author: RYDER, Judge.

text:
    Patricia A. FAY, Appellant, v. Edgar MINCEY, an individual, and Sentry Insurance Company, a corporation, Appellees.
    No. 83-683.
    District Court of Appeal of Florida, Second District.
    June 27, 1984.
    Rehearing Denied July 26, 1984.

      Paul Antinori, Jr. of Antinori & Thury, P.A., and Rudy G. LaRussa, Tampa, for appellant.
    Michael S. Rywant of Prugh & Rywant, Tampa, for appellees.
   RYDER, Judge.

Patricia Fay, plaintiff below in a negligence action brought pursuant to section 627.737(2), Florida Statutes (1981), appeals the final judgment entered in favor of ap-pellees, Mincey and his insurance company, which confirmed the jury’s findings that Mincey had been negligent but Fay had not sustained permanent injuries. More specifically, she challenges the trial court’s decisions (1) to preclude her chiropractic physician from testifying as to liquid crystal thermography (LCT) and his use of that diagnostic procedure in determining the permanency of her injuries and (2) to exclude from evidence the thermographic photographs of Fay taken by him. We reverse because the trial court abused its discretion with respect to these rulings and the exclusions were not harmless error.

Fay filed a complaint against appellees Mincey and Sentry Insurance Company (Sentry) to recover damages recoverable under section 627.737(2) for personal injuries she allegedly suffered in an automobile collision which occurred on May 14, 1981. The amended complaint alleged the accident was caused by Mincey’s negligence in maintaining, operating, or controlling the vehicle he was driving and that she received “serious and permanent injuries to her head, neck, back, body and extremities ... all of which injuries and conditions resulting therefrom are either permanent or continuing in their nature” as a direct and proximate result of Mincey’s negligence. It was further stated that Mincey was insured under a liability insurance policy issued by Sentry. Appellees filed an answer denying Mincey’s negligence and asserted Fay’s comparative negligence as one defense and the “no-fault” tort liability exemption provision of section 627.737 as a second defense.

The following is a chronicle of Fay’s encounters with the health-care system subsequent to the accident:

After the auto accident on May 14, 1981, Fay was taken to the emergency room of St. Joseph’s Hospital in Tampa, according to the emergency room report. Both the ambulance driver’s report and the hospital emergency room report indicated Fay had complained of a lower back pain after the accident. A physical examination was conducted and then x-rays of Fay’s back were taken. The physicians’ reports indicated that no physical trauma injuries were observed and that no abnormalities were present on the x-rays. Fay did not consult further health care practitioners for her lower back pain until August 27, 1981, when she saw a licensed Florida chiropractic physician, Dr. Jeffrey Poritz. After conducting a chiropractic orthopedic examination of Fay, including the taking of x-rays, Dr. Poritz referred her to Norman Rosenthal, M.D., a licensed Florida physician specializing in diagnostic radiology. On November 12, 1981, Dr. Rosenthal made an LCT study of Fay’s lumbar spine area and cervical spine area. Thereafter, Fay remained under the care of Dr. Poritz until he discharged her from formal treatment on February 10, 1982. Fay also saw Donald Vesley, M.D., a psychiatrist, and he treated her until July 19, 1982. On October 26, 1982, Frank Kriz, M.D., an orthopedic surgeon, performed an independent medical examination of Fay on appellees’ behalf. Kriz gave Fay a physical examination and took x-rays.

Prior to trial, Dr. Vesley examined Fay at the request of her counsel in preparation for trial. Dr. Poritz re-examined Fay on February 9,1983, also at the request of her trial counsel for the purpose of obtaining a more current opinion and diagnosis of Fay’s condition. At that examination, Dr. Poritz, in addition to repeating the diagnostic tests performed at the initial visit, performed his own LCT study of Fay with his own equipment.

At the jury trial, Fay offered Dr. Rosen-thal as an expert witness in the areas of radiology and thermography. The trial court accepted Dr. Rosenthal as an expert in radiology and then allowed Fay’s counsel to inquire as to his qualifications in the area of thermography. Dr. Rosenthal described LCT and explained how the procedure enables experts to determine the presence of soft tissue injuries in the area of a patient’s back and extremities. Dr. Ro-senthal opined that if the procedure is done properly, LCT can objectively indicate a soft tissue injury “as much as 95% of the time.”

With respect to his qualifications in this area, Dr. Rosenthal stated he received formal training in thermography courses and lectures conducted at meetings of the American Thermographic Society, the recognized professional association in this area. He indicated he was a member of the Society and that he had read current literature and scientific treatises dealing with thermography. He added he had employed LCT as a diagnostic tool on at least 250 occasions. He stated the procedure was being used in between 70 and 100 hospital and “pain centers” throughout the country and was also being taught in several United States medical residency programs.

As for trustworthiness of this diagnostic device and its test results, Dr. Rosenthal testified that LCT was scientifically reliable and more accurate in many cases than the use of a myelogram to diagnose the presence of spinal root or cord syndrome disease in soft tissue injury cases. He stated he had conducted statistical studies pertaining to LCT’s reliability in connection with his patient’s complaints and personally found the procedure to be about 95% accurate for detecting soft tissue injuries. He mentioned he had read several statistical studies undertaken to demonstrate the reliability of LCT to detect such injuries, and he indicated these published studies both recognize LCT and generally substantiate the findings he had personally made. Dr. Rosenthal also testified a person can be taught to properly perform the LCT procedure in twenty minutes. He admitted there are times when the results of the process can be inaccurate due to procedural and control deficiencies.

During their voir dire, appellees’ counsel did not dispute the validity , of Dr. Rosen-thal’s statements and did not present any evidence to counter his testimony. Subsequently, over appellees’ objections that LCT had not obtained scientific reliability and that Dr. Rosenthal was not qualified to testify as to thermography and his use of that procedure on Fay, the trial court permitted Dr. Rosenthal to testify as to ther-mography in general and as to the results of the thermographic study he conducted on Fay. Additionally, the thermograms were admitted into evidence.

Dr. Rosenthal stated that on November 12, 1981, he performed an LCT study on Fay utilizing the established procedures, including considering surrounding room temperature and other control factors. He opined that the thermographic photographs of Fay’s cervical and lumbar spine areas revealed the presence of soft tissue injuries as of November 12, 1981.

Appellant then offered Dr. Poritz as an expert in chiropractic medicine and ther-mography. He stated he began a private chiropractic practice in Florida after receiving his degree in chiropractic medicine from the National College of Chiropractic and spending approximately three years in internship programs working with various medical disciplines, including orthopedics and neurology. After practicing general chiropractic medicine for approximately five years, Dr. Poritz undertook a .postgraduate program in the specialty of chiropractic orthopedics which involves the advanced study of bone and joint disorders from a chiropractor’s viewpoint. He completed the program over a five-year period while he practiced chiropractic medicine. The trial court accepted Dr. Poritz as an expert in chiropractics. He then testified that the results of his physical examinations of Fay indicated her as having a lower back sprain because of a tearing of muscle tissues and ligaments due to trauma to the lower spine area. The x-rays taken by him were received into evidence without objection, and he testified that those x-rays revealed an injury to Fay’s lower spine. Based upon his physical examinations and x-rays, he opined that it was within a reasonable medical probability that Fay had sustained a permanent injury of her lower spine area due to the automobile accident, and, as a result, she would suffer a 10% permanent disability.

