text:
    Thomas LAQUER and Linda Laquer, as beneficiaries and trustees of Tel Management Corporation D.B. Pension Plan, Petitioners, v. SMITH, BARNEY, HARRIS, UPHAM & CO., INC., a foreign corporation, and Jay Cantor, Respondents.
    No. 83-1220.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 6, 1984.
    Horton, Perse & Ginsberg and Arnold Ginsberg and Jack E. London, Miami, for petitioners.
    Ruden, Barnett, McClosky, Schuster & Russell and Bennett Falk and Keith Olin, Miami, for respondents.
    Before BARKDULL and HUBBART and JORGENSON, JJ.
   PER CURIAM.

The petition for a writ of certiorari is granted and the order under review is quashed insofar as said order directs the parties to proceed to arbitration in this cause. Young v. Oppenheimer & Co., 434 So.2d 369 (Fla. 3d DCA 1983); Shearson, Hammill & Co. v. Vouis, 247 So.2d 733 (Fla. 3d DCA), cert. denied, 253 So.2d 444 (Fla.1971). The petition for a writ of cer-tiorari is denied, however, as to that portion of the order under review which dismisses count VI of the complaint, as the petitioner has a full and adequate remedy by appeal from the final judgment when entered in this cause. See Brooks v. Owens, 97 So.2d 693, 695 (Fla.1957). The cause is remanded, for further proceedings below.

It is so ordered.


source: Caselaw Access Project

author: JORGENSON, Judge.

license: Public Domain

text:
    Booker T. RICE and Elizabeth Rice, his wife, Appellants, v. Michael CAMPISI, Frank Gliozzo, and Joseph Campagno, Appellees.
    No. 83-1460.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 6, 1984.
    Ferdie & Gouz and Ainslee Ferdie, Coral Gables, for appellants.
    Frank X. Gliozzo, Coral Gables, for ap-pellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

The Rices, the plaintiffs in a mortgage foreclosure action, appeal an adverse final judgment. Given the extraordinary circumstances of this ease we find that the trial court did not err in denying acceleration and, therefore, affirm. We reverse, however, the trial court’s denial of costs and fees.

Campisi, Gliozzo and Campagno, the appellees, made their mortgage payments, which were due on the first day of each month tempered by a fifteen-day grace period, successfully and timely by mail to the same address for twenty consecutive months. On the twenty-first month, however, at the end of the month, the payment check was returned by the postal service to the appellees, the envelope bearing the same address as the twenty previous envelopes but with an indication that it had been delivered to the wrong address. The appellees tried, unsuccessfully, to contact the Rices by telephone and soon thereafter received notice of the instant foreclosure proceeding. A subsequent mailing of the payment check by certified mail to the same address was successful, but the check was returned by the Rices’ lawyer.

Our affirmance of the trial court’s refusal to foreclose is not based upon the narrow doctrine of estoppel (sometimes referred to as implied waiver) relied upon in Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929), and subsequent cases, see, e.g., Koschorek v. Fischer, 145 So.2d 755 (Fla. 2d DCA 1962). This is not a case, for instance, where the mortgagor reasonably inferred from the mortgagee’s passive acquiescence to previous late payments that an additional late payment would not result in acceleration, therefore empowering the court, because of the mortgagor’s reliance, to estop the mortgagee from foreclosing. The Rices had done nothing in the past to inculcate in the appellees’ minds a belief that they could be tardy with impunity. Indeed, there is no indication that the appellees were tardy.

Our affirmance flows from the broader equitable considerations recognized in River Holding Co. v. Nickel, 62 So.2d 702 (Fla.1952), Lieberbaum v. Surfcomber Hotel Corp., 122 So.2d 28 (Fla. 3d DCA 1960), Overholser v. Theroux, 149 So.2d 582 (Fla. 3d DCA 1963), and La Boutique of Beauty Academy, Inc. v. Meloy, 436 So.2d 396 (Fla. 2d DCA 1983). If the payment in the present case was late, its tardiness was beyond the control and knowledge of the appellees; they should not, therefore, be made to bear the penalty of acceleration. In so holding we do not recede from the sound public policy contained in Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970), we merely distinguish this case upon its extraordinary facts and the equitable principles espoused in the cited cases.

There has been no showing, however, that the Rices’ foreclosure action, though unsuccessful by application of equitable principles, was not prosecuted upon a good faith belief that the appellees were responsible for the default. We therefore reverse the denial of contractual costs and fees and remand for an award of costs and fees reasonable in light of the ultimate resolution of this case. See Schechtman v. Grobbel, 226 So.2d 1 (Fla. 2d DCA 1969).

Affirmed in part, reversed in part and remanded.


author: SCHWARTZ, Chief Judge.

text:
    John ASNIP, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, a foreign corporation, Appellee.
    No. 83-1502.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 4, 1984.

      Bunnell, Denman & Woulfe and Melanie G. May, Frank & Flaster, Fort Lauderdale, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

Asnip was driving a non-owned Ford insured by Hartford, following a vehicle driven by Johnson, when Johnson’s car broke down and he pulled to the side of the road. Asnip parked behind him. Johnson checked under his hood and then walked back to Asnip’s car. Asnip got out of his vehicle and was leaning against it talking to Johnson when he was struck and injured by a hit-and-run motorist. The trial court entered a declaratory judgment that Hartford’s policy did not provide uninsured motorist or personal injury protection coverage on the ground that Asnip was not “occupying” the vehicle when he was struck. We reverse upon the completely opposite conclusion that, as a matter of law, he was.

The policy definition of an “insured” entitled to UM and p.i.p. coverage includes “[ajnyone ... occupying a covered auto.” The term, “occupying,” is, in turn, defined as “in, upon, getting in, on, out or off” a vehicle. Particularly applying, as required, the most expansive definition of the expression reasonably possible to achieve coverage, M.E. Charlesworth, Ltd. v. Perez, 426 So.2d 1107 (Fla. 3d DCA 1983) — in fact, without the aid of this tool of construction — it seems clear that Asnip was, at the least, “upon” the car and was therefore “occupying” it when the accident occurred. The well-reasoned decision in Nickerson v. Citizens Mutual Ins. Co., 393 Mich. 324, 224 N.W.2d 896 (1975) so holds on facts which closely resemble but which, if anything, are more attenuated than these because the putative insured, who had exited a stalled vehicle, was, unlike Asnip, not in physical contact with it at the time of the accident. Indeed, when contact exists, the cases invariably hold that that fact is alone sufficient to render the claimant an occupant. Motor Vehicle Accident Indemnification Corp. v. Oppedisano, 41 Misc.2d 1029, 246 N.Y.S.2d 879 (Sup.Ct.1964) (person pushing vehicle off the road held to be an occupant); Lumberman’s Mutual Casualty Co. v. Norris, 15 Ill.App.3d 95, 303 N.E.2d 505 (1973) (person standing at the side of the car holding onto the side view mirror held to be an occupant); see also Manning v. Summit Home Insurance Co., 128 Ariz. 79, 623 P.2d 1235, 1238 (1980); Lokos v. New Amsterdam Casualty Co., 197 Misc. 40, 93 N.Y.S.2d 825 (Mun.Ct.1949), aff'd, 197 Misc. 43, 96 N.Y.S.2d 153 (Sup.Ct.1950) (person standing behind vehicle held to be “occupying” it).

The present conclusion is mandated also by Industrial Fire & Casualty Co. v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1080 (Fla.1976) in which this court held that an individual changing a tire on a vehicle was “occupying” it even under a policy exclusion which, in contrast to coverage, must be narrowly construed. On the other hand, Fidelity & Casualty Co. of New York v. Garcia, 368 So.2d 1313 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 344 (Fla.1979) upon which the trial court and Hartford have heavily relied, is not on point. Garcia held only that a passenger who had gotten out of a truck and walked to and across its front Jn the direction of her home was no longer “alighting from” it for coverage purposes. The line of cases which is also cited by the appellee and which is exemplified by Reynolds v. Allstate Ins. Co., 400 So.2d 496 (Fla. 5th DCA 1981), Novak v. Government Employees Ins. Co., 424 So.2d 178 (Fla. 4th DCA 1983); and Stonewall Ins. Co. v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980), is even more inapposite. These decisions do not concern the present issue of the insured status of a given claimant, but rather the totally distinct one of whether a particular accident arises from the “ownership, maintenance, or use” of a liability-insured vehicle, or its functional equivalent, the one driven by an uninsured motorist. See Brown v. Progressive Mutual Ins. Co., 249 So.2d 429 (Fla.1971). Here, there is no doubt that Asnip was hurt by the “use” of the phantom, hit-and-run car.

For these reasons, the judgment below is reversed for further proceedings consistent herewith, including consideration of Hartford’s remaining policy defense.

Reversed.


author: PER CURIAM.

text:
    ARGOS RESOURCES, INC., William D. Brosseau and Argos Resources, Inc., and William D. Brosseau d/b/a Argos Resources, Inc. 1981-1 Partnership, a Texas general partnership, Appellants, v. Robert L. MERRITT, Appellee.
    No. 83-1773.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 6, 1984.
    Scott A. Henderson, Dallas, Tex., for appellants.
    Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey and C. Randolph Coleman and Richard H. Critchlow, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

The sole point for our consideration in this appeal is whether the trial court erred in denying appellants’ motions to quash service of process, to dismiss for insufficiency of service of process and to dismiss for lack of personal service.

Our review of the record on appeal and the briefs fails to show that the trial court erred in its ruling denying the motions to dismiss. See Castellanos v. Hialeah-Miami Springs First State Bank, 330 So.2d 100 (Fla. 3d DCA), cert. denied, 341 So.2d 1080 (Fla.1976); Allstate Insurance Co. v. Royal Guardian Insurance Co. of Canada, 314 So.2d 14 (Fla. 4th DCA 1975).

The record clearly demonstrates that the order appealed should be affirmed upon the grounds that the service was legally sufficient under both section 48.161, Florida Statutes (1981), see Cortez Development Co. v. New York Capital Group, Inc., 401 So.2d 1163 (Fla. 3d DCA 1981), and section 48.181, Florida Statutes (1981), see Horace v. American National Bank and Trust Co. of Fort Lauderdale, 251 So.2d 33 (Fla. 4th DCA 1971).

