any prior Florida case law directly in point, the majority opinion does have the effect of defeating the justified expectation of other settlors who have irrevocably committed themselves under prior Florida law to provisions which we are now declaring ineffectual. Thus, the doctrine of prospective overruling seems fully applicable. Under that doctrine any other spendthrift trust provision like that at issue here would continue to be enforceable and effective as against alimony claims if contained in a trust which became irrevocable prior to this decision.

I would additionally apply what former Illinois Chief Justice Schaefer in the foregoing article referred to as “the first innovation” to the doctrine of prospective overruling, Id. at 638, and would apply our holding to the case before us, notwithstanding my endorsement of a general prohibition against retroactivity. In this manner, not only would equity and justice be done in this case and would the rights and expectations of other settlors who cannot amend their trusts be respected, but also one argument which has been made against the doctrine of prospective overruling would be defeated, to wit, “that since the litigant whose efforts brought about the change in judicial doctrine received no reward, other individual litigants would not be encouraged to attempt to reform the law through judicial decisions.” Id. at 638. Thus, “the party who brings about the change in law [appellee here] may not properly be deprived of the fruits of his victory, whatever may be the situation as to others.” Id. at 638.

By applying the first innovation to prospective overruling, this particular litigant would prevail, future law would be on the right course, and, at the same time, recognition would be given to the legitimate expectations of others who relied upon pri- or law and cannot change.

This type of approach is not without precedent in Florida. See e.g., Smith v. Brantley, 400 So.2d 443 (Fla.1981), where Justice England in his concurring opinion said:

We are constitutionally permitted, in the exercise of our judicial perogative, to determine whether any newly announced rule of law should be applied retroactively, or on a prospective basis only so as not to be available to the person who has raised the issue.

Id. at 453. Justice England went on to quote from Traynor, Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility, 28 Hastings L.J. 533 (1976):

A court usually will not overrule a precedent ... when the hardship caused by a retroactive change would not be offset by the benefits. The technique of prospective overruling enables courts to solve this dilemma by changing bad law without upsetting the reasonable expectations of those who relied on it.

Id. at 453. See also Kratz v. Newsome, 251 So.2d 539, 541 (Fla. 2d DCA 1971), where Judge Mann referred to the law as being “full of instances in which a judge-made rule, relied on by trial judges, is altered for the future by the candid recognition that the rule ought to be different from now on.”

There were a number of instances of non-retroactive judicial decisions even before Mr. Justice Cardozo brought the doctrine into focus in Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932); Schaefer, The Control of “Sunbursts’Techniques of Prospective Overruling, supra, at 631-32. Cardozo attributed his interest in dealing with the problem to Dean Wigmore. Id. at 632. Cardozo’s first discussion of the problem apparently had been in 1921 when he said:

[I]n the vast majority of cases the retrospective effect of judge-made law is felt either to involve no hardship or only such hardship as is inevitable where no rule has been declared. I think it is significant that when the hardship is felt to be too great or to be unnecessary, retrospective operation is withheld.... I feel assured ... that ... [the line of division of cases which should and should not have retrospective effect] will be governed, not by metaphysical conceptions of the nature of judge-made law, nor by the fetich [sic] of some implacable tenet, such as that of the division of governmental powers, but by considerations of convenience, of utility, and of the deepest sentiments of justice
Sunburst ... established the legitimacy of the technique of prospective overruling. That technique has been employed by many courts in this country, and in recent years by the Supreme Court of the United States as well.

Id. at 633, 644 [emphasis added].

It is significant in considering the application of that doctrine to the case now before us that “governmental immunity, charitable immunity, and intrafamily immunities have all involved prospective overrul-ings.” Id. at 637. Why not then apply the doctrine here to a very real type of prior immunity of spendthrift trusts which, as stated above, I feel was a legitimate, justified expectation of trust settlors under pri- or Florida law? Although “any change in legal doctrine interferes with the uniform operation of law ..., as Wigmore pointed out: ‘equality is something desired for the person now under the law; it does not call for sameness of treatment between those of the present and those of the past or the future generation.’ ” Id. at 638. In any event, “the degree of disturbance of equality that is involved ... [in the application of the doctrine with the foregoing innovation] has not seemed too serious. It has appealed to many state courts as a permissible way to limit the extent to which reliance is frustrated without making the court’s determination an academic exercise.... ” Id. at 639.

Adoption of the doctrine of prospective overruling should, especially in a public policy case like this, finally depend upon whether or not the merits of the decision are strong enough to warrant defeating the justifiable expectations of others through retroactive application of the decision. In fact, the doctrine itself depends for its application upon such prior expectations having been justified. “[AJctual reliance should be the touchstone for prospective overruling.” Id. at 642.

(C) Conclusion.

In the final analysis our decision involves weighing and balancing competing considerations. I recognize that the determinative factor here is whether the strength of the public policy declared in this case is sufficient to justify its application not only to this case but retroactively. I recognize that the effect of the majority opinion is that if that policy is strong enough to apply to the Emily H. Gilbert trust, it should be strong enough to apply retroactively to other similar existing, irrevocable trusts. But, as explained above, I feel that the strength of prior Florida law approving spendthrift trusts evidences well-justified past reliance by settlors upon Florida law for the expected effectiveness of spendthrift trust provisions like that here.

I am certain that the majority judges do not disagree that a major consideration is stability and certainty of the law on the basis of which citizens should be able with confidence to accommodate their conduct to the law, certainly in the effectuation of a legal act as solemn and important to them as' the making of a will. It is especially important for courts to foster future confidence in the law by manifesting their recognition of that consideration. Also, some uncertainty from retroactivity of this public policy decision would likely result for testators and trustors generally as well as for those involved with existing, irrevocable spendthrift trusts of various other types, who may question, in light of this decision, whether other public policy oriented decisions could cast doubt upon or destroy the efficacy of provisions of their wills and trusts.

I feel that the foregoing considerations should counterbalance the legitimate interests of those relatively few ex-spouses who may feel the need to invade spendthrift trusts of the type involved here. I feel that the public policy declared in this case should not, and need not under the doctrine of prospective overruling, defeat the justified expectations of other settlors.

In short, I don’t favor the idea of changing principles of law governing wills and trusts after it is too late for testators and settlors to change their wills and trusts. I think that lack of judicial favor for that idea should be manifested. This in no sense means that the majority opinion, which, as I have agreed above, has much merit, is manifestly erroneous. Again, resolution of the issue here is a matter of the balancing of interests.

ON MOTION FOR REHEARING AND CERTIFICATION

PER CURIAM.

Three days before the issuance of our opinion and unknown to this court at the time, the Third District Court of Appeal entered a split decision holding that the income from spendthrift trusts is exempt from legal process to enforce a court ordered payment of alimony and attorney’s fees to an ex-wife. White v. Bacardi, 446 So.2d 150 (Fla. 3d DCA 1984). While we recognize the force of the arguments expressed by the majority opinion in that case, we believe that our opinion, as well as Judge Schwartz’s dissent, represents the better view and one which is consistent with the weight of authority in other jurisdictions.

