text:
    WESTERN KNAPP ENGINEERING COMPANY, Appellant, v. MAULE INDUSTRIES, INC. and Insurance Company of North America, Appellees. WESTERN KNAPP ENGINEERING COMPANY, Appellant, v. UNIVERSAL ENGINEERING CORPORATION, Appellee. UNIVERSAL ENGINEERING CORPORATION, Appellant, v. MAULE INDUSTRIES, INC., the Insurance Company of North America, and Western Knapp Engineering Company, Appellees. UNIVERSAL ENGINEERING CORPORATION, Appellant, v. MAULE INDUSTRIES, INC., et al., Appellees. LINCOLN ELECTRIC COMPANY, Appellant, v. UNIVERSAL ENGINEERING CORPORATION, Western Knapp Engineering Company, Maule Industries, Inc., and the Insurance Company of North America, Appellees. LINCOLN ELECTRIC COMPANY, Appellant, v. WESTERN KNAPP ENGINEERING COMPANY, Maule Industries, Inc., and the Insurance Company of North America, Appellees. MAULE INDUSTRIES, INC. and the Insurance Company of North America, Appellants, v. UNIVERSAL ENGINEERING CORPORATION, Appellee. MAULE INDUSTRIES, INC. and the Insurance Company of North America, Appellants, v. WESTERN KNAPP ENGINEERING COMPANY, Appellee.
    Nos. 80-404, 80-405, 80-407, 80-409, 80-406, 80-408, 80-485 to 80-488, 80-342, 80-395, 80-403, 80-396, 80-397, 80-360, 80-362, 80-363, 80-366, 80-359, 80-361, 80-364 and 80-365.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Carey, Dwyer, Cole, Eckhart, Mason & Spring and Michael C. Spring, Miami, for Western Knapp Engineering Co.
    Mitchell, Harris, Canning, Murray & Usich and C. Robert Murray, Jr., Miami, for Maulé Industries, Inc. and Ins. Co. of North America.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Richard A. Sherman, Fort Lauderdale, for Universal Engineering Corp. in Case Nos. 80-485 and 80-488 only.
    Vernis, Bowling, Montalto, Goodman & Blank and Stephen N. Montalto, Miami, for Universal Engineering Corp. in all other cases.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for Lincoln Elec. Co.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The appeals in the above consolidated cases are from summary final judgments entered in favor of the respective appellees on the appellants’ cross-claims for contribution and indemnity. The sole basis for the entry of these summary final judgments was that these cross-claims had lost all vitality after the defendants/cross-claimants (Maulé Industries, Inc.; its insurer, Insurance Company of North America; Western Knapp Engineering Company; and Universal Engineering Corporation) had obtained summary judgments in their favor against the original plaintiffs. Because the actions of the original plaintiffs have been reinstated by the subsequent reversal of the summary judgments against them, see Perez v. Maule Industries, Inc., 421 So.2d 515 (Fla.1982), quashing Perez v. Maule Industries, Inc., 411 So.2d 960 (Fla. 3d DCA 1982); Perez v. Universal Engineering Corp., 413 So.2d 75 (Fla. 3d DCA 1982), remanded, 451 So.2d 463 (Fla.1984); and Valdes v. Western Knapp Engineering Co., 382 So.2d 1371 (Fla. 3d DCA 1980), the cross-claims of the once-again exposed defendants likewise must be reinstated by the reversal of the instant summary judgments.

We reject Universal Engineering Corporation’s separate contention that because the summary judgments entered in its favor against two of the original plaintiffs, Lopez and Valdes, were not appealed, the cross-claims for contribution against Universal as to those cases (Nos. 80-362, 80-366, 80-395, 80-403, 80-406 and 80-408) cannot be reinstated. Universal has overlooked that the summary judgments in its favor against these plaintiffs were based solely on a statute of limitations ground, and thus have no res judicata effect on any cause of action for contribution against it. The inaction of an injured party against one tortfeasor simply will not defeat a later accruing claim for contribution against that tortfeasor. Keleket X-Ray Corp. v. United States, 275 F.2d 167 (D.C.Cir.1960). See Schott v. Colonial Baking Co., 111 F.Supp. 13 (W.D.Ark.1953); Goldsberry v. Frank Clendaniel, Inc., 49 Del. 69, 109 A.2d 405 (Del.Super.Ct.1954); Showell Industries, Inc. v. Holmes County, 409 So.2d 78 (Fla. 1st DCA 1982); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 (1971).

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WISCONSIN NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Gus LEICHTER and Florence Leichter, Appellee.
    No. 83-791.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Kroll, Pomerantz & Cameron and Robert A. Freyer and Pamela J. Reynolds, Miami, for appellant.
    Kramer & Golden and Richard Golden, North Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Because the unrebutted evidence is that Mrs. Leichter misrepresented her prior medical history when applying for insurance coverage from Wisconsin National and such misrepresentation was material to the acceptance of the risk, see § 627.409, Fla.Stat. (1981), we reverse the judgment under review and direct the trial court to enter a directed verdict for the appellant. See Life Insurance Co. of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967).

Reversed and remanded with directions.


text:
    N.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1749.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court’s finding that appellant committed an act of delinquency is affirmed, but the offense is reduced from criminal mischief to attempted criminal mischief because the State failed to prove that the rocks hurled at a school building by appellant caused any damage. Damage to property is specifically made an element of the criminal mischief statute. See Section 806.13, Florida Statutes (1983).

Affirmed as reduced and remanded for further consistent proceedings.


text:
    Manuel VAZQUEZ, Appellant, v. Norma VAZQUEZ, Appellee.
    No. 83-2107.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    DeMeo & Sherman and Thomas G. Sherman, Coral Gables, for appellant.
    Krongold & Bass and Paul H. Bass, Coral Gables, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: FERGUSON, Judge.

text:
    Franklin B. BYSTROM, Dade County Property Appraiser, Appellant/Cross-Appellee, v. FLORIDA ROCK INDUSTRIES, INC., Appellee/Cross-Appellant.
    No. 83-2368.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Robert A. Ginsburg, County Atty. and Stephen J. Keating, Asst. County Atty., for appellant/cross-appellee.
    John G. Fletcher, South Miami, for appel-lee/ cross-appellant.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Franklin Bystrom, Property Appraiser for Dade County, appeals a judgment of the trial court which (1) affirms a decision of the Property Appraisal Adjustment Board (PAAB) approving the assessment by the Property Appraiser as to one parcel of land owned by Florida Rock Industries, Inc. (parcel one), and (2) affirms a PAAB reduction of the assessments as to two other parcels owned by Florida Rock (parcels two and three). Florida Rock cross-appeals the trial court’s affirmance of the PAAB decision insofar as it did not lower the assessment on parcel one and failed to sufficiently lower the assessments on parcels two and three. We affirm both the appeal and the cross-appeal.

Florida Rock appealed to the PAAB a 1980 ad valorem tax assessment valuation fixed by the Dade County Property Appraiser. The PAAB declined to reduce the assessment on the first, parcel, but made reductions on the valuations as to parcels two and three. The assessment on parcel one was certified by the Property Appraiser to the Tax Collector, but the assessments on the other two parcels were not certified because the Property Appraiser chose to challenge the lowered assessments before the circuit court. On December 2, 1981, within sixty days of the PAAB written and filed decision as to all three properties, Florida Rock filed suit in the circuit court against the Property Appraiser complaining that the Property Appraiser “failed to consider all of the factors contained ... in Section 193.011, Florida Statutes, and as a consequence, assessed the subject property in amounts in excess of the fair market value thereof.” The taxpayer’s lawsuit was filed in Judge Mario Goderich’s division. On January 6, 1982, the Property Appraiser filed a circuit court action against the taxpayer challenging the two PAAB reductions of the Property Appraiser’s official assessments. That case was assigned to and is still pending before Judge Thomas Testa.

As points on appeal the Property Appraiser asserts (1) as to the first parcel, the taxpayer’s suit was filed more than sixty days after certification, so there was no subject matter jurisdiction pursuant to Section 194.171(2), Florida Statutes (1981), (2) as to parcels two and three, there was no subject matter jurisdiction because the assessments on those parcels had never been certified by the Property Appraiser to the-Tax Collector, (3) the court should have dismissed the case because the taxpayer paid the assessment without indicating that payment was under protest, and (4) assuming that there was jurisdiction, the court was incorrect in finding as to parcels two and three that the fair market value was the reduced figure arrived at by the PAAB.

On the first point, we construe Section 193.122(1) and (4), Florida Statutes (1981) as requiring that the PAAB conduct all hearings required by Section 194.032, Florida Statutes (1981), and render its decision before certification of assessments. Where, as here, there is no record evidence that certification preceded a decision, we therefore assume that the two occurred simultaneously, or that certification followed the PAAB decision. In either case, the taxpayer’s appeal was timely.

We reject appellant’s argument in the second point on appeal, that certification of the PAAB’s assessment is a jurisdictional prerequisite to a taxpayer’s suit in the circuit court to review the Board’s written decision. Section 194.171, Florida Statutes (1981) bars the bringing of a suit to contest a tax assessment after sixty days from the date the assessment is certified for collection, but does not preclude commencement of an action prior to certification. That would apply especially here where there was no certification of the assessments on parcels two and three. We reject the suggestion implicit in the argument that if both parties are aggrieved by the action of the PAAB the taxpayer must wait for the Property Appraiser to commence the action. See Chatlos v. Overstreet, 124 So.2d 1 (Fla.1960) (statute providing that no assessment shall be held invalid unless suit be instituted within sixty days from the time the assessment becomes final did not prohibit taxpayer from instituting suit to declare assessment invalid before the tax roll became final).

