author: FERGUSON, Judge. SCHWARTZ, Chief Judge. FERGUSON, Judge

text:
    Barry KRAVITZ, Appellant, v. GEBRUEDER PLETSCHER DRUCKGUSSWAREMFABRIK d/b/a Pletscher, an alien corporation doing business in the state of Florida, and its liability insurance carrier, Appellee.
    No. 83-98.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1983.
    Rehearing Granted in Part, Denied in Part Jan. 10, 1984.

      Horton, Perse & Ginsberg, and Arnold Ginsberg, Lieberman & Benjamin, Miami, for appellant.
    Haddad, Josephs & Jack and Gary Ger-rard, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is brought by the plaintiff in a products liability case from an order of the trial court which dismissed his second amended complaint with prejudice on the ground that there is no personal jurisdiction because the foreign defendant lacks minimum contacts with the State of Florida. We reverse.

Plaintiff Kravitz, a resident of the State of Illinois, purchased and installed a rack on his touring bicycle. He took the bicycle by plane to Fort Lauderdale, Florida. Upon arriving in Florida, he started a cycling trip from the airport destined to visit a friend who lived several miles away. A short distance from the airport he was struck by a motor vehicle and suffered serious injuries when the rack splintered and became imbedded in his leg. Kravitz sued the manufacturer based on theories of negligence, implied warranty, and strict liability.

The rack was manufactured by defendant in Switzerland and shipped to the United States f.o.b. Hamburg, Germany. It was distributed in Illinois and purchased by Kravitz from a store in Illinois. It is also uncontroverted that the manufacturer’s bicycle racks are distributed in several states in the United States, including the State of Florida.

Based on those facts pled and shown by affidavits and deposition, the second amended complaint was dismissed without leave to amend. The trial court cited Hyco Manufacturing Co. v. Rotex International Corp., 355 So.2d 471 (Fla. 3d DCA 1978) in holding that, based on the jurisdictional allegations and proof, there were insufficient minimum contacts with the State of Florida so as to authorize the court’s constitutional exercise of personal jurisdiction over the defendant. We disagree.

Appellee concedes that if the same rack had been purchased in Florida there would be sufficient minimum contacts so as to authorize the exercise of jurisdiction. The issue presented by the facts is a very narrow one. Appellee argues that under Section 48.193(l)(f)2, Florida Statutes (1981), the purchase of a product outside the state, which product is then brought into the state for private use, does not enter the state in the ordinary course of commerce or trade for jurisdictional purposes. More specifically, as we understand appellee’s contention, there must be shown a “connexity” between the specific bicycle rack which caused injury to plaintiff, and defendant’s business activities in Florida. For lack of this “connexity,” it is argued, neither constitutional minimum contact requirements, see Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975), nor the more demanding statutory requirements for jurisdiction over the person are met. We refuse to adopt so restrictive an interpretation.

In Shoei Safety Helmet Corp. v. Conlee, 409 So.2d 39 (Fla. 4th DCA), dismissed, 421 So.2d 518 (Fla.1982), plaintiff, while wearing a motorcycle helmet manufactured by defendant, was injured in a collision with an automobile in Florida. The defendant manufacturer, a Japanese corporation, had sold the helmet to an Ohio corporation, which in turn sold it to the Florida retailer from whom plaintiff purchased the product. Although defendant conceded that it was doing business in Florida, it maintained that the cause of action did not arise out of its business activity in Florida but instead arose out of its activity in Ohio. The court rejected this argument, holding that the connexity requirement was met because the defendant was engaged in the business of promoting and soliciting sales of motorcycle helmets in Florida both at the time the Florida retailer sold the particular helmet to plaintiff and at the time plaintiff was injured. Applying the Shoei rationale, we hold that the defendant’s activities in the state, i.e., the sales to an independent Florida distributor of bicycle racks, the likes of which caused injury to a person within the state, constitute sufficient minimum contacts for the purpose of jurisdiction under Section 48.193(l)(f)2, Florida Statutes (1981), without offending traditional due process requirements as set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The fact that the particular defective item which caused injury while in • use in this state was purchased in another state does not render defendant — whose same product is distributed in the state— immune from the jurisdiction of the Florida court.

Reversed and remanded for further proceedings.

On Motion for Rehearing

SCHWARTZ, Chief Judge.

While we adhere to the reasoning and result of our previous decision, we revisit and revise the discussion of the Shoei and General Tire cases in footnote 3 of the opinion. Unlike the facts in both of those cases, the particular item which failed in this one was not purchased in Florida. Nonetheless, General Tire declined to recognize personal jurisdiction over the foreign corporate defendant. It is thus apparent that our decision is, “even more” than Shoei, in direct conflict with General Tire. As the fourth district did in Shoei, 409 So.2d at 41, therefore, indeed on a fortiori basis, we certify the existence of a conflict with General Tire to the Florida Supreme Court under Fla.R.App.P. 9.030(a)(2)(A)(vi). The motion for rehearing is otherwise denied.

FERGUSON, Judge

(concurring to certi-. fication).

Although I would adhere to the position that this case, based on an interpretation of Section 48.193(l)(f)2, Florida Statutes (1981), does not present the same question as was before the court in General Tire, which was decided under Section 48.181, I agree to certify the question as one of great public importance.

      . Section 48.193(l)(f)2, Florida Statutes (1981) provides:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      ******
      (f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury ...: ******
      2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.

      . "Connexity” refers to the requirement that the cause of action arise out of a transaction or operation connected with or incidental to the activities of the foreign corporation in Florida. John Blue Co. v. Roper Pump Co., 324 So.2d 147 (Fla. 3d DCA 1975).

      . The court in Shoei recognized that its holding was in direct conflict with the decision in General Tire & Rubber Co. v. Hickory Springs Manufacturing Co., 388 So.2d 264 (Fla. 5th DCA 1980). According to the Shoei court, the fifth district in General Tire incorrectly concluded that a foreign manufacturer which promotes and sells its products in Florida is immune from jurisdiction where the particular allegedly defective product was sold to a foreign corporation which in turn resold it to a Florida enterprise. Although we are persuaded by Shoei in this decision, the precise issue which presents a conflict between Shoei and General Tire is not presented here.

      .We do not decide whether there would have been sufficient minimum contact for purpose of jurisdiction over the person under Section 48.-193(l)(f)2 alone if defendant’s bicycle racks had not been distributed in the State of Florida. See Phoenix Trimming, Inc. v. Mowday, 431 So.2d 198 (Fla. 4th DCA 1983) (defendant, an Illinois corporation, which supplied webbing material used in hot air balloon in which decedents were riding when they were killed, was not subject to jurisdiction of Florida courts under Section 48.-193(l)(f)2 where defendant did no advertising and had no offices, agents, employees, representatives, distributors or salesmen in the state, and therefore did not have sufficient minimum contacts with Florida to satisfy due process requirements).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TOYOTA MOTOR SALES, U.S.A., INC., etc., et al., Appellants, v. Juan R. ORTIZ and Aida Ortiz, his wife, Appellees.
    No. 83-751.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 16, 1984.
    Carey, Dwyer, Cole, Eckhart, Mason & Spring and Harriet Lewis, Miami, for appellants.
    Joe N. Unger, Kopplow & Flynn, Miami, for appellees.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Ford Motor Co. v. Atwood Vacuum Machine Co., 392 So.2d 1305 (Fla.1981), cert. denied mem., 452 U.S. 901, 101 S.Ct. 3024, 69 L.Ed.2d 401 (1981); Kravitz v. Gebrueder Pletscher Druckgusswaremfabrik, 442 So.2d 985 (Fla. 3d DCA 1983).


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Keith Bernard CHRISTIAN, Appellee.
    No. 83-1183.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.
    Rehearing Denied Dec. 30, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and M. Ann Garrison, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellee.
   GRIMES, Judge.

The state appeals from an order which discharged appellee for failure to provide him with a speedy trial for second degree murder.

Detectives Reynolds and Rademaker went to the home of appellee’s girlfriend on June 29, 1982, and asked appellee to accompany them to the police station for questioning about a homicide. Appellee was driven to the station in handcuffs. At the station, appellee was taken to the interview room where he was given his Miranda warnings and signed a consent to interview form. In the course of an interview which lasted from fifteen to twenty minutes, ap-pellee denied any involvement in the shooting. Detective Reynolds then left the room to discuss the case with Captain Martinez, and a decision was made not to arrest appellee for the homicide at that time. In the meantime, however, Detective Sharrod learned that the police were questioning appellee and caused him to be arrested on an unrelated robbery charge. Detective Rademaker admitted that he would not have permitted appellee to leave the interview room until Reynolds and Martinez decided upon his release. There was no suggestion that the robbery arrest by Detective Sharrod was a subterfuge designed to hold appellee for the homicide.

The unrelated robbery charge was dismissed on September 17,1982. Thereafter, on December 29,1982, appellee was formally arrested for the homicide about which he had been questioned. On May 5, 1983, appellee moved for discharge under the speedy trial rule on the premise that he had actually been arrested for murder on June 29, 1982. The court granted the motion and ordered appellee discharged.

A person is taken into custody for purposes of the speedy trial rule when he is arrested as a result of the conduct or criminal episode which gave rise to the crime charged. Fla.R.Crim.P. 3.191(a)(4). A formal arrest, complete with fingerprinting and formal charges, is not always necessary to start the running of the speedy trial time. Bannister v. State, 382 So.2d 77 (Fla. 5th DCA 1980). However, something more than an investigatory detention is required. Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977). See State v. M.S.S., 436 So.2d 1067 (Fla. 2d DCA 1983). A person may be deemed to be “in custody” for purposes of his Miranda rights yet not be “in custody” for purposes of the application of the speedy trial rule. State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978).

The court’s order was not based upon appellee’s testimony that the police told him that he was under arrest when they first saw him at his girlfriend’s house. Rather, the court explicitly reasoned that the involuntary custodial interrogation by the police at the station was equivalent to an arrest which began the running of the speedy trial time. We disagree. To accept this premise would mean that any time the police detained a person for questioning about a crime without his consent the speedy trial time for that crime would begin to run. This rationale would have the effect of encouraging the police to make formal arrests when they might not have sufficient evidence to do so.