When Fay proffered Dr. Poritz as an expert witness in thermography, specifically LCT, appellees objected on the basis of his qualifications. The trial court then allowed an inquiry into those qualifications. Dr. Poritz stated thermography was being currently taught at the National College of Chiropractic and was being widely used by chiropractors across the country on a routine basis. With respect to his expertise in LCT, Dr. Poritz explained he received formal training in two courses he had taken in the past two years, one sponsored by the American Thermographic Society and the other conducted by the Albert Einstein Medical School four weeks prior to his utilization of LCT on Fay. As a result of his participation in the latter program, he received a certificate of successful completion of the courses and also received fourteen continuing education credits which could be applied to fulfilling his state license renewal requirements. Dr. Poritz added thermography was utilized in many of the post-graduate orthopedic courses he had taken during the past five years, he had read extensively the scientific literature relating to LCT, and had studied with Dr. Rosenthal for a long period of time prior to undertaking to perform the procedure himself. Dr. Poritz mentioned he initiated a program of conducting thermo-grams with his own equipment in June of 1982, and he employed the same procedures and controls Dr. Rosenthal had used. He testified he had conducted between 100 and 150 thermograms for diagnostic purposes. He stated he had been qualified and testified as an expert in liquid crystal thermography in a prior negligence case tried in Hillsborough County.

Appellees did not present any testimony or evidence to refute Fay's assertions that chiropractors could be qualified to use LCT and that Dr. Poritz specifically was a qualified expert in LCT. Moreover, appellees did not challenge the reliability of his LCT study of Fay. They merely argued that the training, both formal and informal, which Dr. Poritz had received was inadequate to qualify him to testify with respect to his diagnostic use of the LCT on his patients. The trial court sustained appel-lees’ objection and prohibited Dr. Poritz from testifying as an expert in LCT and as to the results of his use of the procedure on Fay. The court also refused to allow the introduction of the thermographic photographs of Fay taken by Dr. Poritz. With the court’s permission, however, Fay was permitted to proffer Dr. Poritz’s testimony and the exhibits out of the jury’s presence. He stated his analysis of the thermograms confirmed his independent diagnosis that Fay had suffered a permanent lower back sprain. Fay rested after Dr. Yesley, the psychiatrist, testified he felt Fay was not malingering with respect to her physical complaints.

Appellees then presented Dr. Kriz who testified that his examination of Fay on October 26, 1982, which included a physical examination and x-rays, enabled him to conclude that Fay had suffered no permanent injury or permanent disability as a result of the automobile accident. He mentioned he did not use thermography but was aware that the temperature readings could be “super sensitive to a tenth of a degree.” He suggested, however, that the results of a particular thermographic study could be inaccurate because of intentional or negligent mishandling of the administration of the procedure.

Appellees next presented the deposition testimony of Dr. Giuseppe Belluccia, an internist, who testified that he first saw Fay at St. Joseph’s Hospital when she was admitted to the emergency room. He testified when Fay was admitted she complained only of abdominal pain and related symptoms, and his diagnosis found some very moderate dehydration and he treated her accordingly. He stated she had two follow-up visits again concerning abdominal pains and she never called his attention to any complaint she had with respect to her back or legs. He did not see her after her second visit on June 9, 1981. Appellees then rested.

A special verdict form was submitted to the jury, and subsequently the jury found Mincey’s negligence was the legal cause of damages to Fay but that she had not sustained a permanent injury within a reasonable degree of medical probability. Thereafter, Fay filed a motion for new trial, alleging the trial court committed error in prohibiting Dr. Poritz from testifying as to his findings and conclusions with regard to his thermographic examination of Fay and in prohibiting the thermographic photographs from being introduced into evidence. Later, the trial court entered the final judgment conforming to the jury’s verdict and also entered an order denying the motion for new trial. It is from these orders that Fay appeals.

The issues in this appeal are clear. The ultimate questions to be resolved are whether the trial court committed reversible error in prohibiting Dr. Poritz from testifying as to LCT and his use of the procedure to determine that Fay had suffered permanent injuries within a reasonable degree of medical certainty as a result of the automobile collision and in excluding from evidence the thermographic photographs supporting his opinion.

As an initial point, we find no error with the trial court’s ruling that LCT is used by qualified health-care professionals to reveal the presence of soft tissue injuries such as lower back sprains and strains, is a sufficiently reliable and acceptable “scientific-medical” diagnostic procedure, and, therefore, testimony and evidence relating to a particular thermographic study is admissible under appropriate circumstances. Coppolino v. State, 223 So.2d 68 (Fla.2d DCA 1968), appeal dismissed, 234 So.2d 120 (Fla.1969), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970). In Florida, the admissibility of evidence relating to a relatively new scientific-medical test, experiment or procedure lies largely within the discretion of the trial court. Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA 1976). However, the trial court should exclude evidence acquired through a new test or procedure if the results are “so unreliable and scientifically unacceptable” in the appropriate expert community, Jent v. State, 408 So.2d 1024, 1029 (Fla.1982) — a seemingly liberal standard — or, stated a different way, the trial court “should admit evidence of scientific tests and experiments only if the reliability of the results are widely recognized and accepted among scientists.” Stevens v. State, 419 So.2d 1058, 1063 (Fla.1982) — a seemingly more narrow standard. (Emphasis supplied).

The Florida decisions cited herein seem to suggest somewhat different standards for determining the admissibility of a particular new test or procedure. See Brown v. State, 426 So.2d 76, 85-90 (Fla. 1st DCA 1983). Whatever the exact standard to be applied, it is clear that before the new scientific-medical procedure and its results are admissible, a trial court must determine that the new test being presented has some reasonable degree of recognition and acceptability among the spectrum of scientific and/or medical experts (not necessarily limited to Ph.D.’s and M.D.’s) who study, diagnose, test, and otherwise deal with the particular disease or injury which is sought to be examined and diagnosed by the proffered test.

In the case sub judice, Dr. Rosenthal’s undisputed testimony as to the acceptability and reliability of LCT for diagnosing the presence of soft tissue injuries supports the trial court’s decision to acknowledge the validity of LCT for purposes of aiding the jury in its deliberations. § 90.702, Fla. Stat. (1981). Moreover, we note, consistent with Dr. Rosenthal’s testimony, that recent scientific studies evaluating the reliability of LCT to diagnose the type of injury allegedly suffered by Fay also support the trial court’s ruling. See generally Rubai, Traycoff & Ewing, Liquid Crystal Ther-mography, Physical Therapy, 62:1593 (Nov.1982); Pochaczevsky, Wexler, Meyers, Epstein & Marc, Liquid Crystal Ther-mography of the Spine and Extremities, Journal of Neurosurgery, 56:386 (Mar. 1982). Although there are no reported Florida decisions directly on point, the Louisiana appellate courts have consistently approved the admission of thermographic evidence in personal injury and workmen’s compensation cases to prove the existence of nerve root injuries as well as soft tissue muscle injuries. Boyce v. New Orleans Public Service, Inc., 442 So.2d 808 (La.App.1983); Foreman v. State Farm Mutual Automobile Insurance, 416 So.2d 258 (La.App.1982); Deshotel v. Avondale Shipyards, Inc., 413 So.2d 208 (La.App.1982); Blanchard v. A-1 Bit and Tool Co., Inc., 406 So.2d 773 (La.App.1981). Also, see generally D. Archer and J. Zinn, Thermograms: Persuasive Tools in Soft Tissue Injury Cases, 19 Trial 68 (Feb.1983); JAMA 247:3296 (June 1982); D. Meyer and P. Meyers, Would You Like to Know What Pain Looks Like?, 20 La. Bar J. 77 (Sept.1980).

Although we hold that LCT testimony can be admitted into evidence, we remind all that counsel can, on cross-examination and in the presentation of one’s own case, raise any recognized deficiencies in LCT as a diagnostic tool for objectively determining the presence of injury to soft tissue and challenge the credibility of the particular thermographic study being offered into evidence. The credibility of expert witnesses and the weight of their opinion testimony are for the jury to determine. See generally 1 Gard, Florida Evidence § 12:28, p. 469 (2d ed. 1980).

We must now address the propriety of the trial court’s rulings regarding Dr. Por-itz. Was Dr. Poritz qualified to testify as to the results of his thermographic examination of Fay and were the thermograms taken by him admissible? The Florida Evidence Code provision dealing with admissibility of expert testimony, section 90.702, Florida Statutes (1981), provides:

Testimony by experts. — If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial. (Emphasis added).