On the third point, we hold that a taxpayer who pays an assessment which has become due, where an appeal to the PAAB is pending, is not obligated to make such payments “under protest” so as to preserve the right to contest the assessment. Where a bona fide controversy exists between the Tax Collector and the taxpayer as to liability, the taxpayer may pay the amount claimed to be due pending a final adjudication, and obtain a refund if his challenge is successful. See § 195.-106(l)(a)3., Fla.Stat. (1981) (currently § 197.0138(l)(a)3., Fla.Stat. (1983)).

As its fourth point on appeal the Property Appraiser (defendant below) challenges the “Final Judgment For Defendants,” which affirms “the two re-evaluated assessments [parcels two and three] and the one original assessment [parcel one].” We consider the judgment in light of the relief originally sought. In its complaint for ad valorem tax relief, Florida Rock sought a reduced assessment as to all three parcels of land. As to parcels two and three, specifically, it sought a reduction in assessed value even greater than that which was granted by the PAAB. In ruling for the Property Appraiser the court determined that Florida Rock did not prove an entitlement to a reduction as to the assessment on parcel one, or a greater reduction as to the assessments on parcels two and three. We affirm those determinations.

The issue in the Property Appraiser’s suit, which is still pending in the circuit court, is whether the PAAB should have lowered the assessments on parcels two and three in the first instance. That issue is not before us in this appeal. Neither do we decide, as the parties would have us, whether the Property Appraiser was obligated to file his pending claim as a counterclaim in this action, or whether the disposition of this case will have a res judicata effect on the pending action.

The sole issue raised in Florida Rock’s cross-appeal is whether the trial court erred in refusing to grant a reduction of the assessment as to the first parcel, and a greater reduction as to the assessment on parcels two and three than was granted by the PAAB. The question is resolved by our disposition of the Property Appraiser’s fourth point on appeal.

AFFIRMED.

      . The date of the certification is not clear from documents which are properly part of the record. What is of record is that the decision of the PAAB was not filed until October 8 or 9, 1981.

      . Section 193.122(1) and (4), Florida Statutes (1981) provides in pertinent part:
      (1) The property appraisal adjustment board shall certify each assessment roll after all hearings required by s. 194.032 have been held.
      ¾⅛ ⅝ * ⅞⅝ ⅜⅛ ⅜
      (4) The property appraiser may extend millage as required in subsection (2) against the assessment roll and certify it to the tax collector even though there are parcels subject to judicial or administrative review pursuant to paragraph 194.032(6)(a). Such parcels shall be certified and have taxes extended against them in accordance with the property appraisal adjustment board’s decisions....


text:
    Roberto NAZARIO, Appellant, v. Carmen L. NAZARIO, Appellee.
    No. 83-2404.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Milton I. Starkman and N. Joseph Durant, Miami, for appellant.
    Gardana & de la Puente and Cesar de la Puente, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    GISELA INVESTMENTS, N.V. and Continental Moving and Storage, Inc., by and through their assignees, Meekins-Bamman Prestress, Inc., Puritan Insurance Company and Pinetop Insurance Company, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 83-2491.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      George, Hartz, Burt & Lundeen and Clinton D. Flagg, Miami, for appellants.
    Daniels & Hicks and Patrice A. Talisman, Miami, Richard E. Hardwick, Coral Gables, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

A provision in a policy of insurance which prohibits assignment thereof except with consent of the insurer does not apply to prevent assignment of the claim or interest in the insurance money then due, after loss. West Florida Grocery Co. v. Teutonia Fire Insurance Co., 74 Fla. 220, 77 So. 209 (Fla.1917). The trial court’s holding to the contrary was incorrect.

We will not affirm the summary judgment entered herein on an alternative factual ground which was not specifically asserted by motion or argued to the trial court, and which was not supported by any evidence at the time of the hearing on the motion for summary judgment. This case is .distinguishable from other cases where summary judgment was affirmed for a reason other than that relied upon by the trial court. See, e.g., Szabo v. Ashland Oil Co., 448 So.2d 549 (Fla. 3d DCA 1984) (alternative ground set forth specifically in motion, argued to trial court and supported by evidence in the record at the time of hearing); Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976) (where trial court’s erroneous rationale for entering summary judgment is based on a question of pure law rather than fact, appellate court can uphold summary judgment on an alternative legal ground).

REVERSED and remanded for further proceedings.

      . An affidavit pertaining to matters of fact, which would have supported the appellee’s alternative ground for summary judgment was filed nine days after hearing on the motion and without leave of court or notice to appellants. Appellants contend that they had deposed a witness whose testimony would have contradicted the affidavit of appellee's witness. A deposition of that testimony was not filed because it was unrelated to the legal question presented in the motion for summary judgment.


text:
    Dorothea E. RITTER, Personal Representative of the Estate of Helen V. Curry, deceased, Appellant, v. George J. SHAMAS, Appellee.
    No. 83-2531.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Joseph Jennings, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellee Shamas, the attorney for Mrs. Curry, drafted a will for her in which he was named beneficiary of a valuable letter written by George Washington to his Masonic Lodge. That will was not admitted to probate because it was succeeded by a will executed in November, 1980. Shamas instituted this action against the estate to recover the same letter which he claims was delivered to him as a gift inter vivos. On the evening of delivery, Shamas allegedly left the letter at the decedent’s house — for some seven months — because he was en route to another destination. At the time of Mrs. Curry’s death the letter was found in the possession of her friend, Mrs. Leech.

Appellant, the personal representative and defendant below, raises two issues by this appeal: (1) the trial court erred in determining that the burden of proof required of the plaintiff was only the greater weight of the evidence, and (2) the trial court erred by refusing to permit the defendant’s witness to testify to out-of-court statements of the decedent being offered to demonstrate that the decedent had no intent to give the letters to Shamas as a gift. Appellant is correct on both points.

If a confidential or fiduciary relationship is shown to exist between the donor and the donee, the gift is presumptively invalid and the burden is on the donee to show the fairness and validity of the gift. Crane v. Stulz, 136 So.2d 238 (Fla. 2d DCA 1961). This burden must be satisfied by clear and satisfactory evidence of every element which is requisite to constitute a gift. Burke v. Coons, 136 So.2d 235 (Fla. 2d DCA 1961), cert. denied, 140 So.2d 115 (Fla.1962). In order for there to be a valid gift, there must be a complete and irrevocable surrender of dominion over the res, coupled with an intent then and there to pass title. A delivery which does not confer the present right to reduce the res into possession of the donee is insufficient. Kuebler v. Kuebler, 131 So.2d 211 (Fla. 2d DCA 1961), cert. dismissed, 139 So.2d 696 (Fla.1962); Eulette v. Merrill Lynch, Pierce, Fenner and Beane, 101 So.2d 603 (Fla. 3d DCA 1958).

Here, Shamas’ burden of proving the validity of the gift required more than the mere greater weight of the evidence. Plaintiff is held to the higher burden of proving by clear and convincing evidence every requisite element, i.e., delivery with an intent to make a gift. See Crane, 136 So.2d at 241.

We also agree with appellant’s second point on appeal. The court permitted plaintiffs witnesses to testify that Mrs. Curry told them that she gave the letter to the plaintiff and that he left it at her house. The testimony of defendant’s witness, Mrs. Leech, was excluded. Mrs. Leech would have testified that decedent gave her the letter to keep because she did not want the plaintiff to get his hands on it. The basis for the ruling which excluded the testimony is, argues appellee, that “the self-serving declarations of a donor made subsequent to an alleged gift are not, in general, admissible to impeach the transaction,” citing several Florida authorities. We find none of the cited authorities supportive of the proposition.

The Evidence Code, Chapter 90, Florida Statutes (1983) is controlling and supersedes all prior inconsistent law. § 90.102, Fla.Stat. (1983). The Code provides first that: “All relevant evidence is admissible, except as provided by law.” § 90.402. Second, the evidence the appellant sought to introduce, which bears directly on the issue of whether there was delivery with an intent to make a gift, is admissible as a hearsay exception under Section 90.803(3)(a):

(3) THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.—
(a) A statement of the declarant’s then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:
1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
2. Prove or explain acts of subsequent conduct of the declarant.

The testimony of the defendant’s witness as to statements made by the decedent after the date of a disputed transaction was not inadmissible under any rule of law.

Reversed and remanded for a new trial.

      . The final will of November, 1980, which was admitted to probate, was the subject of a prior appeal before this court, Shamas v. Ritter, 432 So.2d 128 (Fla. 3d DCA), rev. denied, 440 So.2d 353 (Fla.1983), in which Shamas challenged the validity of the will based on undue influence. The facts set forth in the briefs of that case indicate that under the new will the members of the Shamas family, including George Shamas, were removed as beneficiaries. We rejected Shamas’ contention that the new will was a product of undue influence.


text:
    Brenda MOORE, the natural mother, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2594.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Bennett H. Brummer, Public Defender and May L. Cain, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Walter M. Meginniss, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Although we sympathize with the trial judge in his concern for the welfare of two small minor children, we find the evidence insufficient to declare them dependent and therefore reverse the adjudication of dependency. We remand the matter to the trial court to receive additional evidence as to neglect by the mother and if such is found, what would be in the best interest of her two children.

We find that the proper degree of proof in a dependency action is by a preponderance of the evidence. Section 39.-408(l)(b) Florida Statutes (1981). A greater degree of proof is required to sustain an order of permanent commitment. In Interest of C.M.H., 413 So.2d 418 (Fla. 1st DCA 1982); In Interest of D.A.H. and S.L.H., 390 So.2d 379 (Fla. 5th DCA 1980); In the Interest of J.F., 384 So.2d 713 (Fla. 3d DCA 1980); Carlson v. HRS, 378 So.2d 868 (Fla. 2d DCA 1979); In the Interest of C.K.G., 365 So.2d 424 (Fla. 2d DCA 1978). Obviously in the first instance, the removal of the child from the parents is subject to modification and the return of the child to the parents, but the latter is permanent and deprives the parents of any further contact with the child.