The handcuffing of appellee bore upon the involuntary nature of his custody but did not convert his detention for questioning into an arrest. It also makes no difference whether Detectives Reynolds and Rademaker believed they had probable cause because it was ultimately decided that appellee would not be arrested for the murder. See State v. Robbins, 359 So.2d 39 (Fla. 2d DCA 1978).

There may be some circumstances under which an extended custodial interrogation could be deemed an arrest for purposes of the speedy trial rule, but upon the facts of the case, such a conclusion was unwarranted. We reverse the order of discharge and remand the case for further proceedings.

OTT, C.J., and HOBSON, J., concur.


author: MILLS, Judge.

text:
    Michael Kevin COSTELLO, Appellant, v. STATE of Florida, Appellee.
    No. AS-352.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1983.
    Rehearing Denied Jan. 11, 1984.
    William J. Sheppard and Elizabeth L. White, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Costello appeals his conviction for manufacturing cannabis. The trial court denied Costello’s ’dispositive motions to suppress. Costello then pled nolo contendere. The trial court withheld adjudication and sentenced Costello to five years probation.

Florida Department of Law Enforcement (FDLE) agents, with assistance from the Columbia County Sheriffs Department, conducted a warrantless aerial search for marijuana. From an altitude of approximately one thousand feet, the FDLE agent piloting the airplane spotted what he thought to be a patch of growing marijuana. The pilot dropped to an altitude of approximately five hundred feet where he and the copilot confirmed the pilot’s suspicion. The pilot then radioed authorities on the ground who, without a search warrant and following the pilot’s directions, drove onto Costello’s property. They then located and seized the marijuana and arrested Costello who drove up shortly after the authorities arrived.

Costello contends the seized marijuana plants should have been suppressed because the warrantless aerial search and subsequent warrantless seizure were illegal. We disagree and affirm.

Costello and his wife live in their house on approximately ten acres in a rural section of Columbia County. The marijuana was not visible from the ground unless the observer was on Costello’s property. It was, however, readily visible from the air.

Costello’s first point on appeal is that the warrantless aerial search was illegal. But we have held that such searches do not violate constitutional rights where there is no reasonable expectation of privacy in the area searched. Murphy v. State, 413 So.2d 1268 (Fla. 1st DCA 1982).

Here, as in Murphy, the appellant did not have a reasonable expectation of privacy in his marijuana patch. The marijuana was spotted from the air where the FDLE agents unquestionably had a right to be. The pilot first saw the marijuana from an altitude of approximately one thousand feet and made positive identification from approximately five hundred feet. In this circumstance, where the marijuana was clearly visible from an area not constitutionally protected, Costello had no reasonable expectation of privacy in his marijuana patch.

Costello’s next point on appeal is that the seizure of the marijuana was illegal even if the aerial search was legal because the authorities entered his property without a search warrant. Costello emphasizes the rural location of the property and several steps allegedly taken to insure privacy and solitude. But our conclusion that Costello had no reasonable expectation of privacy in his marijuana patch because of its clear visibility from the air also applies in determining the legality of the subsequent entry onto the property. Thus, the authorities did not need a warrant because they entered an area where there was no reasonable expectation of privacy. See Brennan v. State, 417 So.2d 1024 (Fla. 2d DCA 1982).

The situation here, where there is no reasonable expectation of privacy in the area observed, should be distinguished from the situation described in Ensor v. State, 403 So.2d 349 (Fla.1981), where the observer is looking into an area where there is a reasonable expectation of privacy. In that situation, a search warrant or an exception to the warrant requirement is necessary before the authorities enter to seize the contraband.

Costello’s last point on appeal, that statements he made after his arrest should have been suppressed as fruit of the poisonous tree, is without merit because the search and seizure was legal.

The trial court’s denial of the motions to suppress is affirmed.

SHIVERS and ZEHMER, JJ., concur.


author: PER CURIAM. FERGUSON, Judge

text:
    Ralph LIPSHAW, individually and as Co-Personal Representative of the Estate of Jonathan Michael Lipshaw, deceased; and Alice Lipshaw, individually and Co-Personal Representative of the Estate of Jonathan Michael Lipshaw, deceased, Appellants, v. PINOSKY, PINOSKY, P.A., Ibanez, Cullen, Variety Children’s Hospital, Fish-bain, Jackson Memorial Hospital, Wag-shul, Lopez, Stewart & Wagshul, P.A., National Medical Care of Miami, Inc., d/b/a Highland Park Hospital, Appel-lees.
    Nos. 81-2263, 82-50.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Jan. 16, 1984.
    Sams, Gerstein & Ward, Miami, Nancy Little Hoffmann, Fort Lauderdale, for appellants.
    Lee, Schulte, Murphy & Coe, Marco B. Loffredo, Jeanne Heyward, Stephens, Lynn, Chernay & Klein, Thornton & Hern-don, Pyszka & Kessler and Phillip D. Blackmon, Miami, for appellees.
    Before HUBBART and BASKIN and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from two final orders of dismissal entered in favor of certain defendants sued below in a medical malpractice, wrongful death action. The plaintiffs’ third amended complaint was dismissed below as to these defendants on the ground that the said action was barred in its entirety, with respect to these parties, by the two-year statute of limitations for medical malpractice actions. § 95.11(4)(b), Fla.Stat. (1979). We affirm in part and reverse in part.

On March 24, 1981, the plaintiffs Ralph and Alice Lipshaw filed a third amended complaint sounding in medical malpractice and wrongful death against the defendants involved in this appeal as appellees; other defendants were also sued but are not parties to this appeal. The plaintiffs brought suit in their individual capacities and in their capacities as co-personal representatives of the estate of their deceased son, Jonathan Lipshaw, alleging two alternative theories of liability.

First, it was alleged that the defendants (directly or vicariously) negligently misdiagnosed the medical condition of the plaintiff’s son Jonathan Lipshaw and thereafter improperly treated him, that the plaintiffs learned of this negligent misdiagnosis on February 25, 1977, and that as a result of this aforesaid medical malpractice Jonathan Lipshaw sustained a permanent disability, loss of earnings and earning capacity, and certain pain and suffering; it was also alleged that the plaintiffs in their individual capacities sustained certain damages due to this medical malpractice, to wit: loss of services and expenses for medical care. It was implicitly asserted in this claim that the medical malpractice sued upon did not result in Jonathan Lipshaw’s death, and that therefore the claim survives Jonathan Lipshaw’s death as a survival claim which may be brought by the plaintiffs as co-personal representatives of the estate of Jonathan Lipshaw; it is also asserted that the plaintiff’s individual derivative claims may be brought as well. We refer hereinafter to this claim as the medical malpractice survival claim. It was first asserted in this cause against these defendants in a first amended complaint filed by the plaintiffs as guardians for Jonathan Lipshaw on January 7, 1981 [and later amended February 10, 1981 in a second amended complaint] during Jonathan Lipshaw’s lifetime.

Second, it was alleged, as an alternative theory of liability in the third amended complaint, that Jonathan Lipshaw died as a result of the aforesaid medical negligence, resulting in certain damages to the estate of Jonathan Lipshaw and to the plaintiffs as the sole survivors [medical expenses, funeral expenses, etc.]. We refer hereinafter to this claim as the wrongful death claim. All agree that Jonathan Lipshaw died on February 11, 1981.

All defendants involved in this appeal, save the defendant National Medical Care of Miami, Inc., d/b/a Highland Park Hospital, filed motions to- dismiss the third amended complaint as being barred by the applicable statute of limitations. The trial court heard and granted these motions in a final order dismissing the entire action as to these defendants based on the above-stated ground. The plaintiffs filed a timely motion for rehearing, later amended, with attached affidavits from both plaintiffs stating that: (a) “on February 25, 1977, I first realized that all of Jonathan Lip-shaw’s previous physicians since December of 1974 had not made the correct diagnosis of Jonathan’s true condition,” [R. 243, 245], and (b) on January 8,1979, during the cross examination of a doctor during the medical mediation proceedings in the cause, “I realized that Dr. Cullen and Dr. Wagshul were negligent”, in this aforesaid misdiagnosis, [R. 243-44, 245-46] and (c) “I later realized that each of the physicians who had eared for and treated Jonathan Lipshaw between December of 1974 and February of 1977 were negligent” in this aforesaid misdiagnosis. [R. 243-44, 245-46]. As part of the rehearing sought herein, the plaintiffs also sought to amend their complaint to conform to these affidavits. The trial court denied the motion for rehearing. Subsequently, the defendant National Medical Care of Miami, Inc. d/b/a Highland Park Hospital, moved to dismiss the third amended complaint herein as being barred by the applicable statute of limitations, which motion was granted by the trial court in a final order of dismissal. The plaintiffs appeal from the two above-stated final orders of dismissal.

I

As to the medical malpractice survival claim, we have no trouble in affirming the dismissal of same as being time barred by the applicable two-year statute of limitations for medical malpractice actions. § 95.11(4)(b), Fla.Stat. (1979). Plainly, this action accrued when — as the plaintiffs allege in their third amended complaint, their proffered fourth amended complaint, and their affidavits filed in support of the motion for rehearing — the medical misdiagnosis sued upon was actually discovered by the plaintiffs on February 25, 1977. On that date, the plaintiffs, by their own admission, were fully aware that the defendants herein had completely misdiagnosed and had rendered inappropriate medical treatment to their son — the acts now sued upon in the third amended complaint. The assertion that the plaintiffs, as claimed, did not realize until much later that these known acts of misdiagnosis and mistreatment were acts of negligence is plainly of no avail to the plaintiffs, as they were long ago on actual notice as to the acts of negligence now sued upon. It therefore follows that the medical malpractice action instituted against the defendants herein on January 7, 1981, when the first amended complaint was filed below — nearly four years after the accrual of said action — was time barred by the applicable two-year statute of limitations for medical malpractice actions. § 95.11(4)(b), Fla.Stat. (1979).

