author: BARKDULL, Judge.

text:
    N.A.P. CONSUMER ELECTRONICS CORPORATION, Appellant, v. ELECTRON TUBES INTERNATIONAL, INC., Appellee.
    No. 84-210.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.

      Hauser & Metsch and Lydia A. Fernandez and Lawrence Metsch, Miami, for appellant.
    Lee Milich, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   BARKDULL, Judge.

The appellant, as plaintiff, brought a suit to collect an account receivable. The appel-lee, defendant, filed a counterclaim seeking relief in the nature of an antitrust violation or an agreement to repurchase merchandise. The cause proceeded to a jury trial and resulted in a verdict for the plaintiff on its complaint and verdict for the defendant on its counterclaim. The verdict for the plaintiff was in the sum of $71,159.55 with the following language having been added by the jury:

“To be paid by Defendant with electronic tubes received from Plaintiff and now held by Defendant. Value will be established at original purchase price.”

This verdict was subsequently approved by the trial court with the final judgment in accordance with the terms thereof. The verdict on the counterclaim was in the amount of $250,000.00 and a final judgment in accordance with this verdict was entered for this amount.

On appeal the appellants contend, first, that the trial court erred in approving the gratuitous language attached to the jury verdict in its favor, which was incorporated in the final judgment, second, that the trial court erred in finding that it had subject matter jurisdiction of an alleged antitrust violation and lastly that the trial court erred in certain rulings relating to discovery and compliance with a pretrial order.

We affirm the judgment on the original complaint in the amount of $71,159.55 but strike therefrom the language:

“To be paid by Defendant with electronic tubes received from Plaintiff and now held by Defendant. Value will be established at original purchase price.”

Turning now to the judgment of the counterclaim we reverse, first, because the damages sought were recovered under a theory that would be supportable only as an antitrust violation, which is the exclusive jurisdiction of the federal courts, International Ladies Garment Workers Union v. Scherer & Sons, Inc., 132 So.2d 359 (Fla. 3d DCA 1961), approved Scherer & Sons, Inc. v. International Ladies Garment Workers Union, 142 So.2d 290 (Fla.1962); Freeman v. Bee Machine Company, Inc., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509 (1943); Blumenstock Brothers Advertising Agency v. Curtis Publishing Company, 252 U.S. 436, 40 S.Ct. 385, 64 L.Ed 649 (1920), and second, because the evidence fails to establish a clear undertaking on the part of the appellant of the responsibilities and obligations of a previous supplier of merchandise to the appel-lee. White v. Exchange Corporation, 167 So.2d 324 (Fla. 3d DCA 1964); Pulsnation Enterprises, Inc. v. Appliance Plan Company, 141 So.2d 814 (Fla. 2d DCA 1962).

Therefore for the reasons above stated the final judgment in favor of the plaintiff is affirmed with directions to the trial court to eliminate the surplus language.

Affirmed in part and reversed in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark Paul FROMAN, Appellant/Cross-Appellee, v. Janet Lee Brooks FROMAN, Appellee/Cross-Appellant.
    No. 84-473.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Rehearing Denied Jan. 22, 1985.
    Joe N. Unger; Wright & Caruana, Miami, for appellant/cross-appellee.
    Buchbinder & Elegant and Carolina A. Echarte, Miami, for appellee/cross-appel-lant.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant/husband challenges the court’s award of certain marital property to the wife and an award of $1,000 per month in permanent alimony. By cross-appeal, the wife contends that the alimony award is inadequate.

It is evident from the record that the trial judge labored at reaching what he obviously felt to be a fair disposition of the issues. In the process he was required to resolve sharp disputes in the evidence as to the amount and value of the marital assets. We could reverse only by reweighing the evidence and credibility of the witnesses— which an appellate court is not permitted to do. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). No abuse of discretion has been clearly demonstrated. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


author: HENDRY, Judge.

text:
    FORTUNE INSURANCE COMPANY, Appellant, v. Lazaro FERREIRO, Appellee.
    No. 84-537.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 1984.
    Walton, Lantaff, Schroeder & Carson and Sally R. Doerner and Robert J. Stru-nin, Miami, for appellant.
    Goldfarb & Gold and Robert H. Yaffe, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   HENDRY, Judge.

Fortune Insurance Company appeals from a final summary judgment in favor of the insured in an action brought to compel arbitration on the uninsured motorist coverage portion of an automobile insurance policy. We affirm.

Appellee was a passenger in a truck owned by his employer when he was shot in the hand by the driver of a car which was apparently attempting to force the truck off the road. The assailant was not apprehended. Appellee thereafter brought a declaratory judgment action to compel arbitration of his uninsured motorist claim pursuant to Chapter 87, Florida Statutes (1983). Appellant defended on the premise that the incident was not the result of “an accident arising out of the use, maintenance or operation of a motor vehicle.” Both parties moved for summary judgment.

We find that our affirmance is compelled by the decision in Government Employees Insurance Co. v. Novak, 453 So.2d 1116 (Fla.1984), in which the Florida Supreme Court found that personal injury protection benefits were available to an insured who was shot after refusing to give the assailant a ride. In so holding the court stated:

It is well settled that “arising out of” does not mean “proximately caused by,” but has a much broader meaning. All that is required is some nexus between the motor vehicle and the injury ... The clause, “arising out of the use of a motor vehicle,” is framed in such general, comprehensive terms in order to express the intent to effect broad coverage. Such terms should be construed liberally because their function is to extend coverage broadly.

Id. at 1119 (citations omitted). Appellee clearly would be eligible for uninsured motorist benefits if the assailant had succeeded in forcing his truck off the road, thereby injuring him. It would be anomalous indeed to find no coverage where the assailant effected appellee’s injury but with a different instrumentality, i.e., a gun.

Affirmed.


text:
    COUNTRY MANORS ASSOCIATION, INC., a Florida corporation, not for profit, Appellant, v. MASTER ANTENNA SYSTEMS, INC., a Florida corporation, Appellee.
    Nos. 83-1737, 84-181.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rod Tennyson, Powell, Tennyson & St. John, West Palm Beach, for appellant.

      Peter J. Aldrich, Gunster, Yoakley, Criser & Stewart, Palm Beach, for appellee.
   PER CURIAM.

These two non-final appeals, Case Nos. 83-1737 and 84-181, have been consolidated.

Case No. 83-1737 seeks review of the trial court’s determination of ownership in favor of appellee of a certain central antenna system installed and maintained by the appellee, Master Antenna Systems, Inc. (“MAS”) on the premises of Country Manor Association, Inc. (“Association”). The Association is a condominium association as provided in Chapter 718, Florida Statutes (1983). The appealed judgment also granted MAS an easement on the Association’s property to service the system as long as it is installed. In reaching these determinations, the trial court made the following findings of fact and conclusions of law:

THIS MATTER came before the Court by way of a Complaint filed by Country Manor Condominium Association. During the initial development of Country Manor’s Condominium Complex, the Defendant, Master Antenna Systems, Inc., entered into an agreement with the developer whereby Master Antenna Systems (hereinafter referred to as MAS) agreed it would install all of the necessary wiring to provide a central antenna system for the complex at no cost to the developer. The developer said that MAS would always own the property.
Subsequently, the Board of Directors, comprised of the owners of properties in the condominium complex, took over the property and administration of the Country Manor Complex. The Association subsequently dismantled much of the MAS equipment, and ordered MAS off of the property. However, the Association wishes to retain all of the underground wiring going to the various complexes. The Association also wishes to retain those installations which are connected and contained inside of the walls of the individual units.
Testimony indicated that while the developer never formally told the unit owners that the cable system [was] owned by MAS, however, everyone knew that MAS had the cable franchise and unit owners paid MAS on a monthly basis. The Plaintiff takes the position, however, that they entered into no such agreement with MAS and even if they did, at this point and time, they could reject the service. MAS takes the position that Country Manor does not own the system, and could not own it because the developer could have only have transferred to them what he owned at the time of the transfer, and at that time, he did not own the system. The Defendants, therefore, feel that if they are no longer allowed on the property and are ordered to remove themselves from the property, that they have a right to take the underground cables which were bought and paid for by their money. The Plaintiff alleged that these are fixtures and therefore should remain in the land.
It appears from the testimony that the developer always intended that MAS would have an easement and be considered as a utility with those rights of egress and ingress on condominium property for the purposes of maintaining the utility contained in the agreement. In fact, in an agreement between Biltmore Realty, as developer of the property, and MAS, signed June 11, 1973, the parties agreed in Article VIII, in part,
“The mass and underground distribution system described herein shall become and remain the property of the contractor (MAS, Inc.), contractor shall have the right to sell in contractor’s sole discretion such system to the Country Manor’s Association to be hereafter formed, or to any other purchaser ...”
This agreement which was turned over to the Board of Directors, when formed, anticipated that the contractor, MAS, would have the right to sell his property to someone else. While the Court is aware that there is no easement recorded, the Court finds, as a matter of intent, there is an implied easement given for the purpose of servicing the system’s equipment. The Court further finds that the system belongs to the Defendant, and it would be an unjust taking of the Defendant’s property to allow the Association to take the underground system without just compensation to the Defendant. The Court also finds that the connections and installations within the walls of the condominium, of course are fixtures, and therefore could not be removed by the Defendant. They lost the identity of being his property once they were installed within the individual units. It is thereupon,
ORDERED:
1. The Judgment is for the Defendant as to the ownership of the antenna system. It is further
2. ORDERED that so long as the system is installed and the Defendant services members of the association, he shall have the right of easement over the properties necessary to service his equipment.
3. This Court retains jurisdiction of this cause for such further orders as may be necessary.
ORDERED this 15th day of July, 1983, at West Palm Beach, Palm Beach County, Florida.