No merit is found in the other points urged as error by the appellant. In Interest of C.M.H., supra; Dale v. Ford Motor Company, 409 So.2d 232 (Fla. 1st DCA 1982); Section 59.041 Florida Statutes (1981).

Therefore the matter is returned to the trial court for further proceedings consistent with this opinion.

Reversed and remanded with directions.


author: JORGENSON, Judge. FERGUSON, Judge

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Julian Andres ACOSTA and Eugenia I. Acosta, Appellees.
    No. 83-2756.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Miami, for appellant.
    Gerald E. Rosser, Miami, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   JORGENSON, Judge.

The question before us is whether the adjective “dependent,” as used in section 627.739, Florida Statutes (1979), has some meaning other than its standard English definition “[t]hat depends or has to rely on something else for support, supply, or what is needed,” III Oxford English Dictionary 208-09 (1933).' We hold that nothing in the statute under consideration redefines the word in question and, accordingly, we affirm the trial court’s final summary judgment.

The relevant statutory language states that the named insured may elect a deductible “to apply to the named insured alone, or to the named insured and dependent relatives residing in the same household,” § 627.739, Fla.Stat. (1979) (emphasis added). On February 2, 1981, Lumber-mens’ named insured obtained a personal injury protection policy and checked a box on the policy indicating the election of an $8,000 deductible for “each named insured and each dependent relative” (emphasis added). Julian and Eugenia Acosta were the named insured’s son and daughter-in-law. Both resided in the named insured’s home, were employed and filed federal income tax returns for 1980 and 1981. Neither was claimed by the named insured as a dependent on his federal income tax returns and it is undisputed that neither depended on the named insured for financial support. On August 9, 1981, while Julian was driving the named insured’s automobile, Julian and Eugenia were injured in a traffic accident and sustained approximately $5,000 in damages. Because it was less than the $8,000 deductible Lumbermens refused to pay the Acostas’ claim.

Here, as before the trial court, Lumber-mens makes the argument that “dependent,” as used in section 627.739, Florida Statutes (1979), means something entirely novel to the definition of the word: “dependent for insurance coverage.” The Acostas, of course, argued and argue that in using the adjective “dependent” the legislature envisioned financial dependence and that the Acostas, therefore, were not “dependent relatives” for purposes of the statute. By agreement of the parties, then, both before the trial court and here, the issue has come down to this: whether as a matter of law “dependent” as used in section 627.739 means “financially dependent” or “dependent for insurance coverage.”

Lumbermens advances two arguments in support of its position. First, it asks that we read the section in question in conjunction with section 627.736(4)(d)3, Florida Statutes (1979), which requires the insurer of the owner of a motor vehicle to pay personal injury protection benefits to the owner’s vehicularly-bodily-injured relatives who do not own a motor vehicle and are domiciled in the owner's household. Lum-bermens argues that if we read these sections together it will be “clear” to us that “dependent relatives” means “resident relatives which are dependent on the named insured for insurance.” Well, it is not. Nevertheless, apparently reading language into section 627.736(4)(d)3 which we cannot find, Lumbermens argues that the section places upon the owner, not the insurer, the requirement that coverage be provided for relatives living in the owner’s household and, therefore, that it makes no sense to require financial dependence for the deductible to apply. Lumbermens offers as a hypothetical horror story the sad tale of two brothers, one financially dependent, one not, who are members of the owner’s household and are injured in a motor vehicle accident. The non-dependent brother would recover personal injury benefits but, because of the deductible, the dependent brother would not. Lumbermens perhaps overlooks the fact, but we doubt it, that in its hypothetical at least someone recovers benefits, whereas if we were to interpret the statute as Lumbermens does neither of the Acostas would recover benefits.

More importantly, as the Acostas point out in their brief, when an owner purchases personal injury protection he is making an economic decision for himself and his dependents. The higher cost of full personal injury protection must be weighed against the lower cost of personal injury protection with a deductible and the chances of later incurring the burden of one’s own or a dependent relative’s medical bills. The non-dependent relative would presumably carry the burden of making his own arrangements against the risk of accidental injury. It is perfectly logical, therefore, that non-dependent relatives are excluded from the optional deductible.

Lumbermens attempts to buttress its first argument by analogizing the present situation to the right of a named insured to completely waive uninsured motorist coverage for all insureds. This argument overlooks the structure of Florida’s no-fault insurance system. Owners are required to carry personal injury protection and may elect a deductible for themselves and their dependent relatives but not for others. These minimum requirements are the basis of the no-fault system, without which it could not exist. Uninsured motorist coverage is not pertinent to the system and, therefore, it logically follows that owners are free to reject it. This fundamental difference defeats Lumbermens’ analogy.

Lumbermens’ second argument is premised on the fact that no other state which allows an owner to elect a deductible for relatives, and Lumbermens names ten such states, makes financial dependence a requirement. Previous to 1977 the adjective “dependent” did not appear in section 627.-739. See, e.g., § 627.739, Fla.Stat. (Supp. 1976) (“to the policyholder alone or to the policyholder and relatives residing in his household” (emphasis added)). Among the amendments to section 627.739 that year, however, was the addition of “dependent.” See Act of July 5, 1977, ch. 77-468, § 37, I 1977 Fla.Laws 2057, 2084 (current version at § 627.739(1), Fla.Stat. (1983)). Lumber-mens argues that because no other state requires financial dependence the Florida Legislature, by inserting the word “dependent” into the statute, could only have meant “dependent-for insurance coverage.” Lumbermens thus argues that the legislature inserted into the statute an entirely superfluous word. It would be difficult indeed for an owner to elect a deductible for a relative who was not afforded coverage by the owner’s policy in the first place. Left then, as we are, with the presumption that the legislature inserted the word “dependent” to add meaning to the statute and the fact that the legislature did not provide a definition for the word it inserted, we construe the common adjective “dependent” to have its plain and ordinary sense, see Milazzo v. State, 377 So.2d 1161 (Fla.1979), “financially dependent.”

Affirmed.

FERGUSON, Judge

(dissenting).

I agree with appellant that the only construction of the term “dependent” as used in Section 627.739 which lends itself to a rational result is “dependent for insurance coverage,” and that that is what the legislature intended. I am also persuaded by the fact that no other state which permits a policy owner to elect a deductible for dependent relatives so narrowly defines dependent as one whom the policyholder supports financially.

      . Although the O.E.D. lists several other definitions of the adjective before us, they are obviously irrelevant to this discussion.

      . An act of May 4, 1982, ch. 82-243, § 557, I 1982 Fla.Laws 1289, 1568, inter alia, added the following language: "but may not elect a deductible to apply to any other person covered under the policy.” See § 627.739(1), Fla.Stat. (1983).

      . The pertinent language of § 627.736(4)(d)3, Fla.Stat. (1979), states that
      (d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:

      3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subparagraph 2., provided the relative at the time of the accident is domiciled in the owner's household and is not himself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741.

      . Colorado, Delaware, Hawaii, Kentucky, Massachusetts, Michigan, New York, Oregon, Pennsylvania and Utah.


text:
    FEDERGO DISCOUNT CENTER, Eddy Portillo and Edith Portillo, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF PHARMACY, Appellee.
    No. 83-2886.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Talburt, Kubicki, Bradley & Draper and Betsy E. Hartley, Miami, for appellants.
    Bruce D. Lamb, Tallahassee, for appel-lee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

This is an administrative appeal from a final order of the Florida Board of Pharmacy revoking the appellants’ permit to operate a community pharmacy in the State of Florida. The order, which overturned the recommendations of the designated administrative hearing officer, was bottomed on the Board's view that the provisions of Section 465.023(l)(c), Florida Statutes (1981), make a pharmacy permittee strictly liable for any unprofessional acts of a licensed pharmacist who has been engaged to run the pharmacy department for which the permittee, not a licensed pharmacist, holds a permit. We disagree with the Board’s reading of the applicable statutes and reverse the order under review.

Eddy and Edith Portillo held a community pharmacy permit for their store, Feder-go Discount Center, a discount dry goods facility, a small portion of which was occupied by the pharmacy. Eddy Portillo managed the store, and because neither he nor Edith Portillo were licensed pharmacists, they designated, as required by law, a state licensed pharmacist as the prescription department manager in charge of operating the pharmacy.

When a drug diversion audit conducted by the Board of Pharmacy revealed that excessive amounts of methaqualone had been dispensed by the pharmacist over a course of time, the Board charged the appellants with violating Florida Statute Section 465.023(l)(c) and, in turn, Sections 465.-016(l)(i) and 893.04, and sought to revoke their permit.

