author: NESBITT, JOSEPH, Associate Judge. SCHWARTZ, ALAN R., Associate Judge

text:
    Norton EUART, Appellant, v. David S. YOAKLEY, et al., Appellees.
    No. 83-1725.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.

      Samuel L. Heller, Fort Lauderdale, for appellant.
    Jane Kreusler-Walsh and Larry Klein and Easley, Massa & Willits, West Palm Beach, for appellees.
   NESBITT, JOSEPH, Associate Judge.

Norton Euart appeals a final judgment which approved the accounting of a trustee, terminated the trust, and denied Euart’s counterclaim and cross-claim. We affirm.

On November 5, 1974, Jane Greer Brown established a revocable inter vivos trust in which she placed all of her income producing property. About one year later, the trustee acquired a house and property located in Fort Lauderdale which was known as Rio Vista. Brown lived her life out on Rio Vista, although title to the property was held by the trustee and the property constituted a trust asset.

The appellant, Norton Euart, began working for Brown in 1973 as her boat captain, and eventually he became her chauffeur and friend. Euart lived in one of the smaller houses on Rio Vista. On June 7, 1978, Brown executed a will which contained the following provision:

If at the time of my death, NORTON K. EUART is in my employ, and if he survives me, then I give, devise and bequeath to him such shares of stock of JANE’S BOAT CHARTERS, INC., a Florida corporation, as I may then own, together with the real estate which I own in Fort Lauderdale, Broward County, Florida.

A copy of this will was furnished to the trustee, who was also acting as Brown’s attorney. Brown died on September 5, 1980.

Euart contends that the provision in the will affected a partial revocation of the trust in regard to the Rio Vista property when the will was delivered to the trustee. This contention is based upon the argument that Rio Vista was the only real estate in Fort Lauderdale which Brown “owned” at the time the will was executed. Euart argues that the revocation removed Rio Vista from the trust and that, therefore, it was part of Brown’s estate when she died and should pass to him according to the will.

The sole issue to be determined is whether the will provision effectively revoked the trust insofar as the Rio Vista property is concerned. Under Florida law, if the trust instrument reserves a power in the settlor to revoke the trust by giving notice to the trustee in a specified form or manner, the settlor can exercise that power only by giving notice to the trustee in the prescribed manner. If a method for the exercise of a power of revocation is set out in the trust agreement, then the power must be exercised in strict conformity to its terms. Macfarlane v. First National Bank of Miami, 203 So.2d 57 (Fla. 3d DCA 1967). In the present case, the revocation provision in the trust agreement states:

The Settlor reserves the right at any time and from time to time during her life, by an instrument signed and acknowledged by her and delivered to the Trustee thirty (30) days in advance of the effective date: (1) to withdraw any or all of the property held in trust under this agreement or revoke the trust created by such agreement in whole or in part ...; (2) alter, amend or modify this agreement in any respect ....

The first question presented is whether a will, being testamentary in nature, can also act as an instrument in writing under the terms of a trust and thereby effect a revocation upon its execution and delivery to a trustee. We agree with the reasoning and logic in the cases cited by Euart which conclude that a will can have a dual character; be testamentary in part, but operative in praesenti in other parts. Sanderson v. Aubrey, 472 S.W.2d 286 (Tex.Civ.App.1971); First National Bank of Cincinnati v. Oppenheimer, 23 Ohio Op.2d 19, 190 N.E.2d 70 (Prob.Ct.1963). As stated by the court in Oppenheimer:

[WJhen an instrument of trust inter vi-vos reserves in the settlor the right to amend, alter or revoke the trust, in whole or in part, by an instrument in writing signed by the grantor and delivered to the trustee in the lifetime of the grantor, such trust may be amended, altered, or revoked by appropriate language contained in the settlor’s will providing such will or a signed copy thereof is delivered to the trustee during the lifetime of the grantor ....

190 N.E.2d at 74. Accordingly, we find that a will is an instrument in writing which can be an appropriate mode of fully or partially revoking an inter vivos trust when it is signed by the settlor and delivered to the trustee in accordance with the terms of the trust.

