text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Hugo RODRIGUEZ, Appellee.
    No. 83-38.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Miller, Hodges & Kagan and Jack Miller, Miami, for appellant.

      Horton, Perse & Ginsberg and Edward Perse, James Schmick, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

The insurer appeals from the trial court’s determination of the subrogation lien awarded pursuant to Section 440.39, Florida Statutes (1981).

The law is now settled in this jurisdiction that the trial court is precluded from reducing a compensation carrier’s third party lien beyond the extent that full recovery is limited by uncollectibility or comparative negligence. Sentry Insurance Co. v. Keefe, 421 So.2d 236 (Fla. 3d DCA 1983); see also United Parcel Services v. Carmadella, 432 So.2d 702 (Fla. 3d DCA 1983). In the present case, the trial judge’s personal knowledge as to the extent of the comparative negligence, standing alone, is inadequate to provide a sufficient record from which an aggrieved party may seek appellate review. For this reason, in a lien determination, if a formal hearing is not conducted, the parties should, at a minimum, proffer evidence (by consent), of comparative negligence or noncollectibility of the judgment. Because we are unable to discern whether the present award was consistent with the rule enunciated in Sentry Insurance Co. v. Keefe, supra, the order appealed from is reversed and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Helen FOY, Appellant, v. McArthur DAIRY and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellees.
    No. 83-71.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Helen Foy, in pro. per.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellees.
    Before SCHWARTZ, C.J. and HENDRY and BASKIN, JJ.
   PER CURIAM.

Finding competent substantial evidence to support the Commission’s findings, we affirm. Florida Industrial Commission v. Ciarlante, 84 So.2d 1 (Fla.1955).


author: DANIEL S. PEARSON, Judge.

text:
    Carlton Gerald BASTON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-159.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      H.T. Smith, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the defendant’s conviction for possession of cannabis entered upon his nolo contendere plea reserving the right to appeal the denial of his motion to suppress. Even assuming, arguendo, that (a) the trained dog’s alert on the defendant’s suitcase, which provided adequate probable cause for the seizure of the suitcase, occurred after the scheduled departure of Ba-ston’s flight, and (b) there was no founded suspicion to justify a limited detention of the suitcase, see Florida v. Royer, -U.S.-, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), there is not the slightest evidence in the record before us to show that any delay in the plane’s departure was brought about by state action so as to convert the removal of the suitcase from the baggage cart, an otherwise de minimis intrusion, either into a detention without founded suspicion or a seizure without probable cause. See State v. Mosier, 392 So.2d 602 (Fla. 3d DCA 1981).

Affirmed.


text:
    Lewis HALE, Appellant, v. HART PROPERTIES, INC., d/b/a the Castaways, Appellee.
    No. 83-279.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Lawrence M. Aglow, West Chester, Pa., for appellant.
    Wallace, Engels, Pertnoy & Solowsky and Marlowe J. Blake, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and BARKDULL, JJ.
   PER CURIAM.

The plaintiff appéals from an order of dismissal for lack of activity under Fla.R.Civ.P. 1.420(e). On September 17,1981, the defendant filed a motion to dismiss the complaint on the ground of improper service. While it was pending, the plaintiff filed a new summons with the sheriff, who properly reserved the defendant on August 13, 1982 and filed the return of service on August 17, 1982. Since the latter event, at the least, constituted appropriate record activity in the cause within one year of the filirig of the defendant’s motion to dismiss on September 27, 1982, Marschall v. Water-Boggan International, Inc., 401 So.2d 1157 (Fla. 3d DCA 1981); see De Benitz v. Russel, 430 So.2d 524 (Fla.3d DCA 1983), the order under review is

Reversed.


text:
    Lynn YACHNOWITZ f/k/a Lynn Klein, Appellant, v. Mitchell KLEIN, Appellee.
    No. 83-443.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.
    Tew, Spittler, Berger & Bluestein and Jeffrey Tew, Coral Gables, for appellant.
    Barranco & Kellough and Steven Kel-lough and Peter H. Kircher, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings based on the authority of Brown v. Brown, 432 So.2d 704 (Fla. 3d DCA 1983).


text:
    ZURICH INSURANCE COMPANY, a foreign company authorized to do business in Florida, Appellant, v. Don ALLEN, Appellee.
    No. 83-1188.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 1983.

      Haddad, Josephs & Jack, Coral Gables, and Gary Gerrard, Miami, for appellant.
    Proenza & White and H. Clay Roberts, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We hold that the trial court properly refused to enforce that provision of the insurance contract between Zurich Insurance Company and Allen which requires that actions under the contract be determined only by an Ontario, Canada court and affirm the order under review which denied Zurich’s motion to dismiss on grounds of improper venue Allen’s Monroe County action brought under the uninsured motorist provision of his policy for injuries arising out of an accident in such county.

Although a substantial number of jurisdictions have adopted the rule that

“[Wjhile private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such an agreement is not unreasonable at the time of litigation.” Central Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 133, 209 A.2d 810, 816 (1965),

see, e.g., M.S. Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Abadou v. Trad, 624 P.2d 287 (Alaska 1981); Societe Jean Nicolas et Fils v. Mousseux, 123 Ariz. 59, 597 P.2d 541 (1979); Bos Material Handling, Inc. v. Crown Controls Corp., 137 Cal.App.3d 99, 186 Cal.Rptr. 740 (1982); Funding Systems Leasing Corp. v. Diaz, 34 Conn.Sup. 99, 378 A.2d 108 (Conn.C.P.1977); Elia Corp. v. Paul N. Howard Co., 391 A.2d 214 (Del.Super.1978); Prudential Resources Corp. v. Plunkett, 583 S.W.2d 97 (Ky.App.1979); Hauenstein & Bermeister, Inc. v. Met-Fab Industries, Inc., 320 N.W.2d 886 (Minn.1982); Electrical Products Consolidated v. Bodell, 132 Mont. 243, 316 P.2d 788 (1957); Air Economy Corp. v. Aero-Flow Dynamics, 122 N.J.Super. 456, 300 A.2d 856 (N.J.Super.App.Div.1973); Export Insurance Co. v. Mitsui Steamship Co., 26 A.D.2d 436, 274 N.Y.S.2d 977 (N.Y.App.Div.1966); Reeves v. Chem Industrial Co., 262 Or. 95, 495 P.2d 729 (1972); Central Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810; St. John’s Episcopal Mission Center v. South Carolina Department of Social Services, 276 S.C. 507, 280 S.E.2d 207 (1978); Green v. Clinic Masters, Inc., 272 N.W.2d 813 (S.D.1978); Exum v. Vantage Press, Inc., 17 Wash.App. 477, 563 P.2d 1314 (1977); State ex rel. Kuhn v. Luchsinger, 231 Wis. 533, 286 N.W. 72 (1939); cf. Davenport Machine & Foundry Co. v. Adolph Coors Co., 314 N.W.2d 432 (Iowa 1982) (on a motion to dismiss based on forum non con-veniens, a contractual agreement limiting venue, if fair, will be a factor considered by the court); see also Restatement (2d) of Conflict of Laws § 80 (1971) (“The parties’ agreement as to the place of the action cannot oust a state of judicial jurisdiction, but such an agreement will be given effect unless it is unfair or unreasonable”), we continue to adhere to the rule announced in Huntley v. Alejandre, 139 So.2d 911 (Fla. 3d DCA), cert. denied, 146 So.2d 750 (1962):

“that an agreement to limit future causes of action ... to the courts of a specific place is void as an attempt to oust the jurisdiction of all other courts over subsequent disputes arising out of the agreement.” 139 So.2d at 912,

which itself commands a respectable following. See, e.g., Redwing Carriers, Inc. v. Foster, 382 So.2d 554 (Ala.1980); Cartridge Rental Network v. Video Entertainment, Inc., 132 Ga.App. 748, 209 S.E.2d 132 (1974); McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925); Gaither v. Charlotte Motor Car Co., 182 N.C. 498, 109 S.E. 362 (1921); Fidelity Union Life Insurance Co. v. Evans, 477 S.W.2d 535 (Tex.1972); International Travelers’ Association v. Branum, 109 Tex. 543, 212 S.W. 630 (1919); Petersen v. Ogden Union Railway & Depot Co., 110 Utah 573, 175 P.2d 744 (1946).