Substantial, competent evidence supports the conclusion that MAS is the owner of the underground system. Rousselle v. B & H Construction Co., 358 So.2d 614 (Fla. 1st DCA 1978). We therefore affirm that portion of the judgment so holding. In reaching this decision we also hold that the underground system, together with the connections and installations within the walls, are not common elements. Section 718.103(6), Florida Statutes (1983), defines common elements to mean the portions of the condominium property not included in the units. Condominium property is defined by Section 718.103(11), Florida Statutes (1983), to mean the lands, leaseholds, and personal property that are subjected to condominium ownership. The evidence is uncontroverted that the cable system was never subjected to condominium ownership. Not only is it reflected that it was always the developer’s intention that MAS own the system as found by the trial court, but it was also the unit owners’ understanding that MAS owned the system. This is unquestionably supported by the testimony of various Association board members. In fact, it is an understanding which the Association held for the some ten years in question until it was decided that MAS’s services were no longer desired. Nor is there any evidence that the developer or the unit owners ever bought the system, or paid for the cost of repairs and maintenance of the system. Were the system a common element, these costs would have been the Association’s responsibility. § 718.113, Fla.Stat. (1977). Until such time, then, that the system becomes subject to condominium ownership, the system cannot be included as part of the common elements as further described in Section 718.108, Florida Statutes (1983).

Although the findings of a lower tribunal are accorded a heavy presumption of correctness when they arrive at our doorstep, that presumption has been overcome here. Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983). We determine that there is no evidence that the inner wall connections and installations of the system are fixtures. Since the intention of the party making the annexation has been held to be a primary test in determining whether an article is a fixture, no evidence of such an intent requires a ruling that the articles were in fact not fixtures. 27 Fla. Jur.2d Fixtures § 4; Commercial Finance Co. v. Brooksville Hotel Co., 98 Fla. 410, 123 So. 814 (1929). Again, the uncontro-verted evidence shows that at the time of installation, MAS contracted that the property would always remain the property of MAS. Therefore, there could be no loss of identity as found by the trial court. Nor was there evidence that removal of the system would result in material or substantial injury to the real property. See Dependable Air Conditioning and Appliances, Inc. v. Office of the Treasurer, 400 So.2d 117 (Fla. 4th DCA 1981); 27 Fla. Jur.2d Fixtures §§ 2-6.

Finally, we do not agree that the substantial, competent evidence necessitates that the easement in question was one of implication. We, therefore, disagree with the trial court’s decision holding such. Instead, we hold that an express easement to service that system did earlier exist. Originally MAS’s entitlement to a service easement was expressly given by its written contract with the developer. By the time that contract expired by its own terms, MAS rightfully held an express easement to service its system pursuant to a reservation in the Declaration of Condominium. That reservation provided for utility easements throughout the condominium property as may be required for utility services. We are aware of the fact that MAS is not a federally regulated public utility, but the evidence shows that MAS holds a county license to operate as a cable TV utility. However, the Association effectively exercised its statutory rights to terminate any of its agreements with MAS pursuant to Section 718.302, Florida Statutes (1983). See also § 711.66, Fla.Stat. (1974) Supp. Because the unit owners have cancelled the services of MAS, MAS is no longer entitled to use of the express easement to service the system.

In conclusion, we emphasize that these appeals are interlocutory. Therefore, a number of questions and counterclaims are yet to be settled by the trial court, one of which is the fair market value of the system due MAS should it be determined to leave the system intact. We only decide today to affirm the trial court’s decision to the extent that it held that MAS owns the system. In all other respects we reverse and remand for further proceedings consistent herewith.

Affirmed in part; reversed in pait and remanded for further proceedings consistent herewith.

In Case No. 84-181 we affirm the award of costs to MAS.

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


text:
    Joseph T. SPILLANE, Appellant, v. STATE of Florida, Appellee.
    No. 83-2295.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing and Request to Certify Denied Dec. 5, 1984.
    Douglas N. Duncan and Robert P. Foley of Foley, Colton & Duncan, P.A.,' West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have considered all of the points raised by the appellant and find no reversible error demonstrated. However, we recognize that our holding that vehicular homicide is a lesser included offense of DWI manslaughter conflicts with a decision of the Second District Court of Appeal in Mastro v. State, 448 So.2d 626 (Fla. 2d DCA 1984).

AFFIRMED.

DOWNEY, LETTS and HURLEY, JJ., concur.


text:
    Olga C. BORST, former wife, Appellant/Cross-appellee, v. Richard W. BORST, former husband, Appellee/Cross-appellant.
    No. 84-114.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1984.
    Rehearing Denied Dec. 11, 1984.
    Thomas G. Purdo, Delray Beach, and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant/cross-ap-pellee.
    Michael A. Viscomi and Joseph D. Farish, Jr., West Palm Beach, for appellee/cross-appellant.
   PER CURIAM.

This is a dissolution of marriage action with resulting final judgment. Wife appeals. Husband cross appeals. Except as to alimony and attorney’s fees, no error has been demonstrated.

The wife was awarded $429.00 weekly as alimony for a period of ten years. Based on the wife’s age, needs, lack of education, disabilities and inabilities, we hold that it was error not to award the wife permanent periodic alimony in the sum of $429.00 weekly. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); DeCenzo v. DeCenzo, 433 So.2d 1316 (Fla. 3d DCA 1983).

We are further of the opinion that the trial court, under the circumstances, abused its discretion in refusing to award reasonable attorney’s fees to the wife. Johns v. Johns, 423 So.2d 443 (Fla. 4th DCA 1982); Novak v. Novak, 429 So.2d 414 (Fla. 4th DCA 1983).

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

HERSEY and WALDEN, JJ., and FLEET, J. LEONARD, Associate Judge, concur.


author: OTT, Judge.

text:
    Howard E. GOOD, Appellant, v. Rita A. GOOD, Appellee.
    No. 84-153.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.

      Hallard J. Greer, St. Petersburg, for appellant.
    Allen P. Allweiss, St. Petersburg, for appellee.
   OTT, Judge.

The husband in this dissolution of marriage action appeals the award to the wife of a special equity in real property owned by a closely held corporation in which the husband owns a majority of the shares of stock. We reverse.

The evidence shows that the parties were married over forty years. Both parties worked throughout the marriage and pooled their earnings, investing in real estate which, at the time of the dissolution, consisted of six separate parcels, all of which were jointly owned by the parties. The trial court ordered the parties to sell this jointly owned property, now owned by the parties as tenants in common, and divide the proceeds equally.

This appeal concerns a seventh parcel of realty, the “warehouse property,” owned by Howard E. Good and Associates, Inc., a Florida corporation, and the proceeds of a fire insurance policy already paid or due to be paid to the corporation as a result of a fire on the warehouse property. The husband owns approximately 500 shares of stock in this closely held corporation, his father owns ten shares, and the wife owns ten shares. The warehouse property was purchased in 1972. It had been leased to the husband, and until the fire he operated a junk/antique business on the premises. The wife did not work in this business. She operated a separate real estate business. Apparently, the parties had also jointly owned and operated a restaurant and lounge.

The wife testified on direct examination that she thought the warehouse property was owned jointly by the parties, that the corporation owned the “business,” and that she was surprised to discover, shortly after instituting the dissolution proceedings, that the property was in fact owned by the corporation. She further testified that joint funds of the parties were used to make the down payment of $13,600 on the property. On cross-examination, the wife, with some prodding, further testified that she was the real estate broker or salesperson who handled the purchase/sale of the warehouse property, prepared the purchase contract showing the corporation as purchaser, and held the earnest money as escrow agent pending the seller’s acceptance of the contract. She also conceded that title was taken in the corporation for tax advantages and that while she held stock in the corporation she never performed any work for it or for the husband’s personal junk/antique business. The husband made the lease payments to the corporation which, in turn, made the mortgage payments on the property.

The trial court found that the wife was entitled to a “special equity” interest of one-half of the warehouse property by virtue of her “financial contributions” (presumably based upon one-half of the down payment of $13,600). The court thereupon directed the husband to transfer a one-half interest in .this property to the wife and that in the absence of such a conveyance the judgment was to act as such conveyance. The court also awarded the wife one-half of the total fire insurance proceeds payable on the fire loss.

The corporation was not a party to the dissolution action nor was there any evidence or finding that the corporation was a sham or alter ego of the husband. Consequently, the trial court had no authority to order transfer of assets owned by the corporation. Feldman v. Feldman, 390 So.2d 1231 (Fla. 3d DCA 1980). That portion of the final judgment awarding the wife a one-half interest in the corporation’s real property and fire insurance proceeds is therefore vacated and set aside. We point out, however, that the evidence utterly fails to even suggest that the wife made any “financial contributions” from any funds generated outside the marriage. Consequently, there is no basis for an award of a “special equity” in the husband’s stock or other individually owned property.

Conceivably, in effecting an equitable distribution of marital assets, the court might have awarded the wife some equitable portion of the husband’s corporate stock or of his interest in other marital assets. See Greer v. Greer, 438 So.2d 535 (Fla. 2d DCA 1983).

Eliminating the one-half interest in the warehouse property and fire insurance proceeds substantially modifies the distribution of marital assets of the parties after dissolution. Therefore, we vacate all provisions of the final judgment dealing solely with the distribution of the marital assets and remand to the trial judge for such modification as he may find necessary to achieve an equitable distribution thereof under the facts of this case and this opinion.

REVERSED IN PART and REMANDED for proceedings consistent herewith.