This, however, does not end our inquiry. As Euart points out in his brief, the settlor’s intention is the polestar by which courts must be guided in determining whether a revocation of an inter vivos trust has occurred. Accordingly, we must determine whether the language in the present will provision amounts to a “definitive manifestation” of Brown’s intent 'to revoke the trust as to the Rio Yista property and, thus, overcomes the normal testamentary character of a will provision. See Sanderson. Cf. Litsey v. First Federal Savings & Loan Association of Tampa, 243 So.2d 239 (Fla. 2d DCA 1971) (revocation of a Totten trust requires some decisive act or declaration of disaffirmance).

Euart argues that the will provision is so inconsistent with the trust retaining the Rio Vista property that it must be deemed a revocation. We disagree and find that the cases relied upon by Euart are clearly distinguishable. In Oppenheimer, the will provision unequivocally and in specific language manifested the settlor-testator’s present intent to revoke the trust in question. 190 N.E.2d ato71. Likewise, in Sanderson, specific language in the will manifested an intent to revoke the trust. As pointed out by the court in Sanderson:

[I]n view of the express written language of Mrs. Lucas, as settlor, there was evidenced a “definitive manifestation” of ... revocation as of the date she signed her instrument of will in July, 1965.

472 S.W.2d at 288. See also Oppenheimer, 190 N.E.2d at 74 (A “trust may be amended, altered, or revoked by appropriate language contained in the settlor’s will _” [emphasis added]). The will provision in the present case, which simply devises “the real estate which I own in Fort Lauderdale,” does not even inferentially refer to the trust agreement. The language is patently ineffective to manifest a present intent to revoke the inter vivos trust; it is merely dispositive in nature and, thus, testamentary. A will clause can have effect during the life of the testator only when the language clearly and explicitly manifests such an intent.

The holdings in both Oppenheimer and Sanderson were quoted at length in a recent Illinois decision. See Estate of Lowry, 93 Ill.App.3d 1077, 49 Ill.Dec. 366, 418 N.E.2d 10 (1981). As in Oppenheimer and Sanderson, the will in Lowry contained express language specifically revoking the trust in question. In rendering its decision, however, the court enunciated a statement of the law that we find is particularly applicable in the present case:

[I]t was stated in Rosenauer v. Title Insurance & Trust Co. (1973), 30 Cal. App.3d 300, 303, 106 Cal.Rptr. 321, 323: “Accordingly, it is settled that a power to revoke ‘during the lifetime’ of the sett-lor, which means by a revocation taking effect before the death of the settlor cannot be exercised by a will that in the nature of things cannot take effect before the death of the testator.” Obviously this is- true where there is no clause in the will explicitly revoking the trust and [citations omitted] in such event the will, if it refers to the trust and its assets at all, does nothing more than attempt to dispose of the trust .assets, [citations omitted] A clause in a will purporting to bequeath property to someone is testamentary and has no effect until the death of the testator, [emphasis added]

Lowry, 418 N.E.2d at 13-14.

Accordingly, we reject Euart’s contention that the will provision involved here is so inconsistent with the trust that it must have been meant as a partial revocation. The language was testamentary in nature and ineffective to revoke the trust. Low-ry; Sanderson. The language simply falls far short of evidencing a definitive manifestation of intent to revoke any part of the trust.

The judgment is accordingly affirmed.

PEARSON, DANIEL S., Associate Judge, concurs.

SCHWARTZ, ALAN R., Associate Judge, dissents with opinion.

SCHWARTZ, ALAN R., Associate Judge

(dissenting).

Applying the very authorities cited by the majority, I reach a contrary conclusion. It seems quite clear that, as to the Ft. Lauderdale property, the execution and delivery of the will to the trustee effected a revocation of that portion of the trust which provided for the distribution of the trust estate after Mrs. Brown’s death:

SECOND: After the death of the Sett-lor, the Trustee shall distribute the trust estate to and among Settlor’s then living issue, per stirpes.

And, contrary to the court’s apparent view, it is hardly an appropriate objection that a disposition is testamentary in character (as this one certainly is) when it is contained in a validly executed will. On the simple ground, therefore, that both the terms of the trust and the requirements of the Statute of Wills were complied with, I would reverse.