The administrative hearing officer’s recommended order, which we quote in pertinent part, substantially answers the Board’s position:

“Section 465.023(l)(c), Florida Statutes authorizes the department or board to revoke or suspend the permit of any person was [sic] has, inter alia:
“Violated any of the requirements of this chapter or any of the rules of the Board of Pharmacy; of chapter 500, known as the ‘Florida Food, Drug, and Cosmetic Law’; or of chapter 893; ...
“Section 465.016(l)(i), Florida Statutes, empowers the board to take disciplinary action against a pharmacist found to have been, inter alia:
“Compounding, dispensing, or distributing a legend drug, including any controlled substance, other than in the course of professional practice of pharmacy. For purposes of this paragraph, it shall be legally presumed that the compounding, dispensing, or distributing of legend drugs in excessive or inappropriate quantities is not in the best interests of the patient and is not in the course of the professional practice of pharmacy.
“Pursuant to Section 893.04(1), Florida Statutes, a pharmacist must act in good faith and in the course of his professional practice in dispensing controlled substances.
“The thrust of the Department’s position in this case is that the Respondents’ permit is subject to revocation based on the unlawful actions of the pharmacist who was employed during the period in question. In effect, the Respondents are charged with failing to adequately supervise the pharmacist to ensure that he was not excessively dispensing controlled substances.
“Initially, it must be determined whether any statute places a duty on a permit holder to supervise the professional activities of a licensed pharmacist. Section 465.018, Florida Statutes, places three duties on a permit holder at the time of issuance of a permit, including: (1) designating a prescription department manager, who must be a licensed pharmacist, who is responsible for maintaining all drug records, (2) providing for the security of the prescription department, and (3) following such other rules as they relate to the practice of the profession of pharmacy, (footnote omitted). Section 465.023(l)(c), Florida Statutes, authorizes disciplinary proceedings against a permit holder for violating any of the requirements of Chapter 465. Thus, the failure to comply with Section 465.018 following issuance of a permit constitutes grounds for discipline pursuant to Section 465.-023(l)(c), Florida Statutes.
“The Respondent is clearly not charged with failing to designate a licensed pharmacist as a prescription manager who is responsible for maintaining drug records. Neither is he charged with failing to provide for the security of the prescription department through negligence or otherwise. It is not alleged in the Administrative Complaint, nor was it stated at any subsequent time, that the Respondent violated any ‘rules’ regulating the practice of pharmacy or precisely what such rules were.
“Instead, it is apparently the position of the Department that the Respondent’s duty to supervise the professional judgment of a licensed pharmacist is a result of general principles of agency, rather than any specific duty imposed by law. The Department asserts that vicarious liability exists as to the principal, in this case the permit holder, in a situation where an agent’s improper or criminal acts were committed in the course of the agent’s employment.
“In Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982), the court found that a licensed contractor who acted as a qualifying agent for an otherwise unlicensed construction company had a statutorily imposed duty to supervise the construction undertaken by the company which he qualified. The supervisory duty in Alies was based on the statute in question, Section 489.119, Florida Statutes, which evidenced a legislative intent that qualifying agents be required to supervise a project entered into under the name of and by use of the contractor’s license. The power to discipline in Alies was not based on concepts of agency, but rather on a duty imposed by statute.... In the instant case, the statutory scheme set forth in Chapters 465 and 893, Florida Statutes, places well-defined duties on licensed pharmacists which require the careful exercise of sound professional judgment. In certain instances, a licensed pharmacist may be required by law to exercise professional discretion by refusing to dispense, notwithstanding the existence of a prescription written by a duly authorized physician which complies with all procedural statutory requirements. To take this one step further by requiring a nonprofessional permit holder to supervise the activities of a licensed pharmacist which involve the exercise of professional judgment and discretion is a requirement which should not be inferred in the absence of clear and unequivocal legislative authority, (footnote omitted). Had the licensed pharmacist failed to adequately maintain records, or had he otherwise compromised the security of the drugs in the prescription department, a different result could be indicated....”

Thus, while Section 465.023(l)(c) incorporates the provisions of other statutes, see Surrency v. Winn & Lovett Grocery Co., 160 Fla. 294, 34 So.2d 564 (1948); Hecht v. Shaw, 112 Fla. 762, 151 So. 333 (1933), the provisions it incorporates which apply to licensed pharmacists only cannot serve as a basis to revoke the community pharmacy permit, and the provisions it incorporates which apply to community pharmacy permittees were not here violated. Given the well-settled rules that (a) an administrative agency, empowered to revoke a license or permit for reasons specified in a statute, may not revoke such license or permit for some other cause not clearly within the ambit of its statutory authority, see In re Weathers, 159 Fla. 390, 31 So.2d 543 (1947); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979); State ex rel. Volusia Jai-Alai, Inc. v. Board of Business Regulation, 304 So.2d 473 (Fla. 1st DCA 1974); and (b) statutes authorizing revocation, being penal in nature, must be strictly construed, see State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (1930); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Lester v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977), it is clear to us that the Board’s construction of the statute cannot prevail.

Renbur Drugs, Inc. v. Florida Board of Pharmacy, 249 So.2d 698 (Fla. 3d DCA 1971), upon which the Board relies, lends no support to its position. In Renbur, the community pharmacy permit was revoked for a violation of Section 465.22(l)(c), Florida Statutes (1969) (the predecessor to Section 465.023(l)(c), Florida Statutes (1981)), which incorporated provisions of another statute generally prohibiting the misbrand-ing and mislabeling of drugs. Accordingly, upon a finding that agents and employees of the permittee had misbranded and mislabeled drugs, the permittee was correctly held responsible for a breach of duty imposed on it by the statute. In the instant case, by contrast, the appellants were incorrectly held responsible for a breach of duty imposed on others.

We conclude that if the Legislature desired to make community pharmacy per-mittees strictly liable for the acts of pharmacists who are separately licensed by the State, then it could have done so in no uncertain terms. In the absence of a clear expression from the Legislature making these permittees subject to discipline for the misdeeds of their chosen licensed pharmacist, we are obliged to reverse the Board’s order of revocation.

Reversed.

      . A community pharmacy is defined as including every store, shop, office, etc. or other place "where medicinal drugs are compounded, dispensed, or sold or where prescriptions are filled or dispensed on an outpatient basis.” See § 465.003(3)(a), Fla.Stat. (1981).

      . Section 465.018, Florida Statutes (1981), provides:
      "Community pharmacies; permits. — Any person desiring a permit to operate a community pharmacy shall apply to the department. If the board certifies that the application complies with the laws of the state and the rules of the board governing pharmacies, the department shall issue the permit. No permit shall be issued unless a licensed pharmacist is designated as the prescription department manager responsible for maintaining all drug records, providing for the security of the prescription department, and following such other rules as relate to the practice of the profession of pharmacy. The permittee shall notify the department within 10 days of any change in prescription department manager.”

      . The incorporated statute, Section 398.11, Florida Statutes (1969), which provided that "[n]o person except an apothecary for the purpose of filling a prescription ... shall alter, deface, or remove any labels ...,” was, unlike the statutes under which the present appellants were charged, clearly applicable to persons other than licensed pharmacists.


text:
    Andrew NOTTAGE, Appellant, v. AMERICAN EXPRESS COMPANY, Appellee.
    No. 84-33.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Goldfarb & Gold and Robert H. Yaffe, Miami, for appellant.
    Smathers & Thompson and James C. Polkinghorn, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Andrew Nottage commenced this action against Alexander Muss & Sons, Alexander Muss & Sons, Inc., and American Express Company on a complaint for common law invasion of privacy and unauthorized publication of name or likeness under Section 540.08, Florida Statutes (1983). He appeals an order which dismisses his complaint with prejudice. The order of dismissal recites only that “the Complaint fails to set forth a claim for relief against American Express.” We reverse.

Nottage alleged in his complaint, inter alia:

5. That at all times material herein the Plaintiff, ANDREW NOTTAGE, was employed by the Defendants, ALEXANDER MUSS & SONS and/or ALEXANDER MUSS & SONS, INC., as a doorman at the eondominium/apartment known as the Seacoast Towers East, located at 5151 Collins Avenue in Miami Beach, Dade County, Florida.
6. That in or about January, 1983, Defendants, ALEXANDER MUSS & SONS and/or ALEXANDER MUSS & SONS, INC., by and through their agents, servants and/or employees, photographed the Plaintiff, in uniform, at the Seacoast Towers East, without advising Plaintiff, either orally or in writing, of the purpose of said photograph.
7. That a few months following the taking of said photograph, Plaintiff, to his surprise, found large posters advertising “The Four Seacoast Towers” wherein the Plaintiffs portrait . was prominently incorporated and displayed as the focal point of the poster....
8. That subsequently, in or about April and May of 1983, Plaintiff found postcards in which his portrait was prominently incorporated and displayed as the focal point of the postcard. Said postcards were mailed to Switzerland and other countries by the Defendants, ALEXANDER MUSS & SONS, ALEXANDER MUSS & SONS, INC. and AMERICAN EXPRESS COMPANY, for the purpose of advertising “The Four Seacoast Towers.”...
* *• . * ⅜ * ⅜:
11. That in addition to the posters mentioned above, Defendants, ALEXANDER MUSS & SONS and ALEXANDER MUSS & SONS, INC., together with Defendant, AMERICAN EXPRESS COMPANY, mailed advertising postcards to Switzerland and other foreign countries.
12. That Defendants have used and are continuing to use the posters and postcards ... to advertise and solicit business for the commercial and pecuniary benefit of the Defendants.
13. That the unauthorized mailing of the postcards and placement of the posters for the commercial and pecuniary benefit of the Defendants constitutes an invasion of the Plaintiffs right of privacy-
14. That as a direct and proximate result of the Defendants’ invasion of Plaintiffs right of privacy, Plaintiffs peace of mind has been disturbed; Plaintiff has been humiliated and embarrassed; Plaintiffs right of privacy has been violated; Plaintiff has suffered mental pain and anguish and will continue to so suffer permanently in the future.
15.That Plaintiff would further show that the damages incurred by him as described herein were directly and proximately caused by the willful, malicious and intentional misconduct of the Defendants and/or their gross negligence, conscious indifference and utter disregard of Plaintiff's reputation, character and feelings. The conduct of the Defendants was prompted solely by pecuniary motives and deprived Plaintiff of the opportunity of free choice as to whether or not to participate in Defendants’ commercial endeavor. As a result, Plaintiff should be awarded an amount of punitive damages that would act as a deterrent to the Defendants and others from the commission of like offenses and wrongs.