In Horowitz v. American Motorist Insurance Co., 343 So.2d 1305 (Fla. 2d DCA 1977), this court held a licensed and qualified chiropractor could give expert testimony as to whether a person suffered permanent injuries as defined by the no-fault insurance law if the diagnosis and treatment of those injuries were “within the ambit” of the chiropractic discipline. See generally Annot., 52 A.L.R.2d 1380 (1955); J. Zele, Chiropractors as Expert Medical Witnesses, 20 Clev.St.L.Rev. 53 (1971). In the case below, the trial court, after accepting him as an expert in chiropractic medicine, properly allowed Dr. Poritz to testify on the basis of the x-rays and his chiropractic examinations that Fay had suffered a permanent injury to her lower back as a result of the automobile accident. The injuries testified to by Dr. Poritz were clearly treatable within the scope of chiropractic medicine. § 460.403(3)(a), Fla.Stat. (1981). Horowitz at 1308. However, since Horowitz does not resolve the ultimate issues presented by this appeal, we find it necessary to re-examine section 90.-702 and the general law relating to the admissibility of expert testimony.

It is well-established that an expert does not need a special degree or certificate in order to be qualified as an expert witness in a specialized area, such as thermography, but can be qualified by his “experience, skill and independent study of a particular field.” Salas v. State, 246 So.2d 621 (Fla. 3d DCA 1971); see generally 1 Gard, § 12:08, p. 429. Additionally, neither the legislature nor the State Board of Chiropractic place limitations on the types of diagnostic tools which a chiropractic physician may employ in his practice. § 460.403(3)(a). Finally, we note the trend is to liberally construe section 90.702. Mannino v. International Mfg. Co., 650 F.2d 846 (6th Cir.1981) (construing similar federal provisions). Accordingly, assuming LCT is an appropriate subject for a jury’s consideration in personal injury cases brought under section 627.737, we hold a licensed chiropractor is not precluded from being qualified to testify as to LCT and giving an opinion with respect to a particular thermographic study done by him if the trial court determines the proffered expert possesses a sufficient knowledge and understanding of this method of diagnosis due to his familiarity with the scientific literature, training, and actual utilization of the procedure.

Examining the facts of this case, we believe the uncontradicted testimony of Dr. Poritz with respect to his qualifications as an expert on LCT and its application to his patients’ cases provided a sufficient basis for a ruling by the court that he could testify as an expert. The facts supporting Dr. Poritz’s qualifications in thermography are not significantly different than those supporting Dr. Rosenthal’s. Therefore, we hold the trial court erred in excluding Dr. Poritz’s testimony in this regard. We further hold the trial court also erred in ex-eluding the thermograms upon which Dr. Poritz relied in arriving at his opinion as long as there was a sufficient predicate proffered to support their reliability.

Finally, we hold the exclusions were reversible error and not harmless error because Fay could not recover unless she proved she had suffered a permanent injury, Dr. Poritz’s proffered opinion would be very recent evidence which would support this asserted fact, and his testimony and opinion would counteract Dr. Kriz’s also recently obtained evidence that Fay was not suffering compensable, permanent injuries under the no-fault law. In short, the exclusions were not harmless because medical testimony is necessary in establishing a permanent injury under section 627.-737(2). Avis Rent-A-Car System, Inc. v. Stuart, 301 So.2d 29 (Fla. 2d DCA 1974). We therefore REVERSE the jury’s verdict, order a new trial, and REMAND the cause for proceedings consistent with this opinion.

BOARDMAN, A.C.J., and CAMPBELL, J., concur.

      . Section 627.737(2) provides:
      (2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.741, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
      (a) Significant and permanent loss of an important bodily function.
      (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
      (c) Significant and permanent scarring or disfigurement.
      (d) Death.

      . Webster’s New Collegiate Dictionary (1981 ed.) defines thermography as "a technique for detecting and measuring variations in the heat emitted by various regions of the body and transforming them into visible signals that can be recorded photographically (as for diagnosing abnormal or diseased underlying conditions).” The resulting photograph or record is called a thermogram. Id. Two legal commentators have succinctly explained the principle behind thermography:
      The main physiological principle upon which thermography is based is that the infrared energy radiating from the skin surface will vary, depending upon the amount of vascular supply in and below the skin surface. Body heat produced by our metabolic processes is distributed throughout the body by the vascular and lymphatic systems to the overlying skin, for ultimate loss by radiation and convection.
      When the vascular supply to an area of the body increases, as when blood vessels dilate and allow an increased flow of blood in and below that area, there is a quantitative increase in the overlying skin temperature. It is the variations of the skin temperature that register on the thermograms.
      S. Archer and J. Zinn, Thermograms: Persuasive Tools in Soft Tissue Injury Cases, 19 Trial 68-69 (Feb.1983).
      One group of medical commentators has described the instruments used and the procedures to be followed in conducting an LCT examination. See Pochaczevsky, Wexler, Meyers, Epstein & Marc, Liquid Crystal Thermogra-phy of the Spine and Extremities: Its Value in the Diagnosis of Spinal Root Syndromes, J. Neu-rosurg. 56:386-395 (Mar.1982). They explain: the apparatus used to obtain the temperatures of the various parts of the body which are to be diagnosed consists of a hermetically sealed box (air-pillow box), one side of which has a transparent plastic wall and the other side composed of a rubber-like flexible sheath embedded with heat-sensitive liquid crystals (a special compound of cholesterol derivatives). The air-pillow box can be inflated by an air pump so that it will conform to the contour of those parts of the body sought to be examined. Six or more air-pillow boxes are available which are progressively numbered 26 to 35 in order to correspond with the median Celsius temperature ranges of their incorporated liquid crystal sheaths.
      The examination should be performed in an air conditioned, draft-free room, and the skin temperature of the region of the body to be studied is stabilized by sponging the body with water for approximately ten minutes. After other precautions to insure accuracy have been taken, the air-pillow box with the widest display for the patient’s skin temperature is selected. Liquid crystals have accurate reliable color responses to specific temperature changes. The lowest temperature is displayed as a dark brown color and changes with progressive temperature elevation to tan, reddish-brown, yellow, green, light blue and dark blue, the highest temperature. A 30°C box is initially selected. If brown colors dominate, the skin temperature is too cold for that particular box, and then a 28°C box is selected. If blue colors dominate, the skin temperature is too warm and a 30°C box is used. Once the appropriate box is selected, it is inflated and then firmly pressed against the designated part of the patient's body. A colored image almost immediately appears on the liquid crystal sheath. The air-pillow box is then lifted slightly from the skin surface to eliminate distortion and glare, and the image produced on the sheath is immediately photographed using an instant camera with an electronic flash system and a cross-polarized filter.
      The next step in arriving at a diagnosis necessarily involves interpreting the photographs. A normal thermogram of the extremities shows symmetrical heat emission and a normal ther-mogram of the spine is characterized by a central zone of decreased heat emanation in the region of the spinal processes from the cervical spine down to the lower lumbosacral spine. A positive or abnormal thermogram will show evidence of a symmetrically increased heat production at myotomes (muscle segments) in the central zone or decreased heat production lateral to the midline along the cervical, thoracic, and upper lumbar spine. The abnormalities displayed on the color thermograms objectively indicate the presence of some type of injury or lesion. See also Rubai, Traycoff & Ewing, Liquid Crystal Thermography: A New Tool for Evaluating Low Back Pain, Physical Therapy, 62:1593 (Nov.1982).
      As a final note, we mention that prior to the use of the air-pillow box, the affected body surface which was to be diagnosed had to be blackened with a special type of water-based spray paint, the liquid crystals were then applied with an aerosol applicator, and after waiting approximately fifteen to twenty minutes, pictures of the treated surface were taken. Physical Therapy, 62:1593-1594.
      The conventional form of thermography, which is more costly and cumbersome, involves utilizing infrared scanning techniques to diagnose breast tumors, R. Lawson, Ann.N.Y.Acad. Sci., 121:31-33 (Oct.1964); R. Pochaczevsky, The Value of Liquid Crystal Thermography in the Diagnosis of Spinal Root Compression Syndromes, Orthop. Clinic N. Am., 14:271-188 (Jan. 1983); varicoceles or soft tumors located in the scrotal area, JAMA, 247:3296, 3301; lumbar disc disease, Albert, Glickman & Kalish, Thermogra-phy in Orthopedics, Ann.N.Y.Acad.Sci., 121:157-170 (Oct.1964); and spinal root compression syndrome, Pochaczevsky at 14:283.