We deny the motions for rehearing, but we hereby certify this case to the Supreme Court of Florida as being in direct conflict with White v. Bacardi. Art. V, § 3(b)(4), Fla. Const.

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

LEHAN, J., concurs in part and dissents in part.

LEHAN, Judge,

concurring in part, dissenting in part.

I adhere to my prior opinion from which, I trust, my views concerning the carefully considered majority and dissenting opinions in White v. Bacardi are self-evident. I concur with the certification of this case to the Florida Supreme Court.

      . As the majority points out, the fact that the provision involved here refers to a "spouse” and does not refer to an "ex-spouse” is of no moment. That the settlor intended to exclude a spouse of a beneficiary, while that person is in the legal status of a spouse, seems a strong reason to conclude that, a fortiori, a spouse should not be included when becoming an ex.


author: GLICKSTEIN, Judge.

text:
    Helene B. WEINSTEIN, Appellant, v. Pierce WEINSTEIN, Appellee.
    No. 83-12.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Rehearing Denied April 17, 1984.

      Howard I. Weiss of Sachs & Weiss, Boca Raton, for appellant.
    Michael J. Ferrin of Beverly & Freeman, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from an order, denying the wife’s petition for modification. We reverse and remand as to the wife’s petition. There is no cross appeal by the husband.

The parties’ sixteen year marriage was dissolved by final judgment in 1979. At the time of dissolution, the wife was forty-seven years old and a housewife; the husband, a medical doctor. There were two minor children, whose custody was awarded the wife, who was also granted exclusive use and possession of the marital home and its furnishings until the elder minor child reached majority or went away to college outside Palm Beach County. Thereupon the wife was to become responsible for all the costs of operating and maintaining the home so long as she continued to reside there. The husband was to pay the wife, for six years, rehabilitative alimony of $500 per week. Thereafter her permanent periodic alimony would be $200 per week. Child support was set at $100 per week for each child. The award, which appears in retrospect rather scanty on its face, was not appealed by the wife, who subsequently filed her petition for modification in 1982, alleging that her needs had risen substantially; and that her former husband’s ability to pay had also markedly increased. In his answer and affirmative defenses, the husband alleged that the wife’s expenses had been reduced by virtue of the majority of the elder child; and that he was offering the marital home for sale and the wife’s share of proceeds would provide the wife with adequate revenue for a comfortable existence. He counterpeti-tioned for a reduction in child support, elimination of the alimony award, and a setoff for alimony already paid, alleging the wife’s original financial affidavit was fraudulent.

The wife’s 1982 financial affidavit showed monthly living expenses for herself and the minor child, including mortgage and maintenance costs of the marital home were now $4,816. Her 1978 financial affidavit had shown monthly expenses of $4,275. Her actual 1979 expenses had been $3,500 per month, which discrepancy shall be discussed hereinafter. At the hearing on her petition for modification, she testified that since the dissolution she had borrowed more than $11,000 from parents and friends to meet expenses, the rise in which included an 80% increase in property taxes on the marital home. During withering cross-examination the wife admitted that the 1978 affidavit had been erroneous, but maintained she had obtained the figures from the former husband and had not learned they were inflated until she began paying such items as the mortgage payments herself. The husband’s counsel drew attention to the fact that the wife had not notified the court of the discrepancy for nearly three years.

Besides the approximately $2,000 per month alimony and the $400 per month child support for the remaining minor child, the wife’s only income was $155 per month from a second mortgage. She had obtained a real estate salesman’s license but has not been active in that field, and has otherwise been employed only one month, earning $800. Looking at the record evidence of the husband’s financial picture in a light most favorable to him, his income at the time of the modification proceeding had risen to $160,000; and there had been material increase in his net worth.

Following an extensive hearing the trial court issued its final judgment, in which it stated the following findings of fact.

1. The Respondent/Former Husband’s income and assets have increased significantly since the final dissolution of marriage.
2. The Petitioner/Former Wife’s circumstances have changed since the final dissolution of marriage only to the extent of normal inflation and increased costs of living.
3. During the previous dissolution of marriage proceeding the Petitioner/Former Wife filed a false affidavit with the Trial Court which was not brought to the attention of counsel or the Court until approximately three years after her knowledge of the false affidavit. The Court finds that there was no intentional fraud committed by the Petitioner/Former Wife but that the affidavit was, in fact, false.
5. The Court finds that the Petitioner/Former Wife has made little or no effort to rehabilitate herself as was anticipated by the previous Order of this Court dated July 5, 1979, and in fact, still is not gainfully employed despite the fact that more than three years have elapsed out of the six years of rehabilitative alimony previously granted by this Court.
6. Whatever increase in alimony the Petitioner/Former Wife might be entitled to accepting her new affidavit at face value, would be offset by approximately the same amount that her previous false affidavit exaggerated her expenses. While this Court has no way of knowing what the previous Court relied upon it can only be presumed that both counsel for the Former Husband and the Court relied upon the previous affidavit filed by the Wife in the dissolution of marriage proceeding in determining the Former Wife’s needs.
7. The Court finds that it would be inequitable to force the Petitioner/Former Wife to repay the alleged “overages” that may have been paid by the Former Husband since the date of the previous Order as she is presently without means to do so.
8. Based upon the previous Order of this Court the Wife is free to vacate the marital homeplace at any time and reside at any place of her own choosing, thereby substantially reducing her monthly expenses as alleged.
9. The Court finds that the Respondent/Former Husband has made voluntary payments for the mortgage payments during the pendency of this modification, however it would be inequitable to force the Petitioner/Former Wife to repay those amounts at this time or to reduce the alimony amount during the remaining portion of her rehabilitative alimony.
10. The Court finds there was no evidence presented by the Petitioner/Former Wife as to any change of circumstances as to the parties’ remaining minor child.
12. The Court finds that to award attorney’s fees to the Petitioner/Former Wife would only encourage this type of frivolous litigation and would be inequitable under the circumstances.

The trial court denied both the former wife’s petition for modification and the former husband’s counterpetition, and ordered each party to bear its own costs and attorney’s fees. This appeal followed.

Pope v. Pope, 342 So.2d 1000 (Fla. 4th DCA 1977), and its progeny make clear that when a husband’s income has markedly improved while a wife’s circumstances have worsened because of the impact of inflation, it is error not to grant the wife a modification of alimony. Yet the trial court found those changes in circumstances, and considered the petition frivolous. The evident bases for refusing the wife’s petition were (1) her false but not fraudulent financial affidavit to the court at the time of the final dissolution three years earlier, or her failure to notify the court promptly when she discovered the overstatement in that affidavit; (2) her failure to become gainfully employed, albeit the six-year period given her to “rehabilitate” herself was only half over, and (3) the fact that if she gave up living in the style to which sixteen years of marriage had accustomed her, by moving out of the marital home, her expenses would not be so high.