American Express advances several arguments in support of the dismissal. Its main contention is that the use of plaintiff’s likeness in this case does not amount to commercial exploitation. It also contends that plaintiff is unable to show legal damages. Both of these contentions are in the nature of defenses to the action. On its face, the complaint sufficiently alleges both commercial exploitation and legal damage. Further, whether the exception provided in Section 540.08(3)(c) applies to the facts of this case cannot be determined on a motion to dismiss in light of the allegation that plaintiff was photographed in the uniform of the Seacoast Towers, and the picture was displayed prominently in an advertisement promoting both the Seacoast Towers and the American Express Company-

The only determination a court undertakes in considering a motion to dismiss for failure to state a cause of action is whether, upon examination of the four corners of the complaint, the allegations are sufficient to sustain a claim for relief. See Augustine v. Southern Bell Telephone & Telegraph Co., 91 So.2d 320 (Fla.1956); Bricker v. Kay, 446 So.2d 1151 (Fla. 3d DCA 1984). The existence of commercial exploitation and damages, and the applicability of the exception provided in Section 540.08(3)(c), if placed in issue by answer or affirmative defense, will become matters for proof.

Reversed and remanded with instructions to reinstate the complaint.

      . Defendants Alexander Muss & Sons and Alexander Muss & Sons, Inc., settled with the plaintiff so they are not parties to this appeal.

      . Section 540.08, Florida Statutes (1983) provides:
      Unauthorized publication of name or likeness.—
      (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by:
      (a) Such person; ...
      A A A A A A
      (2) In the event the consent required in subsection (1) is not obtained, the person whose name, portrait, photograph, or other likeness is so used, or any person, firm, or corporation authorized by such person in writing to license the commercial use of his name or likeness, or, if the person whose likeness is used is deceased, any person, firm, or corporation having the right to give such consent, as provided hereinabove, may bring an action to enjoin such unauthorized publication, printing, display or other public use, and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.
      (3)The provisions of this section shall not apply to:
      ⅜ * * * * *
      (c) Any' photograph of a person solely as a member of the public and where such person is not named or otherwise identified in or in connection with the use of such photograph.


author: NESBITT, Judge.

text:
    Allan R. MORING d/b/a Moring & Sons, Appellant, v. William G. LEVY, Appellee.
    No. 84-85.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Robert S. Appleton, Marathon, for appellant.
    John W. Conlin, Marathon, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   NESBITT, Judge.

Moring appeals from a second amended final judgment. Moring claims the court erred in failing to award him the costs of “extras” allegedly incurred by him while constructing a residence for Levy. We reverse in part.

In his complaint, Moring listed a number of extras along with the amount owed for each, claiming entitlement to the sums listed. After a three-day nonjury trial which spanned nearly a year, the court found in favor of Moring. In its initial final judgment, the trial court awarded Moring the entire amount claimed for extras. Two years and six months after the entry of this judgment, the trial court entered a second amended final judgment which, in effect, denied all of Moring’s claims for extras. There is no indication in the record why the court made such an abrupt change in its findings two and one-half years later. We are required, however, to affirm this second amended final judgment if it is supported by the record.

Moring claims that the evidence submitted during the trial concerning the extras was uncontroverted. He argues, therefore, we must reverse under the rule in Florida that uncontradicted evidence should not be wholly disregarded or arbitrarily rejected, but should ordinarily be accepted as true. See City of St. Petersburg v. Vinoy Park Hotel Co., 352 So.2d 149 (Fla. 2d DCA 1977); Clements v. Plummer, 250 So.2d 287 (Fla. 1st DCA 1971); Bergh v. Bergh, 160 So.2d 145 (Fla. 1st DCA 1964). We agree and find that the trial court erred in summarily denying all Moring’s claims for extras where a number of the claims were supported by uncon-troverted evidence.

Unfortunately, the trial court made no findings of fact to assist us. As our sister court recently pointed out in Schmeck v. Sea Oats Condominium Association, Inc., 441 So.2d 1092, 1094 (Fla. 5th DCA 1983):

It is with great reluctance that we reverse a judgment after a trial on the merits. Such a judgment comes to us as presumptively correct, and we cannot overturn findings of fact where there is conflict in the evidence or testimony. Unfortunately for us the lower court made no findings of fact. That makes our review more difficult because we must look at the whole record and seek to uphold it, if possible, on any theory, [footnote omitted]

After a painstaking review of the transcripts of the three-day trial and the record on appeal, we find that the following extras claimed by Moring were uncontradicted by any evidence: extra painting ($179 for walls, $203 for vanities); tile for vanities ($242); installation of a necessary support pile ($130); plyform backing for wall ($58.80); truck rental ($170); miscellaneous material taken by Levy from an adjacent job site belonging to Moring ($328); overhead and profit charge relating to the Holding subcontract extra ($184.38); overhead and profit charge relating to the Green subcontract extra ($75.12); and the Far-rey’s Hardware charges exceeding the $500 allowance ($474.70). We find that it was error for the lower court to ignore the uncontroverted evidence regarding these claims, and accordingly, reverse for entry of judgment in favor of Moring on the claimed extras as set out above. See City of St. Petersburg; Clements; Bergh.

As to the other claimed extras the evidence was conflicting. We have previously held that:

[i]f the evidence supports the finding of the trial judge, it will be sustained upon appeal even though conflicting and contradictory evidence may be convincing to the appellate court, [citations omitted]

United States Fidelity and Guaranty Co. v. Darden, 338 So.2d 37, 38-39 (Fla. 3d DCA 1976), cert. dismissed, 353 So.2d 680 (Fla.1977). Accord Bruñe v. Kings Creek of Gainesville, Inc., 317 So.2d 848 (Fla. 1st DCA 1975). See also Golden v. Golden, 434 So.2d 978 (Fla. 3d DCA 1983); Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982); Mori v. Matsushita Electric Corp. of America, 380 So.2d 461 (Fla. 3d DCA), cert. denied, 389 So.2d 1112 (Fla.1980). We find that the record supports the trial court’s denial of recovery for the extras claimed by Moring which are not set out above in this decision.

Accordingly, the judgment under review is reversed with regard to the denial of recovery for extras where the evidence supporting the claims is uncontradicted. In all other respects the judgment is affirmed.

      . Moring was awarded contract damages in the amount due on the construction contract and that portion of the final judgment is not before us. The "extras" are those costs incurred for work or material which went beyond or was in addition to that which was contemplated in the construction contract.

        . The first amended final judgment was entered five days after the initial final judgment and merely removed language in the judgment concerning foreclosure of a mechanic’s lien. It did not change the amount awarded to Moring.

      . Although the testimony concerning this extra painting ordered by Levy did not indicate the amount, the amounts are indicated on the August 7, 1973 letter admitted into evidence without objection or condition as plaintiff's exhibit #4. We also reject Levy's best evidence objection relating to the painting order as it was not ruled on by the trial court and, thus, not preserved for appeal.

      . Again, there was no testimony concerning the value of this extra, despite counsel's indication otherwise to the court at the beginning of the second day of trial. However, the August 7, 1973 letter sufficiently indicated the amount. See supra note 3.

      . Levy never contested the fact that he took the material. Although he initially objected to the value, he ultimately conceded the point and cannot now complain. When asked whether $328 was a reasonable value for the material taken, Levy responded:
      No, that isn't a reasonable value, but it would be near a third of that, but I’ll allow it. [emphasis added]
      (Record on Appeal at 342)

      . Although Moring's testimony indicates the amount due for this extra is $450.12, the evidence clearly establishes that the $375 owed to Green was paid by Levy and, therefore, only the $75.12 overhead and profit charge of Moring remained. This is specifically noted on the August 7, 1973 letter. See supra note 3.


author: NESBITT, Judge. JORGENSON, Judge,

text:
    Robert M. BRAKE, Appellant, v. Vivian SANCHEZ-LOPEZ and Richard C. Castillo, Appellees.
    No. 84-883.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Robert M. Brake, Coral Gables, for appellant.
    Whitman, Wolfe & Gross and Irving J. Whitman, Miami, for appellees.

      Before NESBITT, DANIEL S. PEARSON, and JORGENSON, JJ.
   NESBITT, Judge.

Brake, an attorney, appeals a nonfinal order denying his motion to enforce a charging lien and granting Sanchez-Lopez’s motion to compel the remittance of child support payments received by him.

Brake represented Sanchez-Lopez in paternity proceedings against Richard C. Castillo. He obtained a final judgment awarding Sanchez-Lopez $2,150 for medical and other expenses connected with prenatal care and birth of the child and $115 per month child support.

Brake, after applying Sanchez-Lopez’s deposit and the court’s award of attorney’s fees and costs, asserted that Sanchez-Lopez still owed him $1,874.15. He claimed a charging lien against the judgment, notifying both parties of the claim. Castillo, after notice of Brake’s lien, paid $2,105 in cash directly to Sanchez-Lopez as partial satisfaction of the $2,150 medical and expense award. This payment avoided Brake’s charging lien. When Brake moved to enforce the charging lien his request was denied and he was compelled to remit to Sanchez-Lopez any child support payments he had received from Castillo.

We perceive from the record and oral argument that the trial court did not resolve the question of whether a contract sufficient to support a charging lien existed in fact, but only determined, as a matter of law, that a charging lien could not be imposed against monies awarded in a paternity action. Therefore, the issue we are deciding is whether an attorney’s charging lien may be imposed against awards of child support and medical and other expenses made in a paternity proceeding.

A number of jurisdictions have held that a charging lien cannot be imposed against alimony awards. Hubbard v. Ellithorpe, 135 Iowa 259, 112 N.W. 796 (1907) (temporary alimony and support not subject to a charging lien); Sanner v. Sanner, 46 S.W.2d 936 (Mo.Ct.App.1932); Turner v. Woolworth, 221 N.Y. 425, 117 N.E. 814 (1917); Rosen v. Rosen, 97 A.D.2d 837, 468 N.Y.S.2d 723 (App.Div.1983); Mooney v. Mooney, 29 Misc. 707, 62 N.Y.S. 769 (Sup.Ct.1899). In Florida, it has been held that a charging lien is unenforceable against an award of permanent periodic alimony when its enforcement would deprive a former spouse of daily sustenance or the minimal necessities of life. Dyer v. Dyer, 438 So.2d 954 (Fla. 4th DCA 1983). The rationale is that enforcement of a lien which defeats the essential purpose of the award and leaves the spouse unable to maintain him or herself is against public policy. The reasoning applies with greater force to an award of child support payments. Such payments are obtained by a custodian on behalf of minor children and are intended for their support and maintenance. Both the Florida legislature and the Florida courts have recognized the importance of protecting against the diversion of support payments from their intended beneficiaries. § 409.2561(1), Fla.Stat. (1977). State, Department of Health & Rehabilitative Services v. King, 390 So.2d 1224 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Alper, 375 So.2d 571 (Fla. 4th DCA 1979).