      . At the time of this examination, Dr. Rosenthal had moved his medical practice from Hillsbor-ough County.

      . Dr. Rosenthal’s testimony with regard to these matters is consistent with the discussion of LCT set out in note 2.

      . According to Dr. Rosenthal, a myelogram is a widely accepted diagnostic procedure that involves taking x-rays of a spinal cord that has been injected with a contrast agent in order to detect abnormal structures such as tumors that are impending upon the neurocanal and spinal cord.

      . With respect to license renewals, section 460.-408, Florida Statutes (1981), provides, inter alia:

      (1)No license renewal shall be issued by the department until the licensee submits proof satisfactory to the board that during the 2 years prior to his application for renewal he has participated in not more than 15 hours per year of continuing chiropractic education, as determined by the board, in courses approved by the board.
      (2) The board shall approve only those courses that build upon the basic courses required for the practice of chiropractic.
      (3) The board may take exception from the requirements of this section in emergency or hardship cases.
      (4) The board may adopt rules within the requirements of this section that are necessary for its implementation.

        See also rule 21D-13.04, Fla.Admin.Code.

      . Our usage of the word "medical” is not intended to describe those actions or qualities that are only associated with M.D.’s. A particular diagnostic test may be used by more than one health-related profession.

      . In Brown, Chief Judge Ervin describes what he believes to be the differing standards and
        then proposes a standard that essentially focuses on the relevancy of the proposed evidence. 426 So.2d at 85-90.

      . We note that the trial court's decision to admit the thermograms of Fay taken by Dr. Rosenthal was also proper.

      . Archer and Zinn note without citation that Florida, New York, and Wisconsin trial courts have also admitted thermograms into evidence. 19 Trial at 71.

      .This particular article notes without citation that Illinois, New York, California, and Wisconsin “now accept thermographic evidence as objective proof or disproof of pain in workmen's compensation or personal injury cases.” JAMA 247:3296.

      . We point out that chiropractic physical examinations and the taking of x-rays are expressly set forth under Florida law as appropriate methods for diagnosing lower back injuries. § 460.403(3)(b), Fla.Stat. (1981). See generally Annot., 16 A.L.R. 458 (1982). This subsection provides:
      (b) Any chiropractic physician who has complied with the provisions of this chapter may examine, analyze, and diagnose the human living body and its diseases by the use of any physical, chemical, electrical, or thermal method; use the X ray for diagnosing; and use any other general method of examination for diagnosis and analysis taught in any school of chiropractic recognized and approved by the Board of Chiropractic.

      . This subsection provides;
      (3)(a) "Practice of chiropractic" means a non-combative principle and practice consisting of the science of the adjustment, manipulation, and treatment of the human body in which vertebral subluxations and other malposi-tioned articulations and structures that are interfering with the normal generation, transmission, and expression of nerve impulse between the brain, organs, and tissue cells of the body, thereby causing disease, are adjusted, manipulated, or treated, thus restoring the normal flow of nerve impulse which produces normal function and consequent health.


source: Caselaw Access Project

author: ORFINGER, Chief Judge.

license: Public Domain

text:
    Emory Jack BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-1607.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.
    Rehearing Denied Aug. 22, 1984.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

The defendant appeals from a judgment of conviction for second degree murder, contending that the trial court erred in failing to grant defendant’s motion for judgment of acquittal at the close of the State’s case. We agree and reverse the judgment, and direct that defendant be discharged.

Defendant was charged with the second degree murder of Charles Williams who was killed during a fracas involving Williams and the defendant. There were numerous eyewitnesses to the fight, and the State called several of them to testify. There was no material dispute in the testimony of the State’s witnesses to the incident.

The State’s evidence indicated that on the night of the incident David Brown, appellant’s brother, became involved in a fight with Williams (the victim) outside the Palms Bar, in which Williams was the aggressor. Williams was drunk and very violent. David Eady, a bystander, tried to break up the fight but when he was unable to do so, he ran into the bar where defendant Emory Brown was shooting pool, to get his help in breaking up the fight. Eady told defendant that Williams was beating the defendant’s brother to death.

Emory Brown and Eady rushed outside where they found Williams mauling and choking David. With difficulty, Emory managed to break Williams away from David, and when he did so, Williams immediately attacked Emory, knocked him down, jumped on top of him and bit him severely. Emory was trying to break off, but Williams would not do so, and he was trying to inflict damage to defendant’s body, while telling defendant that he (Williams) was going to kill the defendant. Williams lifted weights and was very strong. David thought his brother’s life was in danger so he ran to a friend’s car, retrieved a gun he knew was there and returned to the scene of the fight.

By this time defendant had managed to get away from Williams and started backing up to where his brother David and others were standing, with Williams coming at him all the time, repeating his threat to kill defendant. David put the gun in defendant’s hand and defendant continued to back up, admonishing Williams to stop, but Williams continued to come at defendant. Defendant fired a shot into the ground, telling Williams to stay back and to leave him alone, but Williams kept coming, hands balled up in fists, clearly angry. They were very close together when the second (and fatal) shot was fired. All the witnesses agreed that defendant was backing up during all this time, pleading with Williams to stay away, and that there was no room for defendant to turn and run because Williams was very quick and very strong and was virtually on top of defendant when the last shot was fired. The witnesses further all testified that Williams would have jumped defendant had defendant turned to run.

Florida Statute § 782.02 (1981) provides: Justifiable use of deadly force. —The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be.

Second degree murder is defined in Florida Statute § 782.04(2) thusly:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in section 775.082 ...

The State’s evidence clearly does not support the charge of second degree murder, because there is no showing that defendant acted with a depraved mind regardless of human life, an indispensable element of the crime of second degree murder. See e.g., Pierce v. State, 376 So.2d 417 (Fla.3d DCA 1979). The more difficult question is whether there is a reasonable basis in the evidence to support a reduced charge of manslaughter, or whether the evidence clearly reflects the homicide to be justifiable.

Appellant contends that he acted in self-defense and that even if his belief in danger to his person was not “well grounded,” but simply reasonable in light of the surrounding circumstances, the State’s evidence clearly demonstrates self-defense. See Pinder v. State, 27 Fla. 370, 8 So. 837 (1891). Appellant recognizes that ordinarily the question of self-defense is one of fact to be determined by the jury, but argues that if the evidence is legally insufficient to support a conviction because the defendant’s theory of self-defense has been established as a matter of law, the trial judge should grant a motion for directed verdict.

This court, as with other courts, has recognized the principle that ordinarily the question of whether a homicide was committed in justifiable self-defense is a question for the jury. McCauley v. State, 405 So.2d 1350 (Fla.5th DCA 1981). On the other hand, when the State fails to carry its burden of proof, or where the State’s evidence clearly shows that a homicide was committed in self-defense, courts of this State have not hesitated to reverse jury convictions and to discharge the wrongfully convicted defendant. While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt. Bolin v. State, 297 So.2d 317 (Fla.3d DCA), cert. denied, 304 So.2d 452 (Fla.1974). See also State v. Bobbitt, 389 So.2d 1094, 1098 (Fla. 1st DCA 1980), rev’d on other grounds, 415 So.2d 724 (Fla.1982).