Affirmed.

      . Our determination that this provision is unenforceable makes it unnecessary to address ap-pellee’s further contentions that the provision was not freely entered into since mandated by Canadian law and that, in any event, it would be unreasonable to enforce the provision where all witnesses in the litigation are located in Florida.


author: DOWNEY, Judge. WALDEN, Judge,

text:
    Margaret J. SAMUELS, Appellant, v. ESTATE OF Lucia S. AHERN, Appellee.
    No. 82-1405.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    James T. Moore, Plantation, for appellant.
    Robert M. Sturrup of Sturrup & Della-Donna, P.A., Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant, Margaret J. Samuels, seeks reversal of an order of the circuit court that denied her application for an award of attorney’s fees from an estate.

This litigation arose out of the administration of the estate of Lucia S. Ahern. It appears that in 1963, Mrs. Ahern opened a bank account in her name at the Century National Bank of Broward County. In 1978, Mrs. Ahern executed a will, which contained a specific bequest of $35,000 and other personalty to Margaret J. Samuels. Then, in March, 1979, upon learning that she had a terminal disease, Mrs. Ahern arranged for the bank account to be held jointly with Mrs. Samuels, with a right of survivorship. Finally, in June, 1979, Mrs. Ahern executed a codicil reducing the bequest to Mrs. Samuels to $25,000.

In August, 1979, Mrs. Ahern died and letters of administration were issued to the Landmark First National Bank of Ft. Laud-erdale, the personal representative designated in the Ahern will. At Mrs. Ahern’s death, the balance of the Century Bank account was $91,277.65. Both the Landmark Bank and Mrs. Samuels claimed title thereto. Therefore, Landmark filed a suit for a declaratory judgment that the funds in the bank account belonged to the Ahern Estate. Mrs. Samuels defended, and claimed the account belonged to her pursuant to Section 659.291, Florida Statutes (1979). A jury trial resulted in a verdict and judgment for Mrs. Samuels, which was affirmed on appeal. Thereafter, Mrs. Sam-uels filed a motion for allowance of attorney’s fees from the Ahern Estate, claiming that the estate had benefited from the services of her counsel in the declaratory judgment suit. The trial court refused to award attorney’s fees because the services of Sam-uels’ attorney did not result in any benefit to the Ahern Estate. This appeal ensued to review that order.

The authority for allowing attorney’s fees in an estate proceedings is Section 733.106(3), Florida Statutes (1979). Thus, an attorney who has rendered services to an estate may apply for an award of attorney’s fees. This provision has been interpreted as requiring that the services benefit the estate. In re Gleasons Estate, 74 So.2d 360 (Fla.1954); In Re Estate of Stanton Griffis, 366 So.2d 80 (Fla. 4th DCA 1978); In re Farris’ Estate, 113 So.2d 721 (Fla. 3rd DCA 1959), cert. den. 116 So.2d 775 (1959). The authorities are clear that the term, “benefit” as used in this context is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in simply effectuating the testamentary intention set forth in the will. In re Estate of Stanton Griffis, supra; In Re Estate of Freedman, 340 So.2d 1275 (Fla. 3rd DCA 1977); In Re Barret’s Estate, 137 So.2d 587 (Fla. 1st DCA 1962).

Unlike most of the cases in which an attorney’s fee has been allowed to one other than the attorney representing the personal representative, in the present case the declaratory judgment action was brought to determine who owned certain personal property, a bank account, which was not a probate asset and, thus, not a part of the estate. The account did not pass under the will and, thus, the decedent’s testamentary intention, which is to be as gleaned from the express terms of the will, was not involved. The only feature of the declaratory litigation with any semblance of a relationship to the Ahern Estate proceedings is that the personal representative of the Ahern Estate was the plaintiff.

The declaratory action did not involve the $25,000 bequest to Mrs. Samuels, and the will did not mention the bank account. The action did not affect the distribution of assets under the will; it had no effect upon the testamentary plan set forth therein. Thus, the conclusion is inescapable that the declaratory action in no way benefited the Ahern Estate.

Numerous cases are relied upon by appellant, a resumé of which would not be particularly fruitful. However, the case most heavily relied upon is In Re Barret’s Estate, supra. In the Barret case, Mrs. Barret owned certain shares of stock, which she had issued jointly to herself and her niece, a Mrs. Oliver, with a right of survivorship. Later, Mrs. Barret executed the will in question, which provided that “all costs of administration of my estate, and any federal and state inheritance or estate taxes, shall be borne pro rata by my entire estate, except that none of the property given and bequeathed under Paragraph hereof designated XII ... shall be charged with any part of such expenses or other charges.” During the administration of the estate, the personal representative sought to construe the quoted provision of the will to require Mrs. Oliver to pay her respective share of the costs and taxes. The court construed the quoted provision to apply only to the probate assets coming into the executor’s hands for administration, and excluded Mrs. Oliver’s stock from any liability therefor. The court held that Mrs. Oliver’s lawyer had rendered services that benefited the estate because those services insured the effectuation of the decedent’s testamentary intention.

Concededly, Barret is similar to the present case but the vital distinguishing feature is that Barret involved a construction of the decedent’s will. The declaratory action giving rise to this claim did not involve a will construction to determine the intention of the testatrix.

For the foregoing reasons we affirm the order appealed from.

AFFIRMED.

DELL, J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

I would reverse upon the authority of In Re Barret’s Estate, 137 So.2d 587 (Fla. 1st DCA 1962).

There are two aspects to my dissenting position.

First, I do not agree that this case did not involve the construction of Mrs. Ahern’s will, but to the contrary. This action was commenced by the personal representative of the Ahern Estate against Mrs. Samuels. Regardless that the Ahern will made no mention of the joint bank account, the personal representative claimed the amounts on deposit in that account as property of the Estate, saying that the decedent had no “intent” to make any gift to Mrs. Samuels. Had the personal representative been successful obviously the money in the account would have been taken from Mrs. Samuels to become assets of the Estate and there administered and distributed according to the terms of the decedent’s will. Assuming, as we must, the correctness of the trial court judgment, it necessarily stands for the proposition that Mrs. Ahern’s will and the testamentary intention found therein was not sufficiently broad to encompass the bank account so as to deprive Mrs. Samuels of it, she being the surviving joint tenant. To put it another way, Mrs. Samuels’ attorney was successful in showing that since Mrs. Ahern’s will was silent as concerns the bank account, Mrs. Ahern did not, as a testamentary intention, want the bank account included as an Estate asset. This, in my judgment, amounted to a construction of the Ahern will, albeit negatively, and thereby effectuated the testamentary intention of the decedent. It seems to me to be an unfair anomaly to deny fees to Mrs. Samuels under these circumstances while, if the Estate had been successful in the personal representative capturing the asset, the personal representative would have been clearly entitled to fees for its attorneys.

Second, I do not think In Re Barret’s Estate is limited to only those cases involving the testamentary intention found in a will. While such intention is most commonly found, of course, in a will, I posture that it may be found elsewhere as well. Estate planning may involve a decision to limit the size of the probate estate for tax or other reasons. Thus, other mechanisms may be employed so as to wholly or partially dispose of one’s estate to others upon death. They may take the form of trusts, insurance policies, powers of appointment, joint tenancies, life estates, and, yes, joint bank accounts with right of survivorship. Therefore, I take issue with any notion that a person’s testamentary intention may be found only in a will. And I feel that the intention expressed in alternate form is just as precious and of equal dignity to that expressed in a will, and such intention should be implemented and guarded just as jealously.

In conclusion, with all respect to my differing brethren, I feel that the services of Mrs. Samuels’ attorney did, in fact and law, effectuate the testamentary intention of Mrs. Ahern and there should be compensation awarded from the Estate on account of such services.

