author: HOBSON, Acting Chief Judge.

text:
    William B. BARDY, Jr., and Sarah Bardy, his wife, Appellants, v. SEARS, ROEBUCK AND COMPANY and Employers Insurance of Wausau, a Mutual Company, Appellees.
    No. 82-2314.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.

      Jan Paradise of Law Offices of Patrick Dekle, Tampa, for appellants.
    E.N. Fay, Jr., of Mann & Fay, Braden-ton, for appellees.
   HOBSON, Acting Chief Judge.

William Bardy, Jr., and Sarah Bardy, his wife, plaintiffs below in an action against Sears, Roebuck & Company (“Sears”) and its insurer, Employers Insurance of Wau-sau (“Wausau”), alleging, inter alia, that Mr. Bardy sustained permanent injury to his hearing from an explosion of a Sears car battery as a result of Sears’ negligence, appeal a final judgment rendered in favor of Sears and Wausau following a jury trial wherein the court refused the Bardys’ request to instruct the jury on the doctrine of res ipsa loquitur. We affirm.

Mr. Bardy related at trial that on the afternoon of November 18, 1975, he drove his 1973 Ford Mercury to a Sears automotive store because his new Sears battery was not functioning properly. After testing the new battery inside the service garage, a Sears employee advised Mr. Bardy that a loaner battery would have to be installed for temporary use until his new battery could be fixed. Mr. Bardy did not observe the loaner battery being installed and did not know who installed it. After the battery was installed, a Sears employee drove the car out of the garage and shut the engine off. Mr. Bardy was told to return in two days for his new battery.

Mr. Bardy then drove away in his car and, after shopping at a grocery store, arrived home. He parked the car in his driveway and locked it. The next morning he tried several times to start the car, but each time he tried the engine died out after idling for only a few seconds. Thinking that he had flooded the engine, he let the car sit in the driveway for the remainder of the day. That evening he again attempted to start the car, but got the same results. He then decided to check whether the battery was functioning properly by testing the lights, horn, and various other electrical components. All indications were that the battery was working right. However, when he pushed the off switch for the front lights, they would not shut off. He then walked around to the front of the car to disconnect the battery cables from the battery in order to shut the lights off. Upon pulling the hood latch located either underneath the front bumper or in the grill, the hook anchoring the hood down was released and the hood rose about five inches. According to Mr. Bardy,

[a]t this very second or fraction of seconds the whole God darn thing blew up.
The hood came up, and there was a terrible, big noise. Of course, I’m assuming — everyone would in my case — I sort of jumped back, and I was very lucky because the acid that came off went the other way, and the loud explosion was so loud that I, frankly, was dumbfounded for a few seconds.

Mr. Bardy later noticed that a large portion of the top of the battery had exploded away. He also observed two of the battery’s caps on the roof of a garage-type enclosure 20 feet from the car. However, the car started the following morning with the damaged battery. He then drove the car back to the Sears automotive store and had the loaner battery replaced with the repaired, new battery.

Each side introduced an expert witness at trial to testify as to the probable cause of the explosion. Robert Whitker, a full professor of chemistry at the University of South Florida with a Bachelor of Science degree in Chemistry and a Ph.D. in Inorganic Chemistry, testified for the Bardys. He conceded at the outset of his testimony that he did not have any special knowledge or personal experience with respect to the cause of car battery explosions. Nevertheless, based upon a hypothetical question formulated from the facts adduced from Mr. Bardy’s testimony, he posited that the battery was not operating properly at the moment of the explosion. He was of the opinion that a very rapid chemical reaction between hydrogen and oxygen resulted in the explosion. Later, he tendered that friction can produce enough energy to ignite a mixture of hydrogen and oxygen inasmuch as friction causes heat. However, he stated that it would be “pure speculation” to say exactly what triggered the explosion.

Everett Wilson, an employee of the Globe Battery Division of Johnson Controls, Inc., thereafter testified for Sears and Wausau. He said that he is acknowledged as one of the top automotive electricians in the country. He pointed out that he has had personal experience with car battery explosions, both intentional and accidental. Based upon the same hypothetical question which had been posed to Dr. Whitker, he opined that the battery was not defective and that it had not been installed improperly. In his view, it was fully functional and operating normally at the time of the explosion. He arrived at this opinion because the battery started the car both before and after the explosion. He surmised that the explosion was caused by a hot ignition source. Though he admitted that it was “possible” that the ignition source was internal, he said that in such a case it is “usually” external. He explained that under cranking conditions hydrogen escapes from a car’s battery and accumulates under the hood. With the introduction of an external ignition source into the immediate area of the battery, the hydrogen ignites, thereby propogating a flame into the battery’s cells which results in the exploding away of the battery cover.

The Bardys’ central contention on appeal is that the doctrine of res ipsa loquitur applies to the factual situation at bar because, in their view, there was no direct evidence of negligence on the part of Sears or Mr. Bardy, the explosion could not have happened in the absence of negligence, and the loaner battery was in the constructive, exclusive control of Sears at the time of the explosion. Sears and Wausau counter that the facts do not justify a res ipsa loquitur instruction.

In Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978), a case which neither party cites, our state supreme court remarked that the doctrine of res ipsa loquitur had developed “a judicial gloss” in Florida courts which was never intended. Id. at 1341. It therefore deemed it appropriate “to address the dimensions of the doctrine head-on.” Id. Declared the court:

Res Ipsa Loquitur — “the thing speaks for itself” — is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control.

Id. at 1341-42. The court amplified that

[t]he threshold inquiry is whether that which occurred is a phenomenon which does not ordinarily happen except in the absence of due care. The initial burden is on the plaintiff to establish that the circumstances attendant to the injury are such that, in the light of past experience, negligence is the probable cause and the defendant is the probable actor. An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.

Id. at 1342. The court commented further:

We recognize that there are exceptions to the exclusive control requirement in Florida. Each is supported, however, by a justifiable basis for inferring that the cause of injury was probably the defendant’s negligence.

Id. at 1342-43.

Last year, in City of New Smyrna Beach Utilities Commission v. McWhorter, 418 So.2d 261 (Fla.1982), another case which neither party cites, the court, after reiterating the essential elements of the doctrine set forth in Goodyear, emphasized:

Given the restrictive nature of the doctrine, a court should never lightly provide this inference of negligence. Rather, it is incumbent upon the plaintiff to present his or her case in a manner which demonstrates and satisfies each of the doctrine’s requisite elements and only after the plaintiff carries this burden of proof may a court supply the inference.
At the risk of redundancy, we would add that res ipsa loquitur is applicable only if all of its requisite elements are present in a given case.

Id. at 262-63.

Applying the facts in the case at bar to the aforementioned statements of law by our high court in Goodyear and McWhorter, we are compelled to hold in favor of Sears and Wausau. We sympathize with the Bardys’ plight. They are correct not only in their assertion that direct evidence of negligence on Sears’ part was unavailable, but also in their claim that there was not any direct evidence of negligence on the part of Mr. Bardy. But, as the court noted in Goodyear, an injury by itself does not ordinarily indicate negligence on a defendant’s part. 358 So.2d at 1342. We simply cannot ignore that the Bardys failed to carry their threshold burden of proving by a preponderance of the evidence that the explosion of the loaner car battery would probably not have occurred without negligence on the part of Sears.