In Bozeman v. State, 106 Fla. 270, 143 So. 236 (1932), the court reviewed the evidence which resulted in the manslaughter conviction of the appellant and found the evidence wanting. In reversing the conviction the court said:

On writ of error the transcript of the evidence in the bill of exceptions contained in the record does not support either of the charges made in the information.
But the evidence does show a fatal cutting of the deceased by the defendant with a small poeketknife in self-defense while the defendant was being held on the ground by the deceased in a threatening and violent manner after the deceased apparently without provocation had approached and cursed the defendant and pulled him from an automobile, getting him on the ground after a combat; both parties having theretofore, during a night’s outing, been drinking and talking roughly to each other in a seemingly friendly way. (Emphasis supplied).

Id. at 237.

In Snipes v. State, 154 Fla. 262, 17 So.2d 93 (1944) (en banc), a majority of the court agreed that the evidence failed to sustain the verdict of first degree murder (or of second degree murder). However, the majority could not agree whether or not there was sufficient evidence to sustain even a conviction of manslaughter. The case was therefore sent back for a new trial. Following a second trial, the court in Snipes v. State, 156 Fla. 85, 22 So.2d 506 (1945) (en banc) reviewing the evidence and finding it to be essentially the same as presented in the first appeal, held that the record clearly established self-defense so that the motion for directed verdict of acquittal should have been granted, reversed the judgment of conviction and ordered the defendant be discharged.

In McKnight v. State, 341 So.2d 261 (Fla.3d DCA 1977) the victim, a strong man with a reputation for violence, who had lived with defendant, severely beat defendant in a bar earlier in the evening. When defendant returned home, she found the victim there, who again threatened to beat her. She told the victim to stay away, but he came at her muttering profanities. She retreated, again told him to stay away, but when he kept coming at her she removed a pistol from her pocketbook and fired at the victim, killing him. The court held that the uncontroverted evidence clearly demonstrated that defendant acted in self-defense, and reversed her conviction.

In Bacom v. State, 317 So.2d 148 (Fla.1st DCA 1975) the court reviewed the evidence resulting in a manslaughter conviction, and concluded that the defendant had not provoked the altercation and had lawfully protected himself when he stabbed the victim who came at him wanting to fight. The judgment of conviction was reversed with directions to discharge the defendant.

In Harris v. State, 104 So.2d 739 (Fla.2d DCA 1958) the court reviewed the testimony of appellant and his daughter, the only eyewitnesses to the killing, found it to be uncontradicted and unimpeached, held that the legal effect of the uncontradicted evidence was a question of law for the court, and reversed the manslaughter conviction with directions that appellant be discharged, finding as a matter of law that the homicide was justifiable as having been committed in self-defense.

The legal sufficiency of the evidence to support a conviction is a matter of law for the court; the weight of legally sufficient evidence is for the jury. Tibbs v. State, 397 So.2d 1120 (Fla.1981) affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Harris, supra. In a criminal proceeding, a finding that the evidence is legally insufficient is equivalent to a determination that the prosecution has failed to prove the defendant’s guilt beyond a reasonable doubt. Tibbs at 1123. See also Burks v. United States, 437 U.S. 1, 16 n. 10, 98 S.Ct. 2141, 2150 n. 10, 57 L.Ed.2d 1 (1978).

The justifiable homicide statute, section 782.02, Florida Statutes (1981), is declaratory of the common law. In Linsley v. State, 88 Fla. 135, 101 So. 273 (1924), the court said:

The law of justifiable homicide by self-defense has many times been set forth in decisions of this court. There must be reasonable grounds to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished. “Imminent means near at hand, mediate rather than immediate, close rather than touching.” The one interposing the defense must not have wrongfully occasioned the necessity; he must have used all reasonable means in his power, consistent with his own safety, to avoid the danger and to avert the necessity of taking human life; the circumstances must be such as to induce a reasonably cautious and prudent man to believe that the danger was actual and the necessity real, in order that the slayer may be justified in acting upon his own belief to that effect.

Id. at 274-275.

Here, not only was the State’s evidence legally insufficient to prove defendant’s guilt beyond a reasonable doubt, but conversely, it affirmatively proved, without contradiction or impeachment, all the elements of self-defense. Defendant was set upon by Williams, a violent and dangerous person, known to carry a knife, who was drunk and enraged and who was out to seriously injure or maim defendant, or worse yet if his threats were to be believed, to kill the defendant. All the evidence clearly pointed to defendant having reasonable grounds to believe that he was in great physical danger and that Williams had the intent and the ability to inflict on defendant serious personal injury. Defendant did what he could to extricate himself from the situation and armed himself for protection. He attempted to retreat from the battle, but Williams pursued him. As defendant retreated he continued to ask Williams to stay away, to break it off, to leave him alone, but Williams continued to stalk him, fists balled and ready to inflict damage. Defendant fired a shot into the ground, still retreating and still asking Williams to stay away, but Williams came on relentlessly. The evidence is clear that defendant fired the second and fatal shot because there was no alternative, because Williams had closed in on him and had defendant turned to run, Williams would have been on him. On these facts, self-defense has been clearly demonstrated by the State’s evidence, and defendant’s motion for directed verdict of acquittal should have been granted.

The judgment of conviction is REVERSED with directions to discharge the defendant.

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

      . A deputy sheriff who testified for the State said that Williams had a reputation in the community as a violent and dangerous person.

      . While we have outlined here only the State's evidence on the altercation, it should be pointed out that the witnesses who later testified for the defendant testified to essentially the same facts.


author: COBB, Judge.

text:
    STATE of Florida, Appellant, v. Bertie Eugene DEGARMO, Appellee.
    No. 83-1478.
    District Court of Appeal of Florida, Fifth District.
    June 28, 1984.
    Rehearing Denied Aug. 22, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellee.
   COBB, Judge.

The defendant, Bertie DeGarmo, was indicted for kidnapping and aggravated assault. Because he had previously pled guilty to the aggravated assault charge in a juvenile proceeding, and because the assault and kidnapping arose from the same incident, the trial judge granted DeGarmo’s motion to dismiss the kidnapping charge in an order which stated:

ORDERED AND ADJUDGED, this Court finds the defendant, BERTIE EUGENE DEGARMO, entered guilty plea to the offense of Aggravated Assault which was accepted before the Honorable Frances Jamieson, Circuit Judge, Juvenile Division, on May 23, 1983. That after the plea to Aggravated Assault the Grand Jury indicted the Defendant for the offenses of Kidnapping and Aggravated Assault. The charges of Kidnapping and Aggravated Assault arose out of the same incident as charged by the State in Circuit Court Juvenile Division as Aggravated Assault. This Court finds that the offense of Aggravated Assault is a lesser included offense to the charge of Kidnapping and subsequent prosecution of Defendant after his guilty plea to Aggravated Assault was barred by the principle of former jeopardy. Additionally, the State in argument before this Court has conceded that Count II of the Indictment, the charge of Aggravated Assault, was barred by former jeopardy. Defendant’s Motion to Dismiss the grand jury indictment is therefore, GRANTED.

The state appeals the dismissal of the indictment. Aggravated assault is not a lesser included offense of kidnapping. See Blockburger v. United, States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Bell v. State, 437 So.2d 1057 (Fla.1983). Therefore, the portion of the order dismissing the kidnapping indictment was erroneous, and we reverse in that respect. On the other hand, the minor’s plea in the delinquency proceeding in regard to aggravated assault was not void under section 39.02(5)(e), Florida Statutes (1983), because that crime is not a capital or life offense. See Lisak v. State, 433 So.2d 487 (Fla.1983).

