author: BERANEK, Judge. ANSTEAD, Chief Judge,

text:
    STATE of Florida, Appellant, v. Ricky BUSSEY, Appellee.
    No. 82-2145.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Rehearing Denied Feb. 15, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant was charged by information with the sale of a noncontrolled substance in violation of Section 817.563, Florida Statutes (1981), which states as follows:

817.563 Controlled substance named or described in s. 893.03; sale of substance in lieu thereof. — It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance. Any person who violates this section with respect to:
(1) A controlled substance named or described in s. 893.03(1), (2), (3), or (4) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) A controlled substance named or described in s. 893.03(5) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.

This statute makes it unlawful to offer to sell a controlled (illegal) substance and then sell a noncontrolled (legal) substance in lieu thereof. The statute is a fraud measure contained in Chapter 817, Florida Statutes, governing “Fraudulent Practices.” The trial court found the statute to be unconstitutional as an improper exercise of police power. The court found that the state had no proper purpose in enacting laws to enforce quality control in illegal drug transactions. The same rationale is stated in State v. Manucy, 417 So.2d 1021 (Fla. 1st DCA 1982), where the First District held that the sale of an uncontrolled substance in lieu of a controlled substance could not be grand theft by fraud in violation of Section 812.014, Florida Statutes (1979). The court reasoned that the theft statute was meant to vindicate only reasonable expectations of the consumer and that such consumer protection concepts simply have no application in illegal drug transactions. In short, the court held that purchasers of illegal drugs were not entitled to consumer protection under the theft statute.

The First District did, however, uphold the constitutionality of Section 817.563 in State v. Thomas, 428 So.2d 327 (Fla. 1st DCA 1983). The Thomas court initially considered the question of scienter as applicable to Section 817.563. The opinion expressly holds scienter necessary to only the first half of the statute dealing with the offer to sell an illegal drug. However, some doubt is cast upon this holding in the closing paragraphs of the opinion. The court held that the statute was a valid exercise of the police power by finding that the statute protected the health of individuals because the taking of an uncontrolled substance would not produce a physical tolerance as do genuine drugs so that when real narcotics are later taken, users may overdose. Further, the court found that the statute protected a valid public interest in high school drug education programs because students might unwittingly take uncontrolled substances when they thought they were taking controlled substances and thus lose confidence in the drug programs. While we agree that the legislature has broad discretion in determining necessary measures to protect the health, safety and welfare of the public, we disagree with the First District’s rationale because it appears this statute is supposed to be a fraud statute rather than a drug abuse statute. Protection of drug users from overdosing and protection of high school drug programs clearly deal with drug abuse and not with fraud. Further, there is already a counterfeit drug statute in this state. See Section 831.31, Florida Statutes (1981), which makes it unlawful for any person to sell any counterfeit controlled substance. This statute protects the public from counterfeit drugs — even if such drugs are harmless.

Carrying it a step further, the Second District Court of Appeal has agreed with the First District Court of Appeal, at least in part, in M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983). In this case the Second District found Section 817.563 constitutional but contrary to the First District concluded that there was no requirement of any specific intent contemplated by the statute. Once again, the statute is discussed purely as a drug fneasure.

We conclude that the trial court correctly found Section 817.563 to be unconstitutional. It is our conclusion that the section violates due process requirements in that it does not contain any requirement of intent as to the sale of a counterfeit drug. We also conclude the statute is vague in that it does not say whether the person selling the counterfeit drug must know it to be counterfeit or must know it not to be counterfeit. We certainly think the legislature has power to control the sale of counterfeit drugs and to make it unlawful for a person to sell or attempt to sell anything representing it to be a controlled substance or any other unlawful substance. However, to do away with intent in a fraud statute is to violate the common law concepts of the crime. It is similar to the problem faced by the Florida Supreme Court in State v. Allen, 362 So.2d 10 (Fla.1978), dealing with the deletion of specific intent in theft; and Bell v. State, 394 So.2d 979 (Fla.1981), dealing with specific intent in robbery cases. In addition, the statute is inherently vague in its definition and in its penalty provisions. The statute does not actually state whether it is the drug intended to be sold or the substance actually sold which determines whether it is a felony or misdemeanor. Perhaps the only logical construction is that if a person offers to sell an illegal drug and then actually sells a legal substance the act is a felony or misdemeanor depending on which type of illegal substance was originally offered. However, the Second District in M.P. v. State, supra, has held that there is no necessity of any intent to actually sell a controlled substance. The First District held in Thomas that Section 817.563 only applies when the defendant actually knows that the substance sold is a legal substance and not when he has a mistaken belief that it is an illegal substance. A close reading of Thomas indicates the statute applies only when one knowingly offers an illegal drug and then knowingly sells a legal substance. The Thomas opinion is in disagreement with M.P. v. State, supra, which holds that there need be no intent to ever sell an illegal drug but only an offer to do so. After consideration of the statute and the cases construing it we conclude it is vague and thus constitutionally infirm.

In conclusion, we find Section 817.563 to be a fraud statute and as such, it was a violation of due process to prosecute the defendant under the statute which makes no provision for specific intent as to the sale of the uncontrolled substance. As a fraud statute Section 817.563 is not a proper exercise of the police power and is unconstitutionally vague. The order of the trial court finding the statute unconstitutional is thus affirmed.

COCALIS, PATRICIA W., Associate Judge, concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting.

I would construe the statute, as the state conceded at oral argument it should be construed, as requiring an intent to deceive, and uphold the constitutionality of the statute with that construction. Cf. State v. Allen, 362 So.2d 10 (Fla.1978) and Bell v. State, 394 So.2d 979 (Fla.1981). It appears that at least one of the concerns of the legislature was to deal with “rip-offs” in drug transactions, especially those transactions involving undercover officers who might be sold bogus drugs. In addition to the other laws proscribing illegal drug activity, Section 817.563, is designed to deal with this precise form of criminal activity, i.e., “rip-offs.” Obviously, any accused who has represented a substance to be one thing, and knowingly substitutes another, has the intent to deceive, and would be in violation of this statute.

      . In discussing lesser included offenses the Thomas court stated that Section 817.563 is the appropriate charge only when the defendant "knows" that the substance actually sold is an uncontrolled substance. Thus a person who pretends to sell marijuana and who knowingly sells hay commits a felony but if he sells the same hay actually thinking it to be marijuana he is guilty of only a misdemeanor.


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    GEORGE HUNT, INC., Appellant, v. DORSEY YOUNG CONSTRUCTION, INC., Appellee.
    No. 83-719.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 1984.
    Rehearing Denied Feb. 14, 1984.

      Franklyn A. Johnson, Jr., of Smoot, Johnston, Johnson & Green, Fort Myers, for appellant.
    James L. Kershaw, Fort Lauderdale, for appellee.
   HERSEY, Judge.

We affirm as to appellant’s first point on appeal relying on the rule that once a plaintiff files a motion to set a cause for trial (which is essentially a notice for trial) the cause cannot be dismissed for failure to prosecute even where there is no record activity during the ensuing year. Fox v. Playa Del Sol Assoc., Inc., 446 So.2d 126 (Fla. 4th DCA, 1983). In doing so we note an express and direct conflict with Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977) [adhering to Allen v. Gaither, 112 So.2d 855 (Fla. 1st DCA 1959), decided prior to the adoption of Rule 1.440(c), Florida Rules of Civil Procedure]. Appellant’s additional points being likewise without merit we affirm.

AFFIRMED.

LETTS and BERANEK, JJ., concur.


author: HENDRY, Judge.

text:
    CENTEX HOMES CORPORATION, Appellant, v. PRESTRESSED SYSTEMS, INC., and C.A. Gibeaut, Inc., Appellees.
    No. 83-409.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Bruce Charles King, Miami, for appellant.
    Ligman, Martin, Shiley & McGee and Andrew J. Anthony, Coral Gables, Magill, Reid & Lewis, Miami, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

Centex Homes Corporation appeals from a final summary judgment entered in favor of appellee Prestressed Systems, Inc. («pgl»). reverse.