Affirmed.


author: WALDEN, Judge.

text:
    Donna MULHERN, Appellant, v. Russell J. MULHERN, Appellee.
    No. 82-1681.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 4, 1984.
    Alan S. Fishman of Scherer, Fishman & Carlton, Fort Lauderdale, for appellant.
    R.E. Conner, Plantation, for appellee.
   WALDEN, Judge.

This is an appeal from a dissolution of marriage judgment. It involves the interpretation and application of an ante nuptial agreement. Appellant is the former wife and appellee is the former husband.

The agreement, prepared by the husband’s attorney, materially provided:

1. A waiver of attorneys fees and costs by the wife.
2. All such obligations of and payments by HUSBAND shall terminate conclusively and forever upon the first occurrence of the death or the remarriage of WIFE or her residing with an adult male other than a blood relative, (emphasis supplied)

The trial court did two things which form the focal points of this appeal:

1. In a post judgment proceeding the wife’s application for attorney fees was denied in toto based solely upon the waiver found in the agreement.

2. In the final judgment it was found:

7. The parties are in agreement that the intention of the alimony provision contained in the aforementioned agreement is that any payment to be pro-rated to provide only for the period of time between the parties separation and residency by the wife with a male not a blood relative.

And adjudged:

5. The Husband, pursuant to the terms of the ante Nuptial Agreement, shall pay to the Wife the sum of $8,726.60, which represents 106 days from the date of the separation of the parties until the date the Wife commenced residency with a male other than a blood relative.

Denial of Attorneys Fees

We hold that the denial of attorney fees based solely on the agreement waiver was reversible error. In our opinion the trial court should have adjudicated the issue, without bar of the agreement, considering all the usual pertinent criteria such as the respective financial circumstances of the parties, that is to say, the need of the wife and the ability of the husband to pay. It is basic that the purpose of awarding attorney fees is to place the spouses on a financial parity for the prosecution or defense of the dissolution action.

As we understand it, the rule in Florida as provided by Belcher v. Belcher, 271 So.2d 7 (Fla.1972) is that, regardless of a waiver or limitation provided in a marital contract, a husband’s obligation of support, to include his obligation to pay attorney fees, suit money, and costs continues while the parties are still married, that is to say, until the moment the marriage is actually dissolved by final judgment. Of course, the agreement may be considered in the event it provides other financial support or assets to the wife pendente lite insofar as it may bear on the equation of the wife’s need vs. the husband’s ability.

More specifically, Belcher v. Belcher, supra, at page 9 provides:

For temporary support, suit money and temporary attorney’s fees, the State remains an interested party and cannot be excluded by contract during this period of continuance of the legal relationship of husband and wife. Contracts are made in legal contemplation of existing) applicable statutes and so it is that marriage contracts and any ante or post-nuptial contracts are entered into subject to then existing law, including the law of this state that makes a husband responsible for the support of his wife while she is married to him.

Continuing, the application for such fees may be made before or after judgment so long as the claim and award are limited to services rendered prior to entry of judgment. We believe that the only distinction between a pre-judgment application could be that, if the agreement is adopted and it provides assets or income to the party mov-ant, an application post judgment may present a different financial picture. When the application is made pre-judgment it will not be known if the agreement will be approved and hence any post judgment provision for the movant cannot be considered in an assessment of the respective finances.

We reverse the order denying attorney fees upon the authority of Belcher v. Belcher, supra, and Young v. Young, 322 So.2d 594 (Fla. 4th DCA 1975) and remand for further proceedings consistent herewith.

Termination of Husband’s Obligations By Reason of The Wife’s Residency With a Male Other Than a Blood Relative.

As a preliminary, we would have been disposed to hold from the whole language of the agreement and our construction of it that such habitation prior to final judgment and adoption of the agreement would be of no moment. However, the parties, according to the court’s recital, agreed that the agreement would be operable beginning with the separation of the parties, and here the parties have not contended otherwise. Thus, we use that time frame and look only to see if the wife did reside post separation with an adult male other than, a blood relative within the contemplation of the agreement.

We pause to note, since we did not choose to incorporate here the whole agreement, that the agreement did not provide definitions, guidelines, criteria or any other specific insight as to what the parties intended by the words “residing with” an adult male other than a blood relative.

We have examined all the testimony on this issue and at most, in support of the judgment, it appears that the Wife spent the night, or a part of a night, at Mr. Salerno’s apartment somewhere between five and thirteen times following separation and prior to final judgment. The separation took place around September 17, 1981, and the judgment was entered on June 24, 1982. The Wife testified that she stopped seeing Mr. Salerno on January 22, 1982, and there is no counter indication in the record. The final hearing took place in June of 1982.

The Wife had an apartment following separation, which had no relationship to or with Mr. Salerno, where she and her son resided. There is no testimony, with reference to the Salerno apartment, that the Wife kept her clothing there, other than the possibility that she changed into an evening gown there on New Year’s Eve. There is no testimony that she ate or prepared meals there. There is no testimony that she maintained a telephone or mail listing there. There is no testimony of any other use or intendment on the part of the Wife normally considered as indicia or criteria in determining residence or where a person resides.

An ante-nuptial agreement does not differ from other agreements and it should be construed and interpreted in the same manner as other contracts. Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940); Bergman v. Bergman, 145 Fla. 10, 199 So. 920, as modified (1940); Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Sosnowitz v. Sosnowitz, 342 So.2d 524 (Fla. 3d DCA 1977), cert. denied 352 So.2d 174 (Fla.1977). Moreover, the applicable standard of contract interpretation is one which is realistic, based upon the contract's plain meaning, unless the context of the contract demonstrates the parties' intention that a different meaning be given. Bergman v. Bergman, supra.

A myriad of cases have been suggested and found which deal with residing. However, they are specialized with reference to statutory interpretation, taxation, homestead, right of suffrage, divorce jurisdiction, limitations of actions, legal residence, domicile, and the like. We feel that such cases have no meaningful bearing on the instant problem.

We think that the contract provision should be given its common sense everyday meaning and we, therefore, look for dictionary help.

Both parties cite Black’s Law Dictionary, 3rd Edition, at page 1543:

A distinction is recognized between legal and actual residence. A person may be a legal resident of one place and an actual resident of another. He may abide in one state or country without surrendering his legal residence in another if he so intends. His legal residence may be merely ideal, but his actual residence must be substantial. He may not actually abide at his legal residence at all, but his actual residence must be his abiding place. Tipton v. Tipton, 87 Ky. 248, 8 S.W. 440; Hinds v. Hinds, 1 Iowa, 36; Fitzgerald v. Arel, 63 Iowa, 104, 18 N.W. 713, 50 Am.Rep. 733; Ludlow v. Szold, 90 Iowa, 175, 57 N.W. 676.
RESIDENT. One who has his residence in a place. The term is an elastic one and may mean a person who is domiciled at a place, or a citizen, or merely one who is temporarily living at a place, or carries on business there. U.S. v. Gronich (D.C.) 211 F. 548, 550; Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 40 S.Ct. 228, 232, 64 L.Ed. 460.

Black’s Law Dictionary, Revised Fourth Edition, offers the following definitions at page 1473:

RESIDENCE. A factual place of abode. Living in a particular locality. Reese v. Reese, 179 Misc. 665, 40 N.Y.S.2d 468, 472; Zimmerman v. Zimmerman, 174 Or. 585, 155 P.2d 293, 295. It requires only bodily presence as an inhabitant of a place. In re Campbell’s Guardianship, 216 Minn. 113, 11 N.W.2d 786, 789.

Looking back to the words of the restriction, Mr. Salerno was an adult male other than a blood relative. So, the neat question is, did the Wife reside with him. We think not. It appears that the Wife had a romantic relationship and that she dated Mr. Salerno for a short period, during which time she spent a few nights at his apartment. We do not equate this as “residing with.” We cannot recite every hypothetical set of facts where such a restriction would apply. Suffice it to say, it would take a showing substantially greater than the ease at hand. It would not embrace episodic sexual or romantic liaisons, without more. Had the Husband intended otherwise, such could have been included in the agreement. We reverse the finding that “The Wife, during the early part of 1982, resided with a male not a blood relative” and the consequent limitation upon the Wife’s entitlement to payments under the agreement.

The remaining points are deemed to lack merit.

We reverse and remand for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY and LETTS, JJ., concur.


text:
    William FOX, Appellant, v. Ronald JONES, et al., Appellees.
    No. 82-1895.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 4, 1984.
    Mark Krasnow, Miami, for appellant.
    James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for appellees —Christiansen, Jacknin & Myers, Jay R. Jacknin and James Rich.
    Sherry L. Cooper of the Law Office of Charles R.L. White, Jupiter, for appellee— Charles R.L. White.
    J. Burke Culler, Jr., of Adams, Coogler, Watson & Merkel, West Palm Beach, for appellee — Ronald E. Jones.
   PER CURIAM.

Despite inconsistencies between the complaint and exhibits attached to the complaint we are of the view that Count III states a cause of action. Thus, we reverse the final judgment with instructions to reinstate the action to this limited extent. We affirm dismissal of the other counts.

REVERSED IN PART; AFFIRMED IN PART; REMANDED.

DOWNEY, LETTS and HERSEY, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    In re The ESTATE OF Myer G. BAER, Deceased.
    Nos. 83-64, 83-180.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 3, 1984.
    Edna L. Caruso, West Palm Beach, and Martin F. Avery, Jr., Fort Lauderdale, for appellant, Melvin Cherwin.
    Sheldon H. Hoffman, Hollywood, for ap-pellees, Charlotte Baer and Frances Sterns.
    Minervino Rodriguez, Jr., of Mills & Rodriguez, P.A., Miami, for appellee, Victor Baer.
   GLICKSTEIN, Judge.