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      . Section 39.02(5)(c), Florida Statutes (1983), provides in pertinent part:
      (c) 1. A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set forth in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury. When an indictment is returned, the petition for delinquency, if any, shall be dismissed. The child shall be tried and handled in every respect as if he were an adult:
      a. On the offense punishable by death or by life imprisonment; and
      b. On all other felonies or misdemeanors charged in the indictment which are based on the same act or transaction as the offense punishable by death or by life imprisonment or on one or more acts or transactions connected with the offense punishable by death or by life imprisonment.
      2. No adjudicatory hearing shall be held within 21 days from the date that the child is taken into custody and charged with having committed an offense punishable by death or by life imprisonment unless the state attorney advises the court in writing that he does not intend to present the case to the grand jury or that he has presented the case to the grand jury and the grand jury has returned a no true bill. If the court receives such a notice from the state attorney, or if the grand jury fails to act within the 21-day period, the court may proceed as otherwise authorized under this chapter.


author: SCHEB, Judge.

text:
    U.S. HOME CORPORATION, Appellant, v. SUNCOAST UTILITIES, INC., a Florida corporation, Appellee.
    No. 83-1746.
    District Court of Appeal of Florida, Second District.
    June 29, 1984.
    Rehearing Denied Sept. 5, 1984.

      Alfred E. Froh of Robinson, Macpherson, Harper, Kynes, Batt, Geller & Watson, P.A., Clearwater, and Joel R. Tew of Helms, Mulliss & Johnston, Tampa, for appellant.
    V. James Dickson of Jacobs, Robbins, Gaynor, Hampp, Burns, Cole & Shasteen, P.A., St. Petersburg, for appellee.
   SCHEB, Judge.

The trial court awarded Suncoast Utilities, Inc. a final judgment for $171,492, plus interest of $84,031.08, in its breach of contract action against appellant U.S. Home Corporation. U.S. Home contends the court erred in finding it liable to Sun-coast and in computing damages and prejudgment interest. We affirm the judgment as to liability but remand for recom-putation of damages and prejudgment interest.

I. The Facts.

To comprehend the issues raised by U.S. Home, it is essential to review a chronology of the operative facts which began in 1978. In that year John Tunstall formed Suncoast to provide utility and site preparation services for U.S. Home’s projects in Pinellas County. While not contractually bound to work exclusively for U.S. Home, throughout its operation Suncoast performed services only for that corporation. U.S. Home was fully aware that Suncoast worked solely on its projects.

In 1978 Suncoast and U.S. Home also executed several sets of lengthy contract documents for the various projects. Sun-coast was to render site preparation services for U.S. Home on its development projects in both Pinellas and Pasco Counties. Each set of documents contained essentially the same extensive conditions furnished by U.S. Home, including a provision that the agreements could be altered, amended, or repealed only in writing. The only major differences were the various bid lists submitted by Suncoast and the special conditions detailing the specific work to be done on each project.

U.S. Home frequently had Suncoast “pull off” one job to go to another. Suncoast moved its men and equipment between the two counties to comply with U.S. Home’s requests and to meet that corporation’s changing needs and schedules. U.S. Home did not always execute written change orders pursuant to the contract documents’ conditions when it requested Suncoast to move between job sites.

On February 23, 1979, U.S. Home sent a letter to Suncoast confirming its cancellation of one Pinellas project. Officers of both parties signed and approved this agreement, which incorporated mutual covenants concerning the effect of the cancellation on the other Pinellas and Pasco projects.

On February 28, 1979, the parties executed a written purchase order agreement for the movement of dirt between two sites (the Oldsmar project). This document specified that dirt would be removed at a unit cost of $1.85 per cubic yard. Suncoast, by letter, subcontracted this job at a removal rate of $1.50 per cubic yard. Neither the document nor the letter contained terms of the quantity of dirt to be removed, the total payments to be made, or the time in which the work was to be performed. In two instances Tunstall testified that 70,000 to 100,000 cubic yards were to be hauled. In another instance he said he believed the contract contemplated Suncoast hauling in excess of 70,000 to 80,000 cubic yards. A letter written by a U.S. Home executive indicated that the $1.85 per cubic yard rate was based on the removal of approximately 70,000 cubic yards of dirt.

On April 11, 1979, U.S. Home gave Sun-coast written notice of termination of the Oldsmar project after only 13,000 cubic yards of dirt had been hauled. U.S. Home admitted it never paid Suncoast anything on this project, but it acknowledged its obligation to pay for the work completed. On April 25, 1979, U.S. Home also terminated Suncoast on a Pasco County project when that project was almost complete.

Suncoast attempted to pick up a check from U.S. Home for approved draw requests on three of the Pasco projects on April 27, 1979. U.S. Home paid Suncoast for only one and refused to make any further payments on the other two, although payments on them were due. After Sun-coast was not paid on schedule on the Olds-mar and two Pasco projects, it sought assurances from U.S. Home that it would be paid for the work already completed on these undertakings. Additionally, Sun-coast sought assurance that it would not be terminated on the remaining three Pinellas County projects (the Countryside projects), as it had been on the Oldsmar dirt haul and the one Pasco project. When U.S. Home declined to make such assurances, Sun-coast suspended operation in Pinellas County, indicating that it would resume work when U.S. Home gave the requested assurances.

On May 2, 1979, U.S. Home terminated Suncoast on its last Pasco County project. Then, on May 11, 1979, it formally, in writing, terminated Suncoast on the Countryside projects. At the time of this termination, all outstanding payment requests on the Countryside projects had been paid.

II. Trial Court’s Findings.

In these consolidated cases, Suncoast, in one action, sued U.S. Home for breach of contract on the Countryside projects. In another, Suncoast filed a cross-claim against U.S. Home for breach of the Olds-mar dirt haul and indemnification for its indebtedness to the subcontractor for the movement of dirt.

In a nonjury trial of these consolidated cases, the trial judge held that U.S. Home breached its contract with Suncoast for the Countryside work, entitling Suncoast to $123,992 in damages. The court also found that U.S. Home breached the Oldsmar contract and awarded Suncoast $47,500 on that project. The trial judge then awarded Sun-coast prejudgment interest of $84,031.08 for the breach of all the contracts. The court determined that Suncoast did not breach any of its contract obligations to U.S. Home. Finally, the court concluded that Suncoast reasonably demanded adequate assurance that U.S. Home would perform on the Countryside projects and “reasonably suspended work pending receipt” of such assurance.

III. Appellant’s Contentions.

Appellant U.S. Home raises several points on appeal. The principal thrust of its contentions as to liability is that the trial court erred in holding that it breached its obligations to Suncoast by refusing to give Suncoast adequate assurance of performance on the Countryside projects. U.S. Home argues that the court erred in applying the doctrine of adequate assurance, since this theory has not been adopted in Florida except in cases on the sale of goods.

Concerning damages, U.S. Home argues that the trial court erred in assessing damages on the Oldsmar project based on the contemplated, rather than the actual, removal of dirt. It asserts that the Oldsmar document was a purchase order it could cancel at any time. U.S. Home also contends the evidence was insufficient to support the award of damages on the Countryside projects.

Regarding prejudgment interest, U.S. Home asserts that no interest should have been assessed on the Countryside projects as the amount of damages, if any, was unliquidated. It also argues that the court erroneously applied a twelve percent prejudgment interest rate from July 1, 1979, through July 1, 1982.

IV. Resolution of Issues.

A. Liability.

Despite the execution of a series of contract documents, the trial court had substantial, competent evidence before it that the parties treated all the projects as one overall contract. The evidence discloses that U.S. Home initially breached its Olds-mar obligations by its unilateral termination. Further, it breached the two Pasco agreements by refusing to make payments due Suncoast on these projects. Suncoast was therefore justified in suspending performance on the Countryside projects. In turn, U.S. Home became liable to Suncoast for damages for its anticipatory breach of these latter projects. See Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181, 182 (Fla.1982); Mori v. Matsushita Electric Corp., 380 So.2d 461, 465 (Fla. 3d DCA), cert. denied, 389 So.2d 1112 (Fla.1980). Consequently, where, as here, there is substantial, competent evidence to sustain a trial court’s holding, we must affirm. Helman v. Seaboard Coast Line Railroad, 349 So.2d 1187, 1189 (Fla.1977); Wash-Bowl, Inc. v. Wroton, 432 So.2d 766, 767 (Fla. 2d DCA 1983); Gulf Coast Docks, Inc. v. Simon, 122 So.2d 414 (Fla. 2d DCA 1960).