Appellant Centex was the general contractor for the construction of the Winston Towers 400 Condominium. Appellee provided and erected all precast, prestressed concrete joints and soffit beams for the building and parking garage. Two years after the building was occupied, the Winston Towers 400 Condominium Association sued appellant for construction defects in the parking garage. The lawsuit was settled with the Association and assignments were executed in favor of appellant for all claims that the Association had against the appellee. Centex then filed the instant lawsuit against appellee PSI and several other subcontractors.

The only issue before this court is whether the blanket general comprehensive liability insurance purchased by appellant to cover all of its subcontractors released appellee from its contractual obligation to provide its services in a workmanlike manner. A correlative issue is whether the existence of comprehensive liability insurance shields appellee from being held liable for the damages resulting from its own poor workmanship. The answer to both questions is, as a matter of law, no.

It is well established that the purpose of comprehensive liability insurance coverage is to provide protection for personal injury or property damage caused by the product only and not for the replacement or repair of the product. LaMarche v. Shelby Mutual Insurance Co., 390 So.2d 325 (Fla.1980); Keller Industries, Inc. v. Employers Mutual Liability Insurance Co., 429 So.2d 779 (Fla. 3d DCA 1983); Tucker Construction Co. v. Michigan Mutual Insurance Co., 423 So.2d 525 (Fla. 5th DCA 1982); Old Republic Insurance Co. v. Sheridan, 407 So.2d 619 (Fla. 4th DCA 1981); American States Insurance Co. v. Villegas, 394 So.2d 222 (Fla. 5th DCA 1981). The policy reasons for this result are obvious. If insurance proceeds could be used to pay for the repairing and/or replacing of poorly constructed products, a contractor or subcontractor could receive initial payment for its work and then receive subsequent payment from the insurance company to repair and replace it. LaMarche v. Shelby Mutual Insurance Co., supra, 390 So.2d at 326. Equally repugnant on policy grounds is the notion that the presence of insurance obviates the obligation to perform the job initially in a workmanlike manner.

Appellee argues that paragraph 9, in which appellant states that it has arranged for insurance coverage, is ambiguous. It argues that the sentence “[t]his subcontractor will be covered by such blanket insurance policy for all these risks .... refers to the first eight paragraphs in which the parameters of the contract are defined. In Biltmore Systems, Inc. v. Mai Kai, Inc., 413 So.2d 458 (Fla. 4th DCA 1982), the court stated:

It is fundamental that where a contract is clear and unambiguous in its terms the court may not give those terms any meaning beyond that expressed... Where ambiguity exists, however, the court should arrive at an interpretation “consistent with reason, probability, and the practical aspect of the transaction between the parties.”

Id. at 459 (citations omitted). See also Wright & Seaton, Inc. v. Prescott, 420 So.2d 623 (Fla. 4th DCA 1982). We note in this regard that at all points in the contract in which insurance is mentioned, it refers only to liability insurance, and then only in the amount the subcontractor would purchase if it were responsible for providing its own insurance. Additionally, the insurance rider states that only liability insurance will be purchased and that any additional insurance must be provided by the subcontractor. Appellee makes no assertion that it would have provided insurance to cover damages resulting from its poor workmanship had it understood that such coverage was not included in liability insurance policies. In its attempt to find an ambiguity in the contract, appellee constructs a strained reading which, were it adopted, would lead to a ludicrous interpretation of plain words. We can only approve a construction which comports with logic and reason. Wright & Seaton, Inc. v. Prescott, supra, 420 So.2d at 629; Royal Continental Hotels, Inc. v. Broward Vending, Inc., 404 So.2d 782 (Fla. 4th DCA 1981).

Thus, we find that, as a matter of law, only liability insurance coverage was contemplated by the parties and that, as a matter of law, liability insurance covers bodily injury and property damage caused by the product only and does not encompass coverage for replacing or repairing defective workmanship.

Reversed.


author: LETTS, Judge.

text:
    Herbert SEPNER, Trustee, Appellant, v. VILLAGE OF ROYAL PALM BEACH, a political subdivision of the State of Florida, Milfred Meyer, individually, and Barney Ditkoff, individually, Appellees.
    No. 82-2094.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.

      Richard L. Martens of Boose, Ciklin & Martens, West Palm Beach, for appellant.
    Herbert P. Benn of Blank & Benn, West Palm Beach, for appellee Village of Royal Palm Beach.
   LETTS, Judge.

We reverse this cause on the authority of Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982) wherein our Supreme Court noted that entitlement to attorney’s fees under Section 57.105, Florida Statutes (1979) must spring from a “complete absence of a justiciable issue of either law or fact raised by the losing party.” (Id. 505) Here, we are not presented with a case involving both a complete absence of law or fact, but one with a question of standing as to this particular litigant. We note that standing was one of the problems presented in Whitten, supra and there can be no doubt but that there was originally a justiciable controversy as to this appellant’s standing. As Whitten, supra, noted, “not every party that prevails in a motion ... to dismiss for failure to state a cause of action ... is automatically entitled to attorney’s fees under Section 57.105.” Id. 505-506. Moreover, we cannot conclude that this cause was a sham.

REVERSED AND REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    Simon T. KHOURI, Appellant, v. Vivian S. KHOURI, Appellee.
    No. 83-379.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Jerald C. Cantor of Jerald C. Cantor, P.A., Hollywood, for appellant.
    Sheldon T. Slatkin of Heston & Rotella, P.A., Tamarac, for appellee.
   PER CURIAM.

Reversed. Upon review of the record we conclude that although the wife established that she had resided in the State of Florida for some six (6) months prior to the filing of her petition for dissolution, she subsequently renounced any intent to reside in Florida and resumed residency in Canada. Under those circumstances she was unable to establish residency for the six months next preceding the filing of the petition. Gillman v. Gillman, 413 So.2d 412 (Fla. 4th DCA 1982); Curran v. Curran, 362 So.2d 1042 (Fla. 4th DCA 1978).

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


author: PER CURIAM. WALDEN, Judge,

text:
    Wilhelmena WEBBER, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Florida, Appellee.
    No. 83-432.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    William M. Holland of Holland & Smith, West Palm Beach, for appellant.
    Richard L. Oftedal, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final order of the School Board of Palm Beach County terminating the appellant, Wilhelmena Webber, as a member of the administrative and instructional staffs of the school system after a hearing on a variety of allegations of professional misconduct made against Webber. In essence, four issues are raised on appeal: the sufficiency of evidence to support the school board’s findings of misconduct; the authority of the school board attorney to participate in the proceedings; the right of the board to prosecute after initiating other rehabilitative procedures against the appellant; and the severity of the penalties imposed. We have carefully considered the arguments presented by the appellant on each of these issues, and together with a review of the record and the controlling legal considerations conclude that we must affirm the findings and conclusions of the board.

We have reviewed the record of the proceedings and conclude that there is competent, substantial evidence to support each of the findings made by the board. Having determined the existence of such evidence, we have no authority to interfere with the fact-finding authority of the board. Woodworth v. Dept. of Education, 369 So.2d 1040 (Fla. 4th DCA 1979). We also see no basis in law to overturn the board’s denial of appellant’s motion to disqualify the school board attorney from participating in the proceedings. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Nor do we find the school system’s attempts to correct the alleged errant practices of the appellant as a legal bar to the disciplinary proceedings involved herein. Finally, we are compelled to affirm the penalty imposed on appellant by the opinion of the Florida Supreme Court in Florida Real Estate Comm’n v. Webb, 367 So.2d 201 (Fla.1978), which held that: “So long as the agency imposes a penalty prescribed by law, it has acted within the range of its discretion and the penalty may not be overturned by the reviewing court except in situations where an agency’s findings were in part reversed.” Id., at 203.