Here we have a testator who excluded most of his siblings in two successive wills. Because the able trial court concluded that the circumstances of this case compelled application of the laws of intestacy, those siblings will, if the decision stands, receive the bulk of his testamentary estate. The trial court saw that the result might be unjust, but concluded there was no legitimate way to avoid it. We believe there is.

We are concerned only with the second of the two wills, which was executed in 1980. The 1980 will was admitted to probate; but the testator’s brother (who had been left $1.00 by the 1974 will and nothing by the present one), joined by two sisters, petitioned to revoke the will on the ground that the revocable pour-over trust incorporated by reference in the will, and to which the testator’s estate was to fall, had been entirely revoked. The trial judge agreed that the trust had been revoked; and we believe that while there is room for disagreement, there is enough evidence not to disturb this finding.

But the law abhors intestacy. We believe that if the testator in this case had been told that his act of revocation of the trust was going to occasion intestacy and make all his siblings his heirs in equal shares, he would have undertaken immediately to remedy that anomalous situation, so antithetical to his expressed testamentary wishes.

Accordingly, we conclude that the testator had set up a testamentary plan in the will by the use of both instruments— the will and the revocable pour-over trust. The instruments had been drawn when he was thought to be at death’s door. The testator revoked the inter vivos trust when he felt well enough to manage his own affairs. Surely he did not intend to leave a will that did nothing but designate a personal representative. All of the circumstances surrounding the revocation of the trust point to incorporation of its disposi-tive provisions into the will by reference, notwithstanding the loss of force of the trust instrument standing alone. In Fifth Third Union Trust Company v. Wilensky, 79 Ohio App. 73, 70 N.E.2d 920 (1946), the court said:

Is the testator to be deprived of the complete testamentary disposition which he had so painstakingly made in the trust agreement merely because he saw fit to remove the $500 from the trustee and determine the living trust features? No basis in logic or rules of construction require such a result.
A deed, a contract, or any other instrument may be incorporated in a will by reference, and its térms employed as testamentary clauses, although such instrument may have lost its force as to the peculiar original purpose of the document.

Id. at 78-79, 70 N.E.2d at 922.

Section 732.512(1), Florida Statutes (1981), provides:

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Here, we hold the terms of the trust were incorporated in the will by reference as an integral part of the will; and that, in the absence of evidence that the testator clearly manifested a contrary -intention, they continued to set forth the testator’s distribution plan even though the former had lost its independent legal significance.

We reverse those portions of the trial court’s order which by implication hold that the pour-over trust’s distribution scheme was no longer incorporated in the testator’s will when the trust was revoked, but is superseded by the laws of intestacy. The case is remanded so that the trial court may issue an order consonant with this opinion.

HURLEY, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: LETTS, Judge.

text:
    COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF the PALM BEACHES, Appellant, v. Richard G. ORMAN and Joyce W. Orman, his wife; First American Bank of Palm Beach County; and Wilcox Gallery of Homes, a Florida corporation, Appellees.
    No. 83-639.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 4, 1984.

      Freeman W. Barner, Jr., of Cromwell & Remsen, Riviera Beach, for appellant.
    Ronald Sales of Sales & Weissman, P.A., and Edna L. Caruso, West Palm Beach, for appellees.
   LETTS, Judge.

This appeal arises from a trial judge’s dismissal of a suit to foreclose a mortgage, brought by an institutional lender against two co-tenants admittedly in default at the time of acceleration. However, the final judgment in favor of said co-tenants also required them to reimburse the lender for all costs, fees, late charges and accrued interest. We affirm.

Substantial and competent evidence within the record of this nonjury proceeding, albeit disputed, supports the following scenario: the divorced borrowers owned the subject residence, in which the ex-wife resided, as tenants in common. Since 1974 the ex-wife had religiously made all the payments on this 8V2% mortgage, but in 1981 another judge, who had presided over their marriage dissolution, ordered the ex-husband to assume that burden which he did for several months. Thereafter the next three monthly checks, signed by the ex-husband and drawn by his bookkeeper were never sent to the institutional lender. Without any knowledge on the part of either the ex-husband or the ex-wife, the bookkeeper embezzled the ex-husband’s funds in a sum at least equivalent to the mortgage checks. Likewise, the initial notices of non-receipt of payments and of default were not received by either co-owner because the same dishonest bookkeeper was receiving the mail and concealing it from the ex-husband. As a consequence, the note was in default and mortgage foreclosure proceedings commenced accompanied by repeated attempts by the co-owners to bring the loan current.

The slings and arrows of a borrower’s misfortune are normally not enough to defeat the clear legal contractual rights of a lender. Were we to hold otherwise, we might well call a permanent halt to all mortgage lending, for there are innumerable other disasters which can, and do, befall homeowners, each tragedy as poignant as the one before us now. For example, the untimely death of a principle bread winner, the onset of a crippling and monstrously expensive disease, loss of employment and bankruptcy all come immediately to mind — and there must be a host of others. The law then is clear, “[t]he obligation of a mortgagor to pay and the right of a mortgagee to foreclose in accordance with the terms of the note and mortgage are absolute and are not contingent on the mortgagor’s health, good fortune ... or other personal circumstances .... ” Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203, 207 (Fla. 1st DCA 1975).

The above statement of the law speaks in absolutes, but that same case in the very next paragraph makes it clear that there are exceptions in an equitable proceeding such as this. There are many credible decisions that have denied foreclosure, because they would produce unjust, unconscionable or inequitable results, especially if the facts involve some wrongdoing or conduct by the lender inconsistent with foreclosure, thereby giving rise to waiver or estoppel. See Campbell v. Werner, 232 So.2d 252 (Fla. 1st DCA 1970) (note the dicta about the effect of a frustrated intent to pay, at 256); Schectman v. Grobbel, 226 So.2d 1 (Fla. 2d DCA 1969); Bowen v. State, 415 So.2d 142 (Fla. 5th DCA 1982); and Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970).

In the case before us now, the trial court announced it was not suggesting that the lender “did anything but what it should have done.” Yet, it is alleged in the complaint, argued without objection in the trial court and is again reported on appeal that the lender was not demanding foreclosure as the only alternative, but was quite content to reinstate the loan providing the interest rate was bounced from a lowly 8V2 % to 14V2%. However, such behavior by the lender, even if pertinent to this appeal, would not be inconsistent with foreclosure under the facts before us. We cannot expect charity to begin at Home Loan Bank Board chartered institutions. An 8V2% rate is a cross for any lending institution to bear in today’s financial market place and we will not label attempts to raise it during default as misconduct, especially since most borrowers in arrears would be delighted with reinstatement at a higher rate, as an alternative to foreclosure.

Despite all of the foregoing, we are of the opinion that the cumulative effects of the facts and circumstances of this case support affirmance. First of all, the decision of the trial court inevitably comes to us clothed with a presumption of correctness. Second, this is an equitable proceeding and the trial judge’s findings and conclusion comport with fairness and good conscience. Thus, as the Supreme Court noted in Delgado v. Strong, 360 So.2d 73 (Fla.1978), the trial court having exercised its discretion in denying a mortgage foreclosure, it would be error for a district court to reverse it, absent an abuse of discretion. Third, the occasion of an embezzlement by a third party employee is most unusual and compelling. Fourth, one of the co-tenants, who resides on this property, was utterly blameless and could not even be held responsible for the obviously poor choice of bookkeeper. Fifth, and perhaps most important, there is competent substantial evidence in the record to support the theory that both the borrowers were without knowledge of any arrearage for most of the period of the default. Last, there had been a long unblemished record of timely monthly payments.

Looking down the road to the mortgage lending fallout from what we do here today, it must be stressed that this opinion is limited to all of its cumulative facts and circumstances, no one, or less than all, of which should be offered as excuses for failure to meet financial obligations in subsequent cases. Probably a “per curiam affirmed” would best have served the Florida law in this regard; however, while we are not naive enough to suppose the lender will be content with our reasoning, we do believe an explanation was demanded in view of existing law which might indicate a contra result.

AFFIRMED.

HERSEY, J., concurs.

BERANEK, J., dissents without opinion.


text:
    PEPPERIDGE FARM, INC. and Liberty Mutual Insurance Company, Appellants, v. Gerald BOOHER, Appellee.
    No. 83-668.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 3, 1984.
    Lanza, Sevier, Womack & O’Connor, P.A., Coral Gables, and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellants.
    Herbert W. Virgin, III, of Virgin, Whittle & Kray, P.A., and Ira J. Druckman of Ira J. Druckman, P.A., Miami, for appellee.
   PER CURIAM.

We believe the trial court erred in denying the motion for directed verdict of appellant, Pepperidge Farm, Inc., predicated on its affirmative defense that appellee, Gerald Booher, was a special employee of Pep-peridge Farm and that his tort claim was barred by virtue of the availability of workers compensation for the claim. We are unable to perceive any meaningful distinction between the facts of this case and our holding in Hamilton v. Shell Oil Co., 215 So.2d 21 (Fla. 4th DCA 1968). We are particularly influenced also by the Florida Supreme Court’s statement in Shelby Mutual Insurance Co. v. Aetna Insurance Co., 246 So.2d 98 (Fla.1971):

In both the Berrier [v. Associated Indemnity Co., 142 Fla. 351, 196 So. 188 (1939) ] and Stuyvesant [Corp. v. Waterhouse, 74 So.2d 554 (Fla.1954)] cases, there was a definite arrangement made between the general and special employers regarding the employees’ services, and the employees were aware of these arrangements.

Id. at 100. The Supreme Court relied heavily on this distinction in upholding a finding that no special employee status existed in the case under review. We similarly place great reliance on the presence of a definite arrangement between the general and special employers here and the employee’s knowledge thereof.

We acknowledge that our decision is in apparent conflict with the holding in Thornton v. Paktank Florida, Inc., 409 So.2d 31 (Fla. 2d DCA 1981), although arguably the cases could be distinguished by the fact that the agreement between the general and special employers expressly provided that the general employer would be the employer for all purposes. We tend to agree, however, with the dissent of Judge Grimes therein that such a provision is not a valid basis for determining an employee’s status as a special employee. We also acknowledge that our decision is tantamount to a holding that where a general employer in the business of providing temporary help provides compensation coverage to an employee while he is on assignment working for another employer, then that employee is barred from suing his special employer for on-the-job injuries.