I would reverse and remand.


author: HURLEY, Judge.

text:
    Theodore J. DeLISI, Sr., et al., Petitioners, v. BANKERS INSURANCE COMPANY, a Florida corporation, Respondent.
    No. 82-1946.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    A.J. Barranco, Jr., and Steven Cripps of Barranco & Kellough, P.A., Miami, for petitioners.
    Steven L. Selph of Harris, Barrett & Dew, St. Petersburg, for respondent.
   HURLEY, Judge.

The petitioner invoked his Fifth Amendment privilege against self-incrimination during a civil discovery deposition. Thereafter, the trial court entered an order imposing sanctions. Now, by petition for writ of certiorari, we are asked to review the propriety of the trial court’s decision. Upon consideration of the record, we conclude that the trial court departed from the essential requirements of law by failing to employ the correct test to determine whether the petitioner was justified in invoking the Fifth Amendment privilege. Accordingly, we issue the writ, quash the order imposing sanctions and remand the cause for further proceedings consistent with this opinion.

A sketch of the factual background will aid in understanding the present posture of the ease. Multiple defendants, including the petitioner’s son, were charged with various criminal violations in the Circuit Court for the Tenth Judicial Circuit. Respondent, Bankers Insurance Company (“Bankers”), insured appearance bonds which were posted on behalf of the defendants. To secure the bonds, the petitioner DeLisi, on his own behalf, and as “attorney in fact” for some of the defendants seeking to post bond, granted a mortgage deed, subsequently augmented by mortgage modification agreement, to Bankers as collateral for the bond. Subsequently, the criminal defendants forfeited their bonds by failing to appear. As a result, Bankers filed suit in the Circuit Court for the Seventeenth Judicial Circuit to foreclose upon the mortgage securing the bonds. Mr. DeLisi filed an answer and asserted two affirmative defenses: (1), that he was not legally authorized to mortgage the properties on behalf of the four defendants, and, (2), that various previously recorded quitclaim deeds by petitioner to “DeLisi Property Management” and to Mr. DeLisi and his brother, as tenants in common, were for valuable consideration and, therefore, placed the mortgage grants outside the chain of title.

As the foreclosure suit progressed, Bankers sought to depose Mr. DeLisi regarding his personal and corporate finances, his ownership interests in the mortgaged properties, and the present location of the defendants who had failed to appear in the criminal action. Mr. DeLisi invoked his Fifth Amendment privilege in response to all deposition questions, save for his name, address, age, date of birth, and the fact that he had seen Bankers’ complaint. Accordingly, Bankers filed two motions to compel.

In the ensuing hearings, the trial court basically reasoned that it could not compel Mr. DeLisi to answer the questions to which he had asserted the privilege, but that it could sanction Mr. DeLisi’s failure to answer by striking his pleadings and entering a default against him. In taking this action, the court did not attempt to determine whether there was a realistic possibility that the requested answers could be used to convict Mr. DeLisi of a crime. Rather, the court seemed to travel on its own understanding of the “sword and shield” theory. After concluding that the deposition questions were within the proper scope of civil discovery, it ruled that Mr. DeLisi’s pleadings should be stricken and a default entered due to his failure to answer the deposition questions.

Initially, we note that the trial court incorrectly applied the “sword and shield” metaphor. This phrase embraces the rule “that a plaintiff may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery in matters pertinent to the litigation.” City of St. Petersburg v. Houghton, 362 So.2d 681, 685 (Fla. 2d DCA 1978). In language approved by the Houghton decision, one court has gone so far as to note that “[pjlain justice dictates the view that regardless of plaintiffs’ intention, plaintiffs must be deemed to have waived their assumed privilege by bringing this action .... ” Independent Productions Corp. v. Loew’s Inc., 22 F.R.D. 266, 276 (S.D.N.Y.1958). In the case at bar, petitioner’s assertion of affirmative defenses does not constitute a voluntary application for affirmative relief so as to permit utilization of the “sword and shield” doctrine. Thus, the trial court erred in resolving the case on this basis.

The test which should have been applied was restated recently in two cases: DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982) and Pillsbury Co. v. Conboy, -U.S.-, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983). DeLisi, interestingly enough, involved the same parties who are now before this court. The principal issue there was whether a RICO forfeiture action was essentially civil (remedial) or criminal (punitive) in nature. The Second District concluded that it was civil or remedial. In the process of announcing its decision, the court also noted that there are two aspects of the privilege against self-incrimination:

The first involves the absolute prohibition of compelling a defendant in a criminal case to testify against himself. The second pertains to the right of a witness in a proceeding other than a criminal prosecution in which he is a defendant to refuse to respond to interrogation on the grounds that his answers might tend to incriminate him.

DeLisi v. Smith, supra at 935.

Obviously, since a mortgage foreclosure action is a civil proceeding, here we are concerned with the second aspect of the Fifth Amendment privilege. Mr. DeLisi claims that substantive responses to the questions posed will potentially implicate him in state and federal criminal violations. Our sister court in DeLisi held that when a trial court is presented with such a contention, it must exercise its discretion and determine whether it is reasonably possible that answers to either interrogatories or deposition questions could evoke a response “forming a link in the chain of evidence which might lead to criminal prosecution.” DeLisi, supra, at 938.

Justice Marshall in his concurring opinion in Pillsbury Co. v. Conboy, -U.S.-, 103 S.Ct. 608, 619, 74 L.Ed.2d 430, 445-446 n. 1 (1983), reiterated the same test:

A witness is generally entitled to invoke the Fifth Amendment privilege against self-incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him. Moreover, the Fifth Amendment forbids not only the compulsion of testimony that would itself be admissible in a criminal prosecution, but also the compulsion of testimony, whether or not itself admissible, that may aid in the development of other incriminating evidence that can be used at trial....
The privilege is inapplicable only “if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.” [Citations omitted.]

See also Lewis v. First American Bank of Palm Beach County, 405 So.2d 300 (Fla. 4th DCA 1981); Litchford, The Privilege Against Self-Incrimination in Civil Litigation, 57 Florida Bar Journal 139, 140 (1983).

In the present case, the trial court burdened the petitioner’s assertion of the Fifth Amendment privilege without discerning whether the petitioner was entitled to invoke the privilege. In short, the court failed to apply the proper test and, thus it is difficult to determine whether any sanctions are justified. On remand, the court should reexamine the issue, utilizing the test set forth herein. If the court determines that some sanctions are warranted, it may consider those authorized in Roberts v. Jardine, 358 So.2d 588 (Fla. 2d DCA 1978). Accordingly, we issue the writ, quash the order on sanctions and remand for further proceedings consistent with this opinion.

DOWNEY and WALDEN, JJ., concur.

      . Sections 943.46-943.465, Fla.Stat. (1979); subsequently revised and recodified, sections 895.01-895.06, Fla.Stat. (1981).


author: BERANEK, Judge.

text:
    Wallace JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2213.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his convictions of kidnapping, robbery, and carrying a firearm in the commission of a felony. We affirm as to the robbery conviction but reverse as to the kidnapping and firearm charge. Although the defendant was also convicted of two other crimes growing out of the same incident, these additional convictions are not raised on appeal.

Mr. Rice and another person were guests at a motel in Broward County. Mr. Rice left the room to get ice and as he returned to the room and placed his key in the door two individuals approached him from the rear, placed a gun to his head, and propelled him through the open door. The two assailants then proceeded to take property from the two occupants and immediately left the room. We find no merit to the appellate attack on the armed robbery conviction. As to kidnapping, the matter is controlled by the Florida Supreme Court’s recent opinion in Faison v. State, 426 So.2d 963 (Fla.1983). Here we find the undisputed facts show an absence of confinement. The only movement was across the threshold of the open door which Mr. Rice himself was in the act of opening. Despite the fact that the robbery became easier and less detectable inside the room we conclude that the movement was slight, inconsequential and merely incidental to the robbery. As such, it does not constitute the separate crime of kidnapping. The conviction and sentence for kidnapping are reversed and vacated. The conviction and sentence for carrying a firearm in the commission of a felony are also reversed on the authority of Bell v. State, 437 So.2d 1057 (Fla.1983), which case receded from State v. Monroe, 406 So.2d 1115 (Fla.1981).

With all respect to the trial court, we point out that the Bell case was not published at the time of this trial.