Accordingly, the final administrative action of the board is hereby affirmed.

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

WALDEN, J., concurs specially with opinion.

WALDEN, Judge,

concurring specially.

I concur in the majority opinion but am constrained to make additional comment.

In my opinion, the dismissal of appellant from all employment in the school system was far too severe under the circumstances. However, I have not found or been shown any authority whereby this court can vary the penalty imposed. Regrettably, the School Board did not see fit to demote or discharge her as principal, but allow her to continue her tenure as a teacher in light of her exemplary record as a teacher over many years.


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Appellant, v. Manuel VILLAFANE, Appellee.
    Nos. 83-751, 83-752.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Bruce L. Randall, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

This is a consolidated appeal of two identical orders, granting appellee’s motions to dismiss informations against him.

Appellee, a clerk in an “adult” bookstore, was arrested and charged with possession of obscene material with intent to sell, in violation of Section 847.011(1), Florida Statutes (1981). He pleaded nolo contendere but reserved the right to appeal denial of certain pretrial motions, under Rule 9.140(b) of the Florida Rules of Appellate Procedure. Such appeal was timely filed, and was still pending when appellee was arrested on two additional occasions on similar charges. However, whereas he was charged in , the first instance with a misdemeanor, the subject informations here each charged him with a third degree felony, because Section 847.011(l)(a) provides for the enhanced charge for one previously convicted of violating the same subsection. In each of .the two new cases, appellee moved to dismiss on the ground that the prior conviction was not final and therefore could not be the basis for the felony charge. The court heard both motions simultaneously and thereafter issued identical orders in both cases granting the motions to dismiss. The state timely appealed these orders and this court consolidated the two appeals.

The issue is whether the trial court erred in dismissing informations involving charges enhanced because of prior conviction, where the prior conviction was under appeal. We conclude that it did not, therefore we affirm. While there appears to be no case on all fours with the instant ones, there is a line of cases sufficiently parallel to justify analogizing. Here the enhancement is of the crime charged; there, of the punishment to be imposed. The statutory provision at the base of the present issue, Section 847.011(l)(a), Florida Statutes (1981), raises a second offense of possession of obscene matter with intent to sell from a misdemeanor to a third degree felony. In the other line of cases the habitual criminal statute is involved. Now found at Section 775.084, that statute provides more severe penalties for felons and misdemean-ants who are recidivists in certain specified respects. Under that statute the court holds a separate proceeding to determine whether the enhanced punishments are necessary for the protection of the public, and whether defendant is a habitual criminal. § 775.084(3).

In Joyner v. State, 158 Fla. 806, 30 So.2d 304 (Fla.1947), the Florida Supreme Court looked to precedents of other states to derive the following principle:

[Bjefore a prior conviction may be relied upon to enhance the punishment in a subsequent case such prior conviction must be final. If an appeal has been taken from a judgment of guilty in the trial court that conviction does not become final until the judgment of the lower court has been affirmed by the appellate court.

Id. at 808, 30 So.2d at 305. Because the purported fourth prior conviction in Joyner was still under appeal both at the time the habitual offender information was filed and at end of trial, (and because of another defect not pertinent here), the supreme court reversed the judgment of conviction. This court followed Joyner and came to a like result in Garrett v. State, 335 So.2d 876 (Fla. 4th DCA 1976). Reversal of defendant’s conviction as a subsequent felony offender was justified as follows:

His being a subsequent felony offender was based upon his conviction of larceny of an automobile .... Since defendant had taken an appeal, his conviction of larceny of an automobile was not final and, therefore, could not be relied upon to convict him as a subsequent felony offender until affirmed by the appellate court.

Id. at 877. Coleman v. State, 281 So.2d 226 (Fla. 2d DCA 1973) is a similar case involving Section 775.084, Florida Statutes.

While enhancement of a charge is technically different from enhancement of punishment, the similarity is sufficient to justify analogizing from one to the other. In both situations an information is filed setting forth the defendant’s prior conviction or convictions as the basis for the enhancement; and the practical effect on the defendant is the same — more severe punishment. It seems logical that if a conviction is not final for enhancement of punishment so long as appeal of a pertinent prior conviction is pending, the same rule should apply for enhancement of the offense charged.

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


text:
    STATE of Florida, Petitioner, v. William CONDON, Jr., Respondent.
    No. 83-2382.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Teresa Beazley Widmer, Asst. State Atty., Fort Lauderdale for petitioner.
    John D. O’Donnell of Panza & O’Donnell, Fort Lauderdale for respondent.
   GLICKSTEIN, Judge.

After one state continuance, four defense continuances and a notice of defendant/respondent William Condon, Jr.’s hospitalization, his trial on an information filed September 20, 1980, charging criminal mischief was set for December 29, 1981. On that date the state issued a nolle prosequi because the alleged victim was unavailable to testify. Condon’s motion to dismiss was denied. The information was refiled January 22, 1982 and Condon was arraigned a month later. On April 19, 1982 the county court heard and granted Condon's motion to discharge. It appears from the transcript the county court held the state’s delay in refiling the information violated Condon’s constitutional speedy trial right. The state’s unsuccessful appeal to the circuit court was followed by this petition for writ of certiorari, which we find to be meritorious.

As this court has stated before, when a defendant has by obtaining a continuance waived his speedy trial rights under Rule 3.191, Florida Rules of Criminal Procedure, and the information is nolle prossed, the waiver carries over and is effective under the refiled information. State v. Trimel, 387 So.2d 528 (Fla. 4th DCA 1980); State v. Luck, 336 So.2d 464 (Fla. 4th DCA 1976); Clark v. State, 318 So.2d 513 (Fla. 4th DCA 1975). Accord Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980). The speedy trial rule is subsequently brought back into play only by denial of defendant’s motion for discharge or by defendant’s demand for speedy trial. State v. Kerper, 393 So.2d 77, 78 (Fla. 5th DCA 1981) (citing Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980)). In the instant case, neither of these had occurred. Nor can the state have violated rule 3.191(h) by nolle pross-ing, when the speedy trial rule was already waived.

Unlike the speedy trial rule, the constitutional speedy trial right knows no predetermined time periods. The operative question is merely whether the defendant is brought to trial within a reasonable time, and the criteria to be considered are “the length of delay, reason for the delay, defendant’s assertion of his right, and prejudice to the defendant.” State v. Trimel, 387 So.2d 528, 528-529 (Fla. 4th DCA 1980) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

In the instant case defendant/respondent had not asserted his demand for speedy trial, and the ink on his motion for discharge was still wet. The extended delays prior to the nolle prosequi were mostly attributable to the defendant; the delays thereafter were not unreasonable, and there was no showing of prejudice to defendant’s case. In sum, Condon was not denied his constitutional right to a speedy trial.

The county court’s discharge of defendant finds support in no applicable theory of law and thus represents a departure from the essential requirements of law. Certio-rari is granted, the orders of the circuit court and the county court are quashed, and the cause is remanded to the county court for further proceedings.

BERANEK and HERSEY, JJ., concur.


author: COWART, Judge. ORFINGER, Chief Judge,

text:
    Raymond B. HOGSHEAD, Appellant, v. Betty H. HOGSHEAD, Appellee.
    No. 83-270.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1984.

      George C. Kelley, P.A., Apopka, for appellant.
    James N. Powers, P.A., Orlando, for ap-pellee.
   COWART, Judge.

In a dissolution settlement agreement the wife, appellee, relinquished her interest in jointly held property and special interest claims against property in the husband’s name and the husband, appellant, promised to pay the wife lump-sum payments of $100,000, $20,000 and two payments of $25,000 and alimony of $1,000 per month, $500 of each monthly payment up to $30,-000 to be considered as lump-sum alimony.