There is no question that the first of the above grounds became the feature, not the trailer, in the trial court. Time and again, the husband called to the court’s attention the aspirational decision of this court in Yohanan v. deClaire, 421 So.2d 551, 553 (Fla. 4th DCA 1982), which said: “Both the trial court and the appellant had an absolute right to rely on the truthfulness of the appellee’s financial affidavit.” However, the record does not show other than what the wife contended—that she had used the husband’s figures to compile her original estimates of expenses. More important, the record does not show that the trial judge who presided over the dissolution had originally relied on her affidavit. He did not testify; and the question exists whether any reliance occurred, his having awarded only three-fourths of what the wife said she needed. Surely the husband had not relied on her financial affidavit; he knew what the actual expenses were, having been paying them! We repeat the admonition expressed in Yohanan; and it is uncontradicted that the wife did not promptly apprise the court of the discrepancy. Nevertheless, given the foregoing speculation by the successor trial court, we note further that (a) the wife’s and children’s actual monthly expenses were still some $300 more than the sum of the' alimony and the child support payments, and (b) the wife had borrowed $11,000 to meet expenses. Given the uncontradicted evidence of the wife’s inability to meet expenses in 1982, the significance of the 1979 discrepancy—based on the record—would appear to have meaning only to her—her monthly deficit was not as large as she had feared it would be! In light of our analysis, we feel that we do not violate Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) by concluding that the trial court here could not conjecture about what the prior trial judge had weighed in determining the amount of alimony originally.

As for the second ground, the trial court was correct when it observed that the wife had acted only minimally toward “rehabilitating” herself. However, the prior trial judge cannot be supposed to have predicted at just what point in time the wife would be in a position to pick up the financial slack left by a deficiency in the amount of money the court required the husband to contribute. Three years into the period of rehabilitative alimony, there was still a minor child at home, which may have been a deterrent to the mother’s applying herself to finding regular work. True, the wife probably has not been as conscientious about becoming employed as she might have been. However, judicial decisions should not reflect flint and steel but a realistic, humanistic perception that may require firmness or otherwise, depending upon the proper application of the law to the facts. To be specific in this case, life deals each of us a succession of hands as our lives progress. Here, a 47 year old woman, who had been a housewife in an affluent home for 16 years has now been dealt losing cards—dissolution and a judicial determination which contemplates traumatic economic adjustment in mid-life by “rehabilitation.” In sum, the trial court here may have properly admonished the wife for half-heartedness about locating a permanent position in the three year period but in light of all of the other facts should not have denied her an increase in alimony because of it. It is one thing for us to theorize about the purposes of rehabilitation; it is quite another to consider the wife’s options in 1982 when the home mortgage payment cannot be met—one does not lightly disregard the howl of the wolf at the door.

Lastly, the trial court pointed out how the wife could cut expenses. It is true that at least by implication the original trial judge had meant for the husband and wife to sell the marital home and divide its proceeds when the older child spread her wings and left the parental nest. However, the record shows there has been disagreement between the parties about how to list the home for sale, so the blame for its not yet being sold cannot be laid entirely on the wife. Moreover, until the sale actually occurs, there would be an increase, not a decrease in the wife’s expenses if she moved out of the marital home. Thus, it really solved nothing to refuse an increase because the wife had not moved out of the marital home.

On remand, the issues of need and ability can be balanced in an equitable manner without the overlay of the earlier affidavit or these other matters superimposed thereon, hopefully obviating any further review by this court.

Finally, since the trial court erred in denying the wife the modification, its failure to order the husband to pay her attorney’s fees, when her claim was meritorious and he had the ability to pay, was also error.

HURLEY, J„ and SMITH, CHARLES E„ Associate Judge, concur.


author: PER CURIAM. PER CURIAM.

text:
    REEDY CREEK IMPROVEMENT DISTRICT, Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION and Central Florida Utilities, Inc., Appellees.
    No. AS-494.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1984.
    Rehearing Denied March 1, 1984.
    Joseph W. Landers, Jr. and Philip S. Parsons of Ausley, McMullen, McGehee, Car-others and Proctor, Tallahassee, for appellant.

      Alfred J. Malefatto, Asst. Gen. Counsel, Tallahassee, for appellee State of Fla. Dept, of Environmental Regulation.
    B. Kenneth Gatlin of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellee Central Florida Utilities, Inc.
   PER CURIAM.

This cause is before us on appeal from the order of the Department of Environmental Regulation (DER) that Reedy Creek Improvement District (Reedy Creek) had waived its right to a formal administrative hearing on the application of Central Florida Utilities, Inc. (Central) for a permit to construct a wastewater treatment facility, which facility would discharge effluent into Bonnett Creek, located within the Reedy Creek District.

Reedy Creek is a multi-county, special improvement district established by the Legislature in 1967 pursuant to Chapter 67-764, Laws of Florida, and entrusted with the authority to adopt a plan of drainage and reclamation of wet and submerged lands within the district and to place such lands under a system of water management. See, State v. Reedy Creek Improvement District, 216 So.2d 202 (Fla.1968).

On September 30,1976, Reedy Creek was approved by DER as an official local pollution control program in accordance with Section 403.182, Florida Statutes (1981). That statute provides, inter alia, that the local pollution control program shall cooperate with and assist DER in carrying out its powers, duties, and functions. Under the Local Pollution Control Program Agreement between Reedy Creek and DER, Reedy Creek is required to be an active participant in the environmental permitting process, and provision is made for Reedy Creek to be advised of applications for all permits that have potential to affect the quality or quantity of water under its control. The agreement is in pertinent part as follows:

1.4 The local program shall be advised of all applications submitted from within the District and drainage areas shown in the Exhibit I attached hereto for federal grant assistance, construction, modification, or expansion of any pollution control or wastewater treatment system and may submit on a timely basis to the department appropriate recommendations concerning such applications.
2.0 The local program shall participate in administration of the department permit system in regard to the following activities in the District and drainage areas as shown in Exhibit 1 attached hereto: Submission of comments concerning construction permits, temporary operation permits, and operation permits for the operation, maintenance, construction, alteration, modification, or expansion of the following type sources as required by Chapter 17-4, Florida Administrative Code:
1. Domestic Waste (including drainage wells, when applicable)
2. Solid Waste
3. Industrial Waste (including animal waste)
4. Dredge and Fill
In addition, the local program shall provide comments concerning letters of acceptance, certifications, and approvals for transmission or collection systems related to the above and drainage wells. However, applications for sources in downstream areas outside the local program boundaries shall be provided to the local program for comment only to the extent practicable.
Duties associated with this responsibility may include engineering and field review and consultation with applicants concerning permits and appropriate certifications. (emphasis added)