AFFIRMED IN PART, REVERSED IN PART.

ANSTEAD, C.J., and HURLEY, J., concur.


text:
    Diana R. PICKARD, Appellant, v. John C. PICKARD, Appellee.
    No. 82-2281.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Stephen H. Butter of Abamson & Butter, Chartered, Miami, for appellant.
    Michael A. Nuzzo, Miami, for appellee.
   PER CURIAM.

We have carefully considered appellant’s contentions regarding her entitlement to a modification awarding her either further rehabilitative alimony or permanent alimony and her entitlement to attorney’s fees for this proceeding and find substantial competent evidence in the record to support the findings and rulings of the trial court.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

DOWNEY, HURLEY and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Terry LOOMIS and Janet Loomis, Appellees.
    No. 82-2492.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Philip G. Butler, Jr., West Palm Beach, for appellees.
   BERANEK, Judge.

The State appeals an order granting the defendants’ motion to suppress physical evidence seized from the defendants’ backyard. We reverse.

Acting on an anonymous tip, a Boynton Beach police officer positioned himself in a shopping center parking lot which was located across a canal from the defendants’ residence. He observed two individuals sitting in the backyard putting marijuana plants into pots and several marijuana plants three to four feet high in the backyard. The two individuals who were in the backyard were arrested and the marijuana plants in the backyard were seized without a warrant. These individuals were not the owners of the property and are not parties to this appeal. The following day the owners of the home, appellees, Janet and Terry Loomis, were arrested and charged with trafficking in marijuana in violation of Section 893.135(1)(a), Florida Statutes (1979). Their motion to suppress the marijuana seized from their backyard was granted, and the State appeals.

The appellees maintain that State v. Rickard, 420 So.2d 303 (Fla.1982), controls and requires affirmance based on the following excerpt at 304: “Where contraband is seen in plain view by police in the defendant’s backyard from a point adjacent to the property, may the police seize the contraband without a warrant in the absence of exigent circumstances? We answer the question in the negative.”

However, after an analysis of the issue, the court concludes at 307:

We answer the certified question as follows:
Where contraband is seen in plain view by police in the defendant’s backyard from a point adjacent to the property and the defendant has exhibited an actual expectation of privacy, the police may not seize the contraband without a warrant in the absence of exigent circumstances. [Emphasis supplied.]

The answer to the certified question appearing at the conclusion of the opinion differs from the question as presented initially in that it requires the defendant to exhibit an actual expectation of privacy before the police officers have to obtain a warrant to seize contraband in plain view in the absence of exigent circumstances. In Rickard the defendant had constructed a chain-link fence around his backyard and he also erected a partition next to his storage shed which obstructed the view of his yard from his only neighbor. Defendant had been growing marijuana in the obstructed area. The court found that the defendant exhibited an actual expectation of privacy.

In Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA), cert. denied, 361 So.2d 833 (Fla.1978), the defendant was growing marijuana in his backyard in plain view. While the yard was enclosed with a chain-link fence, the court held that the defendant had exhibited no reasonable expectation of privacy. The seizure of marijuana without a warrant was thus a legitimate seizure. The Supreme Court recognized the viability of the holding of Lightfoot in Rickard. See also Newberry v. State, 421 So.2d 546 (Fla. 4th DCA 1982).

The Second District has relied on Rickard holding that growing marijuana in plain view in a backyard with no fence and with only a modest depression used for drainage separating the defendant's lot from a neighboring community center does not create the requisite expectation of privacy which would require a police officer to obtain a warrant before seizing contraband from the premises. State v. McConnell, 422 So.2d 74 (Fla. 2d DCA 1982). However, in State v. Rowe, 422 So.2d 75 (Fla. 2d DCA 1982), the same court found that the existence of a chain-link fence and the fact that the marijuana was in the midst of a vegetable garden in the defendant’s backyard created the requisite expectation of privacy required by Rickard.

In this case, the Loomises erected a three and one-half to four foot high chain-link fence running around the sides of the yard. The testimony established that the fence was the type required by law to enclose a pool. We hold that based on these facts, the defendants did not create the requisite actual expectation of privacy which would require the police to obtain a warrant before seizing the. marijuana growing in plain view in the backyard. Therefore, the order granting the motion to suppress is reversed, and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, C.J., and HURLEY, J., concur.


text:
    Diana Lynn SEIBERT, Appellant, v. Robert Paul SEIBERT, Appellee.
    No. 82-2555.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.

      Charlotte H. Danciu, Boca Raton, for appellant.
    Albert T. Sims of Sims & Henry, West Palm Beach, for appellee.
   PER CURIAM.

This is an interlocutory appeal from the denial of a 1.540(b) motion to set aside a default judgment previously entered against the wife/child custodian in a contested custody matter. Custody was transferred to the husband after the default and the matter remains pending before the trial court on further petitions to modify child custody. This case started in 1980 as a contested child custody battle and despite extensive resort to the courts the controversies over the children continue unabated.

The wife maintains on appeal that the default order of the trial court granting her husband custody of the minor children should be vacated because of her mistake, inadvertence and excusable neglect in failing to respond to the husband’s petition to modify final judgment. Upon review of the matter, we find that the trial court was correct in determining that the evidence failed to establish any reason justifying relief from the default judgment. Therefore, the decision of the trial court is affirmed. We caution that the issue of child custody is still subject to determination based upon the paramount consideration of the best interest of the children. A petition remains pending on the issue of custody and the appellant’s prior noncompliance with court orders and other defaults are but circumstances to be considered on the court’s further determinations as to custody. In short, child custody between contesting parents is always subject to reevaluation based upon the interests of the children. Such issues are not to be foreclosed on technical pleading defaults. Here the former husband was entitled to the default but the court must proceed to consider the further petition on custody without foreclosing consideration of all relevant factors bearing on the best interest of the children.

Affirmed and Remanded.

ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.


text:
    Hirschell E. LEVINE, Seymour Taub, Steven M. Halpern, Peter H. Zappulla, Arthur Nowak, Michael A. Maltzman, Arthur Andreucci, Sol Bergstein, Alfred H. Dalton, Martin Dounn, John Goldstein, Peter B. Jarka, Edward M. Karlin, Joseph Lubin, Gerald Marsden, Martin Menaker, Alan E. Mintz, Joseph S. Schick, Arthur J. Schoner, Robert Simon d/b/a Eisner & Lubin, a partnership, and Barry E. Hersch, Joel Levy and Harvey Bernard Goldberg, Appellants, v. Ruth SIEGEL, Personal Representative of the Estate of Morton Lane, Deceased, Appellee.
    No. 82-2558.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.

      Ronald B. Ravikoff of Greenberg, Trau-rig, Askew, Hoffman, Lipoff, Quentel & Wolff, P.A., Miami, and Tenzer, Greenblatt, Fallen & Kaplan, New York City, for appellants.
    James A. Farrell of Steel, Hector, Davis, Burns & Middleton, Palm Beach, and Talia-noff & Rubin, P.A., Miami, for appellee.
   PER CURIAM.

Reversed on the authority of Lynton v. Siegel, 429 So.2d 1375 (Fla. 4th DCA 1983).

HERSEY, HURLEY and DELL, JJ., concur.


text:
    Bernard MARKOWITZ, Appellant, v. Milton FACTOR and BMS Development Corp., Appellees.
    No. 83-27.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Robert J. Bogdanoff of Kimler, Entin & Bogdanoff, Deerfield Beach, for appellant.
    William H. Chester, Miami, and R. Jere Bloche, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an interlocutory appeal whereby appellant, Bernard Markowitz, attacks four separate orders entered by the trial court. After reading the briefs in this cause we are frankly uncertain as to exactly what has occurred in the trial court. The case, as argued in the briefs, is so complex and confusing that we have great sympathy for the trial court. We caution that it is counsel’s job to make a case clear rather than to muddle it. We conclude that the portion of the trial court’s order of December 17,1982, designated as a temporary injunction must be reversed. This reversal is based solely on the requirements of Florida Rule of Civil Procedure 1.610(d) governing “temporary restraining orders.” The injunctive aspects of the order of December 17, 1982, were actually in the nature of a temporary restraining order and the order is not in compliance with Rule 1.610(d) which prescribes the form of a temporary restraining order. The order does not “specify the reasons for entry.” For this reason alone we reverse the temporary restraining order. This reversal is without prejudice to the reapplication for the same or similar relief. All other matters contained in the four orders and not specifically dealt with in this opinion are not ruled upon. These matters may be presented on plenary appeal when a final judgment occurs in this matter. We urge that this matter be promptly prepared for trial and presented to the court for final disposition.