The ex-husband later sought modification arguing that the total $200,000 of “lump-sum alimony” was payment for the ex-wife’s property rights and since the $30,000 of lump-sum alimony payable periodically (monthly) had now been paid, the $1,000 monthly payment to the wife should be considered pure permanent periodic alimony subject to modification based on a material change in the wife’s needs and the husband’s ability to pay occurring since the dissolution.

Alleging an increased need the wife sought modification upward of the monthly payments to her.

The trial court denied both requests for modification and ordered the husband to make a contribution to the wife’s attorney’s fees. The husband appeals.

The trial court construed the agreement for monthly payments to the wife to partake of the nature of a true property settlement agreement and payment for her relinquishment of special equities in properties held by the husband and accumulated through the joint efforts of the parties during their marriage, and, accordingly, concluded that, although the husband was suffering financial setbacks, the evidence did not establish “the strongest and most compelling reasons justifying modification.” However, the court denied the wife’s petition for modification because she did not show a sufficient need to justify an increase in the monthly payments. Therefore, it is apparent that the trial court applied a different standard in denying the wife’s request than was used in denying the husband’s request.

Section 61.14(1), Florida Statutes (1981), gives the trial court jurisdiction to modify alimony judgments or agreements. True property settlement agreements, though, are not subject to modification at all. See Salomon v. Salomon, 196 So.2d 111 (Fla.1967). In denying the husband’s request for a modification, the trial court borrowed the concept enunciated in Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958), that only the strongest and most compelling reasons will justify the court in modifying an amount to be paid to the wife as alimony or for support arrived at upon consideration of her agreement to relinquish special equities which she may have in property held by the husband and accumulated through the joint efforts of the parties during their marriage. See also Goldin v. Goldin, 346 So.2d 107 (Fla. 3d DCA 1977).

Because true property settlement agreements cannot be modified and yet all agreements for child and spousal support are subject to modification upon a substantial material change in need or ability to pay, in order to avoid the litigation that follows misunderstandings that naturally arise from the quid pro quo concept of “consideration” in negotiated agreements settling multiple issues between parties to marital controversies, careful counsel should never draft binding non-modifiable property settlement agreements so they are, or appear to be, in consideration of agreements for support. True property settlement agreements should always be supported solely by their own mutual promises or recited extraneous consideration and should never refer to, or be incorporated in the same document with, modifiable agreements relating to spousal or child support.

We agree with the husband that the monthly payments due the wife after payment of the $30,000 of lump-sum alimony is permanent periodic alimony and is subject to modification under section 61.14, Florida Statutes (1981), by reason of changed financial circumstances less than “the strongest and most compelling reasons” test applied by the trial court. Accordingly, the order denying the husband’s petition for modification is reversed and the cause remanded with instructions that his petition for modification be reheard and reconsidered in light of this opinion.

The trial court did not abuse its discretion in requiring the husband to make a contribution to the wife’s attorney’s fees on the record in this case.

REVERSED and REMANDED.

DAUKSCH, J., concurs.

ORFINGER, C.J., dissents with opinion.

ORFINGER, Chief Judge,

dissenting.

If the trial court committed error in applying a different standard to the wife’s request for an upward modification of the alimony payment than it applied to the husband’s request for a reduction, the wife does not appeal that order, so that issue as it relates to the denial of the wife’s petition is not before us on appeal. What is before us is whether the trial court erred in denying relief to the husband, and whether it applied the correct legal standard in so doing.

There is no written and signed property settlement agreement here. Instead, as the trial was about to start, the husband’s attorney announced a property settlement agreement to the court, the parties stipulated to it, and the transcribed proceeding as reported by the court reporter is the record of that agreement. In exchange for her receiving lump sum and periodic payments, an automobile, and title to a jointly-held certificate of deposit, the wife relinquished ownership of or any equity in a great deal of property, both individually and jointly owned, or owned by a corporate trust or joint venture in which the spouses were individually or jointly involved. She also relinquished to the husband ownership of stock in several corporate enterprises, the marital residence, certain vacant property, a trust owning numerous parcels of property, as well as an airplane, mobile home, and various bank accounts.

In Salomon v. Salomon, 196 So.2d 111 (Fla.1967), the supreme court held that if the wife has relinquished special equities in her husband’s business, legal title to property jointly held with her spouse, or has otherwise relinquished valuable property rights in return for which the husband has promised to pay a stipulated monthly sum, such monthly payments are not treated as alimony but as contractual obligations not subject to modification. Relying on the Salomon reasoning, our sister court in Mills v. Mills, 339 So.2d 681, 684 (Fla. 1st DCA 1976) (per curiam) held that where a separation agreement contains provisions whereby one party surrenders substantial property interests and at the same time is to receive periodic payments designated as alimony, such agreement is not modifiable. See also, Goldin v. Goldin, 346 So.2d 107 (Fla. 3d DCA 1977); Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958). In the recent case of Bockoven v. Bockoven, 444 So.2d 30 (Fla. 5th DCA, 1983), this court recognized the principle that an agreement may constitute a settlement of property rights notwithstanding the fact that it provides for periodic payments to one spouse. As such, the property settlement is not subject to modification in the absence of fraud, deceit, duress, coercion or overreaching. See also, Fagan v. Lewis, 374 So.2d 18 (Fla. 3d DCA 1979). Although the parties here referred to the periodic payment from husband to wife as “alimony,” it is the purpose of the payment and not the form used or labels attached to it by the parties which must guide the court. Underwood v. Underwood, 64 So.2d 281 (Fla.1953). See also, Rubio v. Rubio, 347 So.2d 1093 (Fla. 2d DCA 1977). In other words, we should look to substance, not to form.

The trial judge found that the “agreement was a true property settlement agreement and the monthly amount to be paid the wife was arrived at upon consideration of her agreement to relinquish special equities which she may have had in property held by the former husband and accumulated through the joint efforts of the parties during their marriage.” The court thus ■found the husband’s obligation to be contractual, and not subject to modification. The interpretation of a contract is a matter for the trial judge, whose interpretation should not be reversed unless it is clearly incorrect. See Murphy v. Murphy, 370 So.2d 403 (Fla. 3d DCA 1979). The record here adequately supports the trial court’s interpretation of the agreement and we should not disturb it. I therefore dissent, and would affirm.


author: COBB, Judge.

text:
    UNITED STATES FIDELITY & GUARANTY CO., Appellant, v. Johnnie ODOMS, Appellee.
    No. 83-534.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1984.

      John S. McEwan, II, of Sanders, McE-wan, Mims & McDonald, Orlando, for appellant.
    Edward H. Hurt, Jr., of Walker, Buck-master, Miller & Ketchum, Orlando, for appellee.
   COBB, Judge.

Johnnie Odoms, plaintiff below, brought an action for damages against his employer’s uninsured motorist carrier, United States Fidelity & Guaranty Company (USF & G), as a result of a vehicular accident which occurred while he was driving a company truck (a tractor without trailer) belonging to his employer, Sun City of Florida. Odoms alleged that he was run off the road by a hit and run vehicle.

USF & G counterclaimed against Odoms for property damage to the truck and raised as a separate defense a coverage issue: that Odoms was driving the truck at the time of the accident without the permission or consent of the owner and, therefore, did not qualify as an additional insured under the terms of its policy with Sun City. Odoms moved for a partial summary judgment in respect to the counterclaim and the aforesaid defense on the ground of estoppel by judgment, based on a prior worker’s compensation proceeding brought by Odoms against Sun City and its compensation carrier, which was also USF & G.