In those jurisdictions which have decided the question, enforcement of a charging lien has not been allowed to nullify an award determined to be necessary to assure the support of a child. Fuqua v. Fuqua, 558 P.2d 801, 804-06 (Wash.1977) (en banc); Sanner. Recognizing the importance of ensuring that children are adequately supported and maintained, we hold that an attorney’s charging lien is not enforceable against child support payments.

The $2,150 award for medical and other expenses is of a different nature. That is an award to Sanchez-Lopez compensating her for expenditures made for the prenatal care and birth of the child. Where, as in this case, the recipient of the award is not impecunious, enforcement of a charging lien is appropriate. We leave for a future case the decision of whether such a rule would apply where enforcement of the lien would leave the successful party unable to meet the obligations necessary to maintain herself and her family.

We affirm that portion of the trial court’s order which denied enforcement of a charging lien against child support payments. We reverse as to that portion which denied a lien against the compensatory award. As to these proceeds, the award is enforceable against the parties in the same action where, as here, they have avoided the lien after notice of the claim. Miller v. Scobie, 152 Fla. 328, 11 So.2d 892 (1943).

We note that in order for a charging lien to be imposed there must be an understanding between the parties, express or implied, that payment of attorney’s fees is either dependent on recovery or will come from recovery. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1385 (Fla.1983). Accordingly, we remand the case so that the trial court may make a determination of whether such an understanding existed.

Affirmed in part; reversed in part and remanded.

JORGENSON, Judge,

dissenting.

I respectfully dissent. In my view there is no difference between child support payments and the costs incident to giving birth to the child. I would affirm in all respects.

      . Section 409.2561(1) reads in pertinent part: Priority shall be given to establishing continuing reasonable support for the dependent child.


text:
    Beverly A. CLAUGHTON, Petitioner, v. Edward N. CLAUGHTON and the Honorable Richard S. Fuller, Circuit Judge, Eleventh Judicial Circuit, In and For Dade County, Florida, Respondents.
    No. 84-952.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Daniels & Hicks and Louise H. MeMur-ray, Paige & Catlin, Miami, for petitioner.
    Sibley, Giblin, Levenson & Glaser and Allan M. Glaser, Miami Beach, for respondents.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We cannot on the record before us conclude that the statements set forth in the final judgment upon which the petitioner based her application to disqualify the trial judge were so unrelated to the issues being tried as to constitute other than adverse judicial rulings which under well-settled law are not a basis for disqualification for bias or prejudice. See Wilson v. Renfroe, 91 So.2d 857 (Fla.1957); State ex rel. Locke v. Sandler, 156 Fla. 136, 23 So.2d 276 (1945). Whether such rulings were correct or not is a matter to be determined on appeal from the final judgment.

Accordingly, the petition for writ of prohibition is

Denied.


author: WIGGINTON, Judge.

text:
    CONTEXT INDUSTRIES, and United States Fidelity & Guaranty Company, Appellants, v. Suzanne WALSH and the Division of Workers Compensation, Appellees.
    No. AU-372.
    District Court of Appeal of Florida, First District.
    July 10, 1984.
    Jerry V. Wilkey, Coral Gables, for appellants.
    Jerold Feuer, Miami, for appellees.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order finding a causal relationship between appellee’s industrial accident and her current psychiatric condition, and awarding her temporary total disability benefits from June 11, 1981 and continuing. Having considered the arguments of counsel and reviewed the voluminous record, much of which contains medical testimony taken live before the deputy commissioner, we find that competent substantial evidence supports the deputy commissioner’s finding of compensability and his award of temporary total disability benefits.

Our only concern over the validity of the order was that portion of temporary total disability benefits awarded from June 11 through November 10, 1981, a time during which it appears from the record that appellee was employed part-time by appellant Context Industries as a salesperson. However, our further review of the record reveals that, according to appellee’s testimony, during that time she was working strictly on commission but was earning nothing due to her inability to perform her job because of her condition. The severity of her condition was established by medical testimony. Therefore, we are fully satisfied that competent substantial evidence supports the deputy commissioner’s finding of temporary total disability from June 11, 1981 and continuing.

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


author: MILLS, Judge.

text:
    ALC INTERIOR SYSTEMS and Southeastern Fire Insurance Company, Appellants, v. Gary T. HALL, Appellee.
    No. AW-383.
    District Court of Appeal of Florida, First District.
    July 10, 1984.
    Kent S. Pratt of Cibula, Gaunt & Pratt, West Palm Beach, for appellants.
    Jerry J. Goodmark, West Palm Beach, for appellee.
   MILLS, Judge.

In this workers’ compensation action, the employer/carrier appeal from an order awarding wage loss benefits. We find the award supported by competent substantial evidence and therefore affirm.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


text:
    Ahmed H. BARHOUSH, M.D., Appellant/Cross Appellee, v. James Melvin LOUIS, a minor, By and Through his parents and next friends, Marie Luce JULIEN and Roland Louis, and Marie Luce Julien, individually, and Ronald Louis, individually, and Glades General Hospital, Appellees/Cross Appellants.
    Nos. 81-2024, 82-130.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.

      Charles Ehrhardt, Tallahassee, and Talbot D’Alemberte and Lewis F. Murphy of Steel, Hector & Davis, Miami, for appellant/cross appellee.
    Keyfetz, Poses & Halpern, P.A., and Philip Freiden, P.A., and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for ap-pellees/cross appellants.
   PER CURIAM.

Defendant, a physician, appeals an adverse judgment in a medical malpractice action. The physician was involved in the delivery of a child who was born with serious brain damage. An action was brought on behalf of the child and the jury returned a verdict of $1.8 million. The trial court instructed the jury on damages for bodily injury, pain and suffering, disability, mental anguish, and loss of capacity for the enjoyment of life, both past and future. The jury was also instructed on the reasonable value of expenses for medical and nursing care and the child’s loss of ability to later earn money. A general verdict form was submitted to the jury; it was not requested to render an itemized verdict in accordance with Section 768.48, Florida Statutes (1981). No one objected to the absence of an itemized verdict which is specifically provided for under the cited statute.

The appellate arguments raised by the defendant all relate to a particular expert witness, Dr. Goffman, who was presented by plaintiffs. Dr. Goffman’s testimony related only to the economic losses sustained by the minor plaintiff. Dr. Goffman was an expert economist and his testimony, of course, had nothing to do with the elements of pain and suffering, inability to lead a normal life, and other intangible damage elements present in the case. Rather, his testimony was generally to the effect that the plaintiff had sustained a $1.8 million economic loss. The jury returned a verdict for this amount, and it is the defendant’s position that the jury’s verdict was based solely on this expert’s testimony.

On appeal, defendant contends that his efforts at pretrial discovery and his attempts to introduce evidence to impeach Dr. Goffman during trial were erroneously and unfairly restricted by the trial court. A substantial amount of time was spent during the trial on the defendant’s attempt to discredit this economic expert on the basis of collateral issues. We conclude that although the court’s rulings on discovery and cross-examination may have been unduly restrictive, no error has been made to appear requiring a reversal.

We start from the position that in this case, unlike most personal injury actions, the defendant was entitled to a specific itemized verdict pursuant to Section 768.48, Florida Statutes (1981). Plaintiffs urge that since no special verdict was requested under this statute that the “two issue rule” precludes review. Under the two issue rule, whenever multiple issues are submitted to a jury for resolution in a general verdict and one of them is free from prejudicial error, it will be presumed that all issues were decided in favor of the prevailing party and a judgment will be affirmed. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978); Florida East Coast Railway v. Gonsiorowski, 418 So.2d 382 (Fla. 4th DCA 1982).

While this case does not present a classic application of the two issue rule, the principal has analogous application and we conclude that defendant is precluded from obtaining a reversal herein. Had defendant requested the itemized verdict to which he was entitled, the problems relating to the effect of Dr. Goffman’s testimony would have been clarified. Further, the attempted attacks on Dr. Goffman mainly went to his credibility on collateral issues. In addition, if defendant is correct in his assertion that the jury based its entire verdict on Dr. Goffman’s testimony of $1.8 million in economic loss, then the jury awarded nothing for all the elements of intangible damages such as pain and suffering and loss of the ability to lead a normal life. The plaintiff here was a seriously brain-damaged child. The jury concluded this tragic birth injury was the fault of the defendant, and the verdict of $1.8 million is clearly supported by substantial and abundant evidence. We conclude that, even if error occurred in the restrictions upon discovery and cross-examination, that prejudicial error has not been made to appear. The final judgment below is thus affirmed.

AFFIRMED.

BERANEK, J., and COCALIS, PATRICIA W., Associate Judge, concur.

ANSTEAD, C.J., concurs in conclusion only.


text:
    Gerald R. GORDON and Marilyn T. Gordon, Appellants, v. S. Bill BARTLETT and Joyce E. Bartlett, his wife, Appellees.
    Nos. 82-1829, 82-2270.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.

      Dennis J. Powers of Gunster, Yoakley, Criser & Stewart, Palm Beach, for appellants.
    Charles R.L. White, Jupiter, for appel-lees.

       Judge Dell heard oral argument as a member of the merits panel. Thereafter, he disqualified himself. Judge Hurley was substituted and has listened to the tape recording of the oral argument.

   PER CURIAM.