In this case, both parties wisely resorted to the use of expert witnesses to testify regarding the cause of the car battery explosion. While in many cases a lay jury is competent to conclude from common experience that an event does not usually occur absent negligence on a particular defendant’s part, in some cases such a basis of common knowledge is lacking. In such cases expert testimony may be necessary to provide a sufficient foundation. See Fricke, The Use of Expert Evidence in Res Ipsa Loquitur Cases, 5 Vill.L.Rev. 59 (1959); Note, 196 U.Pa.L.Rev. 731 (1958). Such was the case here. Sears and Wau-sau’s expert witness, Mr. Wilson, who appeared from the testimony to be more qualified than the Bardy’s expert witness, Dr. Whitker, opined that, based upon his experience with car battery explosions, an explosion of the type which occurred “usually” results from an external ignition source. In other words, he was of the view that the immediate, precipitating cause of Mr. Bardy’s injury was probably not the fault of Sears. His testimony in this regard was uncontradicted. Dr. Whitker could only speculate as to the immediate, precipitating cause.

To be sure, Mr. Wilson conceded that it was “possible” that the immediate, precipitating cause was an internal ignition source. In short, he recognized that a possibility existed that blame for the explosion probably rested with Sears. However, a possibility of negligence on a defendant’s part is not enough to warrant an instruction to the jury on the doctrine of res ipsa loquitur. The plaintiff must carry his burden of proof by making it appear more likely than not that the probable cause is negligence on the defendant’s part. Thus, the trial court did not err in refusing the Bardys’ request to instruct the jury on the doctrine of res ipsa loquitur.

Because the Bardys did not satisfy the threshold element of proving by a preponderance of the evidence that the explosion was probably the result of negligence on Sears’ part, it is unnecessary to discuss whether they carried their concomitant burden of establishing that, as the battery was not within the exclusive control of Sears at the time of the explosion, a justifiable basis existed for inferring that the cause of the explosion was probably Sears’ negligence.

Appellants’ other arguments on appeal are without merit.

Accordingly, we affirm the final judgment.

AFFIRMED.

CAMPBELL and LEHAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SUNNY SOUTH AIRCRAFT SERVICE, INC., a Florida corporation, Appellant, v. INVERSIONES, 1120 C.A., a Venezuelan corporation, Appellee.
    No. 81-1061.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Rehearing Denied Jan. 24, 1984.
    See also Fla.App., 402 So.2d 555.
    David Wm. Boone of Boone, Davis & Boone, P.A., Wilton Manors, for appellant.
    David Hertzig of Hoffman & Hertzig, P.A., Coral Gables, for appellee.
   PER CURIAM.

The defendant, Sunny South Aircraft, appeals a non-final order denying its motion to vacate a default judgment. Several points are raised on appeal and after careful consideration, we affirm the trial court’s order.

The complaint in this case was filed on July 2, 1980. Service was made on the corporation on July 8, 1980, by delivering a copy to the defendant corporation’s vice president. The defendant failed to file an answer or any other paper and a clerk’s default was entered on September 18, 1980. On November 23,1980, a notice for trial on the issue of damages was issued. Almost two months later, on January 9, 1981, an unsworn motion to vacate the default judgment was filed by the defendant. It was not accompanied by any affidavits or meritorious defenses, and the excusable neglect was blamed on complex corporate turmoil.

After a series of delays, the hearing on the motion was held on June 2, 1981. At that hearing the defendant submitted an affidavit containing grounds for the excusable neglect and the meritorious defenses. Unlike the motion filed in January, 1981, the primary excuse given was the confusion caused by the death of their attorney. Said affidavit was signed by the president of the corporation on June 2,1981, the date of the hearing and almost six months after the initial motion was filed.

When all the facts of this case are considered, we cannot find that the trial judge abused his discretion in denying the motion to vacate judgment.

AFFIRMED.

DOWNEY and BERANEK, JJ., concur.

WALDEN, J., dissents without opinion.


author: DOWNEY, Judge.

text:
    AMERICAN UNITED, INCORPORATED, Appellant, v. KROLL REALTY, INC., et al., Appellees.
    No. 82-1130.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    William C. Davell of Rogers, Morris & Zeigler, Fort Lauderdale, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy, and Edna L. Caruso, P.A., and Barbara J. Compiani, West Palm Beach, for appellee-Kroll Realty, Inc.
    Betsey E. Hartley of Talburt, Kubicki & Bradley, Miami, for appellee-Richard E. Van Roo.
   DOWNEY, Judge.

Appellee Kroll Realty, Inc., sued appellant American United Incorporated and ap-pellee Richard Van Roo to recover a real estate brokerage commission. From a jury verdict and judgment in favor of Kroll and against American, American has perfected this appeal.

Factually, Kroll contends that it obtained an open real estate listing from American through American’s agent, Van Roo, to sell a parcel of property known as Village Green Apartments for the sum of 3.2 million dollars and that Kroll produced a purchaser, Peter Fundaro, who was ready, willing, and able to purchase on the terms and conditions of the listing, but American refused to close allegedly because the property was being taken off the market; however, within eight weeks thereafter American sold the property to a group of which Fundaro was a principal on terms not substantially different from those of the contract Kroll had earlier submitted to American with Fundaro as the purchaser.

Kroll sued American alleging breach of contract and quantum meruit. It also sued Van Roo for fraud and misrepresentation and tortious interference with a business relationship. American answered denying the listing or the production of a purchaser ready, willing, and able and contending that Van Roo lacked authority to bind American. By way of cross-claim American sued Van Roo for contribution, negligent listing of the property, and for fraudulently misrepresenting that he alone secured the purchaser of the property.

American poses four appellate questions to demonstrate reversible error. The first question suggests error in allowing four exhibits into evidence.

During the course of the case presented by defendant-appellee Van Roo, he offered and the court received into evidence four exhibits: 1) a rent schedule for the Village Green Apartments; 2) a collective exhibit of four letters written at the instruction of the president of American by Van Roo to four individuals who had inquired about the sale of the apartments; 3) two letters from the vice-president of American responding to inquiries about the apartments; 4) a letter used to show the property was taken off the market at American’s instruction and not by Van Roo.

American contends here that admission of those exhibits prejudiced its case because they had not been divulged previously during discovery or on pretrial statements. Kroll and Van Roo respond that American has not demonstrated reversible error in its first point because (a) American may not here question the admissibility of the first three exhibits on violation of discovery rules grounds since American did not at trial object to their admission on those grounds, and (b) the admission of the fourth exhibit was, at worst, harmless error because that exhibit was cumulative to the other three. We agree. American’s failure to raise at trial the objections it raises here precludes us from considering those objections. North v. State, 65 So.2d 77, 82 (Fla.1953). Any error in admitting exhibit four was harmless. See C.S., Jefferson Disposal Co., Inc. v. Green, 311 So.2d 785 (Fla. 3d DCA 1975).

The second question posed by American has to do with the use of Peter Funda-ro’s deposition by Kroll when it was clear that Fundaro was present within 100 miles of the court, had been subpoenaed, and had notified counsel he would be present.