In the instant case, the problem arose when DER admittedly failed to furnish Reedy Creek with a copy of the application submitted by Central, which application was for a permit to construct a 1.5 million gallon per day wastewater treatment plant and effluent pumping system, which included discharge of effluent into Bonnett Creek, located within the Reedy Creek District. Reedy Creek was notified of DER’s action through receipt, by United States Mail, of a copy of the permit issued to Central. Within 14 days of receipt of that notice, Reedy Creek sought a formal Section 120.57 hearing. Section 120.57(1), Florida Statutes (1981). DER issued an order to show cause why the petition for formal hearing should not be dismissed since it appeared to be untimely pursuant to Section 403.815, Florida Statutes (1981). On the basis of Reedy Creek’s response to the order to show cause and the allegations in its petition for formal hearing, the matter was forwarded to the Division of Administrative Hearings (DOAH) for a determination as to whether Reedy Creek had waived its right to a formal administrative hearing. At the evidentiary hearing conducted by DOAH, DER introduced evidence that an earlier notice of intended agency action had been presumably mailed more than 14 days prior to Reedy Creek’s request for a formal hearing. The hearing officer ruled that Reedy Creek had waived its right to a formal hearing since it had not timely filed its petition. DER adopted the hearing officer’s findings of fact and conclusions of law.

In this appeal from DER’s order, Reedy Creek denies that it received any notice of intended agency action, denies that it has waived any rights to participate or to request a hearing on the application, and contends that it has been deprived of its opportunity to perform as required by law due to the failure of DER to comply with the agreement between the parties. DER contends that its failure to furnish Reedy Creek with a copy of the application submitted by Central was harmless error since it mailed to Reedy Creek a notice of intended agency action, and Reedy Creek was aware of the proposal and should be considered as having waived its opportunity to participate.

Because we agree with Reedy Creek’s contention that it was entitled to receive the application and to be afforded an opportunity for participation in the permitting process, including the right to a hearing, we find it unnecessary to consider the issue of receipt or nonreceipt of the notice of proposed agency action.

The language of the agreement between Reedy Creek and DER is subject to interpretation in its requirement that Reedy Creek shall be advised of all applications, but in view of the overall intent of the agreement and the purpose to be served thereby, as well as the previous cooperation between DER and Reedy Creek, including the customary furnishing by DER of applications in its district to Reedy Creek, we find that the actions of DER in this case fail to satisfy the minimum requirements of the agreement.

The order below finding waiver is therefore set aside and the cause remanded with directions to afford the required participation. Reedy Creek, acting in this case as a governmental entity, is charged with duties and obligations not inconsistent with those of DER to protect the public interest. Both agencies have a common goal in this respect and are members of the same “team.” The third party to this lawsuit, Central, is not a member of that team and, from the record before, was not responsible for DER’s failure to comply with the agreement with Reedy Creek. Nonetheless, the public interest demands that the procedures designed to effectuate legislative intent be carried out. Accordingly, the cause is remanded for further proceedings consistent herewith. In view of the status of construction and time constraints imposed by a circuit court order, we direct the agency accelerate the hearing and disposition of this proceeding on remand.

ERVIN, C.J., and BOOTH and ZEH-MER, JJ., concur.

ON MOTION FOR CLARIFICATION OR REHEARING

PER CURIAM.

Appellee Central Florida Utilities, Inc. (CFU), by motion filed February 24, 1984, seeks clarification or, in the alternative, rehearing of our decision filed February 9, 1984, because the parties are in disagreement as to the legal effect of that decision. CFU sets forth six specific questions for us to answer; however, none of these questions was briefed or argued on the main appeal. The questions posed are more properly submitted to the Department of Environmental Regulation (DER) for hearing, including the taking of evidence, if necessary, and for decision by DER upon an expedited basis, as directed in our decision.

Since the filing of our decision on February 9, 1984 there has been sufficient time for DER to hear not only the questions posed in CFU’s motion, but also objections and comments by Reedy Creek Improvement District on CFU’s application, as well as to issue a ruling thereon. If DER does not afford expedited relief in this matter upon proper request, the aggrieved party may then seek appropriate relief in this court.

Motion DENIED.

ERVIN, C.J., and BOOTH and ZEH-MER, JJ., concur.

      . DER stated that its rejection of the conclusions of law in Manasota-88, Inc. v. Department of Environmental Regulation, DOAH Case No. 82-444 (April 23, 1982), did not affect the disposition of this case.

      . The hearing officer concluded that as a matter of law:
      ... The Department -was required to deliver a copy of its intent letter to RCID both because RCID specifically requested to be advised of the proceeding and because the local program agreement between the Department and RCID provides that the Department will notify RCID. The Department established that it properly mailed notice to RCID. There is a presumption that material that has been placed in the mail will be received by the addressee.... While there is evidence that RCID persons who would have needed to see the notice in order to act on it did not receive it, there is no evidence to rebut the presumption that the notice was properly delivered to the RCID post office box.
      ... RCID was properly provided a point of entry so that it could have requested a formal administrative hearing with respect to the CFU permit application. In order to invoke its remedies, RCID was required to file a petition within fourteen days of receipt of the actual notice, or within fourteen days of publication of the notice in a newspaper.... RCID did not file a petition with fourteen days of receipt of the intent letter, nor within fourteen days of publication of the notice. Accordingly, its right to invoke formal administrative proceedings under Section 120.57(1), Florida Statutes, was waived. Rule 17-1.-62(1 )(b), Florida Administrative Code.

        ... The notice of intent letter was not received by the RCID receptionist. There was no evidence, however, as to the practices of the person or persons who pick up mail at the Lake Buena Vista post office box and deliver it to the RCID offices. The law indulges a presumption that items placed in the mail are delivered. It is thus presumed that the intent letters forwarded RCID by the Department were delivered to the Lake Buena Vista post office box. There is no evidence from which it could be concluded what then happened to the notices other than that they did not ultimately reach RCID’s office.

      . Appellee Central points out that Reedy Creek, as a special improvement district, also operates private utilities in competition with appellant.


author: DOWNEY, Judge.

text:
    PROTECTIVE CASUALTY INSURANCE COMPANY and Christopher Wehage, Appellants, v. Dennis KILLANE, individually and as Guardian for Florence Killane, his wife, Appellee.
    No. 83-305.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.

      Gerald E. Rosser, Miami, for appellants.
    Edward M. Ricci of Ricci & Roberts, P.A., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellee Dennis Killane, individually and as guardian of Florence Killane, his wife, sued appellants Christopher Wehage and Protective Casualty Insurance Company for damages arising out of an automobile accident. From a jury verdict and judgment of $2,200,000 on behalf of Florence and $150,000 for Dennis, the appellants have perfected this appeal.

The primary question before this court is whether the trial judge erred in ruling that appellants could not assert a seat belt defense in mitigation of damages. A second question presented involves the admission into evidence of a “day in the life” video tape of Florence Killane, which, among other things, showed a collection of dolls that Florence made as a hobby and the family residence adorned with Christmas decorations.