      . This house and the lot on which it was located were transferred to Euart during Brown’s lifetime by way of the trustee deeding the property to Brown and Brown immediately quit-claiming it over to Euart.

      . The only other case relied upon by Euart is also distinguishable. Although the will involved in In Re Sahakian ⅛ Estate, 44 Misc.2d 849, 255 N.Y.S.2d 520 (Surrogate’s Ct.1965) did not contain a provision expressly revoking the trust, all the parties concerned in that case stipulated that the settlor-testator’s intent was to distribute the trust res according to the terms of his will. In contradistinction, Brown’s intent is the very issue which is being hotly disputed in the present case. To the extent Sahakian's Estate can be interpreted contrary to this opinion, we choose not to follow it.

      . The court held in Oppenheimer:

      An instrument which contains language appropriate to two or more different types of instruments will be construed in accordance with the intention of the testator as deduced from the instrument as a whole and from any extrinsic evidence that might be introduced and the inconsistent provisions will be eliminated and ignored as surplusage, [citation omitted] [emphasis added]
      190 N.E.2d at 74. Therefore, if we were to accept Euart's contention that the will provision contained language appropriate for a revocation of trust, the "parol evidence” testimony of the trustee as to Brown’s intent not to revoke the trust, would be admissible and properly considered by the trial court under the Oppenheimer holding. If that were the case, we would be bound to affirm the trial court’s ruling because it would be supported by competent substantial evidence. Cf. Elmore v. Enterprise Developers, Inc., 418 So.2d 1078 (Fla. 4th DCA 1982) (where language in a contract is ambiguous or uncertain in meaning, extrinsic evidence is admissible for the purpose of determining the intent of the parties; where a contract provision is susceptible of two or more meanings, the meaning adopted by the trial court must be affirmed unless clearly erroneous). We simply find, however, that the will provision does not contain "language appropriate to two or more different instruments,” but rather contains only testamentary language appropriate for a will. Cf. Sanderson (”[t]he language of revocation appearing as part of her will was not testamentary”).

      . The trust specifically provides:
      FIFTH: The Settlor reserves the right at any time and from time to time during her life, by an instrument signed and acknowledged by her and delivered to the Trustee thirty (30) days in advance of the effective date:
      (1) to withdraw any or all of the property held in trust under this agreement or revoke the trust created by such agreement in whole or in part, subject to the payment of the Trustee's compensation and the expenses of the trust;
      (2) alter, amend or modify this agreement in any respect; and (3) appoint any additional, substitute or successor Trustee, as the case may be. [e.s.]


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth MONTGOMERY, Barbara Montgomery and Gulf Leasing Corporation, a Florida Corporation, Appellants, v. Charles LAMBERT and Margo Lambert, Appellees.
    No. 83-2302.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1984.
    McNulty, Moritz & Dickey, Largo, and Joseph P. McNulty of Earle & Earle, St. Petersburg, for appellants.
    Howard P. Ross of Battaglia, Ross, Hastings, Dicus & Andrews, St. Petersburg, for appellees.
   PER CURIAM.

Subsequent to our relinquishment of jurisdiction and prior to oral argument, the trial court reinstated the amended complaint which we find is related to the counterclaim herein. Thus, the order disposing of the counterclaim is no longer an appeala-ble final order. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). Accordingly, this appeal is dismissed without prejudice to refile after a final judgment has been rendered.

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


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Barbara Jane WALKER-SEAMAN, f/k/a Barbara Jane Walker-Garwood, Appellant, v. Thomas Chason GARWOOD, Jr., Appellee.
    No. 83-1487.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.

      Meridith J. Cohen, Meredith J. Cohen, P.A., Orlando, for appellant.
    Michael Sigman, Law Offices of Michael Sigman, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Barbara Walker-Seaman appeals from an order modifying a final judgment of dissolution changing custody of the parties’ three minor children from the mother to the father, Thomas Garwood, Jr. The court found that there had been a substantial change in circumstances and a resultant change in the needs of the minor children and therefore it was necessary and appropriate that the primary residential custody be awarded to Garwood.