When it came time for Kroll to present Fundaro as one of its witnesses, Fundaro was not present. During the colloquy that followed, counsel for Kroll advised the court he had conversed with Fundaro that morning and been assured Fundaro would respond to the subpoena and be present at 1:30 that afternoon. The trial judge allowed Kroll to proceed with the reading of Fundaro’s deposition. Shortly after the reading of the deposition Fundaro arrived. Under the circumstances, in order to interrogate Fundaro further, American called him as its witness.

Without plumbing the various aspects of the trial court’s decision to allow Kroll to go forward with the witness’s deposition, we are unable to find wherein the trial court’s action prejudiced American. It is contended by American that it was forced to call Fundaro as its witness and that prejudiced its case. Initially, we note that no one forced American to call Fundaro and American did not show in the trial court nor here in what way it was prejudiced.

American’s final two points are that the trial court refused to direct a verdict for American because Kroll failed to prove that it produced a purchaser ready, willing, and able to buy or that the property was sold as a result of continuous negotiations between Kroll and the purchaser.

The evidence Kroll adduced was sufficient to support submission of the case to the jury. Kroll contacted the president of American and obtained some preliminary information about the Village Green Apartments, including the purchase price. Kroll then wrote American to obtain further information, which was eventually furnished by Van Roo. Armed with this information, Kroll advertised the property, which resulted in interesting Fundaro. After working with Fundaro regarding the property, Kroll was able to obtain a signed deposit receipt agreement, which it forwarded to American. Ten days later Van Roo advised Kroll by letter that the property had been taken off the market but assured Kroll if there was any change in the status of the property Kroll would be contacted. Eight weeks later, without a word from American, the property was sold to a group in which Fundaro was a principal.

American contends in its brief that the contract Kroll furnished contained conditions not within the listing and thus Kroll did not produce a purchaser ready, willing, and able. Furthermore, American argues that the ultimate sale to Fundaro was not the result of continuous negotiations by Kroll.

We reject those arguments for two reasons. First, the comparison of contracts relevant here is the first Fundaro contract presented by Kroll and the terms of the ultimate purchase. The terms do differ somewhat but not so substantially as to take this case out of the general rule. Secondly, the general rule is that when a broker brings a seller and purchaser together it ill behooves the seller to later contend the broker did not bring about the sale when the broker is effectively excluded from such negotiations. First Realty Corp. v. Standard Steel Treating Co., 268 So.2d 410 (Fla. 4th DCA 1972). The trial court did not err in denying the motion for directed verdict.

The judgment appealed from is affirmed.

AFFIRMED.

DELL and WALDEN, JJ., concur.


author: BERANEK, Judge.

text:
    Louis POYNTER, a/k/a Michael Colwell, a/k/a Jeffrey Nease, Appellant, v. STATE of Florida, Appellee.
    No. 82-1582.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1983.
    Rehearing Denied Feb. 1, 1984.

      Stephen J. Finta, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was charged with and convicted of trafficking in marijuana and conspiracy to traffic in marijuana in excess of 100 pounds. He raises six points on appeal, one of which is dispositive. We reverse holding that the trial court abused its discretion in finding appellant competent to stand trial.

Appellant’s competence had previously been the topic of a hearing before another judge. Rather than repeat the entire procedure, appellant’s counsel and the state stipulated that the transcript of that hearing be submitted to the trial court to serve as an evidentiary basis for the court’s determination on the issue of competence. The trial court here had a transcript of a hearing where three witnesses, one court-appointed and two appointed by appellant, all declared appellant incompetent to stand trial. Despite this expert testimony, the trial court found appellant competent.

Although not absolutely bound by expert opinion as to competence, courts should not ignore uncontested expert testimony. Trucci v. State, 438 So.2d 396 (Fla. 4th DCA 1983). Furthermore, where a defendant establishes a prima facie case of incompetence through the introduction of overwhelming expert testimony, the record should at least present some reasons for rejection of such testimony by the court. Here, the rejection is not supported by the record. See generally Fulford v. Maggio, 692 F.2d 354 (5th Cir.1982). The Fulford case goes further than our holding herein in that it requires the trial court to “delineate expressly his reasons for rejecting” the expert testimony. We hold only that the rejection must have record support. In addition, since the judge here merely reviewed a transcript of a previous hearing, it was not a situation where his personal observation of the defendant was of importance.

Appellant should have been found incompetent to stand trial and all proceedings thereafter constituted a violation of due process. We reverse appellant’s conviction and vacate the order finding him competent. The matter is remanded for further proceedings including another determination of competence before any subsequent trial.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.


author: MILLS, Judge.

text:
    James VALDES, Appellant, v. STATE of Florida, Appellee.
    No. AP-226.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1983.
    Rehearing Denied Jan. 5, 1984.
    See also 443 So.2d 223.
    Michael Allen, Public Defender, Gwendolyn Spivey, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Valdes was convicted for attempted unarmed robbery and for threatening to throw, place, or discharge a destructive device in violation of Section 790.162, Florida Statutes (1981). He contends on appeal that the State failed to prove an essential element of Section 790.162 and that the trial court should have suppressed an eyewitness identification of him. We do not agree and affirm.

Peggy Burroughs was working as a teller at the walkup window of the Florida National Bank in downtown Jacksonville when she was accosted by a man who approached the window with one hand in his jacket pocket. He showed her a brown paper bag and a note indicating that the bag contained a bomb which he would detonate if she pushed the alarm. He demanded cash in denominations of one hundred, fifty, and twenty dollar bills, but before Burroughs could comply with his demand he fled the scene. As it turned out, the bag contained only a crushed grapefruit juice can and a flashlight battery.

Burroughs was able to observe the man for five to ten minutes from a distance of two to two and one-half feet. She described him as a black male between 40 and 50 years of age, wearing a black, curly wig and a woman’s red jacket.

Approximately two weeks after the incident, an FBI agent showed Burroughs a photo spread containing a picture of the defendant, James Valdes. The quality of the photographs in this spread was very poor, however, because it was merely a photocopy of a series of photographs. Burroughs was unable to make an identification from this set of photographs.

The next day, a detective from the Jacksonville Sheriffs Office showed Burroughs a set of six color photographs, one of which was a photograph of Valdes. After twice looking over the photographs, she identified Valdes as the man who had attempted to rob her. She later identified Valdes both at the suppression hearing and at trial.

Valdes contends that his motion for judgment of acquittal should have been granted as to that count of the information charging him with violating Section 790.162. It is contended that Section 790.162 requires the State to prove that a defendant acted with intent to cause bodily harm or property damage and that since the bag contained no actual destructive device he could not have had such an intent. In support of his contention, Valdes relies upon the rule of statutory construction that criminal statutes are to be strictly construed in favor of the accused. Section 775.021(1), Florida Statutes (1981).

The rule of construction urged by Valdes is subordinate to the rule that the intention of the legislature must be given effect. State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla. 3d DCA 1977). Further, “construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided.” State v. Webb, 398 So.2d 820, 824 (Fla.1981). Under the construction of the statute urged by Valdes, it would be virtually impossible for the State to obtain a conviction where no actual destructive device was involved. We do not believe that the legislature intended such an absurd result.

Moreover, this issue has been resolved adversely to Valdes in Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981). We agree with the Second District and hold that in order to obtain a conviction under Section 790.162, Florida Statutes (1981), the State need not prove the existence of an actual destructive device. It is sufficient that the State prove that the defendant threatened to throw, place, or discharge a destructive device with the stated intent to do bodily harm to any person or with the stated intent to do damage to any property of any person, regardless of whether the defendant had the actual ability to carry out that threat.