BOARDMAN, A.C.J., and SCHEB, J., concur.


author: DANAHY, Judge.

text:
    Joseph TUCKER, Appellant, v. Garlan Eugene BRAY, Appellee.
    No. 84-313.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.

      Joseph Tucker, pro se.
    Glenn T. Shelby, Law Offices of James S. Welch, Lakeland, for appellee.
   DANAHY, Judge.

The appellant filed a complaint against the appellee sounding in tort. The appellee responded with a motion to dismiss with prejudice and a request for attorney’s fees pursuant to section 57.105, Florida Statutes (1983). The trial judge granted the motion, dismissing the complaint with prejudice and awarding fees of $500. This appeal followed.

We hold that the trial judge abused his discretion in failing to give the appellant at least one chance to amend his complaint. Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980); Ayers v. Home Owners Association of Killearn Estates, 360 So.2d 1326 (Fla. 1st DCA 1978).

Accordingly, the order of dismissal and award of attorney’s fees is reversed and this case is remanded to the trial court with directions that the appellant be allowed a reasonable time within which to amend his complaint.

REVERSED and REMANDED.

BOARDMAN, A.C.J., and LEHAN, J„ concur.


author: RYDER, Chief Judge.

text:
    Sarah HUNTER, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 84-376.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.

      Thomas M. Brondstetter and Curtright C. Truitt of Burnett, Brondstetter & Tew, P.A., Fort Myers, for appellant.
    Douglas A. Shropshire, Tallahassee, for appellee.
   RYDER, Chief Judge.

Sarah Hunter, a certified residential contractor and the qualifying agent of Hunter Homes, Inc., appeals from a final administrative order of the Department of Professional Regulation, Construction Industry Licensing Board, finding that she diverted funds from and abandoned two construction projects. The Board ordered her to pay a fine of $200.00 and suspended her license for at least one year or until she made restitution of the diverted funds. We reverse.

In April 1979, Hunter Homes, Inc. contracted to build a home for Ludon and Donna Williams. The escrow agent paid Hunter Homes $31,040.00 of $31,550.00 put in escrow by the Williams before Hunter Homes went out of business in August 1979. The Williams’ home was not completed. The driveway was only partially finished and the home lacked window sills, toilets, lavatories, a sliding glass door, garage door, stove, dishwasher, carpeting and sod.

• Also in April 1979, Hunter Homes contracted to build a home for Marsha Montgomery. In early August, Montgomery made a down payment of $1,600.00. Construction of the home had not begun when Hunter Homes went out of business several weeks later. Because Montgomery's contract did not require the down payment to be placed in escrow, it was subject to the claims of the corporation’s general creditors and was not recovered by Montgomery.

The administrative complaint charged Sarah Hunter with diverting funds from both projects and abandoning the Williams project. The complaint sought to revoke or suspend her license as a certified residential contractor. After an administrative hearing, the hearing officer found as facts that Sarah Hunter’s husband, Robert, handled the financial affairs of the corporation; that Hunter Homes lost money because of the delay between contracting to sell homes and building them and the resultant inflationary increases in construction costs; that Robert concealed from Sarah the corporation’s financial status; and that once Sarah became aware of the financial situation she did all she could to protect corporate creditors. The hearing officer found that Hunter Homes’ problem was primarily one of cash flow. The hearing officer concluded that pursuant to section 489.-129(l)(h), Florida Statutes (1979), there was no evidence of diversion of funds from either project. He also concluded that Hunter abandoned the Williams project because the corporation went out of business and section 489.129(l)(k), Florida Statutes (1979), does not purport to punish inept business conduct. The hearing officer recommended that the charges against Hunter be dismissed.

The Construction Industry Licensing Board adopted the hearing officer’s findings of fact but concluded that Hunter abandoned and diverted funds from both projects in violation of sections 489.-129(l)(h) and (k). In addition to fining Hunter and suspending her license, the Board ordered her to make restitution in the amounts of $6,870.00 to the Williams and $2,000.00 to Montgomery.

Initially, we note that although Hunter was charged with abandoning only the Williams project, the Board found her guilty of abandoning both projects. Although a complaint filed by an administra-five agency is not required to fulfill the technical niceties of a legal pleading, it must be specific enough to inform the accused with reasonable certainty of the nature of the charges. Seminole County Board of County Commissioners v. Long, 422 So.2d 938 (Fla. 5th DCA 1982), petition for review denied, 431 So.2d 989 (Fla.1983). Furthermore, a complaint seeking a license revocation must state with specificity the acts complained of, to allow the licensee a fair chance to prepare a defense. Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984). The administrative complaint at issue here specifically charged Hunter with abandoning the Williams project and diverting funds from both projects. The complaint gave Hunter no notice that she was accused of abandoning the Montgomery project. Moreover, there was no evidence presented to the hearing officer concerning Hunter’s abandonment of the Montgomery project other than evidence that Montgomery made a down payment and Hunter Homes went out of business several weeks later, before construction was begun on Montgomery’s home. Under these circumstances, the Board erred in finding that Hunter abandoned the Montgomery project.

We agree with the Board that there was competent, substantial evidence to support the hearing officer’s findings of fact. The Board adopted the findings of fact and was free to reject the hearing officer’s conclusions of law. Alies v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982). Having accepted the findings of fact, however, there was no competent, substantial evidence to support the Board’s conclusions of law. There was no evidence that Hunter diverted funds from either project or abandoned the Williams project within the meaning of section 489.129(l)(k). Rather, the facts suggest that the Williams’ home was not completed because of the increases in construction costs between the time the contract price was established and the beginning of construction. The Montgomery home was not started because Hunter Homes went out of business shortly after Montgomery paid her deposit.

Therefore, we reverse the final order of the Construction Industry Licensing Board and remand to the agency with instructions to dismiss the complaint against Sarah Hunter, as recommended by the hearing officer.

SCHOONOVER and LEHAN, JJ., concur.

      . 489.129 Disciplinary proceedings.—
      (1) The board may revoke, suspend, or deny the issuance or renewal of the certificate or registration of a contractor or impose an administrative fine not to exceed |1,000, .place the contractor on probation, reprimand or censure, a contractor if the contractor is found guilty of any of the following acts:

      (h) Diversion of funds or property received for prosecution or completion of a specified construction project or operation when as a result of the diversion the contractor is or will be unable to fulfill the terms of his obligation or contract.

      . (k) Abandonment of a construction project in which the contractor is engaged or under contract as a contractor. A project is to be considered abandoned after 90 days if the contractor terminates said project without notification to the prospective owner and without just cause.


author: GRIMES, Acting Chief Judge.

text:
    Frank D. JOHNSON and Betty J. Johnson, Appellants, v. TAYLOR RENTAL CENTER, INC., a foreign corporation; Hartford Accident and Indemnity Company, a foreign corporation; A-1 Sales and Rental Enterprises, Inc., a Florida corporation; and Louisville Ladder, a division of Emerson Electric Company, a foreign corporation, Appellees.
    No. 84-650.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1984.

      Michael W. Ross of Goodheart & Ross, P.A., Bradenton, for appellants.
    William M. Schneikart of Jacobs, Robbins, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellee A-l Sales and Rental Enterprises, Inc.
   GRIMES, Acting Chief Judge.

This appeal involves the relation back of amended pleadings which seek to add a new party defendant subsequent to the running of the statute of limitations.

On September 20, 1982, Frank Johnson, joined by his wife, filed a negligence action alleging that he was injured on October 19, 1978, when he fell from a defective ladder rented from Taylor Rental Center, Inc. Attached to the complaint was a copy of a receipt for the ladder in the name of “Taylor Rental Center,” which contained the words “Franchised By Taylor Rental Corporation, Box 2618, Springfield, Massachusetts.” In its answer filed on October 8, 1982, Taylor Rental Center, Inc., a Massachusetts corporation, admitted that it was “doing business in Manatee County State of Florida, involving the rental of tools and equipment.” However, it denied having rented the ladder. In 1983, at a time well beyond four years from the date of the accident, the plaintiffs obtained an order authorizing them to file a third amended complaint adding A-l Sales and Rental Enterprises, Inc., a Florida corporation, as an additional defendant. According to the third amended complaint, the ladder had actually been rented from A-l Sales and Rental Enterprises, Inc., which was operating pursuant to a franchise agreement with Taylor Rental Center, Inc. Upon motion to dismiss, the court entered an order dismissing A-l Sales and Rental Enterprises, Inc., for failure to bring suit against A-l Sales within the period of the statute of limitations.

The plaintiffs assert that their third amended complaint adding A-l Sales and Rental Enterprises, Inc., as a party defendant should relate back to the date of the original complaint, which was filed within the four year statute of limitations. In support of their position they cite several cases which hold that the filing of an amended complaint to add an additional party defendant in order to correct a misnomer relates back to the filing of the original complaint. Cabot v. Clearwater Construction Co., 89 So.2d 662 (Fla.1956); Hohl v. Croom Motrocross, Inc., 358 So.2d 241 (Fla. 2d DCA 1978); B & H Sales, Inc. v. Fusco Corp., 342 So.2d 105 (Fla. 2d DCA 1977); Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA), cert. denied, 238 So.2d 109 (Fla.1970); Argenbright v. J.M. Fields Co., 196 So.2d 190 (Fla. 3d DCA), cert denied, 201 So.2d 895 (Fla.1967). The recurrent theme of these cases is that the amendment should be permitted to relate back where it merely changes the capacity in which a defendant has been sued. More often than not, the original defendant lulled the plaintiff into believing that he had sued the correct party until after the statute of limitations expired.