Futhermore, even assuming the appellant is correct in its contention that the trial court erred in applying the doctrine of adequate assurance, we need not address that issue. The trial court’s reasoning is not binding upon this court. Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979); In re Estate of Yohn, 238 So.2d 290 (Fla.1970). A trial court’s decision, even when based on an erroneous theory, must be affirmed if the evidence or an alternative theory supports its decision. Applegate, 377 So.2d at 1152; Moore v. City of St. Petersburg, 281 So.2d 549 (Fla. 2d DCA), cert. denied, 289 So.2d 730 (Fla.1973). Here, as noted above, the evidence amply supports the court’s decision as to liability,

B. Award of Damages.

1. Oldsmar project.

Although U.S. Home is liable for breach of the entire contract, Suncoast’s evidence only established that it sustained damages on the Oldsmar project. Taken as a whole, the evidence clearly revealed the price per unit to be paid, the quantity of dirt to be hauled, and the costs to Suncoast to subcontract the work to another contractor. U.S. Home admitted owing Suncoast compensation for the 13,000 cubic yards of dirt which had been hauled. Tunstall’s testimony showed that the project’s price per unit was based on a minimum of 70,000 cubic yards of dirt. Moreover, the letter of understanding written by the U.S. Home executive demonstrated the price per unit was based on the removal of approximately 70,000 cubic yards of dirt. From these facts Suncoast’s anticipated profits for hauling 70,000 cubic yards of dirt on the Oldsmar project were reasonably ascertainable. Twyman v. Roell, 123 Fla. 2, 7, 166 So. 215 (1936); Conner v. Atlas Aircraft Corp., 310 So.2d 352, 354 (Fla. 3d DCA), cert. denied, 322 So.2d 913 (Fla.1975).

We think the trial court erred in calculating the amount of damages for this project. It is obvious the court computed its $47,500 award on the anticipated removal of 80,000 rather than 70,000 cubic yards of dirt. Although the court correctly allowed $1.85 per cubic yard for the 13,000 cubic yards of dirt actually hauled, it should have calculated a $.35 per cubic yard profit on 57,000 instead of 67,000 cubic yards of dirt. Thus, Suncoast is entitled only to $44,000 in damages on the Oldsmar project.

2. Countryside projects.

Concerning the damages awarded for U.S. Home’s breach of the Countryside projects, it is unclear how the trial court arrived at the final figure of $123,992. To begin with, the evidence revealed all payment requests on these three projects up to the date of U.S. Home’s breach had been paid; therefore, all costs incurred in partial performance had been satisfied.

Nevertheless, under the general rule of damages, Suncoast would ordinarily be entitled to recover the profit it could have realized had the Countryside projects been completed. Poinsettia Dairy Products, Inc. v. The Wessel Co., 123 Fla. 120, 130, 166 So. 306 (1936); Sullivan v. McMillan, 26 Fla. 543, 598, 8 So. 450 (1890); Jackson v. Riley, 427 So.2d 255 (Fla. 5th DCA 1983); and Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). However, no evidence was introduced to support Tun-stall’s testimony in which he concluded that Suncoast would have realized a fifteen to twenty percent profit had the contract been completely performed. Damages for lost profits must be reasonably certain and established by competent proof. Florida Outdoor, Inc. v. Stewart, 318 So.2d 414, 415 (Fla. 2d DCA), cert. denied, 333 So.2d 465 (Fla.1975); Ballard, 248 So.2d at 235. Here, the estimate of lost profits was based on mere speculation. Florida Outdoor, Inc., 318 So.2d at 415; Ballard, 248 So.2d at 235. And, although Tunstall, in his testimony, assumed that Suncoast’s profits were calculated from certain company records, these records were not introduced. See Edward L. Nezelek, Inc. v. Southern Bell Telephone & Telegraph, 383 So.2d 979 (Fla. 4th DCA 1980).

We recognize that a trial judge is vested with reasonable discretion in awarding damages where they cannot be precisely determined. Clearwater Associates v. Hicks Laundry Equipment Corp., 433 So.2d 7 (Fla. 2d DCA 1983); John Hancock Mutual Life Insurance Co. v. Mark-A, Inc., 324 So.2d 674 (Fla. 2d DCA 1975). Nevertheless, we think this case is distinguishable in that Suncoast did not show either by Tunstall’s testimony or any other evidence the factors upon which it based its claim for lost profits. Accordingly, Sun-coast is entitled only to nominal damages on the Countryside projects. Florida Outdoor, Inc., 318 So.2d at 415.

C. Award of Prejudgment Interest.

We next address the question of prejudgment interest. Our concern here is limited to damages on the Oldsmar project, since Suncoast is entitled only to nominal damages on the Countryside work.

Although generally unliquidated damages are not entitled to prejudgment interest, once it is determined a contract debt is due, prejudgment interest may be awarded. Parker v. Brinson Construction Co., 78 So.2d 873, 874 (Fla.1955); Sullivan v. McMillan, 37 Fla. 134, 143, 19 So. 340 (1896). Such interest is allowed from the date the debt is due. Peter Marich and Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978); Vacation Prizes, Inc. v. City National Bank, 227 So.2d 352 (Fla. 2d DCA 1969). Here, the only dispute concerning the Oldsmar project was whether the agreement was executed as opposed to executory. The trial court’s finding that U.S. Home breached its obligation to Sun-coast on the Oldsmar project settled this dispute. Parker, 78 So.2d at 874; Sullivan, 37 Fla. at 143, 19 So. 340; Peter Marich & Associates, Inc., 365 So.2d at 756; Vacation Prizes, 227 So.2d at 353.

The trial court, although correct in awarding prejudgment interest on the Oldsmar project, did not make an explicit finding as to the date payment was due. See Sullivan, 37 Fla. at 143, 19 So. 340; Peter Marich & Associates, Inc., 365 So.2d at 756. Moreover, as U.S. Home points out, the trial court erred in assessing interest at twelve percent per annum from July 1, 1979, through July 1, 1982. See § 687.-01, Fla.Stat. (1981).

V. Judgment of this Court.

We find no merit in U.S. Home’s remaining points.

Accordingly, we affirm the trial court’s holding as to U.S. Home’s liability on all the projects. We reverse and remand on the issues of damages and calculation of prejudgment interest.

On remand, the trial court should reduce the award to Suncoast to nominal damages on the Countryside projects. The court should also reduce the award to Suncoast to $44,000 on the Oldsmar dirt haul and revise its judgment to show the date upon which that sum was due.

Prejudgment interest should be awarded at a rate of six percent prior to July 1, 1982, pursuant to section 687.01, Florida Statutes (1981). After that date, interest should be awarded at a twelve percent rate up to the date of the revised judgment. See § 687.01, Fla.Stat. (Supp.1982).

BOARDMAN, A.C.J., and LEHAN, J., concur.

      . Here Suncoast is not seeking damages for breach of any obligations on the Pasco projects. The record implies the parties previously entered into a settlement and release agreement as to those undertakings.


author: DANIEL S. PEARSON, Judge. JORGENSON, Judge,

text:
    CITY OF MIAMI, Appellant, v. Joseph ROBBIE, The South Florida Sports Corporation, and The Miami Dolphins, Ltd., Appellees.
    No. 83-2148.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Rehearing Denied Sept. 17, 1984.

      Jose R. Garcia-Pedrosa, City Atty., and Gisela Cardonne, Asst. City Atty., for appellant.
    Sparber, Shevin, Shapo & Heilbronner and Robert L. Shevin and Nancy Schleifer and Brian S. Dervishi, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The appellant, City of Miami, and the appellees, Joseph Robbie, The South Florida Sports Corporation and The Miami Dolphins, Ltd. (hereafter collectively, the Dolphins), are parties to litigation which primarily concerns how much rent the Dolphins allegedly owe the City of Miami under a 1977 contract between them which required the Dolphins to play annually a minimum number of football games in the City-owned Orange Bowl. The dispute arose from the fact that the National Football League Players’ Association strike caused the cancellation of some Dolphin home games during the 1982 football season. In the litigation, the City claimed that rent was due it for three unplayed games.