It is further contended that the out-of-court identification procedures utilized in the case were impermissibly suggestive and resulted in a substantial likelihood of irreparable misidentification. Grant v. State, 390 So.2d 341 (Fla.1980). Assuming for the sake of argument that the procedures were impermissibly suggestive, we do not believe that under the facts of this case there was a substantial likelihood of irreparable misidentification. Burroughs was able to view the suspect for five to ten minutes from a distance of two to two and one-half feet. Further, the photo lineup was presented to her at a time when the incident was still fresh in her memory. Therefore, the trial court was correct in denying Valdes’ motion to suppress the identification testimony.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


text:
    James A. VALDES, Appellant, v. STATE of Florida, Appellee.
    No. AQ-22.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1983.
    Rehearing Denied Jan. 5, 1984.
    Michael Allen, Public Defender, Gwendolyn Spivey, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Valdes was convicted for unarmed robbery and for threatening to throw, place, or discharge a destructive device in violation of Section 790.162, Florida Statutes (1981). Two of the points which he raises on appeal were raised and found to be without merit in Valdes v. State, 443 So.2d 221 (Fla. 1st DCA 1983). Likewise, we find no merit in the additional points raised here and we affirm.

Betty Jean Plaster was a teller at the walkup window of the Barnett Bank on Adams and Laura Streets in Jacksonville when a man approached the window and placed a note and a brown paper bag in her drawer. He indicated that the bag contained a bomb and demanded cash in denominations of one hundred, fifty, and twenty dollar bills. Plaster complied, and the man fled with $9,750. Later, it was discovered that the bag contained only a styrofoam cup. Fingerprint experts were able to identify a fingerprint found on the cup as one belonging to the defendant, James Valdes. He was arrested and charged with unarmed robbery and with violating Section 790.162, Florida Statutes (1981).

When the case came to trial, the trial court swore in the jurors one by one as they were selected rather than waiting until the end of the entire selection process. Valdes moved to strike the panel after all the jurors had been sworn because he had not been able to use all of his peremptory challenges, but that motion was denied.

Pursuant to Section 90.404(2)(a), Florida Statutes (1981), Peggy Burroughs, the teller in Case No. AP-226, identified Valdes as the man who had attempted to rob her. Valdes has a gold tooth with an impression of a Playboy bunny in the center of it, but Burroughs testified that she did not notice a gold tooth at the time of the incident.

At the close of the State’s case, Valdes’ attorney indicated her intention to have Valdes stand in front of the jury to show his gold tooth but to elicit no other defense testimony. However, the trial court agreed with the prosecution that should he do so the State would be allowed to cross-examine and possibly impeach him. Faced with this decision by the trial court, Valdes then rested.

During final defense argument, Valdes’ attorney referred to the fact that Burroughs did not notice Valdes’ gold tooth, saying, “Ladies and gentlemen, you can see for yourself that Mr. Valdes had a gold tooth.” After objection by the State, the trial court instructed the jury to disregard the defense attorney’s remarks concerning the gold tooth.

Valdes was convicted on both counts of the information. On the unarmed robbery charge, he was sentenced as an habitual felony offender to the enhanced maximum sentence of 30 years. On the charge of threatening to throw, place, or discharge a destructive device, he was also sentenced as an habitual felony offender to the enhanced maximum sentence of 30 years. These sentences were to run consecutively. Pursuant to Section 947.16(3), Florida Statutes (1981), the trial court retained jurisdiction over the unarmed robbery sentence for a period of ten years.

Valdes first contends that by swearing in the jurors one by one the trial court denied his right to back-strike prospective jurors. We do not agree. A defendant may challenge an individual juror at any time before the juror is sworn. Walden v. State, 319 So.2d 51 (Fla. 1st DCA 1975); Rule 3.310, Florida Rules of Criminal Procedure. However, these jurors were sworn before Valdes attempted to exercise his challenges. After a juror is sworn, a defendant no longer has a right to challenge that juror. Grant v. State, 429 So.2d 758 (Fla. 4th DCA 1983).

It is also contended that the trial court erred in ruling that Valdes’ exhibition of his gold tooth to the jury was “testimony” subject to cross-examination and in instructing the jury to disregard the defense attorney’s remarks concerning Valdes’ gold tooth. That contention is also without merit. Unquestionably, the act of exhibiting the tooth to the jury would not be “testimony” within the meaning of the Fifth Amendment. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,18 L.Ed.2d 1149 (1967). Thus, he could be compelled to perform such an act. However, by so doing, Valdes would obviously be “testifying” by seeking to discredit Burroughs’ testimony. The trial court was correct in ruling that such testimony, like any other, would be subject to cross examination and impeachment.

Nor was it error to instruct the jury to disregard the defense attorney’s remarks. Burroughs testified that she did not notice a gold tooth. There was no testimony whether Valdes did or did not in fact have the gold tooth on the day of the incident in Case No. AP-226.

Finally, Valdes contends that the trial court erred in sentencing him as an habitual felony offender on the unarmed robbery conviction while simultaneously retaining jurisdiction over the first one-third of that sentence. We find no merit in that contention. Pursuant to Section 947.16(3), Florida Statutes (1981), the trial court may retain jurisdiction over the first one-third of “the maximum sentence imposed.” We believe that the legislature intended for the trial court to have such authority regardless of the fact that the normal maximum sentence for a particular crime may have been enhanced pursuant to Section 775.084, Florida Statutes (1981).

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    DEPARTMENT OF PROFESSIONAL REGULATION, Appellant, v. John H. LeBARON, D.D.S., Appellee.
    No. AQ-214.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1983.
    Rehearing Denied Jan. 19, 1984.
    Salvatore A. Carpino, Staff Atty., Dept, of Professional Regulation, Tallahassee, for appellant.
    George L. Waas, Slepin, Slepin, Lambert & Waas, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

The Department appeals an order of the hearing officer, appointed from the Division of Administrative Hearings (DOAH) to conduct formal proceedings, dismissing without prejudice the Department’s complaint charging professional incompetence against Dr. LeBaron, a licensed dentist. The hearing officer found that the Department failed to comply with the requirements of Section 455.221(2), Florida Statutes (1981), essential to probable cause findings against Dr. LeBaron. Dr. LeBar-on cross-appeals contending that the Department acted in derogation of Rule 28-5.-205, Florida Administrative Code, and this court’s recent decision in Boedy v. Department of Professional Regulation, 428 So.2d 758 (Fla. 1st DCA 1983), which require final disposition of the order dismissing the complaint by the Board of Dentistry before review may be sought in this court. We agree that the hearing officer’s order is not appealable and dismiss the petition.

Rule 28-5.205, made applicable to this proceeding by Rule 21G-1.20, Florida Administrative Code, provides as follows: “Motions in opposition to a petition, which may be filed by any party, include motions to dismiss, to strike, and for more definite statement, and shall be filed within twenty (20) days of service of the petition. Any ruling by a presiding officer on a motion in opposition to a petition shall be incorporated in a recommended order, and can be finally disposed of only by the Agency head.” In accordance with this rule, this court ruled in Boedy that the hearing officer’s order denying the doctor’s motion to dismiss the administrative complaint must be addressed by the Board of Medical Examiners prior to review in this court. Similarly, we hold that the hearing officer’s order, dismissing the administrative complaint, which has never been addressed by the Board of Dentistry, is not reviewable by this court.