After fully considering appellants’ arguments relative to the second question, we hold no reversible error is demonstrated. The length of time spent on the two subjects mentioned was minimal. Oral evidence was adduced regarding the doll making hobby, and the Christmas decorations were simply incident to a pan shot of the interior of appellee’s house that was taken to demonstrate the need for alterations to accommodate a wheelchair.

We further hold the trial judge was correct in rejecting the seat belt defense. Since his decision this court has aligned itself with those courts holding that the seat belt defense is not available to a defendant. Lafferty v. Allstate Insurance Co., 425 So.2d 1147 (Fla. 4th DCA 1982); Insurance Company of North America v. Pasakarnis, 425 So.2d 1141 (Fla. 4th DCA 1982). The seat belt question was certified to the Supreme Court of Florida in Lafferty.

Because the trial judge indicated that appellants’ pleading was possibly inadequate, we have been asked to consider that question. In their answer, appellants alleged that Florence herself was guilty of negligence proximately contributing to her alleged injuries, which bars her recovery in proportion to such negligence. Appellants contend that this was an adequate comparative negligence pleading to entitle them to introduce evidence that the injuries Florence received were caused by or substantially aggravated by her failure to have her seat belt buckled. The trial judge suggested more specifically pleading the failure to use available seat belts was a preferable manner of pleading the defense. We would not gainsay the trial judge’s opinion — he is obviously correct. However, we hold that degree of specificity is not required and that the pleading set forth in appellants’ answer was adequate to support the introduction of evidence on the question.

Accordingly, we affirm the judgment appealed from.

AFFIRMED.

BERANEK and WALDEN, JJ., concur.


author: WALDEN, Judge.

text:
    Sabina VAN TUYN, Appellant, v. ZURICH AMERICAN INSURANCE CO., a foreign corp., and Marr Investments, Inc., d/b/a Club Dallas, Appellees.
    No. 83-1087.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied April 11, 1984.

      Steven D. Tishler, Miami, for appellant.
    Jane Kreusler-Walsh and Larry Klein, West Palm Beach, and Pomeroy, Betts & Pomeroy, Fort Lauderdale, for appellees.
   WALDEN, Judge.

Sabina Van. Tuyn (hereafter Plaintiff) sued Zurich American Insurance Company and Marr Investments, Inc., d/b/a Club Dallas (hereafter Defendants) for injuries she sustained after falling from a mechanical bull in the Club Dallas.

Final summary judgment was granted in favor of Defendants and against Plaintiff. Plaintiff appeals. We reverse and remand.

Plaintiff, accompanied by a friend, went to the Club Dallas. On the Club premises was a mechanical device commonly known as “J.R.,” a bull, which patrons were invited to mount. The device moved in a forward, backward and sideways direction, the object being to dislodge the rider.

Plaintiff observed other patrons riding the bull for some fifteen or twenty minutes. It was plaintiff’s testimony that, having decided to ride the bull, she told the operator that she had never ridden before and asked that he go slowly. According to plaintiff, his response was something to the effect of, “Don’t worry about it. We’ll take care of it.” Prior to mounting the device, plaintiff was asked to sign a written waiver. She signed, but did not read, the waiver.

Plaintiff rode the bull for approximately ten to fifteen seconds before any problem arose. According to plaintiff’s testimony, the operator suddenly started speeding up the bull very, very fast. She stated that, as the bull was moving left to right, the operator made the front of the bull come up at high speed. Plaintiff testified that this was when she lost her balance and fell forward onto the' head of the bull. Plaintiff then fell off the bull, sustaining personal injuries.

We will forego exploration of the well-known summary judgment procedures. Suffice it to say, apart from the issue of waiver, there are indeed genuine issues of material fact which are a bar to summary judgment. Particularly an issue is the conduct of the employee in his negligent or willful operation of the speed-regulating mechanism after being informed that plaintiff was a novice.

Does the waiver signed by plaintiff nevertheless bar her recovery and support the entry of summary judgment? We think not.

The waiver provided:

I fully understand that the mechanical Bucking Brama Bull known as “JR” is a dangerous amusement device.
I hereby voluntarily assume any and all risk, including injury to my person and property which may be caused as a result of my riding or attempting to ride this Bucking Brama Bull.
In consideration for CLUB DALLAS permitting me to ride such amusement device, I hereby voluntarily release, waive, and discharge CLUB DALLAS, Marr Investments, Inc., their lessors, heirs, successors and/or assigns from any and all claims, demands, damages and causes of action of any nature whatsoever which I, my heirs, my assigns, or my successors may have against any of them for, on account of, or by reason of my riding or attempting to ride this Bucking Brama Bull. I also state that I am not under the influence of alcohol or any other intoxicant and execute this GENERAL RELEASE, WAIVER OP CLAIM AND ASSUMPTION OF RISK AGREEMENT of my own free will and accord.

Does this waiver shield the defendants from liability from its own negligence, as they contend? We think not.

An exculpatory clause, while looked on with disfavor, may operate tu absolve a defendant from liability arising out of his/her own negligent acts. Ivey Plants, Inc. v. F.M.C. Corp., 282 So.2d 205 (Fla. 4th DCA 1973). For such a clause to be effective, however, it must clearly state that it releases the party from liability for its own negligence. L. Luria & Son, Inc. v. Alarmtec International Corp., 384 So.2d 947 (Fla. 4th DCA 1980); Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972). That this must be a clear and unequivocal statement was emphasized by the Florida Supreme Court in University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973) where it addressed the issue in the context of an indemnity clause in a contract.

The agreement being reviewed is devoid of any language manifesting the intent to either release or indemnify Club Dallas, Marr Investments, Inc., for its own negligence. Therefore, the agreement does not, as a matter of law, bar the Appellant’s recovery.

Defendants then argue that the defense of express assumption of the risk precludes recovery by the plaintiff as a matter of law. Defendants’ position can be viewed as an assertion that there was an express assumption of the risk, both under the terms of the release plaintiff signed and arising out of actually riding the mechanical bull.

Preliminary to any finding of express assumption of risk is a showing that the particular risk was known or should have been known and appreciated by the person injured. O’Connell v. Disney World Co., 413 So.2d 444, 448 (Fla. 5th DCA 1982); DePew v. Sylvia, 265 So.2d 75, 76 (Fla. 1st DCA 1972); See also Bartholf v. Baker, 71 So.2d 480 (Fla.1954); Restatement of the Law of Torts, Second, § 496D.

For express assumption of risk to be valid, either by contract or by voluntary participation in an activity, it must be clear that the plaintiff understood that she was assuming the particular conduct by the defendants which caused her injury. Restatement of Torts, Second, § 496B, comment d. No agreement to assume unknown risks shall be inferred.

Therefore, unless this plaintiff subjectively understood the risks inherent in mechanical bull riding and actually intended to assume those risks, the defense of express assumption of risk is unavailable to the defendants. Henry v. Britt, 220 So.2d 917 (Fla. 4th DCA 1969), cert. den. 229 So.2d 867 (Fla.1969).