Accordingly, we reverse the judgment of the trial court with directions that judgment be entered in accord with this decision.

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


text:
    FLORIDA ATLANTIC ASSOCIATES, a New York Partnership doing business as Village Green Mobile Home Park, and Florida Atlantic Associates, Number Two, a New York Partnership doing business as Village Green West Mobile Home Park, Appellants, v. VILLAGE GREEN FEDERATION UNIT, INC., a Florida non-profit corporation, Appellee.
    No. 83-1078.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 3, 1984.
    Sullivan, Cobb, Sullivan & LaJoie, Vero Beach, and Jane Kreusler-Walsh, and Larry Klein, West Palm Beach, for appellants.
    John T. Allen, Jr., of John T. Allen, Jr., P.A., St. Petersburg, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order temporarily enjoining defendants/appellants from consummating any sales under a condominium concept. We reverse holding that plaintiffs/appellees have not met the requirements of Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980). In so holding, we caution the parties that we are merely ruling on the propriety of the injunction. We do not address any other issues raised by the plaintiffs in their brief.

REVERSED AND REMANDED WITH INSTRUCTIONS TO DISSOLVE THE INJUNCTION.

LETTS, BERANEK and WALDEN, JJ., concur.


author: PER CURIAM. LETTS, Judge,

text:
    Milton PINDER, Appellant, v. PALM BEACH PROWLER, INC., a Florida corporation, Appellee.
    No. 83-1198.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Roy J. Watson of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for appellant.
    Freeman W. Barner, Jr. of Cromwell & Remsen, Riviera Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD, C.J. and HERSEY, J., concur.

LETTS, J. dissents with opinion.

LETTS, Judge,

dissenting:

At least a portion of the trial judge’s order appears to me to be in error. Part of the damages claimed arise from work performed at an hourly rate calculated from a beginning date on which the record reflects the work did not in fact begin. As a consequence, I would reverse and remand.


text:
    The CITY OF MIAMI, the Commission of the City of Miami, and David C. Leahy, Supervisor of Elections of Dade County, Florida, Appellants, v. Wellington ROLLE and Alcides I. De Los Reyes, Appellees.
    No. 84-513.
    District Court of Appeal of Florida, Third District.
    March 9, 1984.
    Jose Garcia-Pedrosa, City Atty. and John J. Copelan, Jr. and Gisela Cardonne, Asst. City Attys., Robert A. Ginsburg, County Atty., and Murray Greenberg, Asst. County Atty., for appellants.
    Jerome S. Reisman, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

The final order under review is affirmed. We agree with the trial court that

“... the time frame required by the Dade County Home Rule Charter, Article 5, Section 5.03, for the placing of a City Charter Amendment on the ballot for its citizens has not been complied with by the CITY OF MIAMI in that Ordinance No. 9776 was not passed and adopted on second and final reading until January 19, 1984, and therefore was not submitted to the electors timely."

Affirmed.

      . This opinion is not to be construed as passing upon the validity of any other provision of the final order under review, except that quoted in this opinion.


author: BASKIN, Judge.

text:
    Josey Wales BALBOA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1416.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Julie Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Prior to trial, Balboa’s counsel invoked reciprocal discovery. The state failed to furnish tape-recorded statements of two witnesses on the ground that the recordings were work product and therefore not required to be furnished. The trial court agreed and denied defendant’s motion to impose sanctions without conducting a Richardson hearing. The court relied upon representations by the prosecutor concerning the content of the tapes. We reverse.

There is no question that the recordings contained oral statements by the witnesses. Rule 3.220(a)(l)(ii), Florida Rules of Criminal Procedure, defines statements:

The term “statement” as used herein means a written statement made by said person and signed or otherwise adopted or approved by him, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the State and recorded contemporaneously with the making of such oral statement.... (emphasis added)

Rule 3.220(c)(1), Florida Rules of Criminal Procedure, provides a work product privilege:

Disclosure shall not be required of legal research or of records, correspondence, reports or memoranda, to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney, or members of his legal staff.

Thus, opinions, theories, or conclusions of attorneys are privileged, but statements of witnesses to attorneys are not. Had the court conducted a Richardson hearing, it could have determined whether prejudice resulted from the state’s failure to furnish the tapes. The court might also have decided whether to delete portions of the tapes prior to requiring the state to provide them to defense counsel. A “bare assumption of state compliance is insufficient.” Cooper v. State, 377 So.2d 1153 (Fla.1979).

We reject as frivolous the state’s contention that the error in failing to conduct a Richardson hearing was harmless. Cooper; Wilcox v. State, 367 So.2d 1020 (Fla.1979). Smith v. State, 372 So.2d 86 (Fla.1979) mandates a new trial.

For these reasons, we reverse the conviction and sentence and remand the cause for a new trial.

         Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Kenneth BLANDING, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2271.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Bennett H. Brummer, Public Defender, and Paul & Thomson and Susan H. Aprill, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a conviction for unlawful possession of phenobarbitol [§§ 893.13(l)(e), 893.03(2)(a)4, Fla.Stat. (1982) ] entered in the Circuit Court for the Eleventh Judicial Circuit in and for Dade County, Florida. The defendant Kenneth Blanding pled nolo contendere below to an information charging him with the above-stated offense and reserved for appeal the denial of his pre-trial motion to suppress the contraband which formed the basis for the instant prosecution. He contends that his initial arrest was unlawful, thereby rendering the subsequent search yielding the contraband herein unlawful. We disagree and affirm.

The contraband in question was seized from the defendant’s person by a City of Miami police officer subsequent to the defendant’s arrest for loitering. Although we agree that for a variety of reasons the arrest cannot be sustained for loitering under Section 856.021, Florida Statutes (1981), the arrest was nonetheless a lawful one as it was based on a probable cause showing that the defendant was selling illegal drugs on the street. An arrest based on probable cause is not rendered unlawful because the arresting officer attaches an improper label to it. Hoskins v. State, 208 So.2d 145, 146 (Fla. 3d DCA 1968), aff'd sub nom., Hoskins v. Wainwright, 263 So.2d 204 (Fla.1972); Chippas v. State, 180 So.2d 355 (Fla. 3d DCA 1965), aff'd, 194 So.2d 593 (Fla.1967).

The defendant was observed by the arresting officer engaging in three highly suspicious transactions in rapid succession. In the first transaction, the defendant approached on foot a vehicle in the public street, conversed with an occupant of the vehicle, and then exchanged a plastic bag for cash with the occupant; the arresting officer could not see what was in the bag. In the second transaction, the defendant again made a similar exchange with the occupant of another vehicle, although what was exchanged was apparently not seen. In the third transaction, the defendant again produced a plastic bag containing an unseen substance; as he was about to exchange it for cash in hand with yet another occupant of another vehicle, the participants, including the defendant, observed the arresting officer and fled without completing the transaction. The defendant was thereafter arrested and searched.

We think that under the “totality of circumstances” presented there was ample probable cause to believe that the defendant was selling illegal drugs. See Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Crucial to our determination here is that: (a) the defendant was plainly transferring in exchange for cash an unseen substance packaged in plastic bags, which are commonly used as containers for contraband drugs, see Adams v. State, 375 So.2d 638 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 754 (Fla.1980), to passing motorists on the street; and (b) the defendant and his customer broke off one of these transactions and attempted to flee upon seeing the arresting officer approach. These two factors, we think, gave the police probable cause to arrest the defendant and thereafter search his person. We are supported in this view by the clear weight of authority on the subject throughout the country. Professor LaFave has summarized that law in his treatise on the Fourth Amendment as follows:

“The observation of a person in possession of a certain kind of envelope or other packaging which on other occasions involving other persons has been found to conceal narcotics does not, standing alone, constitute probable cause. It has even been held that the viewing of a passing of such a container from one person to another is not enough, though it would seem that little more than that should be necessary. Certainly if money is passed in exchange there are then grounds to arrest. As noted in Peterkin v. United States:
The exchange on the street of ‘something’ from a vial, logically presumed to be pills, is an unusual transaction. The fact that cash was passed lends greater suspicion to the event in view of the costly price of prohibited drugs. * * * As with all borderline situations regarding probable cause, innocent explanations for the activity may be imagined. But the mere possibility of other interpretations would not suffice to diminish the reasonable likelihood of illegality appearing, from the circumstances, to prudent men possessing the knowledge and experience of the officers in the case at bar.”
1 W. LaFave, Search and Seizure § 3.6(b), at 654-55 (1978) (footnotes omitted) (emphasis added)
“The flight of a person from the presence of police is not standing alone sufficient to establish probable cause. Were it otherwise, ‘anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to legal arrest,’ which can hardly ‘be countenanced under the Fourth and Fourteenth Amendments.’ This means, for example, that when officers pulled up next to a car at a gas station to determine if it was the car about which a complaint of a loud muffler had been received, the fact that the car then drove off and continued on even when pursued by the police did not provide a basis for arresting the occupants.
But, as the Supreme Court recognized in Peters v. New York, flight is a ‘strong indicia of mens rea.’ Thus, if there already exists a significant degree of suspicion concerning a particular person, the flight of that individual upon the approach of the police may be taken into account and may well elevate the preexisting suspicion up to the requisite Fourth Amendment level of probable cause.”
1 W. LaFave, Search and Seizure § 3.6(e) at 669 (1978) (footnotes omitted) (emphasis added)

This legal analysis, in turn, is fully consistent with the comparable Florida law on the subject. See Council v. State, 442 So.2d 1072 (Fla. 3d DCA 1983); Bush v. State, 369 So.2d 674 (Fla. 3d DCA 1979); Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977).

The trial court therefore properly denied the defendant’s motion to suppress below. The conviction under review is accordingly

Affirmed.


author: HUBBART, Judge.

text:
    LAUREN, INC., d/b/a Ace Saxon/Mar-Tab Vending Company, Appellant, v. MARC & MELFA, INC. d/b/a Hunter’s Lounge, and Gary Melfa, Appellees.
    No. 83-138.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Ira Marcus, Fort Lauderdale, for appellant.
    Schwartz & Nash and Dale Heckerling, Miami, for appellees.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   HUBBART, Judge.