Although not mentioned by either party, we find it necessary to mention a further reason for dismissing this appeal. The Department brought this petition for review of non-final agency action pursuant to Florida Rule of Appellate Procedure 9.100 and Section 120.68(1), Florida Statutes (1981). This statute provides that "[a] preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.” (emphasis supplied) Our concern is that the hearing officer’s order which is the subject of this appeal is not preliminary procedural or intermediate action by an agency. Despite the fact that the order is a ruling on a matter before the hearing officer, the hearing officer is not an agency head, and the Division of Administrative Hearings is not an agency responsible for final agency action in Section 120.57 proceedings. See Section 120.52(1), (2), (3), Florida Statutes (1981). Neither the rule nor the statute empower this court to entertain petitions for review of non-final orders of hearing officers.

Research has not revealed any Florida cases discussing this precise issue. However, in Bureau of Community Medical Facilities Planning of Department of Health and Rehabilitative Services v. Samson, 341 So.2d 1071 (Fla. 1st DCA 1977), this court held that the hearing officer designated to conduct a proceeding on an application for certificate of need to construct a hospital facility was not an “agency” for purposes of rendering final agency action on the application. We think the same reasoning applies to the hearing officer’s order for purposes of preliminary, non-final review under Section 120.68(1) and Rule 9.100. We are persuaded to this view by the logic that the Board should not be put in the position of seeking review of an order rendered by a hearing officer assigned to conduct the hearing on its behalf. Stone v. Fletcher, 276 So.2d 514 (Fla. 1st DCA 1973); see also Rule 28-5.201(3), Fla. Admin.Code.

Under our interpretation of administrative procedure and appellate review, the question now before us should be addressed by the Board. If the Board agrees that the hearing officer correctly dismissed the administrative complaint, judicial review is unnecessary. If the Board agrees with the Department that the probable cause proceedings were not impaired by any procedural irregularities, the proper procedure for the Board would be to reject the recommended order of dismissal and reinstate the administrative complaint. See, Anson v. Florida State Board of Architecture, Department of Professional And Occupational Regulation, 354 So.2d 386 (Fla. 1st DCA 1977). The onus would then be upon Dr. LeBaron to seek review keeping in mind that he is only entitled to immediate non-final review if ultimate review of the final agency action will not provide an adequate remedy. Nelson v. State Board of Accountancy, Division of Professions, Department of Professional and Occupational Regulation, 355 So.2d 216 (Fla. 1st DCA 1978). Cf., Boedy, supra, indicating that a challenge to an agency’s power to act at all — because the agency is assuming regulatory powers not granted by the pertinent statutes — is “the sort of issue that may qualify, depending on the circumstances, for immediate review in a district court of appeal.” 428 So.2d at 759.

The Department’s petition for review is dismissed.

WENTWORTH and JOANOS, JJ., concur.

      . We recognize that Rule 28-5.205 is addressed to motions in opposition to a "petition” and that “petition" is defined in Rule 28-5.201, Florida Administrative Code as “any application or other document which expresses a request for formal proceedings.” It might be argued that an administrative complaint should not be treated as a "petition" for purposes of the application of Rule 28-5.205. However, we do not read the requirements of Rule 28-5.205 as applying only to a “petition” as defined for purposes of Rule 28-5.201. These procedural rules apply unless the agency has adopted specific rules to the contrary, Rule 28-5.101, and since there is no other rule dealing with motions to dismiss, we construe the word "petition" in Rule 28-5.205 in its non-technical sense as being synonymous with an administrative complaint filed by an agency. We note that Rule 28-6.09(4), Florida Administrative Code, made applicable to this proceeding by Rule 21G-1.20, specifically provides that the agency’s administrative complaint shall be considered to be the “petition."

      . Despite the failure of the parties to raise the issue, this court may notice questions of its own jurisdiction. See 3 Fla.Jur.2d, Appellate Review, § 28, p. 55-56 and cases cited therein.

      . Many courts have entertained review of non-final orders of hearing officers but the precise issue of jurisdiction was not raised or discussed in the opinions. See e.g., Vey v. Bradford Union Guidance Clinic, Inc., 399 So.2d 1137 (Fla. 1st DCA 1981); Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979); General Development Corporation v. Florida Land and Water Adjudicatory Commission, 368 So.2d 1323 (Fla. 1st DCA 1979); State ex rel. Sarasota County v. Boyer, 360 So.2d 388 (Fla.1978); and Department of Environmental Regulation v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977).

      .We note that in rulemaking proceedings, rule challenges, and requests authorizing continued involuntary placement under the Baker Act (and perhaps other proceedings), the DOAH hearing officer’s order is final agency action and reviewable. However, the legislature has expressly provided for the finality of hearing officer’s orders in these instances. See Sections 120.54(4)(d), 120.56(5), and 394.457(6)(b), Florida Statutes (1981). The reviewability, in this court, of hearing officers' final orders in rule-making proceedings was fully discussed and confirmed in 4245 Corporation, Mother’s Lounge, Inc. v. Division of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977).


text:
    John T. BECKUM, O.D., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AR-142.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1983.

      Stephen Marc Slepin, Slepin, Slepin, Lambert & Waas, Tallahassee, for appellant.
    Robert A. Weiss, Assistant General Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

The Department of Health and Rehabilitative Services notified Dr. Beckum, a licensed optometrist and Medicaid provider, that it intended to impose administrative sanctions consisting of a fine against him, under Rule 10C-7.60(6)(c), Florida Administrative Code, for violations of Medicaid policy and the State’s minimum examination procedures. Dr. Beckum requested a formal hearing and the matter was referred to the Division of Administrative Hearings and given Case No. 82-1961. Upon motion by Dr. Beckum, the assigned hearing officer dismissed the Department’s action against Dr. Beckum for failure to file an administrative complaint adequately setting forth the charges against Dr. Beckum. A subsequent motion by the Department to set aside the dismissal was denied, but the order of dismissal expressly stated that the Department was not precluded from “refiling a complaint which states with specificity its charges and allegations in this matter.” A month later, on December 13, 1982, the Department sent a letter to Dr. Beckum enclosing an administrative complaint, and again advising him of his right to request an administrative hearing. On January 18, 1983, Dr. Beckum requested a formal hearing on the December 13th administrative complaint. The Department, relying on Rule 10-2.36, Florida Administrative Code, found that Dr. Beckum’s January 18th request for hearing was untimely, and entered a final order requiring Dr. Beckum to pay an administrative fine of $8,100.00. We reverse.

Admittedly, as to the December 13, 1982 complaint, Dr. Beckum’s January 18th re quest for a hearing was beyond the 30 day time period provided for in Rule 10-2.36. However, Dr. Beckum’s January 18th request was unnecessary since he had already timely initiated formal proceedings concerning this identical controversy in Case No. 82-1961. In accordance with Section 120.57, Florida Statutes (1981), Dr. Beckum was entitled to have a trial type hearing, culminating in the hearing officer’s recommended order and thereafter, the Agency’s final order. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Under the circumstances present here Dr. Beckum cannot be considered to have waived his right to a formal hearing. The Department’s filing of a formal administrative complaint after being offered this alternative by the hearing officer in fairness must be viewed as a continuation of the formal hearing process itself, rather than as a means of escape from it. Thus, the Department was not authorized to summarily enter a final order imposing a fine upon Dr. Beckum.