II

As to the wrongful death claim, we reach a different result. We cannot say that this claim accrued, as did the medical malpractice claim, on February 25, 1977, when the alleged negligent misdiagnosis was first discovered by the plaintiffs. Plainly, no wrongful death claim was viable at that time because Jonathan Lipshaw was still alive. The wrongful death action could not and did not accrue until February 11, 1981 when Jonathan Lipshaw died. At that point both the alleged medical negligence (i.e., the negligent misdiagnosis) and the resultant death of the deceased were in fact known to the plaintiffs. As such, the wrongful death action, first asserted in the third amended complaint filed March 24, 1981, was timely filed within the applicable two-year statute of limitations for wrongful death actions, whether that statute be Section 95.11(4)(b) Florida Statutes (1981), Stella v. Ash, 425 So.2d 122 (Fla. 3d DCA 1982); Bruce v. Byer, 423 So.2d 413 (Fla. 5th DCA 1982); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979), or Section 95.11(4)(d), Florida Statutes (1981). Perkins v. Variety Children’s Hospital, 413 So.2d 760, 764 (Fla. 3d DCA 1982); compare Hickox v. University Community Hospital, Inc., 384 So.2d 160 (Fla. 2d DCA 1980).

Ill

The orders under review are affirmed insofar as they dismiss the medical malpractice survival claim against the defendants. The orders under review are reversed insofar as they dismiss the wrongful death claim against the defendants, and the cause as to this claim is remanded to the trial court for further proceedings.

FERGUSON, Judge

(concurring in part, dissenting in part).

I agree with the majority’s handling of the wrongful death claim, but have other thoughts about disposition of the malpractice claim.

If the event which gave rise to the action for personal injuries is also the cause of death (which is actually a still-to-be-resolved issue of fact), the personal injury cause of action does not survive. § 768.20, Fla.Stat. (1981); Perkins v. Variety Children’s Hospital, 413 So.2d 760, 763 (Fla. 3d DCA 1982). This would make the statute of limitations for medical malpractice actions quite irrelevant.

But assuming that the event which gave rise to the action for medical malpractice is not also the cause of death, there remains an issue as to when the statute of limitations began to run. In their third amended complaint, which is the subject of the orders of dismissal herein, the plaintiffs allege that they knew of a misdiagnosis in February, 1977. As to the first order appealed from, the trial court was initially correct in dismissing the action in favor of several defendants as barred by the statute of limitations. See Fla.R.Civ.P. 1.110(d) (if possible affirmative defense appears on face of complaint, it may be raised by motion to dismiss). It is significant, however, that after the order was rendered on April 30,1981, plaintiffs filed an amended motion for rehearing with attached affidavits dated May 4, 1981. A motion for leave to amend the third amended complaint, along with a proposed fourth amended complaint had been filed on May 1, 1981. In this latter complaint, plaintiffs allege (and aver in their uncontroverted affidavits) that they did not realize an act of negligence had been committed by the defendants until they heard expert testimony, in January, 1979, that the failure to correctly diagnose constituted actionable negligence. The trial court denied plaintiffs’ motions for rehearing, and did not rule on their motion for leave to amend the complaint.

The majority affirms, implicitly asserting that for the purpose of the applicable statute of limitations, the incident giving rise to the cause of action is the “medical misdiagnosis” which was “actually discovered by the plaintiffs on February 25, 1977.” I respectfully disagree with the majority. A misdiagnosis does not necessarily give rise to a cause of action, as where science is not sufficiently advanced so as to permit a physician to accurately diagnose or assign an etiology with reasonable medical certainty. The incident giving rise to the cause of action here is not the medical misdiagnosis discovered on February 25, 1977, but is, instead, the negligent misdiagnosis which, as alleged in the proposed fourth amended complaint, was not discovered until January 8, 1979.

On review of the entire record, I think (1) the motion for rehearing should have been granted, (2) the order of dismissal should have been modified to make dismissal of the third amended complaint without prejudice and (3) leave should have been granted to file the fourth amended complaint. Fla. R.Civ.P. 1.190(a) (leave to amend a complaint should be freely given when justice so requires). See also DeMaris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983) (court may review proposed amended complaint to determine whether deficiency in prior complaint may be cured by amendment).

The amended motion for rehearing and attached affidavits contained allegations and sworn statements which, if included in the complaint, would thus state a cause of action which is not time-barred. The trial judge had this motion and plaintiffs’ proposed fourth amended complaint before him when he denied a rehearing as to the first order of dismissal, and when he entered the second order of dismissal on December 15, 1981. The fourth amended complaint, if filed with leave of the court, would not be subject to dismissal because no deficiency appears on its face. See Fla. R.Civ.P. 1.110(d); Wimpey v. Sanchez, 386 So.2d 1241 (Fla. 3d DCA 1980), quashed on other grounds, 409 So.2d 20 (Fla.1982) (dismissal of plaintiffs’ action proper only if defendants show conclusively from the face of the complaint that the cause of action is barred by the statute of limitations).

      . David G. Pinosky, M.D.; Mario Ibanez, M.D.; David G. Pinosky, M.D., P.A.; National Medical Care of Miami, Inc., d/b/a Highland Park Hospital; Robert F. Cullen, M.D.; Variety Children's Hospital; David Fishbain, M.D.; Dade County Public Health Trust d/b/a Jackson Memorial Hospital; Alan M. Wagshul, M.D.; and Lopez, Stewart & Wagshul, M.D., P.A.

      . This appeal is taken from two separate orders. The first order of April 30, 1981, dismissed plaintiffs’ third amended complaint with prejudice as to defendants Pinosky, Pinosky, P.A., Ibanez, Cullen, Variety Children’s Hospital, Fishbain, Jackson Memorial Hospital, Wagshul and Lopez, Stewart & Wagshul, P.A. The second order of December 15, 1981, entered on a "me-too" motion, dismissed with prejudice the defendant National Medical Care of Miami, Inc., d/b/a Highland Park Hospital. Both orders dismissed the action as time-barred by the statute of limitations.

      . The complaint alleges in the alternative that the child’s death is related or unrelated to the negligent diagnosis.

      . Section 95.11(4)(b), Florida Statutes (1981) provides in pertinent part:
      An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.

      . It is true that once the plaintiffs became aware of a misdiagnosis in 1977, they were put on inquiry as to the possibility of a cause of action in negligence. Whether the plaintiffs should have discovered prior to 1979, that the misdiagnosis resulted from negligence, is an issue of fact which may not be decided on a motion to dismiss. See Wimpey v. Sanchez, infra, 386 So.2d at 1244.


author: BASKIN, Judge.

text:
    Carol Elizabeth RINEK, Charles W. Rinek, and General Accident Fire and Life Assurance Corporation, Ltd., Appellants, v. The STATE of Florida, DEPARTMENT OF TRANSPORTATION, the City of Key West, and Monroe County, Appellees.
    No. 82-2004.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Jan. 16, 1984.

      Thornton & Herndon and Gail V. Fer-rington, Miami, for appellants.
    Peters, Pickle, Flynn, Niemoeller & Downs and Donna S. Catoe, Miami, Neb-lette & Sauer and John N. Moore, III, Key West, Harold C. Knecht, David Crowley, Coral Gables, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

As Ms. Rinek exited from the Days Inn in Key West, her automobile collided with a motorcycle operated by Roger Ren-shaw. Renshaw sued Rinek, Days Inn, the City of Key West, Monroe County and the Department of Transportation (DOT). Ms. Rinek defended alleging that a school bus sign blocked her view. The trial court entered summary judgments in favor of the City of Key West, DOT and Monroe County. When Rinek appealed those summary judgments, this court dismissed her appeal. Days Inn subsequently settled with Ren-shaw and the case proceeded against Rinek and her insurer until Rinek settled. The settlement purports to release Renshaw’s claims against the City of Key West, DOT and Monroe County. Seeking contribution from her co-defendants in the action brought by Renshaw, Rinek now appeals the summary judgments in favor of the City of Key West, DOT and Monroe County. Appellees argue that because Rinek settled, she is not a judgment defendant entitled to appeal the summary judgments. We disagree.

In Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1979) adopted sub nom Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), the court held that a judgment defendant could seek appellate review of a summary judgment where the defendant was aggrieved by the exoneration of a co-defendant.

In Belcher v. First National Bank of Miami, 405 So.2d 754 (Fla. 3d DCA 1981), this court stated that appellants could not benefit from Popovich because they were not yet judgment defendants. The opinion explained:

In the present posture of this case, no liability has been determined; there has been no trial resulting in a judgment against appellants. While FNBM has escaped on the basis of summary judgment, there is no certainty that appellants will not enjoy a like result at the hands of the jury. No ease or controversy presently exists for us to resolve. Consequently, we hold that the order under review is non-appealable and dismiss, (footnote omitted)

In Belcher the court interpreted Popovich to mean that Belcher was required to appeal the summary judgments exonerating his co-defendants within thirty days of rendition of the order determining Belcher’s liability.

Similarly, in Mercy Hospital, Inc. v. Marti, 408 So.2d 639 (Fla. 3d DCA 1981) review denied, 418 So.2d 1280 (Fla.1982), this court dismissed the appeal stating:

Mercy’s liability to the plaintiffs has not yet been established, and since it may never be, its asserted right of contribution against Marti can only be academic at this state. That being the case, there is no present controversy for us to resolve, (footnote omitted)

408 So.2d at 640.

Thus, it is clear that Belcher and Mercy Hospital do not require that a cause proceed to trial and judgment before a ruling is appealable. All that is necessary is a case or controversy. Because Rinek settled with Renshaw, issues pertaining to the entry of summary judgment are now ripe for review.

Appellees’ next point lacks merit. They would require á tortfeasor who seeks to attack a summary judgment exonerating co-defendants to settle within thirty days of the entry of summary judgment in order to preserve the right to appeal. We decline to foreclose appellate remedies in that fashion. See Mercy Hospital, 408 So.2d at 640 (Baskin, J. concurring). Furthermore, settlements, while favored, should not be coerced. Epps v. Epps, 440 So.2d 1314 (Fla. 3d DCA 1983).