The substantial and material change in circumstances is not apparent from the record. Pursuant to stipulation of the parties, the interview of the children had been conducted by the trial judge in camera; the parties, counsel, and the court reporter were not present. We and the parties may only speculate as to what the children related to the trial judge. Since they are the only witnesses other than the parties and their respective spouses as to the true conditions within the homes of their parents, their observations and preferences are of great interest to the trial judge. Should this unrecorded testimony be revealing to the trial judge in the face of the conflicting testimony of the parties, it could easily and understandably be persuasive in the court’s decision.

We can appreciate the reasons why the parties may elect to follow this procedure. Tactically it may be very effective because a parent is giving a child the opportunity to speak with candor and in confidence; however, the candid admissions of an articulate child can be especially damaging if adverse to the hopes of one parent.

We are always reluctant to interfere with the broad discretion of a trial court in child custody matters, Kershner v. Crocker, 400 So.2d 126 (Fla. 5th DCA 1981), but in instances such as this where some of the most compelling testimony is received, by stipulation of the parties, behind closed doors, we are, for almost all purposes, prevented from concluding that the trial court had no basis for its decision. The absence of this crucial part of the trial, coupled with the presumption of correctness of rulings of the trial court, dictate an affirmance. See Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983).

AFFIRMED.

COBB, C.J., and COWART, J., concur.


author: COBB, Chief Judge.

text:
    D.A.L., a child, Appellant, v. STATE of Florida, Appellee.
    No. 84-133.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Chief Judge.

D.A.L., the juvenile defendant below, claims on appeal that he was entitled to discharge under the Juvenile Speedy Trial Rule, Florida Rule of Juvenile Procedure 8.180(b). The operative facts show that a delinquency petition was filed against him on July 26, 1983, charging burglary and grand theft. The state attempted to serve a summons on him on August 15, 1983, but he could not be located at the address found on the arrest form. On that same date, the trial court directed that an alias summons be issued at a new address to be provided by the state attorney. Ultimately, an alias summons was issued on November 9,1983, and served on the defendant on or about November 16, 1983. On December 8, he filed a motion to dismiss for the reason that more than 90 days had expired since the petition was filed, without an adjudicatory hearing as required by the applicable rule, which provides, in pertinent part:

(a) Time. Every case in which a petition has been filed alleging a child to be delinquent or dependent shall be brought to an adjudicatory hearing without demand within 90 days of the earliest of the following dates:
1. The date the child was taken into custody.
2. The date the petition was filed.
(b) Dismissal. If the adjudicatory hearing is not begun within 90 days or an extension thereof as hereinafter provided the petition shall be dismissed with prejudice.
(d) Extensions of Time. The court may extend the period of time established by this order on motion of any party, after hearing, on a finding that the interests of justice will be served by such extension. The order will recite the reason for such extension. The general congestion of the court’s docket, lack of diligent preparation, or failure to obtain available witnesses, or other avoidable or foreseeable delays shall not constitute grounds for such an extension.

On December 19, 1983, the state filed a motion to extend the speedy trial period. In that motion, the state made the following assertions:

1. The Child herein was never arrested or taken into custody.
2. A Petition for Delinquency was filed in this cause on July 26, 1983.
3. The speedy trial time in this cause expired on September 26, 1983.
4. The jurisdiction of the court did not attach (to) the child and the case until an alias summons was served upon the child on November 14, 1983.
5. No extension hearing could be held prior to November 14, 1983, since an extension hearing cannot be held by a court which does not have jurisdiction.
6. The court has a reasonable time after jurisdiction has attached within which to consider an extension of the ninety (90) day period even if the extension hearing is subsequent in point of time to ninety days after filing of the petition.
7. The speedy trial time expired prior (to) the courts jurisdiction attaching to the child and the case.
8. The delay in serving the child was neither avoidable nor foreseeable and cannot be attributed to any delay or act by the state.
9. Failure to grant this motion will result in undue prejudice to the State of Florida.
10. The interests of justice will be served by such extension.