REVERSED IN PART.

DOWNEY, BERANEK and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    BELLA VISTA, INC., a Florida corporation, Appellant, v. INTERIOR & EXTERIOR SPECIALTIES CO., INC., a Florida corporation, Appellee.
    No. 83-79.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Brian B. Joslyn of DeSantis, Cook, Gaskill & Silverman, P.A., North Palm Beach, for appellant.

      Jordan Fields of Tew, Spittler & Fields, Stuart, for appellee.
   DELL, Judge.

The developer/seller of a condominium appeals from a final judgment in which the trial court found the purchase agreement unconscionable, found the seller had failed to prove a set-off, and ordered return of the buyer’s deposit.

The seller and buyer entered into an agreement for sale of a condominium unit. This agreement provided for closing upon ten days notice by seller to buyer, and contained no clause making buyer’s obligation to close contingent upon financing. In June, 1981, seller’s counsel notified buyer that closing should take place in the near future, and that a Notice to Close would be forthcoming. On October 15,1981, the seller sent the required Notice to Close which scheduled closing for October 29. The buyer failed to appear. On November 3, seller informed buyer that the failure to close constituted a breach of the purchase agreement and that seller had elected to retain the deposit as liquidated damages. The buyer then sued to recover the deposit, alleging an oral extension of closing. The seller raised set-off as an affirmative defense.

The final judgment found that seller should have given buyer at least sixty days notice of closing, to enable the buyer to secure financing. Although a written contract may be modified by a subsequent oral agreement, Pan American Engineering Co. v. Poncho’s Construction Co., 387 So.2d 1052 (Fla. 5th DCA 1980), the party alleging modification has the burden to prove it, Newkirk Construction Corp. v. Gulf County, 366 So.2d 813 (Fla. 1st DCA 1979). In his final judgment, the trial judge found that he believed Jenson, the buyer’s president. Jenson merely testified that he felt he had an understanding with seller’s counsel on a closing extension. Such testimony does not suffice to prove a modification. Further, the trial judge did not find that the contract had been modified. He arbitrarily found that the contract should have contained a sixty day notice period rather than a ten day notice period. Courts may not rewrite a contract to relieve one of the parties from the apparent hardship of an improvident bargain. Steiner v. Physicians Protective Trust Fund, 388 So.2d 1064 (Fla. 3d DCA 1980); see, International Realty Associates, Inc. v. McAdoo, 87 Fla. 1, 99 So. 117 (1924). The court’s finding violates this elementary and long-standing rule of law, and is reversed.

The final judgment also found the contract unconscionable “in that the [seller] cannot deliver on a particular date and yet expect [buyer] to go ahead and borrow money ahead of time waiting for the [seller] to finish the project.” This finding has no evidentiary support in the record and is reversed.

Finally, the seller contends the trial court should have found in its favor on the issue of set-off. The record reflects conflicting evidence on this point, which the trial court could properly resolve in favor of the buyer. We will not disturb this finding.

Accordingly, the final judgment is reversed and the cause remanded for entry of judgment in favor of appellant in the amount of $19,125.00.

REVERSED and REMANDED.

DOWNEY and LETTS, JJ., concur.


text:
    GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Petitioner, v. Scott GOLDING, Respondent.
    No. 83-901.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.

      Cathy Jackson Burris of law offices of Nancy Little Hoffman, P.A., and Alan B. Whitaker, Jr., of Gunther, Grimmett & Whitaker, Fort Lauderdale, for petitioner.
    Richard L. Wagenheim of Golding & Wagenheim, Fort Lauderdale, and Larry Klein, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks a writ of certiorari to review an order of the trial court, relating to discovery:

Plaintiffs counsel may inquire of any witness who has knowledge of the facts and circumstances of SCOTT GOLDING’S claim and the witness must answer any questions pertaining to his workup and evaluation of the claim either against State Farm Insurance Company or GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., irrespective of any time frame.

We grant the petition and hold that the scope of this order is so broad that it constitutes a departure from the essential requirements of law.

Accordingly, we quash the order and remand the cause with directions to provide sufficient limitations within the order to prohibit discovery of appellant’s work product.

HURLEY, DELL and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    In the Interest of J.B., a Child, Petitioner, v. Honorable Lawrence L. KORDA, as Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 83-982.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.

      Alan H. Schreiber, Public Defender, and Timothy Day, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

Prohibition is sought to review an order denying a motion for discharge based upon speedy trial considerations in juvenile proceedings. Unless there was a waiver, the time within which an adjudicatory hearing was required to be held under Rule 8.180, Fla.R.Juv.P., had expired and petitioner was entitled to be discharged.

Petitioner was arrested for burglary and petty theft on November 2, 1982. Charges were filed on December 10,1982. Arraignment was held on December 29, 1982 at which time counsel was appointed and trial was set for January 12, 1983. On January 10,1983 petitioner filed a motion for continuance, requesting that it be “without prejudice to the Defendant.” The court ultimately granted a “court continuance.”

Whatever the label and whether affixed by a party or the court, the effect was that “the failure to hold trial is attributable to the accused ...” within the contemplation of Fla.R.Crim.P. 3.191(d)(3). Where delay is attributed to a defendant, the original period established by the rule no longer appertains. Thus the state becomes obligated to provide a trial within constitutional (reasonable time) parameters. See Brownlee v. State, 427 So.2d 1106 (Fla. 3d DCA 1983).

We have treated the juvenile rule and the criminal rule as though together they formed a continuum within which all aspects of speedy trial lay in neat relationship. Because courts, like nature, abhor a vacuum, we adopt the continuum so postulated and read these rules as in pari materia and thus conclude: petitioner caused a continuance to be granted; it is thus attributable to him; where trial is delayed by a cause attributable to the accused the speedy trial rule is waived (under Fla.R.Crim.P. 3.191(d)(3) and Fla.R.Juv.P. 8.180(c)); thereafter trial (or an adjudicatory hearing) must be afforded within a reasonable time.

WRIT DENIED.

DOWNEY and BERANEK, JJ., concur.


text:
    FLORIDA PHYSICIANS INSURANCE RECIPROCAL, Petitioner, v. Romeo C. BALITON, M.D., et al., Respondents.
    No. 83-1011.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.

      Robert M. Klein of Stephens, Lynn, Cher-nay & Klein, P.A., Miami, for petitioner.
    Mary Friedman of Colson, Hicks & Eid-son, P.A., Miami, for respondent, Baliton.
   BERANEK, Judge.

This is a petition for common law certio-rari. We grant the petition, quash the order, and remand for further proceedings. Petitioner was the defendant in an excess suit brought by plaintiff/respondent. The suit alleged respondent to be an insured under a policy issued by petitioner. Respondent was sued for medical malpractice, and a judgment substantially in excess of the policy limits resulted. In the subsequent excess suit with which this proceeding is involved, the trial court found petitioner in noncompliance with a discovery order and imposed a sanction in the form of a $150,000 fine payable to respondent. We conclude that the order constitutes a departure from the essential requirements of law and that an appeal after final judgment would be an insufficient remedy.

Initially, we conclude that there was sufficient evidence of a discovery violation and that the court’s finding that the petitioner was guilty of bad faith in failing to make discovery is supported by the record. There was conflicting evidence on this issue and we cannot substitute our judgment for that of the trial judge. See Mercer v. Raine, (Fla.1983). We also note that although the order contains language similar to the traditional contempt findings of bad faith and willful noncompliance, the court did not find petitioner in contempt. Further the proceedings leading up to the order in question did not seek contempt.