We are convinced that defendants did not, for purposes of summary judgment, carry their burden of establishing that the plaintiff fully understood the risks and dangers involved in riding the mechanical bucking bull in question. Nor did defendants demonstrate that the plaintiff understood and agreed to assume the risk of defendants’ negligence in operating the ride.

Further, we think the clearer focus of analysis is on the defendants’ duty to plaintiff, under the theory of “primary-implied assumption of risk.” This encompasses situations in which a particular activity presents risks which are inherent and unavoidable and for this reason no duty to protect against these risks is imposed upon a defendant and no negligence arises as to them. Blackburn v. Dorta, 348 So.2d 287, 291 (Fla.1977); Meistrich v. Casino Arena Attractions, 31 N.J. 44, 155 A.2d 90 (1959). If, however, the defendants’ actions increase or add risks not normally inherent in the activity, a duty arises and they may be found negligent. Plaintiff's testimony on the event in question is such that a jury could conclude that her injury was caused, not by any inherent characteristic of the mechanical device, but by either negligent or intentional conduct of defendants’ employee.

We hold that summary judgment was improperly granted and we reverse and remand for further proceedings,

Reversed and Remanded.

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

      . The term primary assumption of risk is simply another means of stating that the defendant was not negligent, either because he owed no duty to the plaintiff in the first instance, or because he did not breach the duty owed.


author: MILLS, Judge.

text:
    Ulysses BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AS-443.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Rehearing Denied April 10, 1984.

      Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). One of the convictions for which Brown was sentenced involved a robbery in which he used a knife as a weapon (Case No. 82-6820-CF). Since the robbery did not involve the use of a firearm, the trial court’s imposition of the three-year mandatory minimum sentence authorized by Section 775.087(2), Florida Statutes (1981), was improper and is stricken. In all other respects, the convictions and sentences are AFFIRMED.

WENTWORTH, J„ and McCORD, GUYTE, P., Jr., (Ret.), Associate Judge, concur.


author: ERVIN, Chief Judge.

text:
    Jacky B. STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. AT-224.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Rehearing Denied March 29, 1984.
    C. Richard Parker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   ERVIN, Chief Judge.

Appellant was charged in the same information with one count of grand theft in excess of $20,000.00, sixty-five counts of forgery and sixty-five counts of uttering forged instruments. Those charges stemmed from sixty-five purported contracts for the purchase of World Book Encyclopedias. In presenting its case, the state made extensive use during trial of several large charts which detailed the false information contained in each contract and related those contracts to the various charges for which appellant was being tried. Although the contracts themselves, along with other documentary evidence, were properly admitted into evidence, the charts were used for demonstrative purposes only and were not offered into evidence.

During its deliberations on twenty of the forgery counts and the one grand theft count that had been permitted to go to the jury, the jury informed the court it was having difficulty determining which counts corresponded to the various alleged customers who had testified during trial. To aid them in reaching a verdict, they requested to be allowed to take with them into the jury room the state’s charts. That request was granted over defense objections, and eventually appellant was found guilty of grand theft of less than $20,-000.00 and of only one count of forgery. Appellant contends the court erred in allowing the jury to use the non-admitted charts prepared by the state. We disagree and affirm.

It is true that the allowance of non-admitted evidence or exhibits into the jury room during deliberations may constitute error. See Vasquez v. State, 54 Fla. 127, 44 So. 739 (1907), Beard v. State, 104 So.2d 680 (Fla. 1st DCA 1958). As with similar non-fundamental error, however, the harmless error rule may preclude reversal despite such error. See Vasquez, Beard. When presented with a situation in which the harmless error rule applies, our task is to determine whether “the error committed was so prejudicial as to vitiate the entire trial.” State v. Murray, 443 So.2d 955 (Fla.1984). Here, where the evidence against appellant was overwhelming, revealing, among other things, the shipment of the books directly to appellant’s home, expert testimony placing appellant’s forged handwriting on the contracts, and the disavowal by the purported customers of the contracts to purchase, any error that might have resulted from the jury’s use of charts prepared by the state can only be deemed harmless. Accordingly, appellant’s sentence is

AFFIRMED.

BOOTH and ZEHMER, JJ., concur.


author: PER CURIAM.

text:
    KENT INSURANCE COMPANY, Appellant/Cross Appellee, v. Redha HASSAN, M.D., d/b/a Beirut Restaurant, Appellee/Cross Appellant.
    No. 82-2084.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Rehearing Denied April 5, 1984.
    Michael B. Davis of Walton Lantaff, Schroeder & Carson, West Palm Beach, and George W. Chesrow, Miami, for appellant/cross appellee.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for ap-pellee/cross appellant.
   PER CURIAM.

The judgment predicated on a jury verdict which awarded “punitive” damages for appellee’s first party bad faith claim is reversed on the authority of Industrial Fire & Casualty Insurance Co. v. Romer, 432 So.2d 66 (Fla. 4th DCA 1983). In Romer, Judge Letts, writing for the court, expressly noted that Florida law does not permit first party claims of bad faith by an insured against an insurer. Accordingly, the appellant's motions challenging this cause of action before, during, and after trial should have been granted. Romer, of course, was decided after the trial of this case, but relied on case law in existence for some time. A contrary view is expressed in Escambia Treating Co. v. Aetna Casualty & Surety Co., 421 F.Supp. 1367 (N.D.Fla.1976), a case relied on by appellee in the court below and a case expressly rejected in Romer. We reject appellee’s claim that he alleged and proved an independent tort sufficient to justify the imposition of the punitive damages awarded below. We also reverse the jury award for damages for alleged loss of profits on the authority of Cora Pub, Inc. v. Continental Casualty Co., 619 F.2d 482 (5th Cir.1980). Because we are reversing the punitive damages and loss of profits awards, we also must reverse and remand the cause for a redeter-mination of the claim for attorney's fees by the appellee, since any such award must be predicated solely on the breach of contract claim and damages awarded therefor. We find no merit in the issues raised on cross appeal.

In summary, we reverse the awards for punitive damages and loss of profits, affirm the other breach of contract awards, and reverse the award for attorney’s fees with directions that further proceedings be conducted to determine a proper award of fees.

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


author: BERANEK, Judge. WALDEN, Judge,

text:
    PEMBROKE VILLAS OF BROWARD, INC., a Florida corporation, Appellant, v. George RAYMUNDO, Appellee.
    No. 83-926.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Rehearing Denied April 13, 1984.

      Scott R. Gill of Jacobson & Gottlieb, Hollywood, for appellant.
    Stephen M. Goodman, Margate, for ap-pellee.
   BERANEK, Judge.

The defendant appeals in an action to foreclose a mechanic’s lien. We affirm.

George Raymundo Trucking and Equipment (Raymundo) sued Pembroke Villas of Broward, Inc., (Pembroke) to foreclose a mechanic’s lien. Raymundo furnished Pembroke with labor, services, and materials necessary to clear land, remove trash, and put in fill on the defendant’s property. Pembroke failed to pay Raymundo in full, and a mechanic’s lien in the amount of $2,688 was filed on Pembroke’s property.