The worker’s compensation commissioner made specific findings of fact regarding Odoms’ permission to use the vehicle, as follows:

(2) After a complete review of all the testimony and evidence presented in this matter, I find that the claimant did sustain an injury by accident arising out of and in the course of his employment with the employer herein. In arriving at this finding I have accepted the testimony of the claimant and I have rejected the testimony of Mr. Gilbert as far as authorizing use of vehicles used by the employer. I accept the claimant’s testimony that he was authorized to use a vehicle leased to the company by his supervisor when the accident occurred. This is also based on the testimony of the witness, Mr. Joe Louis Studstill. I further find that the claimant has used company vehicles in the past with the authorization of the employer and I reject the testimony of the supervisor, Mr. Julius Cheese as far as authorization is concerned. I find that when the accident occurred, the claimant was in the course and scope of his employment in that he was carrying out instructions from his supervisor and that the employee did not take a lunch break on the day of the accident.

Following a hearing, the trial court granted Odoms’ motion for partial summary judgment based on estoppel by judgment as to the issue of the agent having authority to authorize Odoms to use the vehicle and as to the issue of Odoms having permission to use the vehicle. The court also granted a partial summary judgment against USF & G on its counterclaim against Odoms. USF & G timely filed a notice of appeal from these rulings.

Appellant, USF & G, contends the trial court erred in finding that the worker’s compensation order constituted a collateral estoppel as to USF & G’s counterclaim against Odoms for damages to the vehicle involved in the accident. USF & G claims that the standard of proof is different before a worker’s compensation commissioner, that the issue of permission was not properly before it, and that it would be unfair to allow the findings of the Commissioner to bind the circuit court, thus denying USF & G a jury trial on that issue. Odoms counters that the trial court acted properly since the matter was previously determined by a court of competent jurisdiction and, therefore, USF & G is estopped to raise it again.

The essential elements of collateral estoppel are:

(1) that the parties and issues be identical,
(2) that the particular matter be fully litigated and determined in a contest,
(3) which results in a final decision,
(4) in a court of competent jurisdiction.

Mobil Oil Corp. v. Shevin, 354 So.2d 372 (Fla.1977); Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982). The application of collateral estoppel prevents the parties in the second suit from litigating those points in question which were actually adjudicated in the first suit. Husky; Seaboard Coastline Railroad v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972).

Here, the parties are identical, the issue of Odoms’ permissive use of the vehicle is the same as that determined in the worker’s compensation action, the permission issue was fully litigated and determined, and resulted in a final decision. The real issue presented by this case involves element (4) above, that of the need for a determination by “a court of competent jurisdiction.” Appellant argues that the worker’s compensation Deputy Commissioner’s hearing did not suffice as such a court, whereas Odoms contends that it does. Since it was the claimant, Odoms, who initiated the administrative proceeding, and not USF & G, can the latter be deprived of its constitutional right to trial by jury in a court of law on a disputed issue of fact on the basis of estoppel?

Where an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it, as to which the parties have had an adequate opportunity to litigate, the court will apply res judicata or collateral estoppel to enforce repose. Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So.2d 35 (Fla. 3d DCA), cert. denied, 267 So.2d 833 (Fla.1972). See also Carol City Utilities v. Miami Gardens Shopping Plaza, 165 So.2d 199 (Fla. 3d DCA 1964). It is generally held that a determination by a worker’s compensation tribunal that an employer/employee relationship exists, that the employer/employee’s injuries arose out of the course of employment, or that there was in fact no accident, or a determination of the cause of the accident, is conclusive in a subsequent action at law between the same parties. See Annot. 84 A.L.R.2d 1036 (1962).

In Akins v. Hudson Pulp & Paper Co., Inc., 330 So.2d 757 (Fla. 1st DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977), Akins appealed from a summary judgment in favor of her employer and a company nurse in a suit for damages suffered from a back injury. Prior to the suit being filed, Akins litigated a claim for worker’s compensation, which the appellees raised below as an affirmative defense based on res judicata and collateral estoppel. The Commissioner in the prior proceeding had determined that there was no accident arising out of and in the course of the appellant’s employment which either caused or aggravated her injury. The First District, noting that the matter was litigated before the Judge of Industrial Claims, without review taken, thus becoming final, held that estop-pel by judgment applied to bar the suit, and affirmed the summary judgment entered below. It also affirmed the summary judgment in regard to the nurse, although she had not been a party to the compensation claim, on the basis that a judgment on the merits for an employer where the alleged wrong was done by an employee bars a subsequent action by the same plaintiff against the employee. See 46 Am.Jur.2d Judgments § 571.

In Yovan v. Burdine’s, 81 So.2d 555 (Fla.1955), the plaintiff, Yovan, had been employed to display and sell the goods of Rex Cutlery Company at a store owned and operated by Burdine’s. She fell and was injured on the store’s stairway, and filed a compensation claim against Rex as her employer. After hearing, the Deputy Commissioner denied the claim based upon his finding that she was an employee of Bur-dine’s, not Rex, at the time of the accident. Yovan then sued Burdine’s for negligence in circuit court. Burdine’s successfully moved for summary judgment on the ground that the plaintiff was its employee and could not maintain a law action for a claim covered by worker’s compensation. Because the parties to the two proceedings were different, the Florida Supreme Court held that neither collateral estoppel nor res judicata applied. It noted, however, the general rule: “The adjudication and award of compensation boards or commissions, as well as the judgments of courts are generally held to be conclusive on the parties as to matters and issues involved within their jurisdiction.” 81 So.2d at 557.

In the instant case, the question of permissive use was clearly presented to the worker’s compensation hearing officer for determination and it was a relevant point in regard to Odoms’ eligibility for worker’s compensation. The Deputy Commissioner’s findings were clear, and since the parties in the prior suit were the same as those involved in the case sub judice, the elements necessary for a collateral es-toppel were present, and the trial court was correct in so holding. Even though USF & G did not initiate the worker’s compensation proceeding, it volunteered to submit to such a proceeding by providing compensation coverage to its insured and, in legal effect, thereby waived its right to a jury trial. See 81 Am.Jur.2d Workmen’s Compensation § 19. The coincidental fact that it also provided liability and uninsured motorist coverage to the same insured does not afford it the opportunity to litigate the same factual issue twice against the same party.

AFFIRMED.

DAUKSCH, J„ and DIAMANTIS, G.N., Associate Judge, concur.

      . According to defendant’s request for admissions, to which USF & G never responded, the deputy’s order was appealed and dismissed on May 14, 1982.

      . In the worker’s compensation order, the Deputy Commissioner stated:
      The claim was defended by the employer/carrier on the grounds that there was no injury arising out of and in the course and scope of the claimant’s employment with the employer herein; that the claimant was not authorized to take the company vehicle and was at lunch at the time the accident occurred.

      . USF & G’s reliance on Levine v. Feuer, 152 So.2d 784 (Fla. 3d DCA 1963), is misplaced since the initial decision therein was a preliminary one in the form of a petition for family allowance, not a final decision as in the instant case.


author: OTT, Chief Judge.

text:
    U.S. TOBACCO COMPANY, Appellant, v. The HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.
    No. 83-1709.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.

      Karl J. Brandes of Holland & Knight, Tampa, for appellant.
    Carl G. Rassler, Tampa, for appellee.
   OTT, Chief Judge.

Appellant U.S. Tobacco Company appeals the denial of a motion to set aside a default final judgment entered in favor of appellee. We reverse.

Appellant, a foreign corporation, was a defendant in a suit in which appellee was the plaintiff. Appellee served appellant by serving a copy of the original summons and complaint on the Secretary of State of the State of Florida in accordance with section 48.181(1), Florida Statutes (1981). Appel-lee did not comply with section 48.161(1) which requires mailing by registered or certified mail a notice of service and copy of the process to the defendant or personally serving the defendant. Appellant failed to file a responsive pleading, and a default final judgment was entered April 5, 1982. A typed notation on the bottom of the final judgment indicated that a copy was “furnished” to appellant.

On April 18, 1983, appellant received a copy of the judgment from appellee along with notification that appellee was instituting proceedings to collect. On May 18, 1983, appellant filed its motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b), alleging that the judgment was void due to defective service of process. The trial court denied the motion. No findings of fact appear in the trial court’s order, and the hearing on the motion was not reported.