With this backdrop, we proceed with the main issue of whether the $150,000 payment to plaintiff was an appropriate sanction. We start with Rule of Civil Procedure 1.380 entitled “Failure to Make Discovery; Sanctions.” Subsection (a) of the rule provides for the obtaining of an order to compel discovery. This initial subsection deals with the situation where the automatic provisions of the other discovery rules have not resulted in the desired disclosures and a party finds it necessary to seek the aid of the court in securing an order to compel compliance with the rules which should have worked without the court’s intervention. Subsection (b) deals with the situation presented here where the party has failed to comply after the subsection (a) order has been entered. Under subsection (b)(2), if a party fails to obey an order to provide discovery, the court may make any of certain enumerated orders. These orders, set out in subsections (A) through (F), deal with matters such as establishing certain contested facts, limiting positions or evidence, striking pleadings, and entering dismissals or defaults. In addition, the enumerated sanctions provide for treating noncompliance with the court’s discovery orders as contempt of court and for the assessment of reasonable expenses and attorney’s fees. Of interest is the fact that fines are not specifically provided for. Although not authorized by the technical wording of the rule, fines have been held appropriate through the vehicle of contempt in a discovery context. See Allstate Insurance Company v. Biddy, 392 So.2d 938 (Fla. 2d DCA 1980). The Biddy opinion deals with an excess case in which an insurance company was found to be in noncompliance with discovery orders. The company was found in contempt and a default was entered. On appeal, the Second District Court of Appeal reversed as to the default but affirmed as to the finding of contempt against the company. The matter was remanded with permission to impose a fine up to $2,000 against the company. In discussing the purpose of Rule 1.380, the court relied upon Hurley v. Werly, 203 So.2d 530 (Fla. 2d DCA 1967), stating as follows:

[The rule] is not penal. It is not punitive. It is not aimed at punishment of the litigant. The objective is compliance— compliance with the discovery Rules. The sanctions are set up as a means to an end, not the end itself. The end is compliance. The sanctions should be invoked only in flagrant cases, certainly in no less than aggravated cases, and then only after the court has given the defaulting party a reasonable opportunity to conform after originally failing or even refusing to appear. This is unmistakably the trend of judicial thinking in Florida on the “sanction” Rule.

In the instant case, the imposition of a $150,000 fine was clearly punitive. As we understand the record, the materials sought in discovery have been obtained. We do not hold that the petitioner here is not subject to being fined or otherwise sanctioned for its conduct. However, if a fine is to be levied, it should be done through the vehicle of contempt. See Florida Coast Bank of Pompano v. Mayes, 437 So.2d 160 (Fla. 4th DCA 1983). The rules specifically provide that the contempt vehicle is available in addition to all other remedies. Here, the trial court did not find petitioner in contempt. The order imposing the sanction of $150,000 is vacated and the matter remanded for further proceedings in accordance herewith.

CERTIORARI GRANTED.

DOWNEY and WALDEN, JJ., concur.


text:
    Carole J. WYMAN, Petitioner, v. The Honorable James M. REASBECK, Judge of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.
    No. 83-1097.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Cynthia L. Greene of Melvyn B. Frumkes, Miami, for petitioner.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition to test the validity of denial of her motion to disqualify the trial court judge. We find no factual basis for the claim of prejudice and rest denial of the petition primarily on that ground. In passing we note (1) the inordinate delay in moving for disqualification after the complained of activity; (2) the trial court’s attempted compliance with the provisions of Section 38.10, Florida Statutes (1981) pertaining to attempted disqualification of a second judge (and we deem that compliance, whether necessary or not and whether sufficient or not, immaterial here); and (3) procedural irregularities in the motion and affidavits, all of which reinforce our determination to deny relief.

LETTS, BERANEK and HERSEY, JJ., concur.


text:
    Donald B. ADAMSON, Petitioner, v. STATE of Florida, Respondent.
    No. 83-1686.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Robert M. Leen of Leen & Schneider, Hollywood, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Certiorari denied. See, Downey v. State, 409 So.2d 133 (Fla. 5th DCA 1982); State v. Simpson, 313 So.2d 470 (Fla. 4th DCA 1975). Also see, §§ 903.046(1) and 907.041(1), Fla.Stat. (Supp.1982).

DOWNEY, BERANEK and DELL, JJ., concur.


author: SHIVERS, Judge.

text:
    Eddie Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AQ-151.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1983.
    Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

      Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Following trial by jury, appellant was convicted of the offense of burglary. The information charging appellant with the burglary alleged that appellant “did unlawfully enter or remain in a structure, to-wit: a residence ... without being licensed or invited, with the intent to commit an offense therein, to-wit: theft and/or did enter stealthily and without the owner’s consent pursuant to Florida Statutes Section 810.07, contrary to Section 810.02, Florida Statutes.... ” At the conclusion of the State’s case and again at the close of appellant’s case, appellant moved unsuccessfully for a motion for judgment of acquittal, contending that the evidence was insufficient to sustain a conviction for burglary. On appeal, appellant argues that the denial of his motion for judgment of acquittal, at the close of the State’s case, constitutes reversible error.

At issue, is the question of whether the State may satisfy the intent requirement necessary to establish a prima facie case of burglary by relying exclusively on the evidentiary presumption set forth in § 810.07, which states that:

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.

Relying on two decisions of the Fourth District Court of Appeal in State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980) and Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981), the State contends that the eviden-tiary presumption set forth in § 810.07 makes evidence of stealth and lack of consent an evidentiary equivalent of proof of intent to commit an offense in a structure and thus prima facie evidence of burglary.

The decisions of the Fourth District in Fields, supra, and Waters, supra, conflict with a decision of the Fifth District in Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981), which held that proof of a stealthful entry is not the evidentiary equivalent of intent to commit a specific offense in a structure. The Rozier court observed that:

We do note with interest that while section 810.07 attempts to make stealth and lack of consent an evidentiary equivalent of proof of an intent to commit an offense in a structure, that statute does not make those two facts prima facie evidence of intent to commit a particular crime, such as theft. As long as the “general to particular” rule is applied to the element of intent in burglary cases, requiring the State to allege and prove the accused’s intent to commit a particular crime, the statutory presumption created by section 810.07, Florida Statutes, relating as it does only to a prima facie case as to an intent to commit an offense generally, will be of little or no value to the State because it will be insufficient to carry a burden of proof as to intent to commit a particular crime. In view of the substantial authority cited above which requires the State to allege and prove the specific offense intended in a burglary case, we do not feel we can now hold otherwise. Nor can we extend the words and meaning of section 810.07 to make it applicable to allegations in the charging document as distinguished from proof at trial. The solution to this problem is either for the Florida Supreme Court to rule that the “general to particular” rule is not applicable to the intent element of statutory burglary or for the legislature to amend section 810.07, Florida Statutes, to provide that proof of stealth and lack of consent constitutes prima facie evidence of the intent to commit a particular crime, such as theft.

Id., at 542.

The Rozier analysis was expressly adopted by this court in Barnes v. State, 426 So.2d 1274 (Fla. 1st DCA 1983), State v. Clark, 416 So.2d 13 (Fla. 1st DCA 1982), and State v. Speights, 417 So.2d 1168 (Fla. 1st DCA 1982). Citing these cases for the proposition that proof of a stealthy non-consensual entry is not prima facie evidence of the crime of burglary, appellant contends that it was reversible error for the trial court to deny his motion to dismiss. Because of the recent case of State v. Waters, 436 So.2d 66 (Fla.1983), we disagree.

In State v. Waters, supra, the Florida Supreme Court addressed the following questions which the district court in Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981) certified to be of great public importance:

1. In a prosecution for burglary under section 810.02, Florida Statutes (1979), is it necessary for the state to allege an intent to commit a specific offense?
2. Is the statutory rebuttable presumption contained in section 810.07, Florida Statutes (1979) sufficient to prove a prima facie case of intent to commit the specific offense of theft?