Public policy encourages settlements. To force a defendant to trial merely to enable litigants to preserve their appellate rights would be counterproductive. Neither Belcher nor Popovich intended to deprive a litigant who settles after entry of summary judgment the right to appeal a trial court’s ruling resulting in the denial of a statutory right to contribution. Section 768.31(2)(d), Florida Statutes (1981), adequately protects the interests of co-defendants by limiting recovery to reasonable amounts. For these reasons we find no impediment to Rinek’s appeal.

Next, we reject appellees’ contention that as their liability was extinguished not by the settlement, but by summary judgments, section 768.31 does not subject them to claims for contribution, see Popo-vich.

Genuine issues of material fact remain for resolution. They include issues pertaining to the placement, ownership and maintenance of the school bus sign and utility poles, the causation of the accident and the effects of deteriorated lane markings. Under Holl v. Talcott, 191 So.2d 40 (Fla.1966), the presence of these issues mandates reversal.

We do not address the issue of sovereign immunity as it was not raised below.

Reversed and remanded for proceedings consistent with this opinion.


author: CAMPBELL, Judge.

text:
    Jean L. ABBE, Appellant, v. Marnon F. ABBE, Appellee.
    No. 82-2399.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.
    Charles J. Cheves and William D. Clark of Cheves & Rapkin, Venice, for appellant.
    John M. Hathaway, Punta Gorda, for appellee.
   CAMPBELL, Judge.

Appellant/wife, Jean L. Abbe, appeals from a final judgment which dissolved the parties’ twenty-four year marriage and awarded appellant’s interest in jointly owned property to appellee/husband, Mar-non F. Abbe.

Appellant sought exclusive possession of the marital home or an award of appellee’s interest in the house as lump sum alimony. Appellant also prayed for appellee’s interest in their jointly owned business property, their jointly owned mobile home and mobile home lot, and several pieces of jointly owned real property. Alternatively, she requested that the pieces of real property be partitioned. Appellee answered and prayed for equitable distribution in accordance with the parties’ interest.

The trial court made the following awards: Appellee was ordered to pay child support of $50 per week per child and $100 per month in rehabilitative alimony for four years. Appellant was awarded the marital home with appellee paying the mortgage. Appellant was ordered to convey her part of the jointly held business to appellee, along with the jointly owned mobile home lot property and the mobile home. The remaining properties were left as they were, to be held as tenants in common. Based on these facts, appellant claims the trial court improperly made an award of lump sum alimony to appellee of appellant’s interest in their jointly held property.

The following questions are presented by this appeal:

I. WHETHER THE COURT MAY AWARD LUMP SUM ALIMONY TO A PARTY WHO HAS NOT SPECIFICALLY PRAYED FOR LUMP SUM ALIMONY?
II. IF NOT, WHETHER A PRAYER FOR EQUITABLE DISTRIBUTION ALONE, WITHOUT REFERENCE TO ALIMONY, MAY SUPPORT AN AWARD OF LUMP SUM ALIMONY?

Traditionally, a specific prayer for lump sum alimony has been required to support an award of lump sum alimony. Nalley v. Nalley, 406 So.2d 1240 (Fla. 1st DCA 1981); Foxx v. Foxx, 357 So.2d 754 (Fla. 1st DCA 1978). Absent allegations of need, or consent of the parties at trial, the specific prayer for a lump sum alimony was considered necessary to provide adequate notice to the opposing party. Leonard v. Leonard, 414 So.2d 554 (Fla. 2d DCA 1982), pet. for. rev. denied, 424 So.2d 762 (Fla.1983); Sullivan v. Sullivan, 363 So.2d 393 (Fla. 2d DCA 1978).

However, in recent years, awards of lump sum alimony based on a general prayer for temporary or permanent alimony have been upheld. Maas v. Maas, 440 So.2d 494 (Fla. 2d DCA 1983); McIntosh v. McIntosh, 432 So.2d 176 (Fla. 1st DCA 1983), receding from Nalley and Foxx; Caidin v. Caidin, 367 So.2d 248 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 765 (Fla.1980). The rationale is that under section 61.08, Florida Statutes, a general prayer for alimony invokes the authority of the trial court to choose the method of payment of lump sum alimony.

In the case at bar, however, the trial court awarded lump sum alimony based on a prayer for “equitable distribution” where there was no claim for “alimony” of any kind. Under these circumstances, equitable distribution was used as a vehicle for dividing marital property. We, therefore, adhere to the precedent of our decisions in Hu v. Hu, 432 So.2d 1389 (Fla. 2d DCA 1983), and Powers v. Powers, 409 So.2d 177 (Fla. 2d DCA 1982). Equitable distribution is the end rather than the means. Alone, it is not a vehicle for dividing marital property. Lump sum alimony is the proper vehicle for obtaining equitable distribution. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The traditional concepts of alimony and special equity must be used to distribute marital property. Otherwise, the trial court will be making a property settlement without the consent of the parties. The trial court is not authorized to make such a settlement. Hart v. Hart, 377 So.2d 51 (Fla. 2d DCA 1979); Fried v. Fried, 375 So.2d 46 (Fla. 2d DCA 1979); Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974); But see Maas v. Maas.

Therefore, following our precedent in Hu and Powers, we reverse the award of lump sum alimony to appellee in this case. As to appellant’s claim that she was denied her right to trial, we find no merit. Nor did the lower court err by failing to award permanent alimony to appellant.

The trial judge clearly awarded appellant’s interest in jointly held property to appellee to balance other awards of jointly held property to appellant. We can find no fault with the fairness and equity of the manner of his division of the parties’ properties. However, because we must reverse the awards to appellant for the reasons stated herein, we reverse all of the property awards to the parties and remand to the lower court for reconsideration in accordance with this opinion. It may be necessary for the parties to plead anew in regard to their property interests, and if so, the trial court may well end up with the same result. The parties, therefore, might be well advised to amicably settle their differences rather than prolong this litigation.

Our adherence to the precedents of this court in Hu and Powers causes us to be in conflict with Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983) and Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982). Both Lynch and Tronconi are examples of the move toward interrelated and interdependent awards of alimony and divisions of property resulting from the Cana-karis concept of lump sum alimony as a means of equitably distributing marital property. (See Lynch v. Lynch for further description of the two types of lump sum alimony.) Since Canakaris, one or both parties frequently pray for equitable distribution without a corresponding claim for alimony. Under our precedents, if one party fails to pray for alimony, there may be no vehicle for distributing marital property to that party and equitable distribution may be impossible. It is this unfortunate result which leads us into conflict with our sister courts. We see considerable merit in the position of our colleagues of the Fifth District Court of Appeal in Lynch. This is particularly true in light of the statement in Canakaris that “[a] judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage.” If that statement is literally construed, it makes some sense to sustain an award of lump sum alimony for the purpose of equitably distributing the property of the parties based solely on á prayer for “equitable distribution.” Following this construction, the prayer for equitable distribution would provide sufficient notice to the opposing party that his or her assets could be subject to a lump sum alimony award. We recognize that a prayer for equitable distribution alone, without reference to alimony, would not support an award of alimony on a traditional basis. Therefore, we certify the questions presented by this case to the Florida Supreme Court:

I. WHETHER A PRAYER FOR EQUITABLE DISTRIBUTION ALONE, WITHOUT REFERENCE TO ALIMONY, MAY SUPPORT AN AWARD OF LUMP SUM ALIMONY FOR THE PURPOSE OF EQUITABLE DISTRIBUTION OF THE PROPERTY OF THE PARTIES?
II. IF SO, WHETHER BOTH PARTIES MUST PRAY FOR EQUITABLE DISTRIBUTION OR WHETHER A PRAYER FOR EQUITABLE DISTRIBUTION BY ONE PARTY IS SUFFICIENT TO SUPPORT AN AWARD OF LUMP SUM ALIMONY TO EITHER PARTY FOR THE PURPOSE OF THE EQUITABLE DISTRIBUTION OF THE PROPERTY OF THE PARTIES?

We, therefore, reverse and remand for treatment consistent with this opinion.

OTT, C.J., and HOBSON, J., concur.


text:
    Yiannis B. ANTONIADIS, Appellant, v. EARCA, N.V., Interdevco Grove Square, Inc. and Walter Mobley, Appellees.
    No. 82-2667.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearing Denied Jan. 20, 1984.
    Steven R. Berger and Theodore J. Four-naris, Miami, and Sara Lawrence, Hollan-dale, for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon and Stanley B. Price and Sara B. Herald and Linda Ann Wells, Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon the main appeal as the closing of the private alley herein was amply justified based on this record and the applicable law, whether the relevant plat restriction be considered a restrictive covenant or an easement. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Board of Public Instruction of Dade County v. Town of Bay Harbor Islands, 81 So.2d 637 (Fla.1955); Powers v. Scobie, 60 So.2d 738 (Fla.1952); Barton v. Moline Properties, Inc., 121 Fla. 683, 694, 164 So. 551, 556 (1935); Sewell v. Burdine, 80 Fla. 718, 87 So. 143 (1920).

We must reverse the final judgment, however, on the cross-appeal as the award of parking spaces to the appellant [in paragraphs 6 and 7 of the relief ordered in the final judgment] was entirely unrelated to the subject matter of this lawsuit and therefore was outside the scope of the trial judge’s admittedly broad powers to do equity in this cause; indeed, appellant’s need for such parking spaces existed even if the private alley had not been closed in this case and arose entirely due to circumstances unconnected with this case. As such, the trial court lacked the authority to fashion this parking space remedy which was not raised by any of the pleadings, was not tried by consent, and was unrelated to the subject matter of the lawsuit. See Kornbluh v. Lowenberg, 401 So.2d 880 (Fla. 3d DCA 1981); Pond v. McKnight, 339 So.2d 1149 (Fla. 2d DCA 1976).

The final judgment is therefore affirmed in all respects except for paragraphs 6 and 7 of the relief ordered therein (R.174) which paragraphs are hereby stricken therefrom.