After a bench trial, the court determined Raymundo was entitled to a lien in the amount of $2,688. Pembroke appeals alleging that the plaintiff is not entitled to a lien because it failed to furnish Pembroke a contractor’s affidavit pursuant to Section 713.06(3)(d)(l), Florida Statutes (1981). There is no dispute that an affidavit was not furnished.

Raymundo’s services fall within the category of lienors described in Section 713.04, Florida Statutes (1981). That section of the Mechanic’s Lien Law is silent on whether or not a contractor’s affidavit is required. All other sections of the statute are very specific on whether or not the contractor’s affidavit is required. We hold that because the Legislature chose not to specifically require an affidavit under Section 713.04, no affidavit is required. See also American Fire and Casualty v. Davis Water & Waste Industries, 358 So.2d 225 (Fla. 4th DCA 1978), aff'd. 377 So.2d 164 (Fla.1979).

AFFIRMED.

ANSTEAD, C.J., concurs.

WALDEN, J., concurs specially with opinion.

WALDEN, Judge,

concurring specially.

I concur in the majority opinion because such is required by the case cited therein. However, without intending presumption or effrontery, I shortly record my disagreement with the reasoning and result reached in American Fire and Casualty v. Davis Water & Waste Industries, 358 So.2d 225 (Fla. 4th DCA 1978), affirmed 377 So.2d 164 (Fla.1979). While unlikely, it is possible that the issue could be re-visited sometime in the future by the Supreme Court or the Legislature, in which case these views may be weighed for whatever they may be worth.

At issue is the interpretation to be given Section 713.04, Florida Statutes (1981). It provides:

Subdivision Improvements—
Any lienor who, regardless of privity, performs services or furnishes material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements shall be entitled to a lien on the real property for any money that is owed to him for his services or materials. The work of making real property suitable as the site of an improvement shall include but shall not be limited to the grading, leveling, excavating, and filling of land, including the furnishing of fill soil; the grading and paving of streets, curbs, and sidewalks; the construction of ditches and other area drainage facilities; the laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and the construction of canals and shall also include the altering, repairing, and redoing of all these things. When the services or materials are placed on land dedicated to public use and are furnished under contract with the owner of the abutting land, the cost of the services and materials, if unpaid, may be the basis for a lien upon the abutting land. When the services or materials are placed upon land under contract with the owner of the land who subsequently dedicates parts of the land to public use, the person furnishing the services or materials placed upon the dedicated land shall be entitled to a lien upon the land abutting the dedicated land for the unpaid cost of the services and materials placed upon the dedicated land, or in the case of improvements that serve or benefit real property that is divided by the improvements, to a lien upon each abutting part for the equitable part of the full amount due and owing. If the part of the cost to be borne by each parcel of the land subject to the same lien is not specified in the contract, it shall be prorated equitably among the parcels served or benefited. No lien under' this section shall be acquired until a claim of lien is recorded. No notice of commencement shall be filed for liens under this section. No lienor shall serve a notice to owner for liens under this section.
Amended by Laws 1980, c. 80-97, § 2, eff. Jan. 1, 1981.

More particularly, the issue is whether the contractor making subdivision improvements must furnish a contractor’s affidavit as required in Section 713.06(3)(d), Florida Statutes (1981), in order to perfect a mechanic’s lien? I think he is required to furnish such affidavit.

It is clear that lienors are limited to and classified as: a contractor, a subcontractor, a sub-subcontractor, a laborer, a material-man who contracts with the owner, a contractor, a subcontractor, or a sub-subcontractor, or a professional lienor under Section 713.03. This is provided by Section 713.01(10) Florida Statutes (1981).

I suggest that the Legislature did not intend to create a new and different class of lienors by the enactment of Section 713.-04, Florida Statutes (1981). The first two words of the initial sentence of this section state, and I emphasize:

“Any lienor who, regardless of privity, performs services or furnishes material to real property for the purpose of making it suitable as a site for the construction of an improvement or improvements, shall be entitled to a lien on the real property for any money that is owed to him for his services or materials.”

In my judgment, this refers only to the prospective lienors defined in Section 713.-01(10), Florida Statutes (1981). Moreover, such lienors must perfect their liens in accordance with the other sections of Chapter 713, Florida Statutes (1981), and, in the case of contractors, furnish a contractor’s affidavit. Because of this I feel the Legislature thought it unnecessary to repeat in this section that contractors must furnish a contractor’s affidavit.

Common sense tells us that lienors providing subdivision improvements face special problems. As I see it, the enactment of Section 713.04, Florida Statutes (1981) merely represents the Legislative effort to solve or ameliorate those particular problems, such as:

1. Where portions of the improvements are made, such as grading, drainage, etc., upon lands dedicated to public use such as roads, parks, school sites, the lien shall attach to abutting lands.
2. To avoid the difficulty of ascribing specific costs to each lot or parcel in a subdivision, it is provided, unless otherwise stated, that the costs shall be prorated equitably among the parcels served.

The purpose behind requiring a contractor’s affidavit is most obvious. It is primarily to protect the owner against the possibility of paying more than once for some item of labor or materials. This is discussed in Florida Mechanics’ Lien Manual Vol. 1:

The Contractor’s Affidavit is furnished, not primarily for the contractor’s protection, but rather to protect the owner and other lienors.
In Hardee v. Richardson, the Florida Supreme Court stated that “it is intended, further, that the sworn statement ... should operate to protect the owner against the possibility of paying more than once for the same item of labor or materials; the effect of the section being to afford to the owner the right, without being deemed in default, to withhold payments due on general contract until proof has been given that subcontractors, materialmen and laborers have in fact been paid, or that specified amounts are due and owing such preferential lien-ors which the owner may lawfully pay out of the money due the general contractor.” (2) Under the present Act, an owner may rely on the Contractor’s Affidavit against lienors not serving the Notice to Owner required by § 713.-06(2)(a).(3)
Likewise, in Shaw v. Del-Mar Cabinet Co., the court found that the purpose of the Contractor’s Affidavit was to benefit unpaid lienors under the predecessor to § 713.06. It was stated that “there is another reason why this requirement of a sworn statement is for the benefit of the subcontractor or materialman as well as the owner. Section 84.08, supra, provides that the penalty of perjury shall attach to a false statement by the contractor (subject to the limitations mentioned therein). The subcontractor or materialman is entitled to the salutary effect of this statute or one who might be tempted to make a false statement. There is a vast difference in executing a general release to the owners with no criminal penalty attached and in executing a sworn statement of the type required by the Mechanics’ Lien Law. We therefore hold that the sworn statement required by Section 84.04(3), supra, is for the protection of the subcontractors and materialman, as well as the owner, and that the owner may not waive it without subjecting the final payment to being ‘improperly made’ under the statute” (5) Fla. Mechanics’ Lien Manual Vol. 1; Rukusin, S. D & S Publ. Inc. 1974; Hardee v. Richardson, 47 So.2d 520, 524 (Fla. 1950); Shaw v. Del-Mar Cabinet Co., 63 So.2d 264 (Fla.1953).