The Department should have filed its December 13th amended complaint in Case No. 82-1961. Rule 28-5.202, Fla.Admin. Code. Although the order does not expressly state that the hearing officer contemplated that the Department would file any amended complaint in the proceeding pending before him, it can reasonably be so inferred. In any event, the Department was on notice of Dr. Beckum’s demand for a formal hearing on the charges being made against him.

The Department apparently mistakenly interpreted the hearing officer’s order of dismissal as a final order disposing of Case No. 82-1961. However, the record discloses that neither the hearing officer’s order dismissing the proceeding nor his order refusing to set aside the dismissal was incorporated in a recommended order dismissing Case No. 82-1961 from the Division of Administrative Hearings. See Rule 28-5.402, Fla.Admin.Code. Further, so far as the record discloses, the Department has never issued a final order dismissing Case No. 82-1961. See Rule 28-5.405(2), Fla.Admin.Code. Accordingly, the Department was not justified in treating the hearing officer’s dismissal order as a final order disposing of Case No. 82-1961. See, Department of Professional Regulation v. LeBaron, 443 So.2d 225 (Fla. 1st DCA 1983).

The Department’s final order is reversed, and the cause is remanded for proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur.

      . This rule provides that failure to request a hearing within 30 days of receipt of the Agency decision shall be deemed a waiver of any right to a Section 120.57, F.S., hearing and the Agency decision shall become final agency action.

      . The Medicaid recipients involved in the violations charged in the December 13, 1982 complaint are all included in the list of recipients named in the original notice of administrative sanctions, and the nature of the violations charged remained the same.

      .Rule 28-5.202, made applicable to these proceedings by Rule 10-2.31, permits amendment upon order of the hearing officer. We note that by order of November 1, in the present case the hearing officer granted a motion by appellant to dismiss for failure of the Department to timely amend under an earlier order.


author: ERVIN, Chief Judge.

text:
    David M. LYONS and Carol M. Flanagan, Appellants, v. CITIZENS COMMERCIAL BANK OF TALLAHASSEE, Appellee.
    No. AQ-272.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1983.

      James R. English of Henry, Buchanan, Mick & English, Tallahassee, for appellants.
    John C. Cooper of Douglass, Davey, Cooper & Coppins, Tallahassee, for appellee.
   ERVIN, Chief Judge.

Appellant, Carol M. Flanagan, appeals a final judgment entered in favor of appellee, Citizens Commercial Bank of Tallahassee (Bank), contending the trial court erred in not finding that Flanagan’s liability under a promissory note was discharged by the Bank’s unjustifiable impairment of the collateral securing the note. We disagree and affirm.

Flanagan and Lyons, both individually and jointly, obtained several loans from the Bank over a two-year period. On April 27, 1977, four such loans were consolidated into one loan totaling $11,888.28, in exchange for which Flanagan and Lyons put up as collateral Lyons’ truck, boat, motor and trailer, and Flanagan’s car. Bank records disclose that Lyons’ car was freed from the pledge on December 21, 1977, and Flanagan’s car on May 10, 1978.

On August 4, 1978, Lyons reduced the remaining principal by making a payment of $4,000.00. In return, the Bank released its security interest in the boat, motor and trailer, thereby leaving the balance of some $4,000.00 unsecured. Flanagan, who contends she was told by Bank officials in May of 1978 that she would be excused from the terms of the note due to Lyons’ agreement to make the remaining loan payments, was never notified regarding the final release of security.

Unfortunately, in May of 1979, Lyons stopped making loan payments, resulting in the Bank’s filing the action below to recover the unpaid balance from both Flanagan and Lyons. A default judgment was obtained only against Lyons. Flanagan had answered the complaint, raising the affirmative defense of discharge, contending that the Bank, without her consent or knowledge, had unjustifiably impaired the collateral formerly securing the note by releasing to Lyons the boat, motor and trailer. After hearing testimony and receiving evidence at a non-jury trial, the court entered a final judgment in favor of the Bank.

Flanagan urges that the trial court committed reversible error by rejecting her defense of discharge due to the unjustified impairment of collateral to which she claims to be entitled by virtue of section 673.606, Florida Statutes, which provides:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
⅜ SH ⅜! ⅜ ⅝ ⅝
(b) Unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse,

(emphasis supplied) The thrust of Flanagan’s argument is that the phrase “any party to the instrument” must be interpreted to include principals, i.e., makers and co-makers of notes, thus entitling her to raise that defense. The Bank answers that such defense is available only to sureties or to parties to an instrument who are in the position of sureties and that, even if Flanagan were entitled to assert this defense, she is not entitled to discharge because she failed to carry her burden of proving the collateral was unjustifiably impaired. We agree with the Bank’s latter argument that Flanagan failed to prove her affirmative defense, and affirm.

The defense of discharge found in section 673.606 is properly characterized as a “suretyship defense.” Deese v. Mobley, 392 So.2d 364, 368 (Fla. 1st DCA 1981). See also 3 R. Anderson, Uniform Commercial Code §§ 3-606:1 — 3-606:12 (1971) and 2 Bender’s Uniform Commercial Code Service § 12.21 (1982). The official comment to section 3-606 of the Uniform Commercial Code (UCC), from which section 673.606 is derived, provides:

The words “any party to the instrument” remove an uncertainty arising under the original section [of the Uniform Negotiable Instruments Law]. The suretyship defenses here provided are not limited to parties who are “secondarily liable,” but are available to any party who is in the position of a surety, having a right of recourse either on the instrument or dehors it, including an accommodation maker or acceptor known to the holder to be so.

U.C.C. § 3-606 Official Comment 1 (1978) (emphasis supplied).

A number of courts have been asked to determine whether the phrase “any party” may be broadly interpreted, as Flanagan contends, to provide the defense of discharge to makers and co-makers on the instrument. The majority of those courts, while including sureties, accommodation parties, accommodation makers, guarantors and endorsers within the list of parties entitled to raise the suretyship defense in section 3-606, have declined to extend the list to include as well makers and co-makers binding themselves only as principals. See United States v. Unum, Inc., 658 F.2d 300 (5th Cir.1981); Wohlhuter v. St. Charles Lumber & Fuel Co., 62 Ill.2d 16, 338 N.E.2d 179 (1975); The Farmers State Bank of Oakley v. Cooper, 227 Kan. 547, 608 P.2d 929 (1980); Mikanis Trading Corporation v. Block, 59 A.D.2d 689, 398 N.Y.S.2d 679 (App.Div.1977); The Provident Bank v. Gast, 57 Ohio St.2d 102, 386 N.E.2d 1357 (1979); Oregon Bank v. Baardson, 256 Or. 454, 473 P.2d 1015 (1970); Hooper v. Ryan, 581 S.W.2d 237 (Tex.Civ.App.1979). If, however, a maker can show he has actually altered his position on the instrument from that of principal to surety, he may be entitled to raise the defense of discharge. See Federal Deposit Insurance Corporation v. Webb, 464 F.Supp. 520 (E.D.Tenn.1978); Commerce Union Bank v. May, 503 S.W.2d 112 (Tenn. 1973).