State v. Waters, supra, at 68. The Florida Supreme Court answered the first question in the negative holding that “an indictment or information charging burglary is not required to specify the offense which the accused is alleged to have intended to commit. If all the essential statutory elements of the offense are alleged, the accusatory document will generally be deemed sufficient.” Id. at 69. As to the second certified question, the court noted that the evidentiary presumption set forth in 810.07, Florida Statutes (1979), was inapplicable to the Waters case because the presumption statute only applied to the charge of burglary and not attempted burglary, the crime which Waters was charged with committing. Nevertheless, the court responded to the certified question, which it modified to read as follows:

In a trial on a charge of burglary, is proof of the factual elements set out in Section 810.07 sufficient to establish a prima fa-cie case of intent to commit an offense?

Id. at 69. As modified, the court answered the second certified question in the affirmative, holding that proof that a defendant entered a structure stealthily and without the owner’s consent

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 other 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, [footnote omitted] Thus, section 810.07 provides the State with an alternate method of proving a charge of burglary when it is unable to adduce any evidence of the defendant’s criminal intent when unlawfully entering a structure or conveyance.

State v. Waters, supra. In accord with the Florida Supreme Court’s decision in Waters, supra, we find that since proof of a stealthful entry, without the owner’s consent, constitutes prima facie evidence of burglary, the trial court did not err in denying appellant’s motion to dismiss at the close of the State’s case.

AFFIRMED.

ROBERT P. SMITH, Jr., and NIMMONS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Robert Thomas AVERA, Appellant, v. STATE of Florida, Appellee.
    No. 81-1428.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1983.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction under the escape statute. Before trial the assistant public defender who was appointed to represent appellant moved the court to allow him to withdraw as appellant’s lawyer. The court denied that motion and that denial is the only issue warranting discussion in this appeal.

Our supreme court very clearly held in Babb v. Edwards, 412 So.2d 859 (Fla.1982) “that where the public defender of a given circuit determines that the interests of indigent defendants are so adverse or hostile that they cannot all be represented by him or his assistant public defenders regardless of the location of their offices within the circuit without conflict of interest, the trial court shall, upon motion of the public defender, appoint other counsel as provided by statute.” Before we discuss the substance of the appeal we note that the public defender did not make the motion to have other counsel appointed but that it was done by one of his assistants. We have determined there is no significant difference in this regard and deem the act of the assistant, in this type of procedure, to be the act of the public defender.

As to the substantive issue, the state urges that we should take particular notice of the footnote to the Babb opinion which says:

1. In this case we have not considered, nor have we decided, whether a trial court’s refusal to grant a public defender’s motion to withdraw based on conflict of interest will result in the reversal of a conviction without a showing of prejudice by the defendant.

The state urges us to examine the record and decide if any prejudice resulted from the dual representation and, if no prejudice is evident then to apply the harmless error doctrine and affirm the conviction. While we are attracted to that argument we are bound by Holloway v. Arkansas, 435 U.S. 475, 87 S.Ct. 1173, 55 L.Ed.2d 426 (1978) which holds that prejudice is presumed where a conflict is shown. So, Babb says even if there were two separate lawyers, since they were from the same “lawfirm” there is a conflict; and Holloway says prejudice is automatically presumed. This leads us to the requirement that we reverse the conviction and remand the matter for a new trial.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Juanita PRICE, as personal representative of the Estate of William L. Price, deceased, Appellant, v. Joseph MORGAN, d/b/a Seminole Pet Supply and Shelby Mutual Insurance Company of Shelby, Ohio, a foreign insurance corporation, Appellees.
    No. 82-393.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1983.

      James C. Fisher, Altamonte Springs, for appellant.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for appellees.
   ORFINGER, Chief Judge.

The issue on appeal is whether the appellant’s fourth amended complaint stated a cause of action in its claim for damages arising from the death of appellant’s decedent, a fireman, resulting from injuries incurred while attempting to extinguish a fire. We affirm.

To put the issues in proper perspective, a brief review of the allegations of the fourth amended complaint (the complaint) is necessary. It alleges that defendant Morgan is the owner of Seminole Pet Supply in Sanford, Florida, and was insured by defendant Shelby Mutual Insurance Company (Shelby). On August 1,1979, a fire broke out at Seminole Pet Supply. Responding to the fire as an off-duty fireman along with other on-duty firemen, decedent William Price was fighting the fire from outside of the premises, not aware of certain combustible materials inside the store. While so engaged, Price was killed when a wall exploded and collapsed.

In the first count of the complaint, it was alleged that (a) Morgan or his agents maintained the store with wanton negligence by allowing numerous flammable and combustible substances on the premises, presenting a serious fire hazard; (b) that the defendant or his agents failed to adequately inspect the store to determine if the substances presented a fire hazard; (c) that the defendant or his agents failed to adequately warn the decedent of the danger presented by the flammable substances kept in his store; (d) that the defendant or his agents failed to secure the premises to prevent unknown persons from entering and starting a fire; and (e) that the defendant or his agents, with wanton negligence, started the fire in the Seminole Pet Supply “as herein alleged.” The complaint alleged further that Morgan had violated his duty to Price, even as a licensee, by such wilful and wanton negligence, proximately causing his death.

Count II of the complaint alleges essentially the same facts, but alleges that in responding to the fire, Price was an invitee, thus owed the duty of reasonable care, and that defendant was negligent in the doing of those acts referred to in Count I, thus causing decedent’s injury and death.

Appellant argues that the trial court erred in dismissing the fourth amended complaint without further leave to amend, although she could not advise the trial court, when asked, what further amendment could be made, nor are we so advised. Appellant further argues that in any event, the last complaint states a cause of action.

The principal issue in any negligence action is whether the injury resulted from defendant’s violation of a legal duty owed to the plaintiff. The threshold question, therefore, is whether the defendant had a legal duty to the plaintiff and, if so, the extent of that duty. Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689 (Fla. 2d DCA 1979). If no legal duty is abrogated, there can be no cause of action for negligence. Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978).

We first observe that although it is alleged that decedent was an off-duty fireman, it is also alleged that he responded to the fire along with other on-duty firemen, and was injured while discharging his duty outside of the premises when a wall exploded and collapsed. In this regard, his status was the same as that of an on-duty fireman so long as he was discharging his duty as a fireman in attempting to extinguish the fire. See Nastasio v. Cinnamon, 295 S.W.2d 117 (Mo.1956). What then is the legal status of a fireman when he is on or outside of the premises and is fighting a fire to which he has responded?

In an early case, the Florida supreme court held, albeit in dictum, that firemen and policemen while on premises in the fulfillment of their duties as such, are licensees, to whom the property owner has only the duty to refrain from wilful or wanton injury. Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472 (1940).

In Romedy v. Johnston, 193 So.2d 487 (Fla. 1st DCA 1967), the First District Court of Appeal, while recognizing the language in Fred Howland as dictum, nevertheless agreed that a fireman upon the premises for the purpose of extinguishing a fire is a licensee, and the duty of the owner is to refrain from wilfully and wantonly injuring him. While not clearly stated, it can only be concluded from Romedy that this duty towards the licensee arises when the fireman comes on the premises in response to the fire call, as liability does not arise due to the negligent acts of the owner in creating or maintaining a condition on his premises which contributes to the cause of the fire and which necessitates the presence of the fireman on the premises. Id. at 490.

In Adair v. The Island Club, 225 So.2d 541 (Fla. 2d DCA 1969), the Second District Court of Appeal applied the same rule to a case where a policeman was injured by inhalation of noxious gas when he was attempting to remove a leaking gas tank from the premises. Citing Romedy, the court held the policeman to be a licensee while discharging his duties, and that

“It is an established rule of law in this jurisdiction that the owner of premises owes to a licensee the duty to refrain from wanton negligence or willful misconduct which would injure the licensee. It is also held that if the owner has knowledge of pitfalls, booby traps, latent hazards, or other similar dangers, then a failure to warn such licensee could under proper circumstances amount to wanton negligence, but there must be knowledge of the danger by the owner combined with knowledge that the licensee is about to be confronted with the danger.”

225 So.2d at 543-544. Finding insufficient allegations to show a breach of this duty, the court sustained the dismissal of the complaint for failure to state a cause of action.

In Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976), the Second District Court of Appeal followed its holding in Adair, disagreeing with the argument that the intervening case of Wood v. Camp, 284 So.2d 691 (Fla.1973), had the effect of elevating the status of the policeman involved there to that of invitee. Alluding to the classifications announced in Wood v. Camp, the court concluded that the policeman in question, when entering a boarded-up building for the purpose of investigating the presence of vagrant trespassers, was an uninvited licensee to whom the owner owed the duty to refrain from wanton negligence or wilful misconduct which would injure him, to refrain from intentionally exposing him to danger, and to warn him of a latent defect or condition known to the landowner to be dangerous when such danger is not open to ordinary observation by the licensee. Before the duty to warn of a hidden danger arises, however, the presence of the licensee on the premises must be known or reasonably expected by the owner. Hall at 83. Finding that the facts could be susceptible of the inference that the landowner could have anticipated the presence of the police, thus raising a duty to warn, the Hall court found a jury issue presented.

In Whitten v. Miami-Dade Water & Sewer Authority, 357 So.2d 430 (Fla. 3d DCA 1978), in a factual situation somewhat similar to that here, the Third District Court of Appeal, apparently for the first time in Florida, followed the so-called “fireman’s rule” and applied it to bar recovery to firemen who were injured while outside the premises where they had responded to the emergency. Two policemen and four firemen had responded to an emergency call at appellee’s water plant, and discovered a heavy chlorine gas fog enveloping the area. After evacuating the nearby residents, one of the appellants entered the premises and eventually discovered and corrected the gas leak. In fulfilling their duties, however, all of the policemen and firemen were injured as a result of inhaling the chlorine gas. Contending that appellee was strictly liable because of the dangerous quality of the gas, appellants sought damages and appealed an adverse summary judgment.

The district court affirmed on two grounds. As to the appellant who had actually entered the premises, it applied the rule that an owner or occupant of premises is not liable to a policeman or fireman for injuries sustained on the premises by virtue of a negligently created condition which necessitated the policeman’s or fireman’s presence on the premises in the discharge of his (or her) duties, and that

Once upon the premises, the fireman or policeman has a legal status of a licensee and the sole duty owed him by the owner or occupant of the premises is to refrain from wanton negligence or willful conduct and to warn him of any defect or condition known to the owner or occupant to be dangerous, if such danger is not open to ordinary observation by the licensee.

357 So.2d at 432.

In response to the argument that the five appellants who never entered the premises could not be licensees and were thus entitled to recover, the court held that it would create an anomaly in the law if those who had not entered the premises could recover while the one who had entered could not, and therefore applied the “fireman’s rule” to hold that a negligent defendant who creates an apparent risk which is of the type usually dealt with by firemen and which is the cause of the fireman’s presence and the source of his injury will not be liable to the fireman, notwithstanding the fact that the injury did not occur on the defendant’s property. See Scott v. E.L. Yeager Construction Co., 12 Cal.App.3d 1190, 91 Cal.Rptr. 232 (Cal. 4th DCA 1970).

In Wilson v. Florida Processing Company, 368 So.2d 609 (Fla. 3d DCA 1979), the Third District Court of Appeal followed its earlier holding in Whitten, finding that a policeman could not recover from a property owner who it was claimed had negligently permitted the escape of chlorine gas from its premises. In that case, Wilson, the chief of police of the Town of Medley, was injured when he inhaled quantities of the gas while attempting to evacuate residents of his town from the area affected by the escaping gas. Applying the “fireman’s rule” as espoused in Whitten, the court held that there could be no liability by the property owner to the police officer who was present at the scene of the danger in the performance of his duties because “it is perfectly obvious that the evacuation of endangered citizens ... forms a part of precisely what policemen are hired to do and falls directly under the ordinary course of the duties of that occupation.” Id. at 611.

In applying the “fireman’s rule” to fact situations, such as the one before us here, where the fireman is outside the premises when he is injured in the discharge of his duties, there is no need to depart from those cases which hold police and fire personnel to be licensees when they enter upon premises in the discharge of their duties. As expressed by the court in Whitten,

Of course, for all practical purposes, the “licensee” concept is no different from the “discharge of duty” concept, with the one exception being that the latter has a more widespread application, as the facts subjudice disclose. We therefore find no reason to abandon the cases cited herein which utilizes [sic] the “invitee-licensee” distinction in ascertaining the applicable standard of care owed by a landowner or occupant to a police officer or fireman who enters upon premises in the discharge of his duty and is injured thereon.

357 So.2d at 433.

The application of either the “licensee rule” or the “fireman’s rule” does not, however, preclude recovery for injuries by a fireman under any and all circumstances, just because he is on the premises in the discharge of his duties. If considered a licensee, once his presence on the premises is known or should reasonably be anticipated by the owner, the owner has the obligation to refrain from wanton negligence or wilful conduct and to warn the licensee of defects or conditions known to the owner to be dangerous when such danger is not open to ordinary observation by the licensee and when there is reasonable opportunity to give such warning. Hall v. Holton, supra. In applying the fireman’s rule, the California courts, where apparently the rule finds strong support, have held that the rule is not intended to bar recovery for independent acts of misconduct which were not the cause of the fireman’s presence at the scene of the fire. The rule has only been applied to prohibit a fireman from recovering for injuries caused by the very misconduct which created the risk which necessitated his presence. Lipson v. The Superior Court of Orange County, 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822 (Cal.1982). Prosser states the duty owed by a landowner to firemen and policemen thusly:

The occupier is still required to exercise reasonable care for their protection in carrying on his activities, and to give warning of dangers of which he knows as in the case of other licensees; but there is no obligation to inspect and prepare the premises for them. And the fact that the occupier himself has been negligent in starting the fire for which the fireman is called makes no difference.

W. Prosser, Law of Torts 397 (4th ed. 1971).

In the case before us, while the pleading uses conclusory language that Morgan was wilfully and wantonly negligent, no ultimate facts are alleged which would constitute wanton negligence or wilful misconduct. The best that can be said of the complaint is that it alleges acts of ordinary negligence which led up to the fire or which caused the fire, and which required the presence of the firemen on the scene, and as such it does not state a cause of action.

In Romedy v. Johnston, supra, the court found that

It is a matter of common knowledge that in the performance of their duties firemen are constantly exposed to dangerous and hazardous conditions. They face the risk of injury from exposure to fire, smoke, and collapsing structures. These are risks assumed by those voluntarily seeking and accepting this type of employment. The injurious effect of coming in contact with fire and smoke is exactly the same, whether the fire originates as the result of an accident or the negligent acts of the owner of the premises.

193 So.2d at 491.

We recognize our obligation to consider as true all well-pleaded allegations of the complaint in considering an order on a motion to dismiss. Nevertheless, a pleading is insufficient if it contains merely conclusions as opposed to ultimate facts supporting each element of the cause of action. Clark v. Boeing Co., 395 So.2d 1226 (Fla. 3d DGA 1981). Appellant failed to allege any ultimate facts demonstrating any wanton negligence or wilful conduct of appellee subsequent to the arrival of the firemen on the scene, nor did she allege any opportunity to warn upon arrival of the firemen or any facts, such as those found in Hall v. Holton, whereby the presence of the fireman upon the premises could have been anticipated prior to the fire. The trial court was thus correct in dismissing the fourth amended complaint.

Appellant contends that another opportunity should have been given to further amend her complaint. Notwithstanding that five complaints had been ruled insufficient, the record reveals the reluctance of the trial court to finally dismiss the action, but when asked how he would amend further if given the opportunity, appellant’s counsel could not demonstrate what further amendment would be made, nor does he do so now.

While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished. Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981). However, in addition to the desirability of allowing amendments to pleadings so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached. Id.

Thus, even though the number of amendments is not determinative of whether there has been an abuse of the privilege to amend, it has been said that “generally three ineffective attempts to state the same cause of action are enough.” Trawick, Florida Practice and Procedure § 14-2 at 208 (1980 Edition). Furthermore, in the absence of an abuse of discretion, a trial court’s dismissal with prejudice should not be disturbed. Ragsdale v. Marganti, Inc., 356 So.2d 1321 (Fla. 4th DCA 1978).

Because the trial court correctly dismissed the fourth amended complaint and did not abuse its discretion in denying further leave to amend, the final judgment is

AFFIRMED.

SHARP and COWART, JJ., concur.