When one thinks of the vulnerability of an owner of a large complicated subdivision to claims of unpaid laborers and material-men if a contractor’s affidavit is not required, it boggles the mind. I can neither think of, nor is there evident in available case law or commentary, any rational reason not to require a contractor’s affidavit in such cases. In my judgment the Legislature did not intend, by the enactment of Section 713.04, Florida Statutes (1981), to create an exception and a big loophole in the requirement that contractors must furnish their statutory affidavits.

In summation, I suggest that Section 713.04, Florida Statutes (1981), does not create a new class of lienors and that contractors doing subdivision improvements must file contractor’s affidavits to protect the subdivision owner just as must other contractors.


author: PER CURIAM. WALDEN, Judge,

text:
    Frank D. AVERSA, Appellant, v. Marjorie J. AVERSA, Appellee.
    No. 83-718.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 1984.
    Rehearing Denied March 22, 1984.
    Daniel B. Bass, Fort Lauderdale, for appellant.
    Sanford L. Muchnick and Bradley S. Hartman of Litman, Muchnick & Wasser-man, Hollywood, for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD, C.J., and BERANEK, J., concur.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

This was a dissolution of marriage case. Applying the test found in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), I am of the opinion that the trial court abused its discretion in its alimony and property awards to the Wife. I would, at least, reverse the award of the jointly owned marital home to the Wife and, instead, leave the parties as tenants in common as to it.


text:
    George W. MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-722.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Rehearing Denied March 22, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, George W. Mobley, is challenging the trial court’s retention of jurisdiction over one-half of his sentence on the grounds that section 947.16, Florida Statutes (1981) was amended to provide an increase from one-third to one-half of the sentence after the date of commission of the offense. We affirm.

On May 14, 1981, appellant was charged by information with robbery with a firearm. On August 17, 1981, the information was amended to charge robbery with a deadly weapon. On August 19, 1981, appellant was charged by a second information with another incident of robbery with a firearm. On November 2, 1981, this information was amended to charge robbery with a deadly weapon. Appellant pled guilty to both informations and was placed on ten years probation on each charge to run concurrently.

On January 28, 1983, appellant was charged with violating Conditions V and VI of his probation. Condition V required appellant to remain at liberty without violating any law, while Condition VI required him not to use intoxicants to excess. At the probation revocation hearing, appellant pled guilty to driving an automobile with a suspended license and driving under the influence of alcohol. However, appellant pled not guilty to the charge of robbery.

Appellant was adjudicated guilty of robbery. The trial court imposed consecutive sentences of ninety-nine years each and retained jurisdiction over one-half of each sentence. Appellant’s argument that the court’s retention of jurisdiction constitutes an ex post facto law is without merit. Appellant imposed no objection to the retention of jurisdiction at the revocation of probation hearing or at conviction and sentencing. In Fredricks v. State, 440 So.2d 433 (Fla. 1st DCA 1983), the court held that ex post facto application of the retention statute is not fundamental error, and an objection must be made at the trial level to preserve the issue for appellate review. Williams v. State, 414 So.2d 509 (Fla.1982); Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983). Therefore, we affirm the judgment of the trial court based on Springfield v. State, 443 So.2d 484 (Fla. 2d DCA 1984), and Fredricks v. State.

GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


text:
    Johnnie LOFTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1182.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Rehearings Denied March 26, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals his conviction and sentence for attempted robbery with a firearm. Appellant was charged with robbery with a firearm. He first urges, as error, the refusal of the trial court to instruct the jury on the lesser included offenses of robbery with a weapon and robbery without a firearm, deadly weapon, or other weapon. We agree with the decision of the majority in Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), that it was error not to give the requested instructions which were necessarily included lesser offenses of the charged offense of robbery with a firearm. However, we further conclude that the error was harmless. Appellant was convicted of attempted robbery with a firearm, which is a second degree felony that is equivalent in punishment with the lesser of the above crimes for which he requested an instruction. Thus, he could not have received any lesser punishment for those crimes than the crime for which he was convicted.

Appellant’s other points are also without merit.

Affirmed.

GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.


text:
    Gerald L. HOLDER, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, STATE OF FLORIDA, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 83-1904.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1984.
    Rehearing Denied March 22, 1984.
    Gerald L. Holder, pro se.
    Louisa E. Hargrett, Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed. Although the record contains conflicting evidence, the factual findings by the appeals referee are supported by competent, substantial evidence in the record. § 120.68(10), Fla.Stat. (1981).

HOBSON, A.C.J., and RYDER and LE-HAN, JJ., concur.


text:
    ADVANTAGE PERSONNEL AGENCY, INC., Appellant, v. HICKS & GRAYSON, INC., a Florida corporation, Appellee.
    No. 82-2562.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 9, 1984.
    Bryson & Berman and John E. Bergen-dahl, Miami, for appellant.
    James 0. Nelson, Miami, for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   PER CURIAM.

The appellant Advantage Personnel Agency, Inc. appeals a final order dismissing with prejudice its permissive counterclaim for slander. The basis for the dismissal was that the essential element of publication in a slander action, see Burnham v. State, 37 Fla. 327, 329, 20 So. 548, 549 (1896); Fiore v. Rogero, 144 So.2d 99, 102 (Fla. 2d DCA 1962), was not alleged in the complaint. We affirm.

The appellant Advantage Personnel Agency, Inc. filed a permissive counterclaim below for slander against the appel-lee Hicks & Grayson, Inc. The counterclaim alleged that Hicks through its corporate president uttered certain slanderous statements concerning the business practices of Advantage in paying its bills. These statements were allegedly made at the conclusion of a business conference with an employee of Advantage. At the hearing on the motion to dismiss, it was agreed by both parties that the employee who allegedly heard these statements was Madeline Tighe, the sales manager of Advantage. The trial court in the order under review noted this agreement and, in effect, treated the agreement as an ore tenus amendment to the counterclaim.

Although there may be cases in which a slanderous statement directed against a corporation could be published, as urged, to a lower echelon employee of the slandered corporation, see Diplomat Electric, Inc. v. Westinghouse Electric Supply Co., 378 F.2d 377, 381 (5th Cir.1967); W. Prosser, Law of Torts § 113 at 767 (4th ed. 1971), the rule must necessarily be different where, as here, the statements complained of are made to a corporate executive or managerial employee, such as a sales manager, at the conclusion of a business conference with the said employee. In such a case, the statements are, in effect, being made to the management of the corporation and thus to the corporation itself in the person of one of its executive or managerial employees. The corporation has no cause of action for slander under these circumstances as the essential element of publication to a third party is lacking. See Fausett v. American Resources Management Corp., 542 F.Supp. 1234 (C.D.Utah 1982).

Affirmed.