The plaintiff Lauren, Inc. d/b/a Ace Saxon/Mar-Tab Vending Company [Lauren] appeals an adverse judgment on the pleadings entered below in its action for breach of contract against the defendants Marc & Melfa, Inc. d/b/a Hunter’s Lounge [Marc & Melfa] and Gary Melfa. The basis for the entry of the judgment below was the trial court’s conclusion that the contract was unenforceable for lack of consideration because it was subject to termination without notice at the option of the plaintiff. We cannot agree and reverse.

According to the undisputed facts of the case as stated in the pleadings and attached contract, the plaintiff Lauren and the defendant Marc & Melfa entered into a contract on May 20, 1981, wherein the parties agreed that the plaintiff would install, operate, service and maintain certain coin-operated vending machines [i.e., music machines, amusement game machines, and cigarette machines] on the business premises of the defendant Marc & Melfa. The defendant Gary Melfa, the president of Marc & Melfa, personally endorsed and guaranteed this contract. The parties agreed to share the commissions earned from the vending machines in a particular manner not relevant .here. The defendant Marc & Melfa also agreed that no vending machines other than the plaintiff’s would be allowed to operate on the business premises of the said defendant. The term of the contract was five years. Finally, the plaintiff reserved the right to terminate the contract under the following conditions:

“In the event the Company [plaintiff herein] should at any time during the term of this Agreement deem that its machines being leased herein are being misused, jeopardized or neglected by the Proprietor [defendant Marc & Melfa], or that the sales made in the coin-operated machines and the revenue derived therefrom are inadequate and not in accordance with the Company’s [plaintiff’s] minimum requirements, then, and in that event, the Company [plaintiff] shall have the option to forthwith terminate this Agreement and the Proprietor [defendant Marc & Melfa] shall forthwith pay to the Company [plaintiff] any monies due and owing from the Proprietor [defendant Marc & Melfa] to the Company [plaintiff].”

The defendant Marc & Melfa during the term of the contract admittedly violated the agreement by allowing other vending machines, besides the plaintiffs machines, to operate on its business premises. The plaintiff thereupon brought suit below on April 28, 1982, for breach of contract, claiming damages for loss of profits due to the use of these competing vending machines on the defendant’s business premises. After an answer and reply had been filed below, the trial court upon proper motion entered a judgment on the pleadings for the defendants herein. The plaintiff appeals.

Our central disagreement with the judgment under review is the conclusion reached therein that the subject contract is terminable at the will of the plaintiff and is therefore unenforceable for lack of consideration. If the contract were subject to such unrestricted termination at the pleasure of the plaintiff, we agree that this contract would fail for want of consideration. Pick Kwik Food Stores, Inc. v. Tenser, 407 So.2d 216 (Fla. 2d DCA 1981), pet. for rev. denied, 415 So.2d 1361 (Fla.1982); Restatement (Second) of Contracts § 77, Illustration 2 (1981). Such is not, however, the case here. The plaintiff may cancel the contract only upon certain stated conditions, as set out in some detail above, and is not authorized to cancel the contract at its whim or caprice. These stated conditions, although not stringent, represent, we think, legally viable restrictions on the power of the plaintiff to terminate the subject contract. This being so, the plaintiff’s promises to perform as contained in the contract are not illusory and constitute sufficient consideration to render this contract enforceable. This result is in accord with the weight of modern authority on this subject. 1A Corbin on Contracts § 161 (1963); Restatement (Second) of Contracts § 77 (1981); see also, Bossert v. Palm Beach County Comprehensive Community Mental Health Center, Inc., 404 So.2d 1138 (Fla. 4th DCA 1981) (contract containing option to cancel upon giving proper notice upheld); Rollins Services v. Metropolitan Dade County, 281 So.2d 520 (Fla. 3d DCA 1973), cert. denied, 290 So.2d 64 (Fla.1974) (same).

1 Williston on Contracts § 105 (3d ed. 1957) states the applicable law as follows:

“An agreement wherein one party reserves the right to cancel at his pleasure cannot create a contract.
Since the courts, however, do not favor arbitrary cancellation clauses, the tendency is to interpret even a slight restriction on the exercise of the right of cancellation as constituting such legal detriment as will satisfy the requirement of sufficient consideration; for example, where the reservation of right to cancel is for cause, or by written notice, or after a definite period of notice, or upon the occurrence of some extrinsic event, or is based on some other objective standard.” (footnotes omitted) (emphasis added).

Simpson, Law of Contracts § 56 (2d ed. 1965) states the law as follows:

“Although an absolute option to cancel reserved by the promisor is a non-detrimental alternative, any option to cancel which is limited as to time, or conditioned upon an act which is itself detrimental, will not deprive the promise of legal value. So a promise by A to buy stated goods or to notify B that he does not want them, is a sufficient consideration for a counter promise. Though the alternative of giving notice is not very burdensome, still it involves an act made necessary by the promise, so there is no ‘free way out’ for the promis- or and the promise constitutes detriment. A promise to buy conditioned upon the buyer's ‘satisfaction’ as to the goods agreed to be sold is not illusory since the buyer is at liberty to reject the goods only if he is in fact dissatisfied.’’ (footnotes omitted) (emphasis added)

The judgment under review is therefore reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    R.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-506.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Bennett H. Brummer, Public Defender and Claudia B. Greenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ. '
   PER CURIAM.

Because the evidence was wholly insufficient to support the conclusion that the appellant was guilty of obstructing an officer, L.J.E. v. State, 384 So.2d 981 (Fla. 2d DCA 1980); English v. State, 293 So.2d 105 (Fla. 1st DCA 1974), the adjudication of delinquency under review, which was entirely based on that finding, is reversed.


author: NESBITT, Judge.

text:
    Irv DAVID a/k/a Irving Weinberger, Appellant, v. Harold RICHMAN, Appellee.
    No. 83-594.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Greenfield & DuVal and Leo Greenfield, North Miami, for appellant.
    Bergman & Jacobs and Richard H. Bergman, North Miami Beach, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The purchaser brought an action for specific performance of a land sale contract and ultimately obtained a partial summary judgment directing the conveyance and reserving the right to assess damages and attorneys’ fees. The summary judgment was predicated upon the purchaser’s affidavit that he had the financial ability to consummate the transaction in accordance with the terms of the contract. After the closing had been consummated, the seller discovered that, contrary to the purchaser’s affidavit, he did not have the financial ability to close on the date of the contract. On that basis, the seller filed a motion pursuant to Florida Rule of Civil Procedure 1.540(b) seeking relief from the final judgment on the basis of fraud. From the denial of the motion, the seller appeals.

While it is clear that the allegations of the motion, if proven, would entitle the movant to relief, Seven-Up Bottling Co. of Miami v. George Construction Corp., 166 So.2d 155, 158 (Fla. 3d DCA 1964), the purchaser argues that the seller stipulated to the closing and is therefore precluded from challenging the propriety of the summary judgment. A brief recitation of the events leading to this “stipulation” indicates that the purchaser’s argument must fail.

Subsequent to the entry of the summary judgment, the court reaffirmed its order of conveyance and assessed partial damages. As to the conveyance, the order directed: “In default of the execution and delivery of said deed this decree shall have the effect and operation, at law and in equity, of such conveyance, so as to vest Plaintiff with fee simple absolute title to said premises pursuant to Rule 1.570 of the Florida Rules of Civil Procedure.”

As to damages, one element provided for was the increase in the cost of financing which arose between the scheduled contract date of closing and the court-ordered date of closing. Seeking to lessen his damages, the seller filed a motion to modify this order in which he proposed to take back a mortgage at the interest rate prevailing at the contract date of closing. After hearing, the court ultimately entered an “order on stipulated agreement” which in essence granted the seller’s motion. It is upon this procedural scenario that the purchaser relies for his contention that the seller agreed to the conveyance.

In our view it is clear that the seller was under a court-ordered compulsion to convey the property. In fact, under the self-executing provision of that order, title had vested in the purchaser by operation of law, long before the alleged “stipulation” occurred. In any event, it cannot be said that the attempt by the seller to comply with that order in the least costly manner (by taking back a mortgage) constitutes a stipulation to convey.

Since the only basis for denial of the seller’s 1.540 motion was the “stipulation,” our resolution of that issue contrary to the trial court requires that we reverse and remand for entry of an order granting the seller’s motion for relief from judgment. Because all orders entered after the summary judgment are permeated by the alleged fraud, they must be vacated. The cause is remanded for further proceedings.


author: HENDRY, Judge.

text:
    BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA, a New York corporation, and North American Managers, Inc., a foreign corporation, Appellants, v. MOSS MANUFACTURING, INC., a Florida corporation, and Alan D. Fulton Insurance, Inc., Appellees.
    No. 83-1120.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    As Modified on Denial of Rehearing June 4, 1984.
    Smathers & Thompson and Linwood Anderson, Miami, for appellants.
    Simon, Schindler & Hurst and Thomas M. Pflaum; Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant Birmingham Fire Insurance Co. appeals from a final judgment awarding damages to both appellees upon a ruling that appellee Fulton Insurance, Inc. was an agent of appellant so that when appellee Moss Manufacturing requested an increase in insurance coverage at its Liberty City warehouse, the response by appel-lee Fulton that the request would be taken care of was sufficient to bind appellant to provide the increased coverage. The warehouse was destroyed by fire in the “Liberty City Riots” four days after the request was made by appellee Moss to appellee Fulton Insurance.

It is well settled that the existence of an agency relationship is ordinarily a question to be determined by the trier of fact in accordance with the evidence adduced at trial. Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla.1983); Cirou v. Basler, 432 So.2d 628 (Fla. 3d DCA 1983); Lumbermens Mutual Casualty Co. v. Savigliano, 422 So.2d 29 (Fla. 4th DCA 1982); Scott v. Sun Bank of Volusia County, 408 So.2d 591 (Fla. 5th DCA 1981); Cleveland Compania Maritima, S.A. Panama v. Logothetis, 378 So.2d 1336 (Fla. 2d DCA 1980); Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975). Having read the briefs and the record submitted in this case, and considered the arguments of counsel, it is clear that the trial court was eminently correct in finding that an agency relationship existed between appellee Fulton Insurance and appellant and that the actions of appellant’s agent on May 14, 1980 bound appellant to pay the full loss claim arising out of the May 18, 1980 fire.