Affirmed as modified.


text:
    Edwin A. MORELAND, Appellant, v. STATE of Florida, Appellee.
    No. 83-946.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    As Clarified on Denial of Rehearing Jan. 4, 1984.
    C.A. Van Hook, III, DeLand, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of two counts of manslaughter by intoxication for which he received ten years in prison and a consecutive fifteen years on probation. The evidence was sufficient to support the jury verdicts, and appellant’s contentions of legal error are unfounded. However, as one of the conditions of probation, the court purported to revoke appellant’s driver’s license for life. We, therefore, amend the reference to appellant’s license to constitute a condition of appellant’s probation that during its term he shall not drive a motor vehicle and a recommendation to the Department of Highway Safety and Motor Vehicles to suspend appellant’s driving privileges for such time as appropriate under the law. As so amended, the judgments and sentences are affirmed.

GRIMES, A.C.J., and SCHEB and DAN-AHY, JJ., concur.

      . Section 322.28(2)(f), Florida Statutes (Supp. 1982), which contemplates lifetime revocation under some circumstances, was inapplicable because the conduct which led to appellant’s conviction occurred before July 1, 1982.


author: LARRY G. SMITH, Judge. PER CURIAM.

text:
    Dell E. BARFIELD and Louis W. Barfield, jointly and individually, Appellants, v. Mattie M. BRADSHAW, Appellee.
    No. AQ-271.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1983.
    Rehearing Denied Dec. 29, 1983.

      W. Crit Smith of Boyd & Smith, P.A., Tallahassee, for appellants.
    David J. Busch of Busch & White, Chartered, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

This case presents a rather too-typical example of how family relationships often lead the parties into financial transactions and arrangements, followed by misunderstandings, followed by litigation.

Despite the lengthy and complicated record developed in the course of this proceeding, and the time and effort expended by counsel for both sides, the trial judge, and the attorney who compiled the accounting pursuant to the trial court’s order, we find it necessary to reverse the final judgment with respect to the relief sought in count one of appellee’s complaint, and to reverse also on appellee’s cross-appeal challenging the trial court’s appointment of a trustee to hold and manage appellee’s funds.

In count one, appellee sought recession of a transaction whereby she assigned to appellants the proceeds receivable under an escrow agreement arising out of the sale of real property owned by appellee and her deceased husband. Appellants point out that the money paid under this agreement (amounting to $11,376.00 plus interest) was included in the accounting which reflected a total sum of $55,610.57, representing total deposits in the savings accounts and certificates of deposit in issue in this proceeding. As appellants point out, in the trial court’s written order dated December 11, 1981, the court specifically found that the assignment of this escrow agreement to appellants was valid, and it was ordered that the plaintiff would receive nothing by virtue of this count of the complaint. An accounting was ordered as to the issues raised by counts three and four, which involved other accounts and transactions. The court entered a final order on November 5, 1982 finding that of the total sum of $55,610.57, the sum of $10,614.50 (which had already been withdrawn by appellants) would be retained by appellants as reimbursement for their care of the appellee during an eight year period, and for their expenditures made on behalf of appellee. The court ordered the remaining balance of $44,996.07 to be turned over to the trustee, to be held, managed and disbursed on behalf of appellee “as the trustee deems necessary.” However, the final order also contains the statement that the order of December 11, 1981, “was final as to count one.”

Appellee offers no explanation for the inconsistency apparent on the face of these orders, except the argument that appellee filed a motion for rehearing or for alteration or amendment of the judgment, and that the November 5, 1982 final judgment represented the court’s response to that motion. We agree with appellee’s contention that the trial court retained the power to amend its order of December 11, 1981 upon appropriate motion being filed. However, the specific ruling in the November 5, 1982 final order which recites that the court’s December 11, 1981 ruling is “final” as to count one, is fatal to appellee’s claim that the court altered its ruling with respect to count one. Appellee does not dispute appellants’ contention that the proceeds of the escrow agreement were included in the sum arrived at by the accounting, viz, $55,610.57, which formed the basis for the trial court’s rulings as to counts three and four of the complaint.

We agree with appellants’ contention that the final order with respect to count one must therefore be reversed, and the cause remanded to the trial judge for rehearing and clarification as to count one in accordance with appellants’ post-judgment motion. We do not reach the -merits as to count one because the court’s rulings on this issue have not been crystalized to the point that we are able to afford meaningful review. See, Indian Lake Club v. Hainsworth, 212 So.2d 915 (Fla. 2nd DCA 1968).

As for appellee’s cross-appeal, we find no basis in the record for the trial court’s order appointing a trustee to hold and manage the funds and accounts found to be due to appellee pursuant to the accounting between the parties. Although we agree that the trial court ruled correctly in imposing a constructive trust on the sums involved (except as we have indicated as to count one), the appointment of a trustee to administer the funds was error. No party sought appointment of a trustee, and the rule is that a beneficiary under a constructive trust is entitled to have his original title restored. Allen v. Tatham, 56 So.2d 337 (Fla.1952); Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (Fla.1927); Johnson v. Johnson, 349 So.2d 698 (Fla. 4th DCA 1977).

AFFIRMED in part, REVERSED in part, and REMANDED to the trial court for further proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellants’ petition for rehearing on the grounds that in our opinion we failed to address appellants’ point two which challenged the trial court’s award to appellee of a life interest in a house trailer conveyed by appellee to appellants. Because appellants have failed to demonstrate that the trial court erred in making the award, it was and is our intention to affirm that portion of the final judgment. Appellants’ petition for rehearing is DENIED.

LARRY G. SMITH, WENTWORTH and JOANOS, JJ., concur.


text:
    John RICHARDSON, Appellant, v. Susan E. Schulman RICHARDSON, Appellee.
    No. 82-2680.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    John Richardson, in pro. per.
    Louis R. Beller, Miami Beach, for appel-lee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

In this appeal the father challenges provisions in the Final Judgment of Dissolution of Marriage pertaining to child custody. The trial court ordered shared parental responsibility with primary physical custody by the wife and liberal visitation for the father. The court also ruled that the children were not to be removed from the jurisdiction of the court without notice to the father and approval by the court.

An order determining custody will not be reversed unless an abuse of the trial court’s discretion is shown. Whitney v. Whitney, 402 So.2d 1351 (Fla. 4th DCA 1981). An abuse of discretion appears when the record reveals a lack of competent, substantial evidence to sustain the findings of the trial court. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). An examination of the transcript reveals substantial, competent evidence to support the trial court’s ruling. Appellant’s complaints of due process violations lack merit. Decisions awarding custody must be made in the best interests of the children. Duckworth v. Duckworth, 414 So.2d 562 (Fla. 3d DCA 1982).

Affirmed.


text:
    CENTRAL BANK AND TRUST COMPANY, Appellant, v. Frank L. DIAZ, Appellee.
    No. 83-229.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Rehearing Denied Jan. 16, 1984.

      Greene & Cooper and Joan M. Bolotin and Robyn Greene, Miami, for appellant.
    Britton, Cohen, Cassel, Kaufman & Schantz and J.T. Haley, Miami, for appel-lee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Central Bank and Trust Company sought to foreclose a mortgage executed by Diaz, securing Diaz’s contemporaneously executed guaranty to pay the outstanding debts of a corporate automobile dealership in which Diaz was the majority shareholder. The trial court, concluding from Diaz’s testimony that the parties intended the mortgage (despite its clear and unqualified language) to collateralize only a certain limited part of the guaranteed corporate indebtedness and finding further that such limited part had been paid, denied foreclosure. The bank appeals.

We reverse upon a holding that (1) because the language of the mortgage unambiguously secured Diaz’s guaranty, which, in turn, unambiguously and without limitation made him responsible for all outstanding debts of the corporation, the trial court erred in allowing parol testimony to vary and contradict the unambiguous terms of these instruments, see Florida State Bank of Tallahassee v. Honey, 407 So.2d 1082 (Fla. 1st DCA 1982); and (2) there being no dispute that the corporation was in default in its obligations to the bank and that Diaz was in default of his guaranty to pay the corporate obligations, the bank was entitled to a judgment foreclosing the mortgage.

Reversed with directions to enter a judgment of foreclosure in favor of the appellant.


text:
    WESTERN LIFE INSURANCE COMPANY, Appellant, v. Barbara L. KESSLER, Appellee.
    No. 83-882.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Rehearing Denied Jan. 16, 1984.

      Carey, Dwyer, Cole, Eckhart, Mason & Spring and Harriet Lewis, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Carroll, Halberg & Meyerson, Miami, for appellee.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the trial court’s order denying the defendant’s motion to set aside a default and default judgment. Because the defendant’s motion and supporting affidavits quite clearly established that its neglect in failing to timely respond to the plaintiff’s complaint was excusable under the indistinguishable authority of, for example, North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Misty Lake Condominium Association, Inc. v. Schwartz, 432 So.2d 638 (Fla. 3d DCA 1983); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976); and Plotkin v. Deatrick Leasing Co., 267 So.2d 368 (Fla. 3d DCA 1972), and the defendant’s proposed answer and affirmative defenses quite clearly asserted meritorious defenses to the plaintiff’s action, the trial court grossly abused its discretion in entering the appealed orders.

Reversed with directions to vacate the final judgment and default and for further proceedings.


author: NIMMONS, Judge.

text:
    Frank L. CASTIGLIA, Appellant, v. DIVISION OF RETIREMENT, STATE DEPARTMENT OF ADMINISTRATION, Appellee.
    No. AQ-388.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.

      Francis E. Pierce, Jr., Orlando, for appellant.
    Augustus D. Aikens, Jr., Tallahassee, for appellee.
   NIMMONS, Judge.

Castiglia appeals the Retirement Commission’s denial of “in line of duty” disability benefits under Sections 121.021(13) and 121.091(4)(d)l.a., Florida Statutes. Although the Division of Retirement had approved Castiglia’s application for regular disability retirement, it had denied his application for the enhanced in line of duty disability benefits, and Castiglia petitioned for a hearing before the Retirement Commission pursuant to Section 121.23. After an evidentiary hearing, the Commission entered its final order denying in line of duty benefits. There being competent, substantial evidence to support such denial and the Commission being entitled to the deference we would accord to any factfinder, Botner v. State of Florida, Department of Administration, 438 So.2d 94 (Fla. 1st DCA 1983), we affirm the Commission’s denial of in line of duty benefits.