The trial court held a hearing on the same date the state filed its motion. Apparently no evidence was presented, but merely argument by counsel in support of their respective motions. The trial court entered its order denying the defense motion to dismiss. Based upon a finding that it did not obtain jurisdiction until November 11, 1983, the trial court held the motion to extend was timely and granted it. Thereafter, the trial court accepted the defendant’s nolo contendere plea, withheld adjudication and placed the defendant in the community control program, and this appeal ensued.

The issue on appeal is whether or not the trial court properly granted the extension of speedy trial time. To resolve this appeal, two factors must be considered: (1) the jurisdiction of the court to extend the time, and (2) the sufficiency of the evidence to justify such an extension. We believe the trial court erred in regard to both factors. Rule 1.180 is clear in requiring that, in the absence of an extension of speedy trial time, an adjudicatory hearing must be held within 90 days of the filing of the petition, or the date the child is taken into custody, whichever is earlier. As this appellant was never taken into custody, the measuring point here was the date the petition was filed. In this case, there was a lapse of 146 days between the filing of the petition and the order of extension. Therefore, there was a clear violation of the rule.

On appeal the state relies on dicta from this court’s decision in P.L.H. v. Brownlee, 389 So.2d 649 (Fla. 5th DCA 1980), wherein we expressed concern, and attempted to reconcile, the conflict we perceived at that time between the Juvenile Jurisdiction Statute and the Juvenile Speedy Trial Rule. Despite that dicta, we now read section 39.06(7), Florida Statutes (1983), to bestow in rem jurisdiction upon the trial court at the time the petition for delinquency is filed (assuming it precedes the custodial detention of the juvenile), thereby rendering it consistent with the Juvenile Speedy Trial Rule as set out in Florida Rule of Juvenile Procedure 8.180(a), and its statutory counterpart, section 39.05(7), Florida Statutes (1983). Therefore, the trial court would have jurisdiction to grant an order of extension of the speedy trial period, for good cause shown, even prior to its acquisition of in personam jurisdiction.

Under our reading of section 39.-06(7), the speedy trial time had expired prior to the trial court’s order of extension, so the cause should have been dismissed pursuant to the defendant’s motion at the hearing of December 19, 1983. See Fla.R. Juv.P. 8.180(b). Moreover, even if the order of extension had been obtained within the 90-day period, it would have been insufficient in this case because at the extension hearing held below the state failed to present evidence or make any showing of the defendant’s unavailability for service of process, which is the state’s burden at an extension hearing. See V.C. v. Ferguson, 422 So.2d 861 (Fla. 3d DCA 1982); C.S. v. State, 390 So.2d 457 (Fla. 3d DCA 1980); Thigpen v. State, 350 So.2d 1078 (Fla. 4th DCA 1977), remew denied, 354 So.2d 986 (1978).

Accordingly, we reverse and remand for discharge of the defendant.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ., concur.

      . Florida Rule of Juvenile Procedure 8.180(a) is in conformity with section 39.05(7), Florida Statutes (1983).

      . Section 39.06(7), Florida Statutes (1983), reads:
      The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child, a parent, or legal or actual custodian of the child or when the child is taken into custody with or without service of summons and before or after filing of a petition, whichever first occurs, and thereafter the court may control- the child and case in accordance with this chapter.


text:
    Bobby BROWN, a/k/a Marvin, Appellant, v. STATE of Florida, Appellee.
    No. 84-346.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Section 817.563, Florida Statutes (1981), prohibiting the sale of a counterfeit substance in lieu of a controlled substance, is constitutional. Todd v. State, 455 So.2d 1154 (Fla. 5th DCA 1984); State v. Bright, 451 So.2d 880 (Fla. 5th DCA 1984); Houser v. State, 453 So.2d 484 (Fla. 2d DCA 1984); State v. Growden, 437 So.2d 783 (Fla. 2d DCA 1983); State v. King, 435 So.2d 370 (Fla. 2d DCA 1983); M.P. v. State, 430 So.2d 523 (Fla. 2d DCA 1983); State v. Thomas, 428 So.2d 327 (Fla. 1st DCA 1983), review denied, 436 So.2d 101 (Fla.1983). This decision directly conflicts with State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984).