We find no error in the award of attorneys’ fees. Fireman’s Fund Insurance Co. v. Vordermeier, 415 So.2d 1347 (Fla. 4th DCA), review dismissed, 421 So.2d 67 (Fla.1982); Florida Rock & Tank Lines, Inc. v. Continental Insurance Co., 399 So.2d 122 (Fla. 1st DCA 1981), section 627.-428, Florida Statutes (1981).

Appellee Moss Manufacturing’s cross-appeal contesting the dismissal of its claim for punitive damages by the trial court has been considered and we have concluded that no error has been demonstrated.

Affirmed.


text:
    UNITED AIR LEASING CORPORATION, Michael A. Goldberg and Sanford P. Burnstein, Appellants, v. F.A. CONNER, Appellee.
    No. 83-1219.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Britton, Cohen, Cassel, Kaufman & Schantz and John Britton and J. Robert Olian, Miami, for appellants.
    Don G. Nicholson, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); First National Bank of the Upper Keys v. Caribe Equipment Corp., 378 So.2d 19 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1112 (Fla.1980).


author: DANIEL S. PEARSON, Judge.

text:
    Theresa PETTIJOHN, Appellant, v. DADE COUNTY, Bobby Jones, David Green, Bruce Lindenmuth, and Emma Fern, Appellees.
    No. 83-1368.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Horton, Perse & Ginsberg and Edward A. Perse, Robert Schack, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Fred R. Ober, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The question presented by this appeal is whether a Florida court must give full faith and credit, in this case, res judicata effect, to a federal court’s order dismissing with prejudice an action for lack of prosecution. We answer that it must and affirm the judgment under review.

Pettijohn, the alleged victim of a “wrong house raid” conducted by Dade County Public Safety Department Officers, brought suit against the officers, the County and others in both the United States District Court for the Southern District of Florida and the Dade County Circuit Court. The actions sought damages arising from this intrusion and were substantially identical in nature. The federal court suit languished until, upon motion of the defendants and after due notice to the plaintiff, it was dismissed with prejudice for lack of prosecution. No appeal was taken from the dismissal.

Thereafter, the defendants moved for a summary judgment in the state court action. They asserted that the state court action was now barred by res judicata because the federal court’s dismissal constituted an adjudication on the merits under Federal Rule of Civil Procedure 41(b). The trial court entered summary judgment for the defendants, and this appeal followed.

Pettijohn raises only one point which merits discussion. She contends that since in a Florida court a dismissal for failure to prosecute is never an adjudication on the merits, see, e.g., State ex rel. Croker v. Chillingworth, 106 Fla. 323, 143 So. 346 (1932); Hamilton v. Millnul Associates, 443 So.2d 485 (Fla. 2d DCA 1984), a Florida court should not be required to give full faith and credit, here res judicata effect, to a like dismissal rendered by a court in which the dismissal is an adjudication on the merits. In support of this contention, Pettijohn argues that-the omission in Florida Rule of Civil Procedure 1.420(e) of the adjudication upon the merits language contained in the earlier promulgated Federal Rule 41(b), combined with Florida’s interest in having causes decided on their merits, evinces a public policy in this state which far outweighs .the compulsion of the full faith and credit clause.

Although the express language of the full faith and credit clause of the United States Constitution, U.S. Const, art. IV, § 1, mandates that full faith and credit are to be given in each state “to the public Acts, Records, and judicial Proceedings of every other State,” the clause has been construed to require states to similarly honor federal court proceedings. Levy v. Cohen, 19 Cal.3d 165, 137 Cal.Rptr. 162, 561 P.2d 252, cert. denied, 434 U.S. 833, 98 S.Ct. 119, 54 L.Ed.2d 94 (1977). Therefore, it has long been held that federal court orders and judgments must be given res judicata effect in state court proceedings. Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927); AGB Oil Co. v. Crystal Exploration and Production Co., 406 So.2d 1165 (Fla. 3d DCA 1981); Massachusetts Mutual Life Insurance Co. v. Ambassador Concessions, Inc., 293 So.2d 75 (Fla. 3d DCA 1974); Butler v. Richard Bertram & Co., 281 So.2d 227 (Fla. 3d DCA 1973); Curry v. Educoa Preschool, Inc., 580 P.2d 222 (Utah 1978); Litten v. Peer, 156 W.Va. 791, 197 S.E.2d 322 (1973). A judgment which is entitled to full faith and credit is “one which, determines and disposes of the whole merits of the cause before the Court by declaring that the plaintiff either is or is not entitled to recovery by the remedy chosen _” Irving Trust Co. v. Kaplan, 155 Fla. 120, 125, 20 So.2d 351, 354 (1944). The State, which is called upon to enforce a judgment under the full faith and credit clause, is precluded from making any “inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.” Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 342, 85 L.Ed. 278, 282-83 (1940). Moreover, it is clear that the court whose judgment is to be enforced (here, the federal court) is the court which determines the effect of such judgment (here, that it is an adjudication on the merits). Kern v. Hettinger, 303 F.2d 333 (2d Cir.1962) (rejecting argument that effect of dismissal for lack of prosecution entered by federal court in California should be determined by California law, under which such dismissals are not adjudications on the merits and thus not entitled to res judicata effect). Cf. Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). Therefore, unless it can be said that the present case falls within that very narrow exception which permits a state to refuse to enforce a foreign judgment when to do so will contravene a strong public policy of the state being called upon to enforce the judgment, the court below was clearly correct in giving the federal court order res judicata effect.

We repeat that “the room left for the play of conflicting policies is a narrow one,” Harris Investment Co. v. Hood, 123 Fla. 598, 609, 167 So. 25, 29 (1936) (quoting from Broderick v. Rosner, 294 U.S. 629, 55 S.Ct. 589, 79 L.Ed. 1100 (1935)), and thus, “[ljightweight contrary policies in one state will not counterbalance the top-heavy compulsion of the full faith and credit clause of the federal constitution to observe and enforce the judgments of another state.” State of Minnesota v. Taran, 164 So.2d 893, 894 (Fla. 3d DCA 1964).

The source of Florida Rule of Civil Procedure 1.420(e) (and its 1966 predecessor, Rule 1.35(e)) is Section 45.19, Florida Statutes (1929). That statute mandated that actions which remained inactive for a period of one year be dismissed, but provided for their reinstatement for good cause shown within one month after such order of dismissal. A dismissal under the statute, as any dismissal at common law which did not involve the merits, was logically held not to be a bar to a subsequent action, see State ex rel. Croker v. Chillingworth, 143 So. 346, even where such dismissal was stated to be “with prejudice,” see Hassenteufel v. Howard Johnson, Inc. of Florida, 52 So.2d 810 (Fla.1951). Later, based on the plain language of Section 45.19, the Florida Supreme Court held that notwithstanding the language of Florida Rule of Civil Procedure 1.35(b) that “any dismissal not provided for in this rule ... shall operate as an adjudication on the merits,” and the fact that a dismissal for failure to prosecute was provided for in Section 45.-19, Florida Statutes, not in Rule 1.35, a dismissal for failure to prosecute could not operate as an adjudication on the merits. Zukor v. Hill, 84 So.2d 554 (Fla.1956). In none of these cases is there the slightest suggestion of some public policy, much less some strong public policy, against a dismissal for failure to prosecute constituting an adjudication on the merits. Indeed, as Hassenteufel recognizes, a dismissal not involving the merits is not a bar to a subsequent action, but only “in the absence of a statute, decision or rule of practice to the contrary.” 52 So.2d at 813. Implicitly, then, a statute, decision or rule of practice which declares a dismissal for failure to prosecute to be an adjudication on the merits would not offend against some deep-seated public policy of this state.

Nor are we able to discern any strong public policy in this state against an adjudication where the right to be heard on the merits has been lawfully forfeited under the law of another state. Thus, despite Florida’s announced public policy against and prohibition of judgments based on cog-novit notes, a foreign judgment based on an out-of-state confession of judgment, if enforceable in the state where rendered, must be given full faith and credit in Florida. Carroll v. Gore, 106 Fla. 582, 143 So. 633 (1932). Cf. United Mercantile Agencies v. Bissonnette, 155 Fla. 22, 19 So.2d 466 (1944) (refusing to enforce Ohio judgment based on Ohio cognovit note only because of failure to prove that under Ohio law judgment enforceable). See Trauger v. A.J. Spagnol Lumber Co., 442 So.2d 182 (Fla.1983) (declaring statute outlawing cog-novit notes unconstitutional violation of full faith and credit clause insofar as it applied to foreign judgments).

We conclude, therefore, that the federal court judgment dismissing Petti-john’s action for lack of prosecution, determined by that court to be an adjudication on the merits, was, under the full faith and credit clause of the United States Constitution, entitled to be given res judicata effect in the state court below and that to give it such effect does not contravene any recognized and strong public policy of this state.

Affirmed.

      . The federal court's Order of Dismissal entered January 16, 1981, states in pertinent part:
      "ORDERED AND ADJUDGED that Defendant's Motion to Dismiss for Lack of Prosecution is GRANTED, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and General Rule 13 of the Local Rules of the United States District Court for the Southern District of Florida. It appears from the record in this cause that no pleadings have been filed by the Plaintiff since the filing of her Amended Complaint in August of 1979. Plaintiff, in not responding to the Motion to Dismiss for Lack of Prosecution, has failed to give this Court any reason for not granting the Motion. Therefore, the above-styled • cause is hereby dismissed with prejudice for lack of diligent prosecution.”