The Gordons appeal from an amended final judgment and a cost judgment. They contend the trial court improperly awarded damages and attorney’s fees and improperly assessed the cost of two surveys against them. We agree and reverse.

The Gordons owned a parcel of land, a portion of which was transferred to the Bartletts by warranty deed. The Bartletts then surveyed the land and discovered that the Gordons’ concrete wall encroached upon their land. The Bartletts brought an action in ejectment against the Gordons.

During trial, the court refused to admit the Bartletts’ survey because it was not properly signed and sealed. At the conclusion of trial, the court entered a judgment for the Gordons after finding that the Bart-letts failed to meet their burden of proof. The Bartletts then sought a rehearing and offered two new surveys to establish the encroachment. The trial court denied the motion for rehearing and the first appeal of this case followed. This court reversed finding that the admission of the survey was not crucial; that the admissible evidence established an encroachment; and that the Gordons failed to rebut the evidence. Thus, we reversed and remanded with directions to enter judgment for the Bartletts. See, Bartlett v. Gordon, 414 So.2d 1083 (Fla. 4th DCA 1982).

On remand, the trial court entered an amended final judgment in favor of the Bartletts. The court found the -Gordons liable for damages and for attorney’s fees. Also, the court taxed costs against the Gor-dons and assessed an amount for the two surveys prepared after trial for the Bart-letts’ motion for rehearing. Thus, we have the present second appeal in which the Gordons contest the issue of damages and attorney’s fees. Additionally, the Gordons contend that the trial court erred by taxing as costs the expense of the two surveys prepared after trial.

With respect to the finding of an entitlement to damages, the Gordons argue that the Bartletts failed to produce any evidence of damages at trial and, therefore, cannot recover damages on remand. After examining the record, we find no evidence sufficient to support an award of damages and, therefore, reverse that provision in the amended final judgment.

Next, the Gordons contest the award of attorney’s fees. They assert that no statutory or contractual provision exists to support the award. The Bartletts respond that they are entitled to attorney’s fees either pursuant to Section 57.105, Florida Statutes (1981) or pursuant to the real estate contract. We cannot agree. First, we do not find the Gordons’ position in this cause wholly frivolous or so lacking in merit as to warrant an award of fees under Section 57.105. See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982). Second, regarding the sales contract, a paragraph of the contract provided for an award of attorney’s fees to the prevailing party for any litigation arising out of the contract. However, under the general rule, “preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto.” Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967). Accordingly, the Bartletts cannot rely on the sales contract to support their claim for attorney's fees. Since the warranty deed does not contain an express provision regarding the recovery of attorney’s fees, there is no basis for such an award and, therefore, we reverse on this point.

Finally, the Gordons contend the trial court improperly assessed the costs of two surveys against them. Since the surveys were prepared after trial and were necessitated by the Bartletts’ own failure to present a properly certified survey at the first trial, we reverse the award for those costs as well.

Accordingly, we reverse and remand to the trial court with instructions to vacate its award of damages and attorney’s fees in the amended final judgment and to reduce the cost judgment by the amount of the two surveys.

REVERSED and REMANDED.

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


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Betty REESE, Appellant, v. STATE of Florida, Appellee.
    No. 82-2015.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    As Corrected July 25, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Although we affirm appellant’s conviction and sentence for aggravated battery, we join our sister court, the First District, in certifying the following issue as one of great public importance:

If the state has the burden to prove beyond a reasonable doubt that a defendant was sane at the time of the offense when the defense of insanity has been raised, is the giving of the present insanity instruction, as set forth in Standard Jury Instruction 3.04(b), along with the general reasonable doubt instruction sufficient, notwithstanding the defendant having specifically requested the court to instruct the jury that the state must prove beyond a reasonable doubt that the defendant was sane at the time of the offense?

See Yohn v. State, 450 So.2d 898 (Fla. 1st DCA 1984).

HURLEY and WALDEN, JJ., concur.

ANSTEAD, C.J., concurs in part and dissents in part with opinion.

ANSTEAD, Chief Judge,

concurring in part and dissenting in part:

I agree with the majority’s conclusion that the trial court did not err in admitting expert testimony as to the general incidence in the population of the alleged mental infirmity that formed the basis of Reese’s insanity defense. See, e.g., Rodriguez v. State, 413 So.2d 1303 (Fla. 3d DCA 1982). I disagree, however, with the conclusion that Reese was not entitled to an instruction, under the current state of Florida law, as to the state’s burden to prove her sanity.

The Florida Standard Jury Instruction on insanity which was given here makes no reference to the burden of proof:

An issue in this case is whether the Defendant was legally insane when the crime allegedly was committed. You must assume she was sane unless the evidence causes you to have a reasonable doubt about her sanity.
If the Defendant was legally insane, she is not guilty. To find her legally insane, these three (3) elements must be shown to the point you had a reasonable doubt about her sanity:
One, the Defendant had a mental infirmity, defect or disease;
Two, the condition caused the Defendant to lose her ability to understand or reason accurately;
And three, because of the loss of these abilities, the Defendant did not know what she was doing or did not know what — or did not know what would result from her actions, or did not know it was wrong, although she knew what she was doing and its consequences.

In my view, this instruction is not a correct statement of Florida law and the instruction, at least inferentially, suggests that the burden is upon the defendant, since it is the defendant who has asserted insanity as a defense, that must prove the elements of an insanity defense. That the instruction is, at a minimum, unclear as to who has the burden to do what is further evidenced in this case by the repeated inquiries by the jury as to who had the burden of proof.

In Parkin v. State, 238 So.2d 817 (Fla.1970), the Florida Supreme Court set out the law on this issue:

It is a cornerstone of a workable system of criminal law that every person is presumed sane, and capable of controlling their actions and being held responsible for these actions. M’Naghten’s Case, 10 Clark & F. 200, 8 English Reprint 718 (1843); Hodge v. State, 26 Fla. 11, 7 So. 593 (1890). Obviously, this is only a presumption, and may be overcome. When the presumption of sanity is rebutted, then the State must prove sanity beyond every reasonable doubt, just as it must other elements of the offense. Hodge v. State, supra. Id., at 821; See Hodge v. State, 26 Fla. 11, 7 So. 593 (1890) (e.s.)

This law is virtually identical to the federal rule. United States v. Manetta, 551 F.2d 1352 (5th Cir.1977). However, the federal jury instructions specifically inform the jury of the prosecution’s burden of proof on this issue, unlike the Florida instructions which do not. See, e.g., Fifth Circuit Special Pattern Instruction No. 10, Pattern Jury Instructions (Criminal Cases) (5th Cir. 1978).

Since Florida case law is clear that once the presumption of sanity is rebutted the prosecution must prove sanity beyond every reasonable doubt, Reese was entitled to have the jury informed of this. In fact, under federal law, the trial court decides as a matter of law whether any competent evidence of insanity has been presented at trial so as to create an issue as to the defendant’s sanity. Once that determination is made the case proceeds with the prosecution carrying- the burden of proof on the sanity issue and the jury being so informed. That would appear to be the procedure contemplated by Parkin.

Contrary to the federal procedure and the law set out in Parkin, the Florida standard instructions make no reference to burden of proof. The standard instruction is in two parts, the first part states that insanity is an issue and that the jury must assume that the defendant is sane unless the proof “causes you to have a reasonable doubt about her sanity.” While arguably the instruction is a correct statement of the law to this point, it obviously says nothing about the burden of proof. I say the instruction is arguably correct because it is true that there is a presumption of sanity under the law, but that presumption ceases to exist in the face of competent evidence to the contrary, and once it does the prosecution bears the burden of proving sanity “beyond a reasonable doubt." Again, arguably the provision that “unless the evidence causes you to have a reasonable doubt about her sanity” is correct since the jury is bound to find the defendant legally insane for purposes of defense if the evidence creates “a reasonable doubt about her sanity.” The bottom line is that this instruction says nothing about the burden of proof, a burden critically important to every defendant since in many cases the only “defense” available to a defendant is the contention that the state has not carried its heavy burden of proof.

The second part of the standard instruction states the issue as a defense issue: “If the defendant was legally insane, she is not guilty.” Again, this framing implicitly suggests the burden is upon the defendant to establish the defense of insanity. That burden is made more explicit by the remainder of the instruction which says: “To find her legally insane, these three (3) elements must be shown to the point you had a reasonable doubt about her sanity.” Shown by whom? Obviously by the defendant, who has raised the issue. This is contrary to the federal scheme and the scheme contemplated by Parkin. This instruction confuses the burden of presenting some competent evidence as to insanity, commonly referred to as the burden of going forward with evidence, with the ultimate burden of proof. The instruction erroneously suggests that the burden of proof is upon the defendant to establish a reasonable doubt as to his sanity. Under Parkin and the federal cases the defendant only has to submit some competent proof, the sufficiency of which is to be determined by the court as a matter of law, in order to create a triable issue as to his sanity and the burden of proof thereafter rests upon the state to establish his sanity beyond a reasonable doubt.

Interestingly, there is no constitutional mandate for the state to assume the burden of proof on the sanity issue. Rather, the United States Supreme Court has ruled that the states are free to impose the burden of proof on the defendant if they so choose. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). However, it is clear that Florida, like the federal courts, has opted for a procedure that puts the burden of going forward with the evidence on the defendant but still requires the prosecution to shoulder the burden of proof. Perhaps this is an appropriate time for the Florida Supreme Court to reconsider that policy. For that reason, and the obvious lack of clarity in the standard jury instructions on this issue, I join with my colleagues in certifying this issue as one of great public importance.