Among those courts declining to expand the term “any party” to encompass makers and co-makers, the majority have recognized that such parties may have standing to raise the defense if they can show they signed the instruments for purposes of accommodation only. See Peoples Bank of Point Pleasant v. Pied Piper Retreat, Inc., 209 S.E.2d 573, 578 (W.Va. 1974). A factual issue is thus raised upon a party’s assertion of the defense of discharge. In determining whether such, a person is to be afforded the status of an accommodation party, several factors are to be considered, including his purpose in signing the instrument, the intent of the parties to the instrument, whether the party received any benefit from the transaction, and whether his signature was necessary in enabling another party to secure a loan. See Commerce Union Bank v. Davis, 581 S.W.2d 142 (Tenn.Ct.App.1978); Peoples Bank, 209 S.E.2d at 578; Cooper, 608 P.2d at 934. If the party claiming entitlement to discharge has received benefits from the transaction, a presumption that he did not sign for accommodation only arises. Davis, 581 S.W.2d at 144, citing J. White & R. Summers, Uniform Commercial Code at 431 (1972).

Although a few cases have suggested that makers not in the position of sureties may, under some circumstances, come within the scope of the phrase “any party”, our research discloses that only Florida’s Fourth District Court of Appeal has gone so far as to hold that makers and co-makers per se are entitled to raise the defense of discharge under section 673.606. In Southwest Florida Production Credit Association v. Schirow, 388 So.2d 338 (Fla. 4th DCA 1980), the court, while affirming a judgment in favor of mortgagors who raised the defense of discharge in a foreclosure action, concluded:

We are impressed with the clear and unambiguous language used in the statute in providing that any party to the instrument is discharged to the extent the holder unjustifiably impairs any collateral. The plain meaning of the phrase “any party” clearly would include a co-maker. No one can deny that a co-maker is a party to the instrument. Many times we are called upon to construe ambiguous provisions in the statutes and in doing so we must employ various rules of construction to arrive at the meaning of the words used. But unless we are faced with some ambiguity we should give words their plain meaning and stop there. We believe this is such a case.

Id. at 339 (emphasis supplied).

Although the above conclusion certainly finds support in logic if not in case law, we do not find that Schirow compels reversal in the case at bar. Schirow is factually distinguishable from this case because there was competent substantial evidence presented in Schirow to support the court’s conclusions that the defendants were entitled to recourse against their co-makers who filed for bankruptcy and that they were in fact accommodation makers, a fact of which the lender was aware. Id. at 339. In this case, the record is completely devoid of any evidence suggesting that Flanagan signed the note from which she benefited in any capacity other than as principal and co-maker. Second, and we think more important, is the fact that in this case there is no evidence that the Bank’s release of collateral to Lyons resulted in an unjustified impairment of such collateral. We therefore find it unnecessary to decide whether Flanagan, as comaker, was a party for purposes of asserting the defense of discharge.

Assuming, arguendo, that Flanagan had standing to assert the defense of the collateral’s impairment due to its release, section 673.606 provides for discharge only to the limited extent that the collateral is unjustifiably impaired. “It is clear from the statute that the release is only pro tanto, and the cases so hold.” Cooper, 608 P.2d at 935. Whether an unjustified impairment has occurred, and the extent thereof, is a factual question, Huey v. Port Gibson Bank, 390 So.2d 1005, 1009 (Miss.1980), and the party claiming entitlement to discharge bears the “burden of proof ... to establish the extent to which the collateral was impaired.” Cooper, 608 P.2d at 936. Accord, Tampa Bay Bank v. Loveday, 526 S.W.2d 480 (Tenn.Ct.App.1974). Proof of the extent of its impairment is made by showing the value of the collateral at the time of its impairment. Cooper, 608 P.2d at 936; Huey, 390 So.2d at 1009; Block, 398 N.Y.S.2d at 680-681. If it is shown that the collateral was worthless, there can be no unjustifiable impairment. Beneficial Finance Company of Jamestown v. Lawrence, 301 N.W.2d 114, 118 (N.D.1980). The record before us fails to disclose the value of the boat, motor and trailer at the time of its release by the Bank. As Flanagan failed to meet her burden of showing an unjustifiable impairment of the collateral securing the note, the trial court did not err in declining to find that her liability under the note was discharged.

AFFIRMED.

JOANOS, J. and TILLMAN PEARSON, Associate Judge (Retired), concur.

      . For example, in Rushton v. U.M. & M. Credit Corporation, 245 Ark. 703, 434 S.W.2d 81 (1968), the defendant, having signed a contract and note ostensibly as a “trustee” for an undisclosed trust, unsuccessfully attempted to raise the discharge defense to avoid liability on the note. In affirming the trial court’s rejection of that defense, the court found it unnecessary to decide whether the defendant was an accommodation party, but noted that the phrase " ‘any party to an instrument’ as used [in § 3-606] is broad enough to include all makers and endorsers.” 434 S.W.2d at 83. In Rushton, however, as in this case, affirmance of the trial court’s decision was required as the evidence was insufficient to show that an unjustifiable impairment of collateral had occurred. Additionally, in Beneficial Finance Company of New York, Inc. v. Husner, 82 Misc.2d 550, 369 N.Y.S.2d 975 (N.Y.Sup.Ct. 1975), a reported trial level decision, a husband and wife executed a promissory note giving as collateral therefor a security interest in the wife’s automobile. After the parties had separated, the finance company agreed to release its interest in the automobile in exchange for the wife’s applying the proceeds from the sale of the vehicle against the principal. When suit was brought to recover the remaining principal, the husband defended on the basis of discharge due to unjustifiable impairment of collateral. The trial court concluded that the defense provided by section 3-606 could be claimed by the husband, as a co-maker, but only if he could show a right of recourse against the wife. Having failed to meet that burden, judgment was entered against both husband and wife. Finally, in Beneficial Finance Company of Jamestown v. Lawrence, 301 N.W.2d 114 (N.D.1980), the court noted that "it would appear that the defense of unjustifiable impairment is, under appropriate circumstances, available to 'any party’ to a note, including the maker.” Id. at 117. The court reasoned, however, that to so interpret the phrase "any party” would result in the destruction of all existing distinctions between principals and sureties. The court, however, never determined that issue conclusively because, as in Rushton, the decisive factor in rejecting the defense was that the evidence failed to show an unjustifiable impairment of collateral.


author: SHIVERS, Judge.

text:
    Carl Dennis EVANS, Appellant, v. Sarah M. EVANS, Appellee.
    No. AQ-319.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1983.

      Carroll L. McCauley, Panama City, for appellant.
    Michael C. Overstreet, Panama City, for appellee.
   SHIVERS, Judge.

Dennis Evans, the husband, appeals from a supplemental final judgment of dissolution of marriage. He raises four points on appeal: (1) that there was no competent and substantial evidence to support the trial court’s finding that his income was other than that shown by his proof at trial; (2) that the financial provisions exceed his ability to pay; (3) that the trial court erred when it awarded his former wife, Sarah Evans, permanent periodic alimony; and (4) that the trial court erred when it failed to order an automatic termination of child support. We find appellant’s first two contentions without merit and reverse and remand with respect to his latter two contentions, that is, the permanent periodic alimony award and the trial court’s failure to order an automatic termination of child support.