      . Rule 41(b) permits the court to enter an involuntary dismissal against the plaintiff for, inter alia, the failure to prosecute. It further provides that "[ujnless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.”


text:
    Johnny Ray DOWIS, Appellant, v. William FREEMAN, Jr., Sheriff, Monroe County, Florida, Appellee.
    No. 83-1969.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Flynn & Tarkoff and Michael Tarkoff, Miami, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See State v. Soto, 423 So.2d 362 (Fla.1982); Fauls v. Sheriff of Leon County, 394 So.2d 117 (Fla.1981).


text:
    John BROWNING, Appellant, v. William FREEMAN, Jr., Sheriff, Monroe County, Florida, Appellee.
    No. 83-1970.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Flynn & Tarkoff, and Michael Tarkoff, Miami, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Dowis v. Freeman, Sheriff of Monroe County, 446 So.2d 1146 (Fla. 3d DCA 1984).


text:
    The STATE of Florida, Appellant, v. Kent Charles TAYLOR, Appellee.
    No. 83-1977.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    N. Joseph Durant, Sp. Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

The defendant was initially observed, by two lav/ enforcement officers, purchasing a ticket at Miami International Airport. The officers watched him move two extremely heavy pieces of luggage to the baggage well of the ticket counter. The defendant was overheard purchasing a round trip ticket to San Francisco with an open return. He seemed nervous and filled out the baggage identification tags with the name K. Charles leaving the tag void of any address or any other writing. He paid for his ticket in cash. When the defendant left the ticket counter he was stopped by the officers who identified themselves. The officers asked if he would mind talking to them and he said he did not mind. They asked for his identification and he produced a drivers license with the name Kent Charles Taylor. As the parties talked the defendant became increasingly more nervous. When the officers explained their function at the airport and started talking about narcotics the' defendant became so nervous that he sweated profusely to the point that the perspiration dripped off his chin even though it was cool in the airport. When the defendant refused to permit the officers to search his baggage they informed him they would get a dog to sniff it and if he did not alert that would be the end of it. The defendant said he did not mind. Finding that there was an “articula-ble suspicion” for the officers to stop the appellant and incident thereto, to conduct a “dog sniff” of his luggage at the Miami International Airport, we reverse the order granting the motion to suppress the contraband discovered and return the matter to the trial court for further proceedings. State v. Bankston, 435 So.2d 269 (Fla. 3d DCA 1983); State v. Mosier, 392 So.2d 602 (Fla. 3d DCA 1981) on remand 415 So.2d 771 (Fla. 3d DCA 1982); State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980); Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980); Florida v. Royer, — U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

Reversed and remanded.


text:
    L.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2076.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Bennett H. Brummer, Public Defender, and Chaykin, Karlan & Jacobs and Sharon B. Jacobs, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

In a petition for delinquency, the juvenile was charged with theft, in violation of section 812.014, Florida Statutes (1981) and burglary, in violation of section 810.02, Florida Statutes (1981). He was adjudicated delinquent on both counts. The state has conceded that the evidence was insufficient to support the theft conviction and accordingly we reverse on that count. As to the burglary, we affirm.

The record reflects that there were six fingerprints lifted from the window sill of the window used to gain entrance to the victim’s home. Two of these prints matched the juvenile’s fingerprints. Although the house had also been broken into one week earlier, the victim stated that the window sill had been dusted and cleaned between the time of the two illegal entries.

As to the burglary count, the information charged as follows:

This child ... did unlawfully enter or remain in a certain structure ... with the intent to commit an offense therein, to wit: THEFT in violation of 810.02, Florida Statutes (emphasis supplied)

L.S. argues that having charged him with the specific intent to commit theft, the state was required to prove that he had that specific intent. However, he contends that the state not only failed to prove this specific intent, but it failed to prove intent at all, erroneously relying on proof of the presumption of intent as provided in section 810.07, Florida Statutes (1981). In support of his position, the juvenile directs our attention to State v. Waters, 436 So.2d 66 (Fla.1983). Waters held that the information need not identify the specific offense which the defendant intended to commit once inside the structure. It then addressed the issue of whether proof of the factual elements set out in section 810.07 would be sufficient to establish a prima facie case of intent to commit an offense and concluded:

Looking at the plain language of the statute, we can see that it sets out three factual elements: entry, stealth, and lack of consent. If proved, the statute provides, the facts thus shown “shall be prima facie evidence of entering with intent to commit an offense.” That is, proof of the three elements will always be deemed to be a sufficient showing to allow a case of burglary to go to the jury even if there is no evidence of the defendant’s state of mind at the time of the unlawful entering, and will be legally sufficient proof of intent to support a verdict.

Waters, 436 So.2d at 70.

The supreme court did not address the precise question before us; however, insofar as it held that specification of the offense intended is not essential, we find that its inclusion in the charging document is surplusage and need not be proven.. If the state were precluded from using the presumption by virtue of charging the intent to commit a specific offense, there would be no incentive for the state to ever enumerate the particular offense. We hold, therefore, that when the state charges that the defendant did intend to commit a specific offense after the breaking and entering, it may avail itself of section 810.07. We disagree with our sister court in Bennett v. State, 438 So.2d 1034 (Fla. 2d DCA 1983) to the extent that it holds otherwise.

The juvenile’s second point on appeal is that there was insufficient evidence to support an adjudication for burglary. The evidence revealed that the fingerprints, which were the sole evidence linking L.S. to the crime, were inside the bedroom window sill, a place not accessible to the general public. While this fact, standing alone, would be legally sufficient to support the conviction, Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982), the juvenile argues that the state failed to show that the fingerprints could not have been made during the prior burglary. We conclude that the victim’s testimony that she cleaned the sill between the time of the two burglaries negates the juvenile’s suggestion that the prints were made by the juvenile at some earlier time. Summerson v. State, 200 So.2d 594 (Fla. 3d DCA 1967). See also Sorey.

Affirmed in part, reversed in part.

      . Section 810.07 provides:
      Prima facie evidence of intent. — In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.


text:
    Alberta Bass PERRY, Appellant, v. LUBY CHEVROLET, INC., Appellee.
    No. 83-2378.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Pelzner, Schwedock, Finkelstein & Klausner and Lori Barrist, Miami, for appellant.
    Corlett, Killian, Hardeman, McIntosh & Levi and Leanne J. Frank, Miami, for ap-pellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON.
   BASKIN, Judge.

We reverse the Final Summary Judgment entered in favor of the automobile retailer in an action predicated upon breach of warranty, negligence, and strict liability. Appellant was allegedly injured when the steering mechanism of her car locked and the car veered off the road into a bridge embankment. Appellant had purchased the automobile from Luby Chevrolet. .Although Luby was responsible for repairs and service, it had not performed any of these services prior to the mishap.

We are aware of no legal impediment to the establishment of appellant’s claims under theories of strict liability or breach of warranty should the evidence presented to the trier of fact support such recovery. Uniform Commercial Code, § 672.314, Fla. Stat. (1981); Restatement (Second) of Torts § 402 A. (1965). Whether there was a defect in the automobile presents a genuine issue of material fact precluding summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

We agree, however, that summary judgment on the issue of negligence was proper.

Reversed in part; affirmed in part; remanded with directions.


text:
    A.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2553.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.
    Arthur L. Rothenberg, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Perry v. State, 356 So.2d 342 (Fla. 1st DCA 1978); Perry v. State, 177 So.2d 892 (Fla. 3d DCA 1965).


text:
    Daniel S. BRICKER, Appellant, v. Howard I. KAY, Appellee.
    No. 83-2571.
    District Court of Appeal of Florida, Third District.
    March 13, 1984.

      Harold M. Braxton, Miami, for appellant.
    Howard I. Kay, pro se.
    Arnold Ginsberg, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Ten days before expiration of the statute of limitations appellee-defendant, an attorney at law, was retained to institute a lawsuit against “Lum’s Restaurant Corp.” After expiration of the time within which suit could commence it was learned that the wrong defendant was named. The complaint was dismissed with prejudice. Plaintiff then instituted this action against the attorney alleging legal malpractice. The complaint, as amended, was dismissed for failure to state a cause of action.

The only determination the court undertakes in considering a,¡motion to dismiss for failure to state a cause of action is whether, upon examination of the four corners of the complaint, the allegations are sufficient to sustain a claim for relief. Augustine v. Southern Bell Telephone & Telegraph Co., 91 So.2d 320 (Fla.1956). Whether plaintiff can prove negligence on the part of defendant is not at issue. We have examined the complaint and find no deficiency.

Reversed and remanded.


author: DELL, Judge.

text:
    CITY OF HOLLYWOOD, Florida, Appellant, v. Marsha LITTERAL, Appellee.
    No. 83-819.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.

      Nancy A. Cousins, City Atty., and Andrew DeGraffenreidt III, Deputy City Atty., Hollywood, for appellant.
    Charles T. Whiteloek, Fort Lauderdale, for appellee.
   DELL, Judge.

The City of Hollywood appeals from a final summary judgment which ordered reinstatement of appellee to her former capacity as a community service officer with full back pay, benefits and privileges.

Appellant’s police department hired ap-pellee as a community service officer. Ap-pellee became a permanent employee for civil service purposes after serving a probationary period. In December, 1977, appel-lee became a police officer and began a one year probationary period with respect to that position during which she attended the police academy. Six months later, appellant terminated appellee. On June 22, 1978, exactly ten days after the termination letter, appellee’s counsel wrote a letter, to the chairman of the Civil Service Board of Hollywood, in which he requested a complete review of appellee’s wrongful discharge. On July 5, 1978, the Civil Service Board informed appellee’s counsel, by letter, that appellee had no right to a hearing before the Civil Service Board. Appellee filed the instant suit for injunction in January, 1981, asserting rights as a police officer under Sections 112.531 through 112.-534, Florida Statutes (1979) [the Police Officers’ Bill of Rights] and as a civil service employee. On cross motions for summary judgment the trial court found appellee to be a probationary police officer and a full time, non-probationary community service officer. The court concluded that although she was not entitled to any administrative hearing or process as a probationary police officer, appellee should have received a hearing before the Civil Service Board on her entitlement to a continuation of her permanent status as a community service officer.