AFFIRMED.

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


text:
    SKEETER’S BIG BISCUIT HOUSES OF AMERICA, INC., and Asher G. Sullivan, Appellants, v. Jaime S. CARRION, Appellee.
    No. 84-1269.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1984.
    Robert W. Anthony, Smathers, Pleus, Adams, Fassett & Devine, P.A., Orlando, for appellants.
    Charles D. Bailey, Jr., Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellee.
   PER CURIAM.

We affirm the order of the Sarasota County Circuit Court denying defendants’ motion to dismiss or transfer venue. In this suit on a secured promissory note payable in Sarasota County involving foreclosure of security located in Sarasota County, venue was proper in that county. See sections 47.011 and 47.051, Florida Statutes (1983).

RYDER, C.J., and CAMPBELL and LE-HAN, JJ., concur.


author: GRIMES, Judge.

text:
    Anthony NUNEZ, a minor, Appellant, v. Estrella GONZALEZ, and Mary E. Mahon, as Personal Representative of the Estate of Indalecio Nunez, Appellees.
    No. 83-1937.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1984.

      Mary L. Taylor and Andrew K. Macfar-lane of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Lee S. Damsker of Maney & Damsker, Tampa, for appellee Estrella Gonzalez.
    Mary E. Mahon of Mary E. Mahon, P.A., Tampa, for appellee Mary E. Mahon as Personal Representative of the Estate of Indalecio Nunez.
   GRIMES, Judge.

This is a dispute over life insurance proceeds payable upon the death of Indalecio Nunez who was killed by his ex-wife and primary beneficiary, Anita Nunez. Ms. Nunez has assigned her claim under the policies to Anthony Nunez, the minor son of Ms. Nunez and the decedent. The estate and Estrella Gonzalez, the decedent’s mother, oppose Anthony’s claim because the decedent died at the hands of his ex-wife. Pursuant to a plea bargain, Ms. Nunez pled guilty to manslaughter in the killing of her ex-husband. On this basis, the court entered summary judgment against Anthony. He now appeals.

In Carter v. Carter, 88 So.2d 153 (Fla.1956), the supreme court held that the beneficiary of a life insurance policy could not “receive the proceeds of a policy on the life of one whom he unlawfully and intentionally, killed.” While admitting that Ms. Nunez unlawfully killed her ex-husband, Anthony contends that her guilty plea to manslaughter does not conclusively prove that she intentionally killed him. He argues that he should be permitted to introduce psychiatric testimony at trial that Ms. Nunez did not have the requisite intent to be held responsible for her actions.

It is well settled that a judgment of conviction in a criminal prosecution cannot be introduced into evidence in a civil action to establish the truth of the facts upon which it was rendered. Stevens v. Duke, 42 So.2d 361 (Fla.1949). However, a judgment entered in a criminal prosecution on a plea of guilty may be introduced in a civil action to establish an admission against interest. Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla.1967). The court in Hatfield v. York, 354 So.2d 426 (Fla. 4th DCA 1978), reversed an order which had dismissed a complaint for assault and battery and false arrest because the plaintiff had pled guilty to criminal charges arising out of the incident upon which the complaint was based. The court stated:

In civil actions where one of the issues is the guilt of a person convicted of a criminal offense, or some fact necessarily involved in the determination of such guilt, it is proper to admit evidence of that person’s plea of guilty to the criminal offense. The guilty plea is admissible as a declaration against interest and may be considered by the finder of fact, but it does not as a matter of law establish the truth of the facts upon which the judgment of guilt was rendered.

354 So.2d at 427.

In reaching its conclusion, the court below reasoned:

ANITA NUNEZ, after successfully negotiating a favorable plea bargain in the criminal proceedings by abandoning her insanity defense and pleading guilty to manslaughter, now wishes to assert that she was, in fact, temporarily insane at the time of the commission of the offense in the civil proceedings. The Court finds that ANITA NUNEZ’ plea of guilty to manslaughter cannot be divisible. Having gained legal benefit of her negotiated plea bargain to a plea of manslaughter she cannot be heard to state that the legal effect of this plea is not applicable in civil proceedings. Goldstein v. Goldstein, 310 So.2d 361, 365 (Fla. 3d DCA 1975). See also Grauer v. Occidental Life Insurance Company of California, 363 So.2d 583 (Fla. 1st DCA 1978); Palm Beach Company v. Palm Beach Estates [110 Fla. 77], 48 So. 544 (1933).