Here, the amendment sought to do more than correct a misnomer. There is no indication of any connection between the two corporations except that of franchisor and franchisee. Although they carry liability insurance with the same company and are represented by the same attorney, these facts do not change the relationship. The rule which permits the relation back of amended pleadings does not apply where an entirely new party is added. Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977), dismissed, 359 So.2d 1217 (Fla.1978). Moreover, the issuance of a receipt in the name of “Taylor Rental Center” is insufficient, by itself, to provide a basis for extending the statute of limitations. Hence, the amendment seeking to add A-l Sales and Rental Enterprises, Inc., came too late and does not relate back to a time prior to the running of the statute of limitations.

Affirmed.

SCHEB and DANAHY, JJ., concur.


author: DAUKSCH, Judge.

text:
    STATE of Florida, Appellant, v. James Lee PRESLEY, Appellee.
    No. 83-1671.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    Stephen L. Boyles, State Atty., and John V. Doyle, Asst. State Atty., Daytona Beach, for appellant.
    Richard Kolodinsky, New Smyrna Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order granting a motion to suppress evidence in a criminal ease.

Appellee was arrested for disorderly intoxication, searched incident to that arrest and illegal drugs were found and seized.

The issue on appeal is whether the trial judge applied the proper legal standard when considering the motion to suppress. It is our conclusion he did not and therefore we reverse. When considering whether a police officer lawfully arrests someone without a warrant, for a misdemeanor, the court determines whether the officer had substantial reason to believe the arrestee is guilty of a crime. Whether the person is, in fact, guilty is not determinative of the legality of the arrest. State v. Warren, 329 So.2d 383 (Fla. 1st DCA 1976); Rosenberg v. State, 264 So.2d 68 (Fla. 4th DCA 1972).

Officer Krakowski of the Daytona Beach Police Department was standing outside of a singles bar at 2:00 a.m. The doorman of the bar asked the policeman for assistance because appellee was causing a disturbance in the bar, calling a bar patron a filthy name and generally misbehaving himself. The doorman asked the officer to assist by removing appellee from the bar. After that was accomplished, appellee went into the street, U.S. Highway A1A, Atlantic Boulevard, a well-traveled roadway along the beach. Appellee was loud and boisterous, spoke with slurred speech, was glassy-eyed and unsteady on his feet. When told to leave a few times by the policeman, appellee began yelling at him challenging the officer to arrest him. Because appellee was in the roadway, causing passing cars to have to change directions of movement to avoid hitting him, the policeman arrested him for disorderly intoxication. The search incident to arrest turned up marijuana and cocaine.

Appellee disagreed with some of the facts testified to by the policeman but did not say he was not in the roadway. He said he was not drunk, that he called the “big guy” in the bar an Iranian, not an asshole, that he was not enticing the policeman to arrest him, but was waving to his best friend Eric and asking him to get the car and take him home.

It is not a question of credibility of witnesses with which we are concerned. The trial judge specifically found appellee was intoxicated. He obviously believed the policeman rather than appellee. A reading of the transcript supports that conclusion, to say the least.

The question before us, as was said, is the standard of proof. The trial judge found “[t]hat he did not endanger the safety of another person or another’s property.” The trial judge also found “[tjhat he did not cause a public disturbance, within the meaning of Florida Statute 856.011.” While the trial judge may conclude the facts would not support a verdict of guilty if he were trying the case he could not have properly concluded that the police officer did not have substantial reason to believe appellee was guilty. Calling a big guy in a bar an asshole or an Iranian, being kicked out of the bar and standing in the roadway yelling is sufficient evidence to give an officer substantial reason to believe the person is creating a public disturbance. One’s standing in the roadway waving arms and shouting, causing cars to have to turn to avoid striking him is endangering another’s property. If one of those cars had hit appellee it would have damaged the car. Or, if in avoiding hitting appellee, the car had hit another then someone or something would have been hurt or damaged. Thus, appellee’s actions could provide a reasonable person with substantial reason to believe, or, to use the traditional language, with probable cause to believe, that appellee was endangering others and their property.

The order is reversed and this cause remanded for trial.

REVERSED and REMANDED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . § 856.011, Fla.Stat. (1983), in pertinent part, provides:
      Disorderly intoxication.—
      (1) No person in the state shall be intoxicated and endanger the safety of another person or property, and no person in the state shall be intoxicated or drink any alcoholic beverage in a public place or in or upon any public conveyance and cause a public disturbance.
      (2) Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.


author: DAUKSCH,'Judge.

text:
    Edward E. HADDOCK, Jr., as Trustee; Robert M. Woods, Jr., and Alvin Barasch, Appellants, v. Marvin G. MARLIN and Carolyn S. Marlin, his wife; Lyle Powell and Myra Powell, his wife, Appellees.
    No. 83-1711.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.

      Paul H. Bowen, of Swann & Haddock, P.A., Orlando, for appellants.
    Frank M. Townsend, of Townsend & Townsend, Kissimmee, for appellees.
   DAUKSCH,'Judge.

This is an appeal from a judgment in a mortgage foreclosure case. The issues involve interest awarded in the judgment, and attorney’s fees. We reverse as to the interest and affirm as to the fees.

The trial judge awarded 25% interest to the mortgagees to begin from the date of default. Appellants complain that they should be required to pay that high rate only after the note was accelerated. The applicable note provision says:

If default be made in the payment of any of the sums or interest mentioned herein or in said mortgage, or in the performance of any of the agreements contained herein or in said mortgage, then the en-' tire • principal sum and accrued interest shall at the option of the holder hereof become at once due and collectible without notice, time being of the essence; and said principal sum and accrued interest shall both bear interest from such time until paid at the highest rate allowable under the laws of the state of Florida. Failure to exercise this option shall not constitute a waiver of the right to exercise the same in the event of any subsequent default.

It is rather apparent that until the option to accelerate is exercised then the debt does not bear interest at the highest rate allowable under the law. Bratcher v. Wronkowski, 417 So.2d 1132 (Fla. 5th DCA 1982), petition den., 424 So.2d 760 (Fla. 1982); Morton v. Ansin, 129 So.2d 177 (Fla. 3d DCA 1961). Incidentally, the debt was greater than $500,000 so the highest lawful rate according to statute was 25%. § 687.03(1), Fla.Stat. (1981).

The trial judge also awarded interest at the 25% rate after judgment. This is error because the applicable statute provides:

A judgment or decree entered on or after October 1,1981, shall bear interest at the rate of 12% a year unless the judgment or decree is rendered on a written contract or obligation providing for interest at a lesser rate, in which case the judgment or decree bears interest at the rate specified in such written contract or obligation.

§ 55.03(1), Fla.Stat. (1983). The note here provides for 10% interest until acceleration after default and then 25% thereafter, so 12% is the maximum rate allowed by statute, after judgment.

The judgment is reversed as to the interest and affirmed in all other respects and this cause remanded for such further proceedings as are necessary to comply herewith.

REVERSED in part, AFFIRMED in part and REMANDED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: PER CURIAM

text:
    CITY OF PLANTATION and Michigan Mutual Insurance Company, Appellants, v. Robert L. ROBERTS, City of Plantation and Risk Management Services, Inc., Appellees.
    No. AY-330.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1984.
    Rehearing Denied Dec. 4, 1984.
    Gerald T. Nolan, Fort Lauderdale, for appellants.
    Robert F. Conrad of Conrad, Scherer & James, Fort Lauderdale and H. Jack Miller of Miller, Hodges & Kagan, Miami, for appellees.
   PER CURIAM

AFFIRMED.

BOOTH, SMITH and THOMPSON, JJ., concur.


text:
    Luvenia JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 84-520.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.
    Jerry Hill, Public Defender and W.C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

Luvenia Johnson entered into a plea bargain with the state for a term of four- years in prison. She was convicted of forgery, uttering a forged instrument, and violating her probation and sentenced pursuant to the plea agreement. -She now appeals the sentence on the ground that-it exceeds the recommended sentence of the sentencing guidelines.

A departure from the sentencing guidelines is clearly warranted when a plea bargain specifies the permissible sentence. Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984). Because Johnson was bound by her contract, we affirm the sentence.

CAMPBELL and LEHAN, JJ., concur.


author: CAMPBELL, Judge.

text:
    CONE BROTHERS CONTRACTING COMPANY and Fidelity & Casualty Company of New York, Appellants, v. ASHLAND-WARREN, INC., Appellee.
    No. 84-579.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.

      Charles T. Wells of Wells, Gattis, Hal-lowes & Carpenter, P.A., Orlando, for appellants.
    Peter P. Murnaghan and Michael L. Ro-sen of Holland & Knight, Tampa, for appel-lee.
   CAMPBELL, Judge.

Appellants, Cone Brothers Contracting Company (“Cone Brothers”) and Fidelity & Casualty Company of New York, appeal a final summary judgment against only appellant Cone Brothers awarding appellee $183,638.22 in damages and attorney's fees on a claim for breach of contract. We affirm.

Henceforth, in this opinion, we will use the term appellant to refer only to Cone Brothers.

In July 1977, Macasphalt Corporation entered into a contract with the Florida Department of Transportation (DOT) for the construction of improvements and modifications of a portion of Interstate 4 in Orange and Osceola counties. Macasphalt subsequently merged with and became a division of Ashland-Warren, Inc. (Ashland-Warren). When using the term appellee, we will refer to the merged and successor entity, Ashland-Warren. Subsequently, appellee subcontracted with appellant for performance of certain work within the DOT project, including modifications to the Bonnet Creek Bridge.

On February 10, 1979, and again on May 13, 1979, a motor vehicle collided with a temporary “barrier wall” which had been placed near the Bonnet Creek' Bridge by appellant in the performance of their contract. As a consequence of the two accidents, appellee and appellant were named as defendants in four personal injury actions in Orange County.