Castiglia also appeals the Commission’s refusal to consider his claim that his disability retirement date set by the administrator of the Division of Retirement was incorrect. Castiglia’s timely filed petition for a Retirement Commission hearing requested review not only of the Division’s denial of in line of duty benefits but also of the determination of the retirement date by the Division’s administrator. In its subject final order the Commission stated that its statutory jurisdiction was limited under Section 121.23, that such statute does not cover jurisdiction to consider disputes over retirement date determinations and that such dispute “would be resolvable in a circuit court proceeding seeking the enforcement of [the Commission’s final order] pursuant to Section 120.69, Florida Statutes.” We disagree. There is no justification for such a narrow construction of the Commission’s jurisdiction, and a Section 120.69 enforcement proceeding in circuit court is a patently inappropriate means of resolving a dispute over the correctness of the retirement date established by the Division.

Section 121.23 provides that the “provisions of this section shall apply to all proceedings respecting applications for disability retirement.” Subsection (2)(a) further provides:

(2) Unless the member accepts the decision of the administrator as final and binding, he shall be entitled to a hearing before the State Retirement Commission pursuant to s. 120.57(1). For the purpose of the said hearings, the commission shall be an agency head as defined by s. 120.52(3).
(a) The Retirement Commission shall have the authority to issue orders as a result of a hearing that shall be binding on all parties to the dispute. The Retirement Commission may order any action that it deems appropriate.

In accordance with the provisions of Section 120.23(1), the Division notified Castig-lia of its decision (1) granting disability retirement; (2) denying in line of duty benefits; and (3) changing his retirement date. Castiglia, through his attorney, promptly notified the Retirement Commission that he did not accept the Division’s decision and filed his petition for an administrative hearing. He was entitled to a Retirement Commission hearing on the retirement date determination as well as the in line of duty decision. Nothing in chapters 120 and 121 suggests otherwise.

With respect to Castiglia’s attack upon the constitutionality of Section 121.091(4), which concerns the setting of retirement dates, we do not reach that question since, as we have held, the Commission erroneously refused to hear Castiglia’s claim of error in the Division’s setting of his retirement date. After remand and hearing on that issue, it is possible that the case will be resolved without the need of deciding the constitutional question.

The final order of the Retirement Commission is AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with this opinion.

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


author: WALDEN, Judge. GLICKSTEIN, Judge,

text:
    Dorothea Margaret DELEHANT, Appellant/Cross Appellee, v. Lauren Moore DELEHANT, Appellee/Cross Appellant.
    Nos. 82-2161, 82-2218.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Rehearing Denied Dec. 28, 1983.
    • Karen O’Brien Steger of McManus, Stewart & Ferraro, P.A., Stuart, and Vincent A. Lloyd of Lloyd, Brown, Hoskins & Becht, Fort Pierce, for appellant/cross ap-pellee.
    Martha C. Warner, Stuart, for ap-péllee/cross appellant.
   WALDEN, Judge.

This is an uncommonly difficult dissolution of marriage action. The record reflects, among other discords, alcoholism and attempted suicide. There were remarkable business failures and declines in assets. There were five previous actions filed followed by reconciliations. The instant action has been in litigation for over five years and has visited this court on two prior occasions. See Delehant v. Delehant, 383 So.2d 231 (Fla. 4th DCA 1980) and Delehant v. Delehant, 409 So.2d 213 (Fla. 4th DCA 1982).

The trial court labored diligently to adjust the equities and property rights of the parties. A comprehensive final judgment was entered. Both parties are aggrieved by it and have appealed. With two, relatively speaking, minor exceptions to be yet discussed, we approve the solution fashioned by the trial court as the best that could be reached under the law and facts of this case.

With reference to the wife, she says she should have received the husband’s interest in the jointly owned marital home as lump sum alimony. We disagree and affirm. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The judgment provided that the wife would have exclusive use of the marital home from August 24, 1982, to December 31, 1987, and that the wife shall be responsible for all charges on the former marital residence including but not limiting it to mortgage payments, insurance, taxes, repairs, and maintenance. The wife is aggrieved over having to pay all the charges and says that the trial court erred in not giving the wife credit for the husband’s share of the real property expenses. We agree. In Whiteley v. Whiteley, 329 So.2d 352 (Fla. 4th DCA 1976), this court pointed out that where the marital domicile was jointly owned, the husband and wife become tenants in common upon dissolution of their marriage. More specifically it was there held at page 353,

where the final judgment of dissolution of marriage awards one co-tenant the exclusive possession of the marital domicile and directs that co-tenant to pay all or some of the obligations of the property such as taxes, liens and repairs, the right of the co-tenant in possession to reimbursement from the other co-tenant is postponed until such time as the property is partitioned or otherwise sold. However, upon partition or other sale the tenant paying those obligations of the property is entitled to credit from the proceeds of the sale for the other co-tenant’s proportionate share of those expenses.

See also Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968); Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975); and Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980). While we hereafter reverse the award of exclusive possession to the wife, we hold that the wife, upon sale of the marital home, shall be entitled to reimbursement from the sales proceeds for the husband’s proportionate share of the marital home expenses which the wife has already paid since the time she became a tenant in common pursuant to the final judgment.

With reference to the husband and his cross appeal, we find no error or abuse of discretion as to the award of periodic alimony and attorney fees to the wife. Canakaris v. Canakaris, supra.

The husband poses the question as to whether the trial court erred in awarding the wife five years continued exclusive possession of the marital home when there were no longer minor children or other justifying circumstances. We hold that it did and reverse this provision in the final judgment.

It appears that the marital home is the chief asset of the parties, it having an equity value of something over $100,000.00. The income of the parties is minimal. The children are adults, not statutorily dependents, and the parties are not legally responsible for their support. The wife is working and in good health. The trial court remarked in awarding the exclusive possession to the wife,

I want to make sure that she and the kids, one of whom is going to college, still can have a place to park while he’s in college.... The kid that’s wanting to go to college has got to have an easy life in order to go to college.

The wife appears to concede, at least tacitly, that the award of exclusive possession to her was without legal justification and suggests that it was done to offset other alleged errors made by the trial court. Be that as it may, our survey of the record and authorities leads us to hold that the award of exclusive occupancy of the marital home here was error. There just is no legal justification or allowable special purpose to be served here by such award. See Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976); and Baldi v. Baldi, 323 So.2d 592 (Fla. 3d DCA 1975).

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

HERSEY, J., concurs.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specially:

I concur in the majority opinion and add these comments. First, parties’ personal and financial situations do not always remain in a vacuum while judicial errors are being corrected over a period of time. In the three years that have accumulated in the present case, this court first reversed the original award of lump sum alimony because of the condition attached to it, then reversed again after remand. I get the impression that during all of this passage of time, while the original award remained in limbo, the opportunity of the parties’ children for a higher education may have dwindled away. Certainly, the children did not remain in a time warp and were compelled to make decisions affecting their lives while the case went back and forth, which leads to my second comment. Now, the trial court has awarded the wife use and possession of the marital home to give their youngest child a place to live while in college. What could be more sensible? Just because a “child” turns eighteen, should he cease being able to live in his parents’ home while pursuing an education? Does he cease being the child of the parent? At oral argument, counsel for the wife conceded the trial judge erred, nevertheless, in doing so, there being no authority for him to award use and possession for that purpose, which leads to my final observation.

The legislature — and only the legislature — can provide the courts of this state with jurisdiction to require financially able parents to provide able and desirous children with a reasonable higher education and a roof over their heads while they are getting it. I urge the legislature to do just that, recognizing that modern legislators, unlike Moses, are not isolated on Mt. Sinai, but are barraged by telephonic and personal entreaties from constituents and lobbyists. With such competition from the adults, how do children get their ear? Legislators rarely see them or hear from them. Children have no vote; and they have all too few spokespersons. Accordingly, as a result of this gap in the law, this child does not have the benefit of the security of the marital home while pursuing his remaining chance at higher education with what is left of this family’s wherewithal.


author: LEHAN, Judge.

text:
    Gerald W. GETTEL, Appellant, v. STATE of Florida, Appellee.
    No. 82-2712.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Rehearing Denied Dec. 29, 1983.

      Deborah J. Miller, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals from his conviction for multiple counts of unlawful delivery of a controlled substance. We affirm.

Defendant objects to being limited on the scope of recross examination of one witness and redirect examination of another witness. However, we do not find the limitation to have been prejudicial. The questions that defendant was prevented from asking would not have adduced competent, relevant evidence.

AFFIRMED.

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


author: HENDRY, Judge.

text:
    Jeffrey PEARL, Appellant, v. Elizabeth KELLY, Appellee.
    No. 82-2363.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 20, 1984.
    Scott T. Eber, Miami, for appellant.
    Burt E. Redlus, Miami, for appellee.

      Before HENDRY, BASKIN and FERGUSON, JJ.
   HENDRY, Judge.

Jeffrey Pearl appeals from an order dismissing his action against appellee, pursuant to Rule 1.260(a)(1), Florida Rules of Civil Procedure, for failure to file a notice of substitution of parties within 90 days after death was suggested upon the record. We reverse.

Appellant admits that he received notice of the death of Elizabeth Kelly. He asserts, however, without contradiction, that he contacted counsel for appellee on numerous occasions with regard to the substitution of parties after the death and was told each time that no personal representative had been appointed. Appellant also asserts, again without contradiction, that he was to be notified as soon as a personal representative was appointed so that a substitution of parties could be effected. Instead, appellee moved to dismiss the cause of action as soon as the 90 day period elapsed.