Statutory provisions for substituted service of process must be strictly construed. George Fischer, Ltd. v. Plastiline, Inc., 379 So.2d 697 (Fla. 2d DCA 1980). If a plaintiff chooses substituted service under section 48.181(1), he is required to comply with one of the alternative methods in section 48.161. P.S.R. Associates v. Artcraft-Heath, 364 So.2d 855 (Fla. 2d DCA 1978).

Appellee concedes that it failed to comply with section 48.161. It argues that appellant failed to file its motion for relief within a reasonable time after receiving a copy of the final judgment. Appellee contends that the notation on the final judgment that appellant was furnished a copy is sufficient proof that appellant was aware of the judgment for more than a year prior to filing the motion for relief from judgment.

The appearance of appellant’s name at the bottom of the final judgment is insufficient, standing alone, to support a finding that appellant received a copy of the final judgment shortly after its entry. There is no evidence in the record that appellant had knowledge of the final judgment prior to receipt of appellee’s April 18, 1983 letter. Therefore, at the time of the hearing on appellant’s rule 1.540(b) motion, the record showed that service of process was defective and that appellant otherwise had no notice of the proceedings until shortly before filing the motion for relief from judgment. We accordingly reverse the denial of appellant’s motion for relief from judgment. The public policy of this state is well settled that default judgments are generally not favored by the courts, and a court’s discretion should be liberally exercised and all reasonable doubt resolved in favor of granting applications for relief so as to permit a determination of the controversy upon the merits. See, e.g., Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972).

REVERSED and REMANDED for further proceedings.

BOARDMAN and DANAHY, JJ., concur.

      . 48.181 Service on nonresident engaging in business in state
      (1) The acceptance by any person or persons, individually, or associated together as a copart-nership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons and foreign corporations of the secretary of state of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.

      . 48.161 Method of substituted service on nonresident
      (1) When authorized by law, substituted service of process on a nonresident or a person who conceals his whereabouts by serving a public officer designated by law shall be made by leaving a copy of the process with a fee of $5.00 with the public officer or in his office or by mailing the copies' by certified mail to the public officer with the fee. The service is sufficient service on a defendant who has appointed a public officer as his agent for the service of process. Notice of service and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his attorney to the defendant, and the defendant's return receipt and the affidavit of the plaintiff or his attorney of compliance shall be filed on or before the return day of the process or within such time as the court allows, or the notice and copy shall be served on the defendant, if found within the state, by an officer authorized to serve legal process, or if found without the state, by a sheriff or deputy sheriff of any county of this state or any duly constituted public officer qualified to serve like process in the state or jurisdiction where the defendant is found. The officer’s return showing service shall be filed on or before the return day of the process or within such time as the court allows. The fee paid by the plaintiff to the public officer shall be taxed as cost if he prevails in the action. The public officer shall keep a record of all process served on him showing the day and hour of service.

      .The notation was not in the form of a certificate of service. There is no indication of who was to "furnish” the copy to appellant or whether the copy was mailed or hand delivered.


text:
    Lewis MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2373.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.
   PER CURIAM.

Lewis Murray appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The allegation that appellant was improperly denied his right to counsel at trial, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief or hold an evidentiary hearing and then rule on the ground alleged in the motion. See Fla.R.Crim.P. 3.850; see also, Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review any aggrieved party must appeal the new ruling of the trial court.

REVERSED.

SCHEB, A.C.J., and CAMPBELL and SCHOONOVER, JJ„ concur.


author: SCHWARTZ, Chief Judge.

text:
    The STATE of Florida, Appellant, v. William EARLE, Sr. a/k/a “Bill” El Gordo, Alfredo Moya, Humberto Perez, Nelson Bacallao, Ismael Felipe “Phil” Arnaiz and Jairo Ibarra, Appellees.
    Nos. 82-2475, 83-391.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Jim Smith, Atty. Gen., Janet Reno, State Atty. and Arthur Joel Berger and Joel Ro-senblatt, Asst. State Attys., for appellant.
    A.P. Walter, Jr., Coral Gables, Howard N. Galbut, Miami Beach, Frank A. Rubino, Miami, and James P. Ryan, Fort Lauder-dale, for appellees.
    Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.
   SCHWARTZ, Chief Judge.

The lower court suppressed the evidence obtained through a series of court-authorized wiretaps on the sole ground that City of Miami police officers who applied for the orders and who participated in the interceptions were, for a variety of highly-technical reasons relating to their bonds and oaths, not properly authorized special investigators of the Dade County State Attorney as stated in their affidavits and designated in the orders as those authorized to conduct the taps. Even assuming without deciding, however, that the determination that the officers did not occupy that position was correct, it is clear that that legal conclusion is irrelevant to the sufficiency of the underlying applications for the orders. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Sections 934.09(1)(a), 934.02(6), Florida Statutes (1981). Since the participation of the City officers both was previously made known to the judges who issued the orders and actually took place under the supervision of persons who were undisputably duly-constituted state attorney’s investigators, it is likewise the case, as established by United States v. Lyons, 507 F.Supp. 551 (D.Md.1981), aff’d, 695 F.2d 802 (4th Cir.1982), which we approve and follow, that the officers’ supposed lack of that official status does not affect the propriety of their activities in monitoring the conversations themselves. See Secs. 934.09(4)(d); 934.02(10), Fla.Stat. The orders of suppression under review are therefore reversed and the causes remanded for further proceedings.

Reversed.

      . The following is a typical statement to this effect:
      Your co-Affiants [include]
      (1) Charles W. Reynolds, a police officer for approximately thirteen (13) years with the City of Miami Police Department, Miami, Dade County, Florida, and a sworn Investigator of the Office of the State Attorney of the Eleventh Judicial Circuit of Florida.

      . A representative order provided as follows: [T]he State Attorney ... and her sworn Investigators thereof, are authorized to intercept wire ... communications of Alfred "Alfredo” Moya, Ismael Felipe "Phil” Arnaiz, and other persons ..., which occur on telephone number (305) 634-2361 and which is ... located at 2500 Northwest 13th Street, Apartment 121, Miami, Dade County, Florida.


author: PER CURIAM,

text:
    DAON CORPORATION, a Florida corporation, Appellant, v. Ruth BLANKENSTEIN, Appellee.
    Nos. 83-105, 83-182.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Kathleen M. Williams and Michael J. Murphy, Miami, for appellee.

      Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM,

The nature and effect of the order granting the plaintiff’s motion for mistrial was to grant a new trial. See A & P Bakery & Equipment Co. v. H. Hexter & Son, Inc., 149 So.2d 883 (Fla. 3d DCA 1963). The trial court’s order did not specify the grounds upon which the new trial was granted, as required by Florida Rule of Civil Procedure 1.530(f). We therefore relinquish jurisdiction to the trial court for the entry of an order stating the reasons for granting the new trial. See Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Rodewald v. Lawton, 394 So.2d 1143 (Fla. 4th DCA 1981).

Remanded for further proceedings.


author: BASKIN, Judge.

text:
    Harry SHANE, Appellant, v. Sandra SHANE, Appellee.
    No. 83-898.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Kenneth N. Rekant, Miami Beach, for appellant.
    No appearance for appellee.
    Before BASKIN, PEARSON and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the trial court’s order finding the appellant in contempt of court for failing to comply with the property settlement support provisions incorporated into the final judgment of dissolution of marriage. As this court stated in Adams v. Adams, 423 So.2d 596, 598 (Fla. 3d DCA 1982):

[I]t is clear that, regardless of the actual facts, the payments not only must be made as provided, but become vested property rights of which the recipient cannot constitutionally be deprived until and unless a motion for modification is filed and favorably acted upon.... These decisions reflect the rather stra-ightfoward notion that one who is required by court order to make specified payments may not cavalierly ignore the judgment, and, as it were, take the law into his own hands by making the determination that there is a legal reason to depart from the terms of the order (footnote omitted). Only the court can make such a ruling, and it may do so only upon the filing of an appropriate pleading and then only prospectively.

See Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979); Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977).

Affirmed.


text:
    Carl HARNICK, Appellant, v. Ethel HARNICK, Appellee.
    No. 83-1340.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Keith, Mack, Lewis & Allison and R. Hugh Lumpkin, Miami, for appellant.
    Burnett Roth, Miami Beach, for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

A presumption of undue influence did not arise where the daughter, beneficiary of inter-vivos gifts and beneficiary under a will, although occupying a confidential relationship with the testator, was not shown to have actively procured the will or the gifts. See In re Estate of Carpenter, 253 So.2d 697 (Fla.1971); In re Estate of Smith, 212 So.2d 74 (Fla. 4th DCA 1968).

Affirmed.


text:
    Olga RAMOS and Olga Neris, Appellants, v. The STATE of Florida, Appellee.
    No. 83-1662.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and Michael Nei-man, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The appellants were charged and convicted of making false statements under oath in an official proceeding, to wit: a deposition taken in a Dade County court case involving an obstruction of justice charge regarding the identity of the driver of a car involved in an accident resulting in the death of a minor. The false statements made by the appellants were material inasmuch as the traffic accident became a hit- and-run matter with a pedestrian fatality. The issue of who was driving was important and material since the owner and presumptive driver of the vehicle could have been charged with vehicular homicide. Therefore, it was material to the obstruction of justice charge pending against the owner to determine who was the driver of the hit-and-run vehicle. The determination of materiality is a question of law, to be decided by the trial court, see Wells v. State, 270 So.2d 399 (Fla. 3d DCA 1972) cert. denied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.Ed.2d 316 (1973); therefore, we find no error in the adjudications. We do reverse the orders of restitution of the funeral expenses as a result of the death because they were not causally related to the criminal activities for which appellants were convicted. See Fresneda v. State, 347 So.2d 1021 (Fla.1977); Purvis v. State, 442 So.2d 1085 (Fla. 2d DCA 1983); W.N. v. State, 426 So.2d 1206 (Fla. 4th DCA 1983); DiOrio v. State, 359 So.2d 45 (Fla. 2d DCA 1978).

We affirm in part and reverse in part.

      . The sentences were probation with one of the conditions being restitution of the funeral expenses to the father of the deceased.


text:
    MERCURY MARINE DIVISION OF BRUNSWICK CORPORATION, Appellant, v. BOAT TOWN U.S.A., INC., Stephen Grossman and Albert H. Tate, Jr., Appellees.
    No. 82-1401.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.

      Davis W. Duke, Jr., and John R. Har-grove of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellant.
    Donald M. Coon, Boca Raton, and Gareth ,S. Aden of Dodson, Harris, Robinson & Aden, Nashville, Tenn., for appellees.
   PER CURIAM.

Appellant, the Mercury Marine Division of Brunswick Corporation, sued appellees Boat Town U.S.A., Grossman and Tate to recover the balance of their account. Ap-pellees counterclaimed for damages based upon Mercury’s wrongful failure to renew Boat Town’s franchise and various other alleged causes of action which were not submitted to the jury. Trial by jury resulted in a verdict for Mercury for $86,887.06 and a verdict for Boat Town for $167,-500.00, representing Boat Town’s lost profit or loss of business value.

Mercury contends error was committed because: 1) Boat Town’s damages should have been limited to the notice of renewal period contained in the franchise agreement and 2) there was insufficient evidence to sustain the verdict in favor of Boat Town.

Regarding the first point, it is un-controverted that Mercury failed to give any notice to Boat Town of sums due under the dealership agreement or other deficiency justifying nonrenewal under the Wisconsin Fair Dealership Law provisions forming a part of the agreement between the parties. Under said agreement, Mercury could terminate for good cause but was required to give the franchisee the opportunity to remedy any such cause. Suffice to say, after considering the evidence in this case and the authorities that have considered similar questions, we reject Mercury’s contention that damages should be restricted to the notice period.

Appellees sought to prove their damages by two methods: loss of profits or loss of business value. Mercury contends that the evidence of loss of business value adduced through Albert H. Tate, Jr., was incompetent because he was testifying as to the loss of value of a corporate business and thus even as an owner he was not qualified to do so. We recognize the general rule that an owner of property is qualified as such to testify to the value of his property, whereas officers of corporations do not qualify on the same basis. However, if the officer is qualified by virtue of his experience, his management of the affairs of the corporation and his knowledge of relevant value he is also a competent witness as to value. Salvage & Surplus Inc. v. Weintraub, 131 So.2d 515 (Fla. 3d DCA 1961); 31 Am.Jur.2d, Expert and Opinion Evidence, § 134. Although not the most articulate of witnesses, Tate appears to meet those qualifications, and his testimony established a sufficient basis of fact from which loss of business value could reasonably be determined.

While the short term history of the business makes reliance thereon to show loss of future profits relatively less certain, the evidence of the annualized profit over the fifteen month period of Boat Town’s operation was admissible. Using that solid evidence, it seems to us the jury could reasonably have arrived at its verdict by considering the actual profit picture prior to termination and the profit picture of the business as an Evinrude marine motor dealer following termination.

Thus, viewing the entire record as it bears upon the points appellant raises on appeal, we fail to find any reversible error.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, HERSEY and DELL, JJ., concur.


text:
    James Russell HORNSBY, Appellant, v. Kathy Diane NEWMAN, Appellee.
    No. 83-186.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.

      Bruce David Green of Levine & Green, P.A., Fort Lauderdale, for appellant.
    Philip Michael Cullen, III, Chartered, Fort Lauderdale, for appellee.
   PER CURIAM.

This appeal challenges an award of temporary attorney’s fees on the ground that the award lacks a statutory basis. Additionally, appellant contends that the award is objectionable due to a failure of proof. We conclude that the cause of action is within the ambit of sections 742.011-.031, Florida Statutes (1981), which allow attorney’s fees. However, we are compelled to reverse for the reasons stated hereafter.

Appellee, Newman, initially filed a petition praying for custody of her son, Russell Hornsby. The petition alleged that the child was born out of wedlock and that appellant was the natural father. The petition sought custody, child support, attorney’s fees, and costs. Appellant filed an answer and counterclaim, admitting that he was the child’s father and requesting custody-

Approximately a year and one-half later, Newman filed a motion for an allowance of temporary attorney’s fees. In due course, two hearings were held at which expert testimony was adduced as to reasonable attorney’s fees, based upon the time and effort expended by Newman’s counsel. The issue of Newman’s entitlement to attorney’s fees was to be determined at a later date. However, it appears that no evidence was adduced demonstrating Newman’s need and Hornsby’s ability to pay. Nevertheless, the trial court determined that Newman was entitled to attorney’s fees, and she was awarded a fee of $8,500.

The pleadings reflect that paternity is not a contested issue. The complaint alleged that James Hornsby was the natural father of Russell Hornsby and the answer admitted this allegation. The fact that paternity is uncontested, however, does not remove the suit from the ambit of sections 742.011-.031, Florida Statutes (1981). A “determination of paternity is made only incidentally to enable achievement of the [paternity] statute’s purposes.” Kendrick v. Everheart, 390 So.2d 53, 56 (Fla.1980). “The paternity statute was enacted ... to convert the father’s moral obligation to provide child support to a legal obligation and in order to relieve the public of the need to provide support for the child.” Ibid. Here, the mother’s prayer for custody, child support and attorney’s fees is predicated on the admitted allegation that appellant is the natural father of Russell Hornsby. Thus, the appel-lee/mother contends there is a legal obligation upon the appellant/father to provide support. Such allegations fall squarely within the ambit of the paternity statute. For example, section 742.031, Florida Statutes (1981), expressly empowers the trial court to require a party to pay child support, to pay costs for the proceedings and to pay reasonable attorney’s fees. Moreover, the court is authorized to determine child custody. Brown v. Bray, 300 So.2d 668 (Fla.1974). Accordingly, we conclude that this action bears the indicia of a Chapter 742 paternity proceeding and, therefore, is subject to its provisions.