The contract between appellee, as contractor, and Cone Brothers, as the subcontractors, provided in paragraph five of the “Terms and Conditions” as follows:

5. The Subcontractor shall provide and maintain compensation insurance for the protection of his employees, as required by law of an employer and as will protect the Subcontractor from loss or damage because of personal injuries including death to his employees, or any of ' them; and the Subcontractor shall provide and maintain minimum public liability and property damage insurance in companies acceptable to the Contractor, in such amounts as may be agreed upon; and in the absence of such agreement, as follows:
Public Liability (Including completed operations coverage): Bodily Injury/Property Damage $300,000/$500,-000/$100,000
Automotive Public Liability: Bodily Injury/Property Damage $300,000/$500,-000/$100,000
The Subcontractor specifically obligates itself to indemnify and protect the Contractor and save it harmless from any and all claims, suits or liabilities for injuries to property, injuries to persons, including death, and from any other claims, suits or liabilities arising out of the performance of the work or in any way occasioned by any act or omission of the Subcontractor or any of its officers, agents, employees or servants or any Subcontractor or other person directly or indirectly engaged by it. All of the insurance policies as hereinbefore provided under this section shall name the Contractor as an additional assured thereunder, shall assume and provide for the Contractor’s defense, and shall serve to indemnify and protect the Contractor and save it harmless from all claims, suits or liabilities as set forth in these Terms and Conditions or any of them.
The Subcontractor shall furnish the Contractor with certificates evidencing that such insurance is provided and in full force and effect before starting work and at any other time when requested by the Contractor. All of said certificates shall set forth on the face thereof contractual coverage as required herein. No amendment or cancellation of any of said policies shall be effective until after thirty (30) days notice in writing to the Contractor. (Emphasis added.)

Paragraph six of the “Terms and Conditions” contained the following provision:

The Subcontractor shall indemnify and protect the Contractor and the Owner and save them harmless from any and all loss, damage, costs, expenses and attorney’s fees suffered or incurred on account of any breach of the aforesaid obligations and covenants, and any other provision or covenant of this contract.

After being named a defendant in the personal injury actions, appellee promptly demanded that appellant, or its insurer, undertake Ashland-Warren’s defense and cover any liability in accordance with the subcontract. However, that demand was rejected based on the contention that appel-lee was negligent and, thus, the indemnification clause was unenforceable. The demand was also rejected because appellant had not made appellee a named insured on the liability insurance policy as required by paragraph five of the subcontract. Consequently, appellee was required to retain its own counsel to defend the four lawsuits.

One of those lawsuits ultimately went to trial and resulted in a jury verdict finding that appellant was sixty percent negligent, appellee was twenty-five percent negligent, and the driver of the car was fifteen percent negligent. The other three cases were settled through negotiations which were conducted principally by appellant, acting on behalf of appellee and other defendants, as well as itself. Eventually, appellee was required to pay damages totaling $103,-638.22, and incurred attorney’s fees totaling over $66,600 in defending the four suits.

In September 1982, appellee instituted an action against appellant, stating three distinct counts for recovery. Count I sought damages, costs and interest based on “contractual indemnity” under paragraphs five and six of the subcontract. Count II sought damages, costs and interest based on “common law indemnity" alleging that the proximate cause of the accidents was appellant’s negligence and that appellee’s liability was merely constructive or derivative. Finally, Count III sought damages, costs, interest and attorney’s fees for “breach of contract” based on appellant’s failure to obtain liability insurance making appellee a named insured as required by paragraph five of the subcontract.

Appellant answered generally denying liability and affirmatively defending on the grounds that: (a) the jury verdict finding appellee partially negligent precluded ap-pellee’s claim for contractual or common law indemnity in any of the four cases; (b) appellee was negligent in administering the contract or discharging its supervisory duties, thus precluding any recovery under contractual or common law indemnity; and (c) the contract failed to comply with section 725.06, Florida Statutes (1981), which imposes certain restrictions on indemnification provisions in construction contracts. By subsequent amendment, appellant was allowed to plead as additional affirmative defenses that appellee was estopped from asserting the claim for indemnity, had waived its right to claim indemnity, and had released appellant as a result of the settlements of the other lawsuits. Appel-lee filed replies denying all of appellant’s affirmative defenses.

Both parties filed motions for partial summary judgment. Appellant requested partial summary judgment on appellee’s claims for contractual indemnity and common law indemnity. On the other hand, appellee sought partial summary judgments on the issue of appellant’s liability for breach of contract for failing to obtain liability insurance that included appellee as a named insured.

The trial court conducted a hearing to consider appellant’s motion for partial summary judgment on the claims for indemnity and appellee’s motion for partial summary judgment on the claim for breach of contract. Acknowledging that its motion was “limited to.the contractual indemnity portion contained in Count One,” appellant argued that appellee was not entitled to indemnification under the subcontract because: (a) under Florida law, a general indemnification clause in a contract will not protect the indemnitee from liability arising out of its own negligence unless, the provision contains specific language expressly evidencing such intent; and (b) under section 725.06, a provision in a construction contract which purports to indemnify a party against liability for its own conduct is unenforceable unless the contract contains a monetary limitation on the extent of the indemnification, and the party indemnified gives a specific consideration to the indem-nitor for that protection.

After confirming that appellant’s motion was limited to the contractual indemnification claim embodied in Count I, appellee’s counsel stated on the record that appellee did not oppose the granting of appellant’s motion.

Appellee’s counsel then proceeded to argue appellee’s motion for partial summary judgment on Count III of the complaint. Appellee premised its argument on the basis that: (a) paragraph five of the subcontract contained, in addition to the general indemnification clause, a provision requiring appellants to obtain liability insurance in specified amounts, which policies “shall name the Contractor as an additional assured thereunder [and] shall assume and provide for the Contractor’s defense;” (b) appellant did not dispute the fact that it failed to obtain such liability insurance naming appellee as an insured; and (c) as a consequence of appellant’s breach of this contractual obligation, appellee was required to defend that lawsuit and to pay damages that would have otherwise been covered by the liability insurance.

On April 7, 1983, in accordance with ap-pellee’s stipulation at the hearing, the trial court entered an order granting appellant’s motion for summary judgment on Count I of the complaint, thus resolving the contractual indemnification claim in favor of appellant. The trial court then entered an order granting appellee’s motion for partial summary judgment on Count III as to liability only, specifically finding that appellant did not purchase liability insurance naming appellee as an additional named insured as required by the contract.

Thereafter, appellee served a motion for partial summary judgment on damages with respect to Count III, asserting that the sums paid by appellee in the four lawsuits were undisputed and were the proximate result of appellant’s breach of its contractual obligation to obtain insurance for appellee. The trial court granted the motion.

With the issues of liability and damages for breach of contract resolved in appel-lee’s favor, the only matter remaining for disposition on Count III was the request for attorney’s fees. Appellant moved to strike this claim or to grant summary judgment in its favor, contending that appellee was not entitled to attorney’s fees under the contract or pursuant to any statutes. Appellant argued that appellee’s right to attorney’s fees under paragraph six of the subcontract should be limited to those associated with the defense against the claims of the injured third parties, and should not include fees incurred in prosecuting the present action against appellant on the subcontract.

The trial court denied appellant’s motion and concluded that appellee was entitled to attorney’s fees pursuant to paragraph six of the contract for defense of the personal injury actions, as well as fees resulting from the action for breach of contract.

The parties subsequently stipulated that a reasonable fee award to appellee would be $80,000, of which $65,000 was attributable to the defense of the four lawsuits necessitated by appellant’s breach of contract, and $15,000 was attributable to the prosecution of the contract claim against appellants.

The trial court entered a final judgment against appellant, awarding appellee a total of $183,638.22 in damages and attorney’s fees.

Appellant raises four points on appeal:

I.WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEE ON ITS CLAIM FOR BREACH OF CONTRACT?
II.WHETHER SECTION 725.06, FLORIDA STATUTES (1983) IS IRRELEVANT TO THIS CASE BECAUSE APPELLEE WAS AWARDED SUMMARY JUDGMENT BASED ON BREACH OF CONTRACT, NOT INDEMNIFICATION?
III. WHETHER THE TRIAL COURT ERRED IN LIMITING DISCOVERY IN RULING THAT AP-PELLEE WAS NOT REQUIRED TO PRODUCE PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS?
IV. WHETHER THE TRIAL COURT ERRED IN AWARDING APPEL-LEE ITS ATTORNEY’S FEES IN THIS ACTION TO RECOVER FOR APPELLANT’S BREACH OF THE SUBCONTRACT?

Because we affirm the trial court on points I, II and IV, point III is rendered moot.

In support of its first point, appellant argues that the decision in this action should be controlled by the supreme court opinion in University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973). The contractual provision in that case provided:

Section II, INDEMNITY-LIABILITY INSURANCE. Tenant shall indemnify and save harmless the landlord from and against any and all claims for damages to goods, wares, merchandise, and property in and about the demised premises and from and against any and all claims for any personal injury or loss of life and about the demised premises.
Tenant shall maintain in full force, during the term of this lease, a policy or policies of comprehensive general liability insurance, in force, reasonably satisfactory to the landlord, written by one or more responsible insurance companies, licensed to do business in the State of Florida which will insure Tenant and Landlord. The coverage under such insurance shall not be less than $100,000 for any one injury (including death) and not less than $300,000 for any one accident (including death) and not less than $10,000 for property damage. (Emphasis supplied.)

The supreme court refused to enforce that indemnity clause holding that a contract for indemnity will not be sustained where it purports to indemnify the indemnitee from liability resulting from his own negligent acts, unless such intention is expressed in clear and unequivocal terms. In the later ease of Charles Poe Masonry, Inc. et al v. Spring Lock, etc., et al., 374 So.2d 487 (Fla.1979), the supreme court extended University Plaza to include cases in which the indemnitor and indemnitee are jointly and severally liable.