While the language of Rule 1.260 is mandatory, Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So.2d 1233 (Fla. 4th DCA 1977), the statute has been interpreted liberally to allow substitution of a party after 90 days of the suggestion of death upon a showing of excusable neglect, inadvertence, mistake, fraud, etc. pursuant to Rule 1.540(b)(1), Florida Rules of Civil Procedure. Provident Life & Accident Insurance Co. v. Lebo, 355 So.2d 195 (Fla. 3d DCA 1978); Nationwide Insurance v. Holmes, supra; New Hampshire Insurance Co. v. Kimbrell, 343 So.2d 107 (Fla. 1st DCA 1977). A party may move also for an enlargement of time pursuant to Rule 1.090(b), Florida Rules of Civil Procedure, in order to procure proper substitution of parties if it has not been able to do so within the 90 days. Wilson v. Clark, 414 So.2d 526 (Fla. 1st DCA 1982); Nationwide Insurance v. Holmes, supra. Appellee’s reliance on Canter v. Hyman, 363 So.2d 29 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1368 (Fla.1979), is misplaced since in that case the motion for substitution of parties was filed almost two years after the suggestion of death, and there was no motion for an extension of time within which to file the substitution nor was there a showing of any difficulty that might have delayed filing the motion for substitution of parties. In the instant case it was appel-lee’s own conduct which lulled appellant into believing that compliance with the 90 day rule was not required. In this case we must agree with the appellant that there was excusable neglect and therefore we reverse the order dismissing the cause of action, with directions to permit substitution of the deceased party and proceed to trial. Bono v. Dubree, 350 So.2d 26 (Fla. 4th DCA 1977).

Reversed and remanded.

      . The rule states in relevant part:
      If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties ... Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party, (e.s.)


text:
    GABLES INSURANCE AGENCY, INC., Appellant, v. PENINSULA FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 83-110.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 20, 1984.

      Barnett & Rogers, Miami, and William Rogers and Jeffrey B. Lathe, Coconut Grove, for appellant.
    No appearance for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The summary judgment on the main issue is affirmed since it appears conclusively from the record that there are no genuine issues of material fact.

The amount of attorney’s fees, however, could not be determined solely on affidavits presented for the first time at the hearing on the motion for summary judgment, since it afforded appellant no opportunity to adduce testimony on the issue of fees. B & B Construction Co. of Ohio, Inc. v. Rinker Materials Corp., 294 So.2d 131 (Fla. 4th DCA 1974).

Affirmed in part, reversed in part and remanded for further proceedings.


author: DANIEL S. PEARSON, Judge.

text:
    Gene DeMARIE, Appellant, v. JEFFERSON STORES, INC., Appellee.
    No. 83-694.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 16, 1984.

      Michael Lechtman and Steven A. Roberts, North Miami Beach, for appellant.
    Fuller & Feingold and Lynn D. Rosen-thal, North Miami Beach, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

DeMarie brought an action against Jefferson Stores, Inc. for false arrest and malicious prosecution. The trial court, finding that as a matter of law there was probable cause for DeMarie’s arrest and subsequent prosecution for shoplifting and, additionally, that there was no bona fide termination of the prosecution in DeMarie’s favor, entered a summary judgment for Jefferson Stores, Inc. DeMarie appeals, and we affirm.

We view, as we must, the evidence most favorably to the appellant. See, e.g., Fisher v. Heilbronner, 425 So.2d 667 (Fla. 3d DCA 1983). The record reflects that on the morning of February 15, 1981, DeMarie went to a Jefferson store and purchased several household items, including wall fasteners commonly used to insert screws in plaster walls. The cost of the fasteners was seventy-nine cents. Upon his return home, DeMarie attempted to use the fasteners, but the plastic casings which envelop the screws crumbled. DeMarie returned to the store that afternoon. He did not bring with him either the defective fasteners or the receipt evidencing their purchase.

According to DeMarie, when he entered the store, he approached a check-out cashier and told the cashier that he wanted to exchange the defective fasteners. The cashier responded that no exchange or refund was possible without the receipt. De-Marie offered to return the defective fasteners; the cashier said a receipt would be necessary. By his own admission, DeMarie did not go to the return or service desk and did not speak to any other employee of the store, but instead proceeded to the rear of the store and “took another package [of fasteners], removed them from the package, placed them in [his] pocket, and threw the package on the floor.” He then went to some other departments in the store where he procured some other items. De-Marie proceeded to the front check-out counter where he paid for the visible items, but not the wall fasteners which remained in his pocket. Upon departing the store, DeMarie was confronted by two Jefferson security guards.

The guards, one of whom had observed DeMarie from the time DeMarie removed the fasteners from the package to the time DeMarie exited the store, asked DeMarie to return to the store, took him to a room in the rear, and questioned him about his failure to pay for the fasteners. During this brief detention, DeMarie told the guards the story recounted above and admitted that he did not pay for the fasteners. Jefferson then summoned the police to arrest DeMarie, who was thereafter prosecuted in the County Court on a charge of petty retail theft. When the prosecution terminated with the entry of a nolle prosequi upon DeMarie’s successful completion of the Pretrial Intervention and Advocate Program, DeMarie filed suit against Jefferson Stores.

DeMarie’s primary contention is that there is a genuine issue of material fact precluding summary judgment as to whether there was probable cause for his arrest and subsequent prosecution. Since we find that the trial court was correct in determining that as a matter of law probable cause existed, we need not reach De-Marie’s secondary contention that the trial court erred in finding that there was no bona fide termination of the prosecution in his favor.

Relying upon Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1981), and Jefferson Stores, Inc. v. Caudell, 228 So.2d 99 (Fla. 3d DCA 1969), DeMarie contends that the failure of Jefferson Stores to verify his story through further investigation must be taken into account in determining the existence of probable cause. While it is true that these cases hold that the failure to verify an explanation is a factor which a jury may take into account in determining the existence of probable cause, Weissman v. K-Mart Corp., 396 So.2d at 1167, or whether the detention of the plaintiff was done in a reasonable manner and for a reasonable length of time, Jefferson Stores, Inc. v. Caudell, 228 So.2d at 101, both cases involved explanations which would arguably dispel any suspicion that a theft had occurred or had been intended. Here, however, DeMarie’s explanation was not that he did not intend to take property which did not belong to him, but rather that he fully intended to take such property and had no intent to pay therefor under his apparent view that, under the circumstances, he could invoke some doctrine of self-help. Thus, further investigation, as, for example, talking to the cashier whom DeMarie confronted upon his entry into the store, would not have done anything to dispel any suspicion that DeMarie had unlawfully taken the store’s property, but would have simply reinforced the fact that, as far as the cashier was concerned, DeMarie could not exchange property without a receipt and that she had so informed DeMarie.

This brings us to the question of whether DeMarie’s subjective mental state, which we will generously assume to have been a good faith belief that he was legally entitled to the goods, presents a jury question on the issue of probable cause to arrest or prosecute him for the theft of those goods. It is apodictic that the mere taking of the property of another does not constitute the crime of theft; it must be shown that the defendant acted with the specific intent to steal the property of another. Uber v. State, 382 So.2d 1321 (Fla. 1st DCA 1980). See State v. Allen, 362 So.2d 10 (Fla.1978). Thus, at common law, larceny was defined as:

“the felonious taking and carrying away of the personal property of another, which the trespasser knows to belong to another, without the owner’s consent, and with the intent permanently to deprive the owner of his property therein, and convert it to the use of the taker or of some person other than the owner.” Fitch v. State, 135 Fla. 361, 365-66, 185 So. 435, 437 (1938) (emphasis supplied).

Accordingly, the defendant’s good faith belief that the property taken was rightfully his is a defense to the criminal charge of larceny or theft, Helton v. State, 135 Fla. 458, 185 So. 864 (1939); Groover v. State, 82 Fla. 427, 90 So. 473 (1921); Baker v. State, 17 Fla. 406 (1879), even though the defendant may have been mistaken in his claim of title. Baker v. State, 17 Fla. 406. See also Board of Regents v. Videon, 313 So.2d 433, 435 (Fla. 1st DCA 1975) (“When a taking or appropriation to one’s own use is with an honest belief that the taker has the right to take the property ... there is no larceny, even though the taker may have been mistaken.”).

The fact, however, that DeMarie’s assumed good faith belief that he was entitled to take the wall fasteners without paying for them, however misguided, would be a defense to the criminal charge of theft, does not in any sense mean that there was not probable cause to justify his arrest and prosecution for the theft. Probable cause justifying an arrest or criminal prosecution exists when there is a reasonable ground of suspicion supported by circumstances which warrant a reasonably cautious person to believe that the accused is guilty of the offense charged. Gallucci v. Milavic, 100 So.2d 375 (Fla.1958); Goldstein v. Sabella, 88 So.2d 910 (Fla.1956); Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982).

Although what DeMarie thought may be in dispute, the facts pertaining to what he did are not. Such facts clearly show that employees of Jefferson Stores had probable cause to believe that a theft had been committed. DeMarie removed the fasteners from their package, placed them in his pocket, paid for other goods which he visibly displayed at the check-out counter, and was, by his own admission, previously told that there could be no exchanges or refunds without a receipt. From these undisputed circumstances, his felonious intent could be inferred, and probable cause for his arrest and prosecution was clearly established. Even if, arguendo, a fact-finder might have later determined that DeMarie acted in the good faith belief that he was entitled to take these goods and that he was therefore not guilty of the crime of theft, that determination is irrelevant to the question of the existence of probable cause. See Rothstein v. Jackson’s of Coral Gables, Inc., 133 So.2d 331 (Fla. 3d DCA 1961). “A person need not be sure of the result of an eventual trial to have probable cause to start a prosecution.” Gallucci v. Milavic, 100 So.2d at 377.

Affirmed.

      . A bona fide termination of the prosecution in the plaintiffs favor is an essential element of a malicious prosecution action, Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1981); Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980), but is not an essential element of a false arrest action. Lack of probable cause, on the other hand, is an essential element of a malicious prosecution action which must be shown by the plaintiff, and the existence of probable cause is a part of the defense to a false arrest action which must be shown by the defendant. Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982). Our conclusion that probable cause indisputably existed is therefore dispositive of both of DeMarie’s claims. We note, however, that DeMarie executed a Deferred Prosecution Agreement and Speedy Trial Waiver in return for being accepted as a participant in the pretrial diversion program, with the at least implicit understanding that his case would be nolle prosequied upon his successful completion of the program. While the ultimate nolle prosequi was not bargained for or obtained by DeMarie in return for a promise of payment or restitution, see Freedman v. Crabro Motors, Inc., 199 So.2d 745 (Fla. 3d DCA 1967), it was nonetheless bargained for, and thus would not appear to be a bona fide termination in DeMarie’s favor.