The parties involved in this appeal were married in 1965, and have three children, ages sixteen, twelve and nine as of the time of the dissolution. Dennis Evans is a self-employed architect, having graduated from the University of Florida. Sarah Evans is and has been a legal assistant at a law firm since 1975. She handles real estate closings. Sarah Evans’ education consists of a high school equivalency degree.

Sarah Evans was thirty-five when the dissolution was granted. The amended financial affidavit filed by Mrs. Evans indicates a gross annual income of about $12,-500; with her projected income for 1982 estimated at $13,500. Sarah Evans claimed monthly expenses of approximately $2,866 for herself and the children. Mrs. Evans also owns, individually through inheritance, property with an equity value of approximately $50,000.

Dennis Evans’ level of income was uncertain and the evidence presented to the trial court establishing the same was contradictory as demonstrated: (i) Mr. Evans filed a financial affidavit stating that his average gross monthly income was $1,407 (net $1,216), or about $16,900 a year (net $14,-600); (ii) Mr. Evans testified before the trial court that his income in 1981 was about $22,000 or $24,000 and would be about the same for 1982; and (iii) in October of 1981, Mr. Evans listed his approximate gross income in a credit application to Bay Industrial Credit Union at $30,000. Additionally, Sarah Evans submitted evidence to the trial court that Dennis Evans had personal expenditures of approximately $3,000 a month for the months of February through May of 1982 and that Mr. Evans’ architectural business, operated as a sole proprietorship, had gross receipts of $51,000 in 1980, $80,000 in 1981 and a conservative projection of $96,000 in 1982.

During the Evans’ marriage, they acquired a marital home — with an equity value of $4,000 or $19,000 according to the financial affidavits filed by Sarah and Dennis Evans, respectively, two automobiles, a sailboat, a sailrider, $5,000 in certificates of deposit — received from Sarah Evans’ aunt, and Mr. Evans’ business assets. In the supplemental final judgment under review, the trial court granted the marital residence and furnishings therein to Sarah Evans as lump sum alimony with the condition that she assume all outstanding mortgage indebtedness on this property, granted the parties their respective automobiles, granted Dennis Evans all the business assets located at his architectural business, directed that Dennis and Sarah Evans retain ownership of their sailboat and sailri-der as tenants in common, directed that $4,000 of the certificates of deposit be held in trust for the minor children for their orthodontic and dental expenses with the remaining $1,000 to be divided equally between Sarah and Dennis Evans, and directed Dennis Evans to pay by way of child support, the sum of $200 per child, per month, and by way of permanent periodic alimony, the sum of $400 per month to Sarah Evans.

In his appeal from this judgment, Dennis Evans first contends, as previously noted, that there was no competent and substantial evidence to support the trial court’s finding that his income was other than that shown by his proof at trial. We disagree. To the contrary, we find that the record contains ample, competent evidence to support the trial court’s findings that Dennis Evans’ testimony regarding his income lacked credibility and that Dennis Evans’ income exceeded that which was reported on his financial affidavit and that which he testified. Here, the evidence proffered by Dennis Evans with respect to his income level was clearly contradictory. Confronted by these contradictions, Sarah Evans presented evidence to the effect that Dennis Evans’ income was much greater than the $16,900 listed on his financial affidavit. In dissolution cases, the trial judge is in a better position to assess the financial capabilities of the respective parties and their credibility with respect to this issue. See McDonald v. McDonald, 368 So.2d 1283 (Fla.1979). Accordingly, we will not substitute our judgment for the trial court’s determination where, as here, the record shows that the husband’s income was in dispute and there is competent, substantial evidence to support the trial court’s findings.

Interrelated with appellant’s first contention, Dennis Evans next contends that the financial provisions of the final decree exceed his ability to pay. However, this contention is also without merit since it is based on the premise that Dennis Evans’ gross annual salary is at or near $17,000. As noted previously, the trial court found otherwise and we find competent, substantial evidence in the record to support this finding. Therefore, viewing the evidence in the light most favorable to the appellee, e.g., that Dennis Evans was earning at least $30,000 annually as evidenced by his credit application to Bay Industrial Credit Union, we cannot say that the financial provisions are clearly excessive and thereby exceed Dennis Evans’ ability to pay.

Dennis Evans thirdly contends that the trial court erred in awarding Sarah Evans permanent periodic alimony. We agree. Sarah Evans is relatively young, thirty-five years of age as of the time of dissolution, is in good health, and is a legal assistant in a law firm with a present earning capacity of between $12,500 and $18,-000 a year (the latter figure representing Sarah Evans’ approximate income in 1981). At the dissolution hearing, Sarah Evans expressed the desire to go to college to enhance her opportunities for advancement. To award her permanent periodic alimony of $400 a month for the rest of her life would appear to impair any desire she might have to strive forward financially. We, therefore, hold that the trial court abused its discretion in awarding Sarah Evans permanent periodic alimony and direct the trial court, upon remand, to award her rehabilitative alimony in an amount and for a time period that will allow Sarah Evans to pursue her desire to obtain a college education without unduly burdening her parenting obligations to her children. If at the end of the rehabilitation period, Sarah Evans can demonstrate that she has made a diligent effort toward rehabilitation which has failed through no fault of her own, she can move for an extension of the rehabilitative alimony or for an award of permanent alimony. See Greene v. Greene, 347 So.2d 1090 (Fla. 1st DCA 1977).

Finally, Dennis Evans contends, which contention is undisputed by Sarah Evans, that the trial court erred when it failed to order an automatic termination of child support. We agree and direct that upon remand the supplemental final judgment should be amended to reflect that the child support for the benefit of the parties’ minor children should be reduced proportionately as each child attains majority, marries or dies.

In summary, those portions of the supplemental final judgment which award Sarah Evans the marital residence, awards the parties their respective automobiles, awards Dennis Evans all the business assets located at his architectural business, directs that Mr. and Mrs. Evans retain ownership of their sailboat and sailrider as tenants in common, directs the disposition of the $5,000 in certificates of deposit, and directs Dennis Evans to pay by way of child support the sum of $200 per child, per month, are affirmed. The supplemental final judgment is reversed as to the award of permanent periodic alimony and upon remand the trial court should award Sarah Evans rehabilitative alimony in an amount and for a time period sufficient to allow Sarah Evans to establish her capacity for self-support. Furthermore, upon remand the trial court is to amend the supplemental final judgment to reflect that the child support payments are to terminate as each child attains majority, marries or dies.

AFFIRMED in part, REVERSED in part and REMANDED with directions.

MILLS and ZEHMER, JJ., concur.

      . In connection with appellant’s first two contentions on appeal, Dennis Evans also argues that the trial court’s decree must be reversed on the basis that the trial court failed to set forth what level of income Dennis Evans was actually earning. Although we recognize the concern that the lack of such a finding engenders, we do not find a requirement for this kind of finding in Chapter 61, Florida Statutes. However, we highly recommend that such findings be made in dissolution cases and especially in cases such as the instant one where the husband’s salary is in dispute. Without such a finding, judicial labor is unnecessarily increased at both the appellate level, in reviewing the-judgment, and at the trial level, e.g., where argument is made as to changed circumstances in a modification of alimony judgment proceeding.