However, as appellee points out, in this case, appellant’s liability was not based on the indemnity clause, but on its breach of contract by failing to make appellee a named insured. The contract in University Plaza also contained a clause requiring the proposed indemnitee to be insured by a policy of insurance maintained by the in-demnitor. However, in University Plaza, the policy of insurance insuring the indem-nitee was actually issued. The distinguishing fact is that the trial court there found, and the supreme court affirmed, that the policy of insurance there only applied when the indemnitor, or named insured, was liable and did not extend to liability of the indemnitee.

In the case before us, the contract calls for appellee to be named “as an additional assured thereunder.” Thus, the contract calls for insurance policies that not only insured appellant for any liabilities it might have to appellee, but provided that appellee would also be insured to protect it “from all claims, suits or liabilities."

In regard to appellant’s second point, we conclude that section 725.06, Florida Statutes (1977), which was the statute which would be applicable to a contract entered into in 1977, is clearly a limitation "upon indemnification and has no applicability to a contract provision relating to insurance for liabilities arising out of the performance of construction contracts. Since appellee’s cause of action grew out of a breach of such a contract providing for insurance, section 725.06 is not applicable.

Finally, we conclude that the trial court’s award of attorney’s fees was correct and appellant must fail on its fourth point as well. The contract provision requiring appellant to pay all attorney’s fees “incurred on account of any breach of ... any ... provision ... of this contract” is clear and unambiguous.

Affirmed.

RYDER, C.J., and LEHAN, J., concur.


text:
    Terry TOWNSEND, Appellant, v. STATE of Florida, Appellee.
    No. 84-1147.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

This is another sentencing guidelines case. Defendant, Terry Townsend, appeals from the revocation of his probation and resulting prison sentences, contending that the trial court erred in departing from the sentencing guidelines without stating clear and convincing reasons for the departure. We disagree and affirm.

Defendant pleaded nolo contendere on April 13, 1983, to attempted robbery and was placed on probation for four years. Subsequently, the state filed an affidavit alleging defendant violated his probation by failure to comply with: “Condition (5) in that on 1/11/84 he was arrested by the Polk County Sheriffs Department for Grand Theft, and on 1/20/84 he was arrested by the Lakeland Police Department for I — Robbery—Armed with Deadly Weapon and II — Possession of Firearm During Commission of Felony.”

On April 17, 1984, defendant pleaded guilty to the charges of grand theft and armed robbery, and admitted the violation of probation. He elected to be sentenced under the new sentencing guidelines pursuant to section 921.001(4)(a), Florida Statutes (1983). See also In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

At the sentencing hearing defense counsel and the probation officer who prepared the presentence investigation report recommended that defendant be sentenced under the Youthful Offender Statute. The recommended sentence under the guidelines was a range of five and one-half to seven years, with a presumptive sentence of six years. The prosecutor requested a seven-year sentence. The court revoked defendant’s probation, adjudicated him guilty of all four charges, sentenced him to concurrent terms of five years’ imprisonment for attempted robbery, five years’ imprisonment for grand theft, and nine years’ imprisonment for each armed robbery. The court then stated that it was raising defendant’s sentence “one block” because defendant was on probation and that the court did not consider that this was going outside the guidelines. However, the court went on to say that even if the sentence was considered to be outside the guidelines, it considered that the defendant’s criminal history was a sufficient reason for the departure. This timely appeal followed.

Defendant argues that because his recommended guideline sentence took both his probationary status and prior adult criminal history into account, those ■ factors cannot provide clear and convincing reasons for departure. He is incorrect. A violation of a substantive condition of probation can serve as a reason for a trial court to exceed the presumptive sentence range established in the guidelines, provided Florida Rule of Criminal Procedure 3.701(d)(ll) is followed. Hernandez v. State, 457 So.2d 1155 (Fla. 2d DCA 1984); Tackett v. State, 458 So.2d 368 (Fla. 2d DCA 1984); Klapp v. State, 456 So.2d 970 (Fla. 2d DCA 1984). See also Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984) (probation violations for possession of marijuana and driving while under the influence of alcoholic beverages which were not contested by defendant justified departure); Boyett v. State, 452 So.2d 958 (Fla. 2d DCA 1984) (failure on probation, drinking problem, threat to society justified departure). Accord Bogan v. State, 454 So.2d 686 (Fla. 1st DCA 1984) (violation or past abuse of or lack of amenability to probation justified departure); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984) (violation of probation may serve a legitimate reason for exceeding guideline sentence provided reason given in writing); Gordon v. State, 454 So.2d 657 (Fla. 5th DCA 1984) (violation of probation may serve as legitimate reason to exceed presumptive sentence where defendant had already received the maximum sentences provided under the guidelines before he violated probation); Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984) (violation of probation may justify departure provided basis is stated in writing). The violations alleged here were substantial, not contested by defendant and, therefore, provided a proper basis for sentencing outside the area of the guidelines.

Next, an offender’s prior criminal history (including juvenile dispositions) can also provide a basis for departure from the guidelines. Fleming v. State, 456 So.2d 1300 (Fla. 2d DCA 1984). See also Smith v. State, 454 So.2d 90 (Fla. 2d DCA 1984) (commission- of earlier capital felony may properly be considered as additional reason for departure even though it cannot be considered in calculating applicable sentencing range); Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984) (juvenile convictions not counted in guidelines are clear and convincing reasons for departing from the guidelines). Accord Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984) (although the trial court was precluded from considering appellant’s criminal and juvenile record in tallying up scoresheet to determine recommended sentence, it could properly use that history as reason for departure); Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984) (prior criminal conduct can support departure from the guidelines even though it has been considered in the scoring). Compare Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984) (juvenile arrests for which there had been no conviction cannot be used in calculating applicable sentencing range or as justification for departure). “

Finally, as we noted in Addison v. State: While a defendant may appeal a sentence outside the guidelines, it is not the function of this court to re-evaluate the exercise of the trial judge’s discretion in this area. Rather, our role is to assure that there is no abuse of that discretion. Here, the trial judge stated his basis for departing from the guidelines in writing and imposed a sentence within the statutory parameters. Given this factual situation, no abuse of discretion has been shown.

Id. at 956. Likewise, in the case before us, we find no abuse of the discretion exercised by the trial court.

Accordingly, the sentence appealed from is affirmed.

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


text:
    Henry G. GREGER, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1222.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   HENDRY, Judge.

The appellant challenges his conviction of burglary pursuant to section 810.02, Florida Statutes (1981), contending on appeal that the trial court erred in denying his motion for judgment of acquittal where the evidence failed to establish that he entered the conveyance (a boat) with the intent to commit the specific offense of theft therein. For the reasons which follow, we affirm.

At 3:00 a.m. on September 19, 1982, appellant was observed walking suspiciously on the outside of a marina, carrying tools and looking underneath the boats which were stored on land. The security guard at the marina saw appellant hop over the fence and enter the marina and stop at one of the boats which was stored on land. The guard saw the appellant, with the use of the tools, attempting to remove the outboard motor or parts of the motor. The security guard went to another part of the marina and telephoned the police. One minute later, the police arrived. The guard brought the officer to the boat where appellant was laboring to remove bolts from the transom of the boat. When the officer ordered the appellant to put his hands up and turn around, he saw that appellant had a pair of channel lock pliers in his right hand and in the other hand, held an open-end wrench, whereupon the appellant was placed under arrest. He was charged by a two count information; count one charged him with burglary of a conveyance, a boat, and count two charged him with the offense of second degree grand theft of an outboard motor.

At trial the officer testified that upon his arrival, he observed that the boat’s cowling, the fiberglass portion which covers the motor, had been removed. Heavy scratch marks appeared on the shift lever cable, which cable runs inside the boat, from the console to the motor. The officer opined that the scratch marks were caused by a pair of channel lock pliers which were in the appellant’s possession. The officer stated that it was necessary to disconnect the cable to remove the outboard motor. The outboard motor was attached to the transom of the boat by four bolts. Three of the bolts were in place when the appellant was apprehended. Two of the bolts had nuts on them and one was missing a nut. The nuts were located on the inside of the boat. The fourth bolt, which was found in the appellant’s pocket, fit into the lower left quadrant of the transom. Over objection, the officer further opined that it would have been extremely difficult to remove the bolts without reaching inside of the boat to hold the nut, either with one’s hand or with a pair of pliers.

Photographs taken of the boat and the outboard motor were introduced into evidence. The only other evidence presented by the state was testimony of the owner of the boat that he had never taken the motor off the boat nor given anyone permission to remove or touch the outboard motor. At the conclusion of the evidence, the appellant moved for a judgment of acquittal with regard to the burglary charge. When that motion was denied, the defense rested. The jury returned verdicts of guilty as charged on both counts and judgment and sentence were entered accordingly.

Section 810.02, Florida Statutes (1981), defines burglary as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Section 810.011(3), Florida Statutes (1981), defines conveyance as “any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car.” Additionally, the statute states that “to enter a conveyance includes taking apart any portion of the conveyance.”