Goldstein v. Goldstein, 310 So.2d 361 (Fla. 3d DCA 1975), distinguishable on its facts, is one in a line of cases which holds that a man who places assets in his wife’s name for his own purposes cannot later claim in dissolution proceedings that such assets were his all the time.

The remaining cited cases and others relied upon by the appellees apply the doctrine of equitable estoppel. This doctrine precludes a person from maintaining a position inconsistent with another position which was asserted at a previous time. The principle is inapplicable to this case, however, because it rests upon the premise that the opposing party has acted in reliance upon the prior inconsistent conduct. Robertson v. Robertson, 61 So.2d 499 (Fla.1952); Fotomat Corp. v. R.B. Films, Inc., 366 So.2d 1213 (Fla. 1st DCA 1979); United Contractors, Inc. <p. United Construction Corp., 187 So.2d 695 (Fla. 2d DCA 1966). None of the appellees were involved in the criminal proceeding against Ms. Nunez, and they cannot be said to have changed their position in reliance upon her negotiated guilty plea. Therefore, while Ms. Nunez’ conviction upon her guilty plea and any relevant admissions made by her during the plea colloquy may be introduced as evidence of an “intentional” killing, they do not conclusively resolve the issue of whether her claim to the insurance proceeds is barred.

Anthony also seeks to appeal an adverse ruling on a motion in limine. This is an unappealable order, so we will treat the argument as if made in a petition for certiorari. As such, we find no departure from the essential requirements of law and deny the petition.

We reverse the order dismissing Anthony’s claim under count I and remand for further proceedings.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.

      . We have concluded that this cause of action is severable from the other causes of action which remain pending in the trial court so as to permit an appeal at the present time. See Mendez v. West Flagler Family Ass'n, 303 So.2d 1 (Fla.1974).

      . Although subsections (3) and (5) of section 732.802, Florida Statutes (Supp.1982), appear to bear directly upon the case at hand, this legislation was not enacted until after the death of Indalecio Nunez.

      . There is also a principle, not yet fully developed in Florida law, which precludes a person who has taken a position under oath in prior litigation from taking a contrary position in subsequent litigation even where different parties are involved. See Moore v. Neff, 629 S.W.2d 827 (Tex.Civ.App.1982); 28 Am.Jur.2d Estoppel and Waiver § 71 (1966). This so-called doctrine of judicial estoppel would not apply here because Ms. Nunez did not enter her plea under oath.


text:
    Rickie R. MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. AZ-272.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellant. ¡
    Jim Smith, Atty. Gen., Lawrence Kaden, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We interpret the order appealed to be a ruling on the motion for post-conviction relief, and we agree with appellant and appellee that the trial court did not have jurisdiction to rule on the motion due to the pendency of the direct appeal of the judgment and sentence. Therefore, the order entered by the trial court on April 24, 1984, is quashed.

SHIVERS, WENTWORTH and NIM-MONS, JJ., concur.


text:
    John MEARES, Dorothy Meares, and Meares Indian Rocks Landscaping, Inc., a Florida Corporation, Appellants, v. REVELS FORD TRACTOR CO., INC., a Florida Corporation, Appellee.
    No. 84-514.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1984.
    Gary A. Hewetson, P.A., Clearwater, for appellants.
    Eric S. Ruff of Trinkle, Redman, Alley & Moody, P.A., Plant City, for appellee.
   PER CURIAM.

There is sufficient evidence in the record to sustain the entry of the amended final judgment against appellants John Meares and Dorothy Meares. However, the appel-lee concedes, and we agree, that the evidence was insufficient to justify judgment against the corporate appellant. Accordingly, the judgment against John Meares and Dorothy Meares is affirmed, and the judgment against Meares Indian Rocks Landscaping, Inc., is reversed.

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