Appellant first contends that the circuit court lacked jurisdiction to determine ap-pellee’s civil service rights as a community service officer because she did not request a civil service hearing with respect to that position, and thus appellee failed to exhaust her administrative remedies. Second, assuming appellee did exhaust her administrative remedies, appellant contends the circuit court lacked jurisdiction because appellee failed to seek certiorari review of the Civil Service Board’s denial of hearing within the 30 day jurisdictional time limit of Rule 9.100(c), Florida Rules of Appellate Procedure.

Appellee claims that the June 22 letter to the Civil Service Board adequately raised the issue of her community service officer status. She further argues that since she included her claim for rights as a civil servant in her complaint for injunction pursuant to Section 112.534, Rule 9.100(e) does not apply.

Although appellant contends that appellee requested a civil service hearing only with respect to her police officer status, the June 22 letter requested “a complete review as a consequence of the wrongful discharge by the City of Hollywood Police Department as evidenced by a copy of the attached [termination] letter.” [Emphasis added.] Neither the June 22 letter nor the referenced termination letter mentions probationary police officer status. Both refer to her termination by the police department. Since appellee had previously been employed by the Hollywood Police Department as a community service officer, we construe the June 22 letter as a timely assertion of all civil service rights relating to her employment by the police department. Appellee exhausted her administrative remedies.

Section 112.531 defines a “law enforcement officer” as “any person ... employed full time by any municipality ... whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of this state.” Since appellee did not cross appeal the issue of her rights as a probationary police officer, we need only to determine appellee's rights with reference to her status as a community service officer.

The record contains a description of a community service officer’s duties:

An employee occupying a position allocated to this class is responsible for the performance of a variety of field and office activities relating to the routine, noncrime aspects of law enforcement. This class of position differs from that of police officer in that the incumbent poss-eses [sic] no general arrest powers, is not authorized to carry weapons, and does not enforce the law or respond to emergency calls. Work assignments are given orally and in writing, and work is performed under close, immediate supervision.

The record also contains twelve examples of the type of work performed, two of which relate tangentially to the prevention or detection of crime. Three relate to enforcement of traffic laws. The remaining seven have no connection with law enforcement. Our review of the record satisfies us that appellee was not a law enforcement officer as defined in Section 112.531, and we so hold.

However, even if we were to assume that appellee did qualify as a law enforcement officer, this court has held that an injunction compelling reinstatement will not lie under Section 112.534.

Appellants sought as an alternative to mandamus, injunctive relief, in reliance on Section 112.534. This section operates only to immediately restrain violation of the rights of police officers by compelling performance of the duties imposed by Section 112.531 to 112.534_ [I]f an officer is refused review by the complaint review board, under appropriate circumstances, the agency can be compelled to grant such review. • We do not view this section as creating a right to injunctive relief in the form of reinstatement after discharge.

Migliore v. City of Lauderhill, 415 So.2d 62, 65 (Fla. 4th DCA 1982).

Neither does the Police Officers’ Bill of Rights vest the circuit court with authority to compel a hearing before the Civil Service Board. The injunction authorized by Section 112.534 lies to restrain violations “of this part” [§§ 112.531 through 112.534] and to compel performance of the duties established “by this part,” but this part does not mention civil service hearings.

Finally, we consider appellee’s rights purely as a civil servant. Appellee timely asserted her civil service rights. The Civil Service Board denied appellee’s right to a hearing on July 5, 1978. This denial was reviewable by petition for certio-rari to the circuit court within thirty days of July 5, 1978. Fla.R.App.P. 9.100(c). Therefore, the circuit court did not have jurisdiction. State, Department of Highway Safety v. Joannou, 353 So.2d 164 (Fla. 3d DCA 1977); Powell v. Civil Service Board of Escambia County, 154 So.2d 917 (Fla. 1st DCA 1963); see Migliore, supra.

We hold that appellee was not a law enforcement officer, and had no rights under Sections 112.531-112.534, Florida Statutes (1979). We further hold that the circuit court was without jurisdiction to entertain appellee's prayer for reinstatement and back pay. Accordingly, we reverse the final judgment in favor of appellee and remand this cause with instructions to enter judgment in favor of appellant.

REVERSED and REMANDED.

ANSTEAD, C.J., and DOWNEY, J., concur.

      . Appellee did argue the merits of the trial court’s ruling on her rights as a probationary police officer in her brief. However, she failed to file the notice of cross appeal required by Rule 9.110(g), Florida Rules of Appellate Procedure. Therefore, we do not address the issue. See generally Webb General Contracting, Inc. v. PDM Hydrostorage, 391 So.2d 1058 (Fla. 3d DCA 1981) [discussing function and proper usage of notice of cross appeal].


text:
    SOUTHEAST BANK, N.A., a national banking association, as Co-Personal Representative of the estate of Charles M. McArthur, deceased, as Co-Trustee under the Will of Charles M. McArthur, deceased, and as Agent; and Nadene O. Huff, as custodian for LaNae McArthur under the Florida Uniform Gifts to Minors Act, and as Co-Personal Representative of the estate of Charles M. McArthur, deceased, Appellants, v. EQUITEC LEASING INVESTORS 1978, Appellee.
    No. 83-856.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1984.
    Timothy J. Norris and Dennis M. Campbell of Mershon, Sawyer, Johnston, Dunwo-dy & Cole, Miami, for appellants.
    Freeman, Rishwain & Hall, Stockton, Cal.; and James H. Post and E. Lanny Russell, Jacksonville, for appellee.
   PER CURIAM.

Southeast Bank appeals a final summary judgment entered in favor of Equitec Leasing Investors in a mortgage foreclosure proceeding. The summary judgment was granted on grounds that the ownership of the property being foreclosed had been determined in a federal bankruptcy proceeding.

We have thoroughly reviewed the matter and hold Southeast Bank collaterally es-topped from relitigating the ownership in the state court herein. Freehling v. MGIC Financial Corporation, 437 So.2d 191 (Fla. 4th DCA 1983), holds this doctrine applicable under the circumstances of this case. The major contested issue on appeal has been whether the debtor-in-possession and the bank were parties in privity in the bankruptcy proceeding. See In Re Wesco Products Co., 22 B.R. 107 (N.D.Ill.1982), and Aerojet General Corp. v. Askew, 366 F.Supp. 901 (N.D.Fla.1978), aff'd. 511 F.2d 710 (5th Cir.), cert. den., 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975). In addition, the bank was bound as a “successor in interest” by the bankruptcy court judgment in that its interest was entirely dependent upon the ownership interest of the debtor-in-possession. We reject all of appellants’ arguments that ownership was not actually litigated in the bankruptcy ease.

AFFIRMED. '

BERANEK and WALDEN, JJ., concur.

ANSTEAD, C.J., dissents without opinion.


author: HANLON, MORTON J., Associate Judge.

text:
    Mark SHAFFER and Bill Luke Shaffer, Appellants, v. STATE of Florida, Appellee.
    No. 82-2097.
    District Court of Appeal of Florida, Second District.
    March 14, 1984.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   HANLON, MORTON J., Associate Judge.

Appellants Mark and Bill Luke Shaffer appeal their respective judgments and sentences for grand theft and dealing in stolen property. While we find no reversible error in appellants’ primary contention, we agree that the trial court erred in imposing various costs, attorney’s fees, and conditions of parole against appellants.

We note specifically that the trial court ordered both appellants, who previously had been adjudged insolvent, to pay costs of $10, $2, and $1, pursuant to section 960.20 and section 943.25(4) and (8), Florida Statutes (1981). Because appellants did not receive prior notice that these costs would be assessed against them, these assessments must be stricken. Jenkins v. State, 444 So.2d 947 (Fla.1984); Kerney v. State, 445 So.2d 381 (Fla. 2d DCA 1984). Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

In sentencing appellants, the trial court also orally imposed additional court costs of $55 and $250 in attorney’s fees against each appellant for his defense by the public defender. Section 27.56, Florida Statutes (1981), authorizes the assessment of these costs and fees against an indigent defendant upon compliance with the notice and hearing requirements of that section. Jenkins; Anderson v. State, 415 So.2d 49 (Fla. 2d DCA 1982). See also Flá.R. Crim.P. 3.720(d)(1). Our review of the record discloses, however, that the trial court entered its order without following the procedures and requirements outlined by section 27.56 and Florida Rule of Criminal Procedure 3.720(d)(1). See Bruton v. State, 418 So.2d 1250 (Fla. 4th DCA 1982); Gaylord v. State, 413 So.2d 72 (Fla. 2d DCA 1982). Accordingly, we vacate these portions of appellants’ judgments and remand to the trial court for proper consideration of these matters.

Finally, Mark Shaffer asserts that the trial court erred in assessing restitution and the above court costs and attorney’s fees under section 27.56 as conditions of parole. Although a court is not precluded from recommending conditions of parole, the Parole and Probation Commission alone is invested with the statutory authority to impose such conditions. Alexander v. State, 425 So.2d 1197 (Fla. 2d DCA 1983); § 947.13(l)(b); Fla.Stat. (1981). In light of our foregoing determination, we need not further address court costs and attorney’s fees under section 27.56. However, we affirm the imposition of restitution, but remand to the trial court with directions to strike that portion of Mark Shaffer’s judgment mandating the payment of restitution as a condition of parole.

In summation, we AFFIRM appellant’s convictions; VACATE the portions of the final judgments assessing court costs and attorney’s fees under section 27.56; and REMAND for proceedings consistent with this opinion.

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

      . The written judgment rendered against each appellant reflected imposition of “additional court costs in the sum of $42,” as opposed to the $55 orally pronounced by the trial judge. In addition, the written judgment entered against Bill Luke Shaffer failed to reflect the $250 in attorney’s fees pronounced in open court. Our decision to vacate and remand this portion of the judgment will allow the trial court to rectify these inconsistencies.

      . Under this court’s holding in Goodson v. State, 400 So.2d 791 (Fla. 2d DCA 1981), appellants’ failure to object to the imposition of restitution at sentencing precludes them from contesting its validity on appeal. See also Barlow v. State, 388 So.2d 349 (Fla. 5th DCA 1980).