By the plain meaning of the burglary statute, the appellant entered the boat when he removed a portion of the boat, to-wit, the cowling and the bolts. Von Edwards v. State, 377 So.2d 684 (Fla.1979); State v. Harvey, 403 So.2d 630 (Fla. 2d DCA 1981); Bragg v. State, 371 So.2d 1082 (Fla. 4th DCA 1979). We see no distinction between a motor vehicle’s engine compartment and the outboard motor bolted to a boat hull for purposes of defining a conveyance within the burglary statute. With regard to the motor vehicle there is a line of cases which makes no distinction for the purposes of the burglary statute between entering the passenger compartment of a conveyance and entering the engine compartment, Bragg v. State, supra, or between entering the engine compartment of a hoodless automobile, Anderson v. State, 415 So.2d 829 (Fla. 3d DCA 1982), and entering from underneath the engine compartment, or from the top or from the side. State v. Harvey, supra. This case is similar to State v. Harvey, supra, wherein the defendant entered from underneath the motor vehicle and began loosening bolts holding the starter. Here the appellant entered the boat when he began loosening bolts from the protruding motor at the stern of the boat. The appellant’s intrusion violated the possessory intent of the boat’s owner. Anderson v. State, supra.

Appellant argues that even if there was an entry it was without the intent to commit the offense of theft within the boat and that his actions should be treated as only a theft of the motor. ■ This argument rests on the holdings of State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979), and State v. Dolby, 361 So.2d 215 (Fla. 2d DCA 1978), and the proposition that the conveyance (boat) ends and does not include the attached outboard motor. We cannot agree with this restrictive view of defining the boat.

The appellant’s actions sub judice were unlike the acts in R.E.S. v. State, 396 So.2d 1219 (Fla. 1st DCA 1981), where the siphoning of gasoline was held to be non-entry or an entry with the intent not to commit an-offense therein because a gasoline tank was not a compartment of the vehicle which could be entered either wholly or partially by a person. We find similarly distinguishable the acts in State v. Hankins, supra, where the removal of hubcaps from an automobile was held to be insufficient to establish a prima facie intent “to commit an offense therein” for purposes of the burglary statute.

We agree with the cases relied upon by the appellant which state that the definition of “entering a conveyance” does not obviate the necessity for alleging facts in support of an intent to commit an offense within the conveyance. However, once the conveyance is defined as the entire boat, including its attached engine, the question of appellant’s intent to steal was one to be determined by the trier of fact. We find that the jury could reasonably conclude that the appellant entered the conveyance for the purpose of committing theft. State v. Waters, 436 So.2d 66 (Fla. 1983); MacIntosh v. State, 438 So.2d 485 (Fla. 3d DCA 1983). A motion for judgment of acquittal should not be granted unless it is apparent that no legally sufficient evidence has been submitted under which the jury could legally find a verdict of guilty. Garmise v. State, 311 So.2d 747, 749 (Fla. 3d DCA 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976). Accordingly, the judgment and sentence appealed are affirmed.

Affirmed.


author: FERGUSON, Judge.

text:
    DADE SAVINGS AND LOAN ASSOCIATION, INC., Appellant, v. CITY OF NORTH MIAMI, Appellee.
    No. 84-636.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1984.
    John G. Fletcher, South Miami, for appellant.
    Simon, Schindler & Hurst and Thomas M. Pflaum, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant Dade Savings owns two single-family structures on lots in a residential area west of its business premises. The business is located on a strip of land zoned for commercial use which fronts busy Northwest 7th Avenue in North Miami. A paved alley in the rear of Dade Savings and other businesses is used to service the commercial structures. The alley runs several blocks north-south through the City of North Miami and serves to separate commercial lands from single-family homes, including the two single-family lots owned by Dade Savings.

Appellant seeks review of a circuit court order, entered after a de novo hearing, which approved an order of the City Council for the City of North Miami denying a zoning change as to appellant’s two parcels of land from single family to “Parking District,” a specific land use category provided for in the city’s zoning code. Appellant contends that the city’s refusal to rezone was unreasonable and confiscatory. The circuit court determined that the city’s denial of the request for rezoning was fairly debatable.

The city council decided that the paved alley should continue as the buffer between commercial and residential property. We have held on another occasion, recently, that it is entirely appropriate for a street to serve as a divider between zoning districts. Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387 (Fla. 3d DCA), cert. denied, 386 So.2d 635 (Fla.1980). As was observed by our supreme court in City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, 366 (1941), and quoted in Allapattah Community, 379 So.2d at 394:

The fact that his land is situated across the street from that on which commercial enterprises may be operated was not alone enough to support plaintiff’s position that he should be given the same latitude in the use of his property. Were this the case it would be but a matter of time before alterations of the whole scheme by successively liberalizing the use of abutting property would result in disintegration and disappearance of the whole plan of zoning.

Appellant demonstrated only that it wished to use the two lots west of the alley for additional business parking space. There is not the required showing that the desired zoning change is related to the public welfare, Dugan v. City of Jacksonville, 343 So.2d 103 (Fla. 1st DCA 1977), or that the city’s zoning decision was arbitrary or unreasonable, and therefore not fairly debatable. Miles v. Dade County, Board of County Commissioners, 260 So.2d 553 (Fla. 3d DCA 1972).

Affirmed.


author: GREEN, OLIVER L„ Jr., Associate Judge.

text:
    Virginia DARBY, Appellant, v. Aaron L. SHEFFER and Liberty Mutual Insurance Company, Appellees. Virginia DARBY, Appellant, v. Aaron L. SHEFFER, Appellee.
    Nos. 83-1375, 83-1903.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Ralph L. Flowers, Fort Pierce, for appellant.
    Robin L. Blanton of Moss, Henderson & Lloyd, P.A., Vero Beach, and Marjorie Ga-darian Graham of Jones & Foster, West Palm Beach, for appellees.
   GREEN, OLIVER L„ Jr., Associate Judge.

This is an appeal from a Final Judgment and an Order Taxing Costs in favor of Appellee, Aaron L. Sheffer, defendant below, in a personal injury action arising out of an automobile accident. We reverse for a new trial with directions.

The accident giving rise to this action occurred on February 25, 1981. The appellant, plaintiff below, was, for the period material to this lawsuit, entitled to join the appellee defendant’s insurer, Liberty Mutual Insurance Company, as a party.

Appellee acknowledges that it was error for the trial judge to drop the insurer, Liberty Mutual Insurance Company, as a party; however, it is contended that this ruling is harmless error. Appellee contends that the jury was made aware that the appellee was insured. We have reviewed the record and while it is true this information seeped into the trial by innuendo, the insurer’s legal standing with reference to the trial was never made clear to the jury, and the fact of the insurer not being a party was reflected by omission on the verdict form.

Appellee contends that none of the case authorities on this point resulted in reversal of a Final Judgment rendered after dismissal of the insurance carrier as a party. ’ We find this result to be happenstance. It was appellant’s right to join the insurer as a party and we do not know how one would articulate prejudice under the circumstances of this case. Van Bibber v. Hartford Accident & Indemnity Ins. Co., 439 So.2d 880 (Fla.1983); Carlson v. Kent Ins. Co., 445 So.2d 677 (Fla. 4th DCA 1984); City of Miami v. United States Fidelity & Guaranty, 444 So.2d 571 (Fla. 3d DCA 1984).

Error was also committed in the course of the trial when the trial judge directed a verdict for appellee on the issue of damages relating to appellant’s alleged lumbar injury and sciatic pain. A review of the record shows there is competent medical evidence that the appellant sustained lumbar injuries as a result of the subject accident, which may have aggravated a pre-existing condition. This evidence was presented through the testimony of two medical doctors, one of whom testified that the plaintiff had a 5% physical impairment or disability due to her “chronic servi-eal [sic] and lumbar strain syndrome ....”

There is also evidence upon which the jury could conclude that the appellant’s low back condition resulted entirely from a preexisting injury. In any event, the appellant was entitled to have the disputed issue resolved by the jury.

We have considered the remaining points raised by the appellant and determine that it is not necessary to rule thereon inasmuch as this case is being returned for a new trial. The order awarding costs in favor of the appellee is likewise reversed. The issue of costs may be a matter for consideration by the trial judge upon conclusion of the new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

WALDEN and BARKETT, JJ., concur.


author: DOWNEY, Judge

text:
    Mark HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1590.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.

      Patrick C. Rastatter of Glass, Rastatter & Tarlowe, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.

      . We express no view on the propriety of arguing intoxication as a defense to one charge and lack of intoxication as a defense to another charge under the circumstances of this case.

   DOWNEY, Judge

This is an appeal from judgments of guilty of battery on a law enforcement officer, driving under the influence of alcohol, and unlawful blood alcohol, entered pursuant to a verdict, and concurrent sentences of ten months, three months, and thirty days.

Evidence most favorable to the verdict reflects that at about 4 a.m. on June 27, 1982, Clinton Nye, then a deputy sheriff assigned to road patrol for the Broward County Sheriff’s Department, saw a car with appellant at the wheel go across two lanes of Broward Boulevard in Fort Laud-erdale and hit the median between the east and west bound lanes. Nye stopped the car," administered roadside tests, arrested appellant, handcuffed him, and put him in a sitting position on the back seat of Nye’s patrol car for transportation to the Pembroke Pines Substation for a breathalyzer test. On the way, appellant lay down on the seat and attempted to kick out the left rear window of the police vehicle. After the second kicking Nye felt that appellant, who was a large person, would cut his leg; and if his foot went out the window he would damage himself and the vehicle. Nye pulled over and called for backup because appellant attempted to kick out the window on the door. Nye intended to open the door and flexcuff appellant’s feet together. When Nye opened the door, appellant lunged out of the vehicle, hit Nye, and tried to run. Nye tackled him and there was a struggle. Appellant kicked Nye directly in the groin, inflicting pain. Deputy Feder arrived on the scene and assisted Nye in placing flexcuffs on appellant’s feet.

The breathalyzer test revealed that appellant had a blood alcohol reading of 0.15. However, appellant testified he had had only two beers with dinner and one drink in a bar around 3:30 a.m. He claimed that Nye beat him without provocation and his leg might have hit Nye’s body, but he was not aiming to do that. He never intentionally kicked Nye.