      . It may be that the Florida Supreme Court has adopted a rule allowing the jury to determine whether the presumption of sanity has been sufficiently rebutted to create a burden of proof upon the state to prove sanity. See Holmes v. State, 374 So.2d 944, 948 (Fla.1979). This would create a complicated procedure whereby the jury would apparently start out with the presumption of sanity, then consider whether the presumption has been overcome by proof establishing a reasonable doubt as to sanity (with the burden presumably upon defendant to establish this reasonable doubt), and then, assuming that the defendant has established a reasonable doubt, the burden of proof would shift to the prosecution to prove sanity beyond any reasonable doubt. This is a confusing concept at best, but perhaps it forms the basis of the present standard instruction. However, even if this is accepted as the current state of the law, the defendant would be entitled to have the jury told about the state’s burden of proof once the presumption of sanity is rebutted. The standard instruction nowhere informs the jury of this point.

      . The Fifth Circuit Special Pattern Instruction No. 10 on insanity provides:
      There is an issue in this case concerning the sanity of the Defendant at the time of the acts or events alleged in the indictment.
      The sanity of the Defendant at the time of an alleged offense must be established by the Government beyond a reasonable doubt because willful intent, as you have been instructed, is an essential element of the offense charged, and a person who is insane is not capable of forming such intent.


author: SIMONS, STUART M„ Associate Judge.

text:
    B & B FLORIDA INCORPORATED and Chicago Realty Development Service, Inc., as general partners of Ocean Manor Associates, Ltd., a Florida limited partnership, Appellants, v. FIRST NATIONAL BANK OF AKRON, Trustee of a Trust created by Item III of the Will of William D. Zahrt, deceased, Appellee.
    No. 82-2464.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Bertha Claire Lee, James B. Tilghman, Jr., and Herman J. Russomanno of Floyd, Pearson, Stewart, Richman, Greer, Weil & Zack, P.A., Miami, for appellants.
    James 0. Murphy, Jr., of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee.
   SIMONS, STUART M„ Associate Judge.

This is a declaratory action seeking interpretation of a provision of a lease which provides the landlord with certain options as to cancellation of the lease in the event of fire which causes a “rebuilding” or “reconstruction” of the premises rather than a “repair.”

The appeal rests on a determination of whether the work on the building (including work to meet building code requirements) constituted “repair” or “reconstruction.” The trial court considered the evidence and determined that the work done to the building subsequent to the fire constituted “repair” of the building. In reviewing the entire record there was substantial competent evidence upon which the Court reached its decision. Thus, the final judgment for the plaintiff should not be disturbed on appeal. Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981).

AFFIRMED.

HURLEY, J., concurs.

DELL, J., dissents without opinion.


text:
    Kimberly BOOTH, Appellant, v. The TRAVELERS INSURANCE COMPANY, et al., Appellees.
    No. 82-2527.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Larry Klein, West Palm Beach, and Levy, Shapiro, Kneen & Kingcade, Palm Beach, for appellant.
    Lenard H. Gorman and Stephen A. Stieglitz of Sparber, Shevin, Rosen, Shapo & Heilbronner, Miami, for appellees.
   ON MOTION TO REVERSE

PER CURIAM.

Plaintiff appeals from an order dismissing her complaint for failure to state a cause of action. We reverse and remand pursuant to the agreement of the parties, and the authority of Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984), where the Supreme Court held that a vendor who sells intoxicating beverages to a minor contrary to § 562.11, Fla. Stat. (Supp.1978) prior to the effective date of § 768.125, Fla.Stat. (1981) may be liable in negligence to third persons injured by the minor’s operation of a motor vehicle.

REVERSED AND REMANDED.

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


author: DELL, Judge. ANSTEAD, Chief Judge,

text:
    Edward Samuel HIRST, Appellant/Cross Appellee, v. Edith Margret HIRST, Appellee/Cross Appellant.
    No. 83-756.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.

      David R. Schwartz of Mitchell, Hanser & Schwartz, West Palm Beach, for appellant/cross appellee.
    Allen R. Seaman of Weathers & Seaman, Lantana, for appellee/cross appellant.
   DELL, Judge.

This appeal and cross appeal arise out of a dissolution action.

At the time of the final judgment, the parties had been married for seventeen years and had one son, age fifteen. The wife, age thirty-seven, and the husband, age thirty-eight, were both in good health. Neither party had brought any assets to the marriage.

In 1982, the husband earned approximately $62,000. The wife has an eleventh grade education and has worked as a waitress temporarily at several restaurants over the years. At the time of the final hearing, she was earning approximately $125 to $175 per week. The trial court awarded the wife rehabilitative alimony for a period of seventeen years, the exclusive possession of the marital home for six years and a $10,000 interest in the husband’s half of the proceeds from the eventual sale of the marital home as compensation for her interest in his stock, IRA and pension plan. The husband appeals and the wife cross appeals.

The husband contends the trial court erred in awarding the wife rehabilitative alimony for a period of seventeen years and in providing for the wife to have possession of the marital home for three years after their child reaches majority. The wife contends the trial court should have awarded permanent periodic alimony rather than rehabilitative alimony and that it abused its discretion in awarding only partial attorney’s fees.

Neither the record, the briefs, nor argument of counsel discloses a reasonable basis for the trial court’s award of rehabilitative alimony for seventeen years. We conclude from the trial judge’s comments that the intent of this award was to do equity between the parties. However, we are confronted with an award which provides for an excessive period of rehabilitative alimony which cannot be supported by the record. Permanent, periodic alimony provides for the needs of life to a former spouse as they have been established by the marriage of the parties, while the purpose of rehabilitative alimony is to

establish the capacity for self support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.

Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Nine factors must be taken into consideration in deciding whether to award permanent periodic alimony: the needs of one spouse for the funds; the ability of the other spouse to provide the funds; the parties’ earning ability, age, health, and education; the duration of the marriage; the standard of living enjoyed during the marriage; and the values of the parties’ estates. Canakaris at 1201-1202. Our review of the record satisfies us that the wife qualified for an award of permanent alimony under the criteria set forth in Canakaris v. Canakaris, supra. The only factor significantly militating against such an award is her relative youth, and the judge’s comment indicates that was the primary reason for awarding rehabilitative rather than permanent alimony.

We agree with appellant’s contention that the trial court’s award of the exclusive use and possession of the marital home for a period of three years after their minor child has reached majority constituted an abuse of discretion.

The award of “exclusive possession” of property subject to disposition in a dissolution proceeding should either be directly connected to the obligation to pay support or be temporarily necessary to prevent reduction in the value of the subject property. The critical question is whether the award is equitable and just given the nature of the case. A grant of exclusive possession of property to one of the parties in a final judgment must serve a special purpose.

Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

Appellant stipulated that the wife should have the exclusive use and possession of the marital home until such time as their minor child reached his majority. However, no testimony was offered to support the award of the exclusive possession of the marital home beyond the child’s minority-

We find that the trial court acted within its discretion in accomplishing an equitable distribution of the parties’ assets when it awarded the wife $10,000 and related the award to the husband’s interest in his stock, IRA and pension plan. On the other hand, we conclude that the trial court erred in failing to award appellee the full amount of her attorney’s fees since at the time of the final judgment appellee had little or no liquid assets and only minimal income from which she could pay her attorney’s fees.

Therefore, we reverse and remand the final judgment entered in this cause with directions to the trial court to award appel-lee permanent alimony, to modify the award of the exclusive use and possession of the marital home to terminate when the parties’ minor child attains the age of majority and to determine and award to appel-lee the full amount of the reasonable attorney’s fees which she expended in the lower court proceeding. We affirm the final judgment in all other respects.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

DOWNEY, J., concurs.

ANSTEAD, C.J., concurs in part and dissents in part with opinion.

ANSTEAD, Chief Judge,

concurring in part and dissenting in part:

For the most part, I agree with the majority’s decision and analysis of the existing law. I write separately because I think we should let the trial court reconsider the issue of whether rehabilitative or permanent alimony should be awarded. In Conner v. Conner, 439 So.2d 887 (Fla.1983), it was held that the trial court should be the one to reassess the circumstances of the case if a flaw in the trial court’s scheme is found on appeal. I think that is especially appropriate here where the trial court obviously intended that the wife receive periodic payments over a term of years in order to compensate her for the contributions she made to the marriage for 17 years. On the other hand it seems apparent that the trial court did not intend to require the husband to make permanent payments to the wife. It may be that an award of lump-sum alimony payable over a term of years would be an equitable solution to the problem. The parties were both relatively young and the wife appears to be capable and willing to be rehabilitated. This is really a borderline case in terms of permanent periodic alimony, with the length of the marriage and the disparate earning capacities supporting a permanent award, while the age of the wife and her ability to work support a contrary result. The trial court did a pretty good job of balancing these concerns, and I think we should give that court another shot at it in accord with Conner.

I also think it is important to note the significance of our decision which holds, in essence, that an award of periodic alimony, like an award of child support, should ordinarily be utilized only to provide for support and not as a means of redressing financial inequities which may exist at the time of dissolution:

Periodic alimony is primarily payable from one spouse to another, based upon the need of the receiving spouse and upon the ability to pay by the contributing spouse, giving special attention to facts as to the advisability of rehabilitative alimony.

Brown v. Brown, 300 So.2d 719, 725 (Fla. 1st DCA 1974).

      . The trial judge stated, “At thirty-seven you are really too young to be dependent on him for the next one hundred years. That’s not right, nor should he have to pay thirty years from now. That should give you some help from here on out for the next seventeen years."

      . There may be a narrow exception to this rule but it is one which does not apply here:
      While permanent periodic alimony is most commonly used to provide support, in limited circumstances its use may be appropriate to balance such inequities as might result from the allocation of income-generating properties acquired during the marriage. Patterson v. Patterson, 315 So.2d 104 (Fla. 4th DCA 1975).

        Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).
      Interestingly, the Patterson decision did not "balance such inequities" but rather appeared to be a straight-forward decision directing that an award of permanent support for the wife was mandated by the facts of the case. No mention was made of doing so to offset any "inequities as might result from the allocation of income-generating properties" although an award to the husband of the wife’s interest in such a property was also reversed in the decision.