Nonetheless, we are compelled to reverse the award of attorney’s fees because the record indicates that the trial court impermissibly compensated appellee’s counsel for services rendered during prior appeals. Absent a remand from an appellate court, a trial court lacks authority to award appellate attorney’s fees. Elswick v. Martinez, 394 So.2d 529 (Fla. 3d DGA 1981). Furthermore, there is another, perhaps even more glaring deficiency in the record. Appellee/mother failed to establish her need for, and the father’s ability to pay a reasonable attorney’s fee. Cf. Davis v. Department of Health & Rehabilitative Services, 403 So.2d 584 (Fla. 4th DCA 1981). See generally Cummings v. Cummings, 330 So.2d 134 (Fla.1976). Accordingly, the order on appeal is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    CORAL GABLES FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. The CITY OF LIGHTHOUSE POINT, a municipal corporation of the State of Florida, Appellee.
    No. 83-498.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    James A. Lanier, II, of Padgett, Teasley, Niles & Shaw, Coral Gables, for appellant.
    Richard H. Roth, P.A., Pompano Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from a final judgment, denying declaratory relief. We reverse and remand. One of the best kept secrets by the parties in this case is the existence of Section 86.071, Florida Statutes (1981), which provides in part:

When an action under this chapter concerns the determination of an issue of fact, the issue may be tried as issues of fact are tried in other civil actions in the court in which the proceeding is pending.

Neither called it to the trial court’s attention nor to ours. As a result the trial court erroneously refused to consider any evidence other than the record of zoning proceedings that took place in the appellee city, notwithstanding that this was an action for declaratory judgment, not a petition for writ of certiorari. The trial court was persuaded by appellee’s reliance upon Eastside Properties, Inc. v. Dade County, 358 So.2d 873 (Fla. 3d DCA 1978). That, of course, was a petition for certiorari to review the decision of a zoning application in accordance with the Code of Metropolitan Dade County. The present action for declaratory judgment was the type of proceeding expressly specified by appellee’s code of ordinances for such review.

We are, reluctant to visit upon the trial court what may become a can of worms; particularly when the record before us reflects that the proceedings go back to 1974; and the action was brought in 1977, remained unattended from 1978 through 1980 and was not tried until late 1982. The children whose photographs show them playing football in the street may now be in the NFL.

REVERSED AND REMANDED.

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


text:
    Anthony T. DeRITIS, and Barbara A. DeRitis, his wife, Appellants, v. AHZ CORPORATION, etc., et al., Appellees.
    No. 83-1365.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Gary J. Nagle, of Nagle & Miller, West Palm Beach, for appellants.
    Joel M. Weissman of Sales & Weissman, West Palm Beach, for appellees.
   GLICKSTEIN, Judge.

This is an appeal from a non-final order, resulting from a dispute between a condominium developer and its dissatisfied investors/purchasers; the parties made legitimate attempts to settle their differences by negotiation but could not resolve the problem. Briefly, the developer/appellee was willing to repurchase the apartment, or reimburse appellants $3,000.00 for extras or submit the dispute to arbitration. Appellants rejected all of the foregoing and demanded a profit of $12,000.00 on their new apartment, which the developer similarly rejected.

The dispute in litigation between the parties is not the one a heavily cluttered judicial system would expect to resolve; namely, the quality of construction by the developer or lack thereof and resulting damages to the purchasers. Instead, the system has been called upon, not by the purchasers for relief from inadequate construction, but by the developer to enjoin the purchasers from (a) displaying what is generally associated with car dealers; namely, pictures of lemons, and (b) informing the developers’s prospective customers of the alleged shabby construction of the purchasers’ condominium. The trial court’s order being appealed recites:

“That the application for temporary injunction be and the same hereby is granted and the defendants, ANTHONY T. DeRITIS and BARBARA A. DeRITIS, his wife, be and they hereby are narrowly enjoined from libelling and slandering the Plaintiff, AHZ CORPORATION, et al., (See Wolf vs. Gold [9 A.D.2d 257] 193 NYS2d 36 Sup Ct.App.Div.1959) and are narrowly enjoined from placing signs of any character in their windows of their home or vehicles and are hereby ordered to remove any signs of any character from their home or vehicles forthwith.”

There was authority in the condominium documents for the regulation of signs on the property; so the elimination of the lemons is not being appealed. What appellants claim to be error are (a) the order’s vague and indefinite restriction upon their freedom of speech and (b) the improper use of injunction when there is an existing remedy; namely, damages.

We believe — notwithstanding our frustration over seeing the judicial system involved in unnecessary disputatiousness and contentiousness rather than resolution of the underlying dispute — that the language of the injunction has to be made more specific and must relate to the activities involved. The following language in Florida Peach Orchards, Inc. v. State, 190 So.2d 796, 798 (Fla. 1st DCA 1966) is instructive:

An injunctive order should never be broader than is necessary to secure to the injured party, without injustice to the adversary, relief warranted by the circumstances of the particular case. Moore v. City Dry Cleaners & Laundry, Fla.1949, 41 So.2d 865; and Seaboard Rendering Co. v. Conlon, 1942, 152 Fla. 723, 12 So.2d 882. An injunctive order should be adequately particularized, especially where some activities may be permissible and proper. Moore v. City Dry Cleaners & Laundry, supra. Such an order should be confined within reasonable limitations and phrased in such language that it can with definiteness be complied with, and one against whom the order is directed should not be left in doubt as to what he is required to do. Pizio v. Babcock, Fla.1954, 76 So.2d 654.

An example of approved specificity is found in Azar v. Lehigh Corp., 364 So.2d 860 (Fla. 2d DCA 1978). The trial judge rather than we should frame the language of the injunction, taking into consideration what the record reflects of the purchasers’ conduct in addition to the lemonizing. We remand in order for him to do so.

As for appellants’ second point, we conclude that injunction is a proper remedy. First, the trial court had broad discretion to issue a temporary injunction. In Azar, supra, our companion court approved a temporary injunction against a former Lehigh Corporation employee, who was temporarily restrained from directly or indirectly contacting actual or potential Le-high property customers at the Lehigh motel, where the customers were guests, or at the Lehigh sales offices. The former employee had been following such customers to their rooms at the motel and persuading them to abandon deals with Lehigh and purchase from him at a lower price. While Azar differs from the present case because the ex-employee was now in competition with Lehigh whereas the Deritises are buyers, the essence of both cases is interference, via speech, with a present or prospective business relationship. Azar can properly be considered as authority for an injunction in the present case.

Moreover, the trial judge — given the urgency of the situation precipitated by the signs and the approaching of customers— may have concluded that the catastrophic effect about which the developer testified made damages estimable by conjecture rather than by any accurate standard. This additional aspect would be a second, recognized basis for affirmance. See Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735, 738-739 (Fla. 3d DCA 1982). As for eases from other jurisdictions, discussing the principle that prior restraint of speech is permissible when the right of free speech is used as a shield for tortious harm, as to a business interest, see Mazzocone v. Willing, 246 Pa.Super. 98, 369 A.2d 829 (1976); West Willow Realty Corp v. Taylor, 23 Misc.2d 867, 198 N.Y.S.2d 196 (Sup.Ct.1960); Wolf v. Gold, 9 A.D.2d 257, 193 N.Y.S.2d 36 (1959); aff’d, 18 A.D.2d 987, 238 N.Y.S.2d 473 (1963).

In sum, we do not disturb the issuance of the injunction as to the signs, there being no appeal therefrom; and we remand only for clarification of that portion thereof which restrains other conduct of appellants which appears in the record.

DOWNEY and WALDEN, JJ., concur.