      . Weissman must be read to mean that the failure to verify an explanation goes to the existence of probable cause for the continued detention of the accused. The initial detention necessarily precedes any explanation by the accused and thus any opportunity to verify such explanation. Probable cause to support such initial detention would exist whenever the employees of the store reasonably believed from the circumstances that a customer was secreting store merchandise for the purpose of avoiding paying for such merchandise.


text:
    Roland C. HESS, Appellant/Cross-Appellee, v. Doris V. HESS, Appellee/Cross-Appellant.
    Nos. 83-122, 83-1304.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 16, 1984.
    Highsmith & Strauss and Philip E. Glat-zer, Miami, for appellant/cross-appellee.
    Joseph C. Segor, Stephen Cahen, Miami, for appellee/cross-appellant.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Lopez v. Lopez, 438 So.2d 984 (Fla. 3d DCA 1983).


text:
    Joseph H. ROSALER, Appellant, v. Iris Kanter ROSALER, Appellee.
    Nos. 82-2684, 82-2685.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 16, 1984.
    Buchbinder & Elegant and Harris J. Buchbinder, Miami, for appellant.
    Adkins & Hardy, Coral Gables, and Brooks C. Miller, South Miami, for appel-lee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

This is a consolidated appeal from an order awarding attorneys’ fees and costs to the wife in an action for dissolution of marriage.

The husband seeks reversal on the grounds that the trial court erred by depriving him of the right to review the diary of the wife’s attorney and in limiting the cross-examination of her attorney pertaining to work performed.

We have considered appellant’s points and found them to be without merit.

The trial court has wide discretion in its treatment of requests for discovery and the court’s ruling will not be disturbed unless an abuse of that discretion has been shown. No abuse of discretion has been made to appear in this case. Accordingly, the trial court’s ruling is affirmed. Stowe v. Shults, 379 So.2d 682 (Fla. 2d DCA 1980); Abelson v. Bosem, 329 So.2d 330 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 289 (Fla.1976); Crystal Springs Water Co. v. Atchison, 267 So.2d 694 (Fla. 3d DCA 1972).

Appellant’s next contention is that the trial court erred in limiting the cross-examination of appellee’s attorney at the hearing on the motion for attorneys’ fees and costs. We find no merit in this contention.

No reversible error having been demonstrated, the order appealed is affirmed.


author: NESBITT, Judge. BASKIN, Judge

text:
    SCIENTIFIC PRODUCTS, A DIVISION OF AMERICAN HOSPITAL SUPPLY, INC., Appellant, v. Charles GARCIA and Evelyn Garcia, his wife, Appellees.
    No. 82-1633.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 16, 1984.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard A. Sherman, Miami, for appellant.
    Horton Perse & Ginsberg, Brumer, Cohen, Logan & Kandell and Edward Perse, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The Garcias issued several worthless cheeks to Scientific Products. After unsuccessfully attempting to collect on the checks, Scientific Products turned over the dishonored checks and all other relevant information to the state attorney. The state attorney’s office filed charges against Charles Garcia which were eventually dropped. Subsequently, the Garcias brought the present' action for malicious prosecution against Scientific Products. From a final judgment awarding the plaintiff compensatory and punitive damages, Scientific Products appeals. We reverse.

Section 832.07(l)(a), Florida Statutes (1979) provides a method by which one who receives a worthless check may attempt to collect payment. It states, in part:

Any party holding a worthless check and giving notice in a substantially similar form to that provided above shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice.

Having followed the required procedure in the present case, the defendant must be immune from liability.

Even in the absence of statutory immunity, we find that the plaintiff has not shown that the defendant was responsible for instituting or instigating the criminal prosecution as is required in an action for malicious prosecution. Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1942). The defendant in accordance with section 832.07(l)(a) turned over the information to the state attorney. Having stated the facts as he understood them, and leaving the decision as to prosecution to the state attorney, the defendant is not liable for malicious prosecution. Florida East Coast Ry. v. Groves, 55 Fla. 436, 46 So. 294 (1908).

For the foregoing reasons, we reverse and remand with directions to enter judgment in favor of the defendant.

BASKIN, Judge

(concurring in part, dis- ■ senting in part).

The majority is correct in its determination that section 832.07(l)(a), Florida Statutes (1979), affords Scientific Products immunity from liability for malicious prosecution on worthless check charges and I concur in the result.

I am unable to join in the remainder of the opinion, however, because in my view it conveys an incorrect statement of the present law. The majority’s comment that a defendant who leaves “the decision as to prosecution to the state attorney, ... is not liable for malicious prosecution. Florida East Coast Ry. v. Groves, 55 Fla. 436, 46 So. 294 (1908)” overlooks the qualification of more recent authority. The presumption of probable cause that formerly served as a complete defense to a malicious prosecution action, McKinney v. Dade County, 341 So.2d 1061 (Fla. 3d DCA 1977), was rejected in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977). Thus, the supreme court held, the filing of an information “merely constitutes evidence of reasonable grounds for the prosecution” and does not conclusively refute the existence of malice. Malice is not legally synonymous with the absence of probable cause. Colonial Stores. See also Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973), cert. denied, 295 So.2d 301 (Fla.1974) (whether plaintiff instituted prosecution upon which action is based is question for the jury); Adler v. Segal, 108 So.2d 773 (Fla. 3d DCA), cert. denied, 113 So.2d 834 (Fla.1959) (question of whether there had been full and fair disclosure to prosecuting attorney is jury question).


text:
    Jean SINGER, Appellant, v. Robert SINGER, Appellee.
    No. 83-767.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 16, 1984.

      Herbert A. Warren and Richard A. Warren, Miami, for appellant.
    Hofricther & Quiat and Bette Ellen Qui-at, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Mrs. Singer appeals the trial court’s order ratifying and approving the Report of the General Master, granting her former husband’s request to terminate her permanent alimony.

The underlying facts leading to this appeal began with the parties’ divorce in 1969. The 1969 final divorce decree incorporated a property settlement agreement which, among other things, required the husband to pay $700 per month “alimony” to be reduced to $500 per month when the wife was no longer under psychiatric care. The agreement further provided that it “shall not be altered, extended, amended, or modified except by written memorandum duly executed by the parties.”

In 1971, Mr. Singer filed a petition for modification. Finding a substantial change of circumstances in Mr. Singer’s financial ability to pay alimony, the court entered an order reducing the alimony payments from $700 to $525 per month. Mrs. Singer did not raise the defense that the agreement provided that alimony was not modifiable unless agreed to by the parties or contend that the payments were not alimony, but were obligations incurred by the husband pursuant to the non-modifiable property settlement agreement. Furthermore, Mrs. Singer did not appeal the 1971 order modifying the alimony payments.

In August, 1972, Mr. Singer filed a second petition for modification. Although the trial court subsequently denied Mr. Singer’s second petition, the record reveals that during its pendency, Mrs. Singer again failed to assert that the monthly support payments were non-modifiable.

In 1982, Mrs. Singer initiated the present proceedings by petitioning the court to hold Mr. Singer in contempt and for other relief for failure to make alimony payments to her in accordance with the agreement incorporated into the final judgment. She alleged that between 1978 and 1982, Mr. Singer was obligated to pay a total of $660 for monthly support, but paid only $530 per month for both alimony and child support, and that after 1982, he paid nothing. Mr. Singer responded by filing a complaint for modification alleging, in pertinent part, that he was entitled to a termination of alimony payments under the agreement because Mrs. Singer had acquired the capacity for self-support and was presently employed as a full-time legal secretary. Following an evidentiary hearing, the General Master entered his report finding, among other things:

That the Complaint for Modification filed by [the husband] seeking termination of permanent alimony to the Wife should be granted.... [because] there has been a substantial change of circumstances in the financial position of the Wife.

The trial court approved the general master’s report and terminated the payment of alimony.

On appeal, Mrs. Singer argues that the trial court erred in terminating her permanent alimony because the property settlement agreement provides that it may not be modified without the written agreement of both parties and because the monthly support payments provided for by the agreement and labeled “alimony” are not alimony but terms of a property settlement agreement. Consequently, she asserts payments are not subject to judicial modification. We find it unnecessary to reach the merits of Mrs. Singer’s contentions because we find that she has waived her right to advance these claims. As a general principle of law, the doctrine of waiver encompasses not only the intentional or voluntary relinquishment of a known right, but also conduct that warrants an inference of the relinquishment of a known right. See Arbogast v. Bryan, 393 So.2d 606 (Fla. 4th DCA 1981); Coleman v. American Bankers Insurance Company of Florida, 228 So.2d 410 (Fla. 3d DCA 1969); Fireman’s Fund Insurance Company v. Vogel, 195 So.2d 20 (Fla. 3d DCA 1967); 22 Fla.Jur.2d § 86. Over the past 13 years the trial court has treated the monthly support payments required by the agreement as alimony subject to judicial modification and, until the institution of the present proceedings, Mrs. Singer failed to argue that her payments were not subject to modification as a matter of law. This court is therefore warranted in inferring that Mrs. Singer’s conduct throughout the long course of these post-decretal proceedings waived her defense on that ground. Arbogast.

Next, we find no merit in the wife’s argument that the general master abused his discretion by considering her share of the proceeds from the sale of the marital home as a basis for terminating the alimony payments. Our review of the record reveals the existence of competent evidence to support the trial court’s determination that the wife’s financial position has undergone a substantial change. A trial court’s order regarding modification of alimony may not be disturbed on appeal in the absence of a showing of a clear abuse of discretion. Benz v. Benz, 355 So.2d 214 (Fla. 1st DCA 1978); Zammas v. Zammas, 328 So.2d 519 (Fla. 3d DCA 1976). Finding that the trial court did not abuse its discretion, we affirm the order below.

Affirmed.