The information filed in this case contained three counts: 1) battery on a law enforcement officer; 2) driving while under the influence of alcoholic beverages to the extent his normal faculties were impaired; 3) driving a vehicle while having a blood alcohol level of 0.10 percent.

Appellant filed two pretrial motions to sever the felony count from the two misdemeanor counts because they “were not based upon the same occurrence, connecting acts or transaction, and therefore, not triable in the same court.” Those motions were denied. Later, appellant filed a motion for new trial on grounds having to do with denial of speedy trial motions.

On appeal Hamilton argues again that the charges were improperly joined because the battery charge was a felony and the alcohol charges were misdemeanors, and that the battery charge did not arise from and was unrelated to the alcohol charges. In addition, Hamilton for the first time asserts a defense of mutual contamination of the joinder of the several counts. He now contends that he was prejudiced by the denial of severance because he could have argued intoxication as a defense to the battery count. However, to have argued intoxication on the battery count would have demonstrated guilt to the other counts; Hamilton says he was “caught between a rock and a whirlpool.”

The grounds of a motion must be presented in the trial court and they must be specific so the trial judge can appreciate the problem being presented. Steinhorst v. State, 412 So.2d 332 (Fla.1982). The only ground for severance presented to the trial court was the lack of relationship between the battery and alcohol offenses. Therefore, because appellant failed to preserve the objection argued here, it is waived and no reversible error is demonstrated on that part of the second appellate point. Absent the question of prejudice from mutual contamination, we hold the joinder in this case was not objectionable because the offenses were based on connected acts or transactions as provided in Florida Rule of Criminal Procedure 3.151(a). Appellant was arrested for DUI and was in the process of being taken to a substation to have a breathalyzer test administered when he perpetrated the battery on the officer.

Appellant also contends the trial court erred in refusing to give his requested instruction on self defense. Without determining whether self defense is an appropriate instruction to the charge of battery on a law enforcement officer, we hold that neither the pleadings nor the evidence in this case supports such a defense. Appellant either denied kicking the officer or contended that any kicking was unintentional.

In view of the foregoing, we affirm the judgment and sentence appealed from.

LETTS and WALDEN, JJ., concur.


text:
    Willie J. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1598.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.

      Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the convictions of first degree murder, robbery with a firearm and burglary with assault. Since we find the evidence sufficient to support a finding by the jury that appellant had acted with premeditation, we do not find Stale v. Pinder, 375 So.2d 836 (Fla.1979) applicable. Accordingly, the convictions are affirmed.

AFFIRMED.

DOWNEY, DELL and BARKETT, JJ., concur.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    Allen BERGLIN and Celia Berglin, his wife, Appellants, v. ADAMS CHEVROLET, Appellee.
    No. 83-2415.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Jeff Tomberg, Tomberg & Tomberg, P.A., Boynton Beach, for appellants.

      James C. Barry, Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for ap-pellee.
   GREEN, OLIVER L., Jr., Associate Judge.

This is an appeal by Allen Berglin and Celia Berglin, his wife, plaintiffs below, from a Final Summary Judgment rendered in favor of Adams Chevrolet, defendant below, in a personal injury action alleging willful negligence. We reverse.

The facts are that Allen Berglin was a crime scene investigator for the City of Delray Beach Police Department. He was summoned to the premises of Adams Chevrolet to investigate a burglary. The manager (also referred to as foreman) of Adams Chevrolet and another Delray Beach Police Officer, who was also there, were aware that an overhanging garage door, apparently damaged in the burglary, was in a precarious position as it was off a supporting roller track. The manager testified by deposition that he warned the appellant of this dangerous condition. The appellant’s fellow officer testified by deposition that he was aware of the dangerous condition, but he does not recall if he mentioned this to appellant.

Appellant testified by deposition that the manager did not point out the dangerous condition and further stated as follows:

Q Are you telling me you didn’t know it was off the track?
A I didn’t know it was off the track.
Q And you’re telling me that the other officer on the scene that knew it was off the track didn’t tell you?
A Nobody told me the door was off the track.
Q Okay. So tell me what happened.
A The two guys lowered the door down. I went over to the door. I took pictures of the hole. I dusted for fingerprints. Now, the door was about chest high or a little bit higher so I could work on it. As I was going to write notes, I ducked under the door and at the same time I put my hand on the door to raise it up a little bit higher to go outside. I went outside and I was standing there and I started hearing people yell behind me, which I don’t pay that much attention to people yelling anyway. The next thing I knew is I heard all this noise and the door came down and it hit me and pushed me about a foot away from it. So I was sitting there cussing and swearing because I got hit by the door, which you know, is kind of dumb in the first place.
And the foreman came around and he says, “I was afraid” — and I remember he says, “I was afraid to come around here and see what you looked like.” I said, “Why?” He said, “Well, that big a door falling on top of somebody,” he says, “I -thought you were dead.” I said, “No. It hit me,” I said, “but no problem.”

We are not dealing with an issue as to whether appellant is entitled to recover solely because of a dangerous condition of the premises. The appellant occupied the status of a licensee on the premises of the appellee. Adams Chevrolet was obligated to refrain from wanton negligence or willful conduct which would injure the appellant and to warn him of any defect or condition known to the defendant to be-dangerous if such danger was not open to ordinary observation by the plaintiff. There are disputed issues upon which a trier of fact could conclude that the appel-lee breached this duty to the appellant. Whitten v. Miami Dade Water and Sewer Authority, 357 So.2d 430 (Fla. 3d DCA 1978); Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976).

REVERSED and REMANDED.

WALDEN and BARKETT, JJ., concur.


text:
    STATE of Florida, Appellant, v. Ransel DAVIS, Appellee.
    No.. 83-2485.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the order discharging Ransel Davis from criminal prosecution because of a speedy trial violation upon authority of Florida Rules of Criminal Procedure 3.191 and Giglio v. Kaplan, 392 So.2d 1004 (Fla. 4th DCA 1981), State v. Breedlove, 400 So.2d 468 (Fla. 4th DCA), pet. for rev. den., 402 So.2d 608 (Fla. 1981).

We further point out that placing a de-tainer on a defendant who is in custody in another jurisdiction based on unrelated charges does not trigger the running of the speedy trial rule. Perkins v. State, 457 So.2d 1053 (Fla. 1st DCA 1984), State v. Lazarus, 433 So.2d 1314 (Fla. 2d DCA 1983), and Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982).

Reversed.

DOWNEY, LETTS and WALDEN, JJ., concur.


text:
    Henry Kurt KETTLEHUT, Appellant/Cross-Appellee, v. Polly A. TARNEY, f/k/a Polly A. Kettlehut, Appellee/Cross-Appellant.
    No. 83-2579.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.

      Jerald A. Goldstein, Boca Raton, for appellant/ cross-appellee.
    Donald M. Van Dusen, Boca Raton, for appellee/cross-appellant.
   PER CURIAM.

This is an appeal and cross appeal from an order modifying a final judgment of dissolution of marriage. We find no error and affirm, but feel we should comment on one point raised by the appellant-former husband.

The children of the parties are minors and reside primarily with the former husband, and he contends that the trial court abused its discretion in deciding not to require the former wife to make child support payments. This was not an abuse of discretion under the facts of this case, and we further observe that it likewise would not have been an abuse of discretion if the circumstances and the abilities of the parties to support the children had been reversed and the court had declined to award a former wife child support from a former husband.

ANSTEAD, C.J., and DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Stephen J. GOODSTEIN, individually and as parent and natural guardian of Brian Scott Goodstein, Appellant, v. GARY FRONRATH CHEVROLET, INC., a Florida corporation and William Scott Cronin, Sr., individually and as parent and natural guardian of William Scott Cronin, Jr., Appellees.
    Nos. 84-107, 84-356.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1984.
    Gregg W. McClosky of Ruden, Barnett, McClosky, Schuster & Russell, Fort Laud-erdale, for appellant.
    Tom Robertson of Merritt, Sikes & Craig, Miami, for appellees.
   PER CURIAM.

There was a collision between an automobile operated by William Cronin, Jr., and a bicycle ridden by nine-year-old Brian Good-stein. A negligence action ensued with comparative negligence being asserted as an affirmative defense.

It appears that the accident happened in the daytime during a heavy rainfall. Good-stein was riding his bicycle on the sidewalk. His way was blocked by a parked car in a driveway whereupon Goodstein went around the parked ear and into the street and was struck by Cronin. There were trees in the swale between the sidewalk and the road.

The trial court directed a verdict in favor of Cronin (and the other defendants). We reverse and remand for a new trial.

The standards to be applied in directing a verdict are well known and do not need repeating. See Echols v. Hammet Company, Inc., 423 So.2d 923 (Fla. 4th DCA 1982), pet. for rev. den., 434 So.2d 887 (Fla.1983); Tesher & Tesher v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). Here there were conflicts and inferences in the evidence such as whether Cronin applied his brakes soon enough, whether he was sufficiently observant, and whether he acted as a reasonably prudent person under the circumstances so as to preclude entry of a directed verdict. We reverse in order that a jury may make the determinations upon authority of Miami Paper Co. v. Johnston, 58 So.2d 869 (Fla.1952); McQueen v. Atlantic Truck Service, Inc., 215 So.2d 325 (Fla. 1st DCA 1968); Mathis v. Lambert, 274 So.2d 601 (Fla. 3d DCA 1973); and Bilams ¶. Metropolitan Transit Authority, 371 So.2d 693 (Fla. 3d DCA 1979).

Reversed and remanded for a new trial.

DOWNEY, LETTS and WALDEN, JJ., concur.