The parties entered into negotiations in an effort to settle their dispute. The Dolphins’ version of the “settlement” arrived at is:

“[T]he provisions of the June 8, 1977 Agreement, shall be amended to reflect that the MIAMI DOLPHINS, LTD. agree to play a tenth home football game, which game will not be a playoff game of any sort, in the Miami Orange Bowl Stadium during both the 1985 and 1986 regular football seasons as defined by the June 8, 1977 AGREEMENT between the MIAMI DOLPHINS,' LTD. and the CITY OF MIAMI or, in the alternative, if the said tenth home game is not played for any reason, to pay the City of Miami Thirty Thousand ($30,000.00) Dollars for each such tenth game not played, without credit or setoff for any expenses, costs or obligations not incurred by the City of Miami because of the non-occur-renee of such tenth game in 1985 and/or 1986.”

The City’s version of the settlement is that notwithstanding certain language of the 1977 agreement which relieves the Dolphins of any obligation should the Orange Bowl Stadium become unfit for the playing of football games because of any Act of God or public enemy, the Dolphins were not to be relieved of their “obligation to pay Thirty Thousand Dollars ($30,000.00) per each guaranteed tenth home game in the 1985 and 1986 seasons not played ... as such obligation is assumed in partial compensation for the [Dolphins’] failure of performance under the ... 1977 AGREEMENT prior to July 18, 1983.”

Thus, the Dolphins understood the parties’ settlement to be that they would not owe the $30,000 to the City per each un-played tenth home game in the 1985 and 1986 seasons under circumstances where the cause of not playing the game was the unfitness of the Orange Bowl because of any Act of God or public enemy; and the City understood the parties’ settlement to be that these moneys would be due and owing as a postponed payment of a past-due obligation even if the Orange Bowl became unfit for play for the described reasons. In short, while the Dolphins concede that under their own version of the settlement they agreed to pay the $30,000 “if any guaranteed tenth game is, for any reason, not played,” they contend that “for any reason” does not include the unfitness of the Orange Bowl because of an Act of God or public enemy or, at least, that the uncertainty of this phrase should await determination in future litigation if and when the highly improbable events occur.

It is clear to us that the parties did not have a meeting of the minds as to an essential element of their proposed “settlement” and that, therefore, the trial court’s judgment purporting to enforce the Dolphins’ version of the settlement agreement must be reversed. As we stated in Gaines v. Nortrust Realty Management, Inc., 422 So.2d 1037, 1039 (Fla. 3d DCA 1982) (quoting from United Mine Workers v. Consolidation Coal Co., 666 F.2d 806, 809-10 (3d Cir.1981)):

“To be judicially enforceable ... a settlement agreement ... must be sufficiently specific as to be capable of implementation .... [Cjourts will not attempt to enforce a settlement agreement that is too vague or ambiguous in its meaning or effect.”

In Gaines, we set aside a judgment enforcing an agreement to exchange releases where:

“Gaines and his counsel believed the undertaking to exchange releases involved releasing Nortrust from any past and further claim under the lease that the base rental was to be computed by averaging the rent paid by all tenants and being relieved of Nortrust’s claim that only the average rents of new and renewal tenants were to be used in the computation; Nortrust and its counsel believed that the release was to be a general release, that is, á release of any and all claims of any type and description that either party might have against the other; ... Which of these possible releases was to be exchanged was neither clearly expressed nor mutually understood during the discussions.”

422 So.2d at 1040 (footnote omitted). Here, for like reasons, we must conclude that no settlement capable of being enforced by a court was reached.

Reversed and remanded for further proceedings.

JORGENSON, Judge,

dissenting.

After the final gun had sounded, though the score was not tied, the City of Miami sought to send the game into overtime. Today’s majority opinion not only sanctions an improper extra period of play, it allows the game’s rules to be changed well after the game has ended. I therefore respectfully dissent.

Unlike Gaines v. Nortrust Realty Management, Inc., 422 So.2d 1037 (Fla. 3d DCA 1982), where all settlement discussions were held off the record, the parties to the instant settlement agreement ratified it during a public meeting of the City of Miami Commission and, in addition, exchanged letters of acceptance. The complete terms of the settlement were embodied in a resolution adopted by the city commission, signed by the mayor, attested to by the city clerk, prepared and approved by an assistant city attorney, and approved as to form and correctness by the city attorney.

The instant case, therefore, more closely resembles Sheffield Poly-Glaz Inc. v. Humboldt Glass Co., 356 N.E.2d 837, 42 Ill.App. 865, 1 Ill.Dec. 555 (1976), distinguished by the court in Gaines. In Sheffield the parties, through their counsel, reached a meeting of the minds. After settlement was reached, a party, claiming he had misunderstood its terms, sought to repudiate it. The trial court held that there was a binding, enforceable agreement and that “[e]ven if ... [the party] had misunderstood the terms of the compromise ... the mistake was a unilateral one due to [the party’s] own failure to understand a fact which was at the center of the parties’ dispute. We think [the party] is bound to the agreement knowingly made.” 356 N.E.2d at 841, 1 Ill.Dec. at 559. The reasoning of the Illinois court and the result it reached apply to the instant case and should be followed by this 'court today.

The essential terms of the City’s settlement with the Dolphins were that (1) the Dolphins agreed to play a tenth game in the Orange Bowl in 1985 and 1986 (the original contract called for nine games) or pay $30,000 if the tenth games were not played for any reason; (2) the public liability insurance policy limits paid for by the Dolphins were to be raised from $250,-000/$l,000,000 to $500,000/$2,000,000; (3) the Dolphins agreed to be liable “for any structural deficiencies, negligent maintenance, or negligent actions of the City of Miami employees” (for which the Dolphins were not responsible under the existing 1977 agreement with the City); and (4) the city manager was to enter into a supplemental agreement on behalf of the city agreeing to the aforementioned terms.

The city commission meeting adopting the resolution took place on July 18, 1983. On July 19 a letter was sent to the Dolphins’ legal counsel from the city attorney’s office confirming “that the City Commission accepted your settlement proposal,” cancelling a deposition scheduled in anticipation of trial, and informing the Dolphin’s legal counsel that the proposed stipulation and order of dismissal would be sent by the end of the week.

On August 3, 1983, the legal counsel for the City delivered to the legal counsel for the Dolphins a stipulation and order of settlement and general release, both drafted by the City’s legal counsel. The Dolphins and their legal counsel fully executed the documents which provided that (1) the Dolphins would enter into a supplemental agreement to the 1977 agreement amending paragraphs 20 and 21 of the 1977 agreement, increasing insurance coverage; (2) the Dolphins would play a tenth game in 1985 and 1986 “or, in the alternative, if the said tenth home game is not played for any reason, [would] pay to the City of Miami Thirty Thousand ($30,000) Dollars for each tenth game not played ... ”; and (3) “the parties hereby released admit no liability of any sort by reason of past conduct.”

Then, on August 4,1983, the City sent its “Supplemental Agreement to the June 8, 1977 agreement” to the Dolphins’ legal counsel. It contained all the terms agreed to at the city commission meeting and contained in the stipulation and order of settlement and general release plus an additional term that was never discussed or negotiated, much less agreed to by the parties.

The 1977 agreement contained two force majeure clauses, paragraphs 28 and 29. They provided:

28. No liability of any kind shall be incurred by either of the parties hereto should the ORANGE BOWL Stadium during the term of this Agreement become unfit for events to be played or staged therein because of any Act of God or public enemy....
29. If ORANGE BOWL Stadium is condemned or is so damaged due to fire, windstorm, or other catastrophe, and CITY decides not to repair or rebuild, either party may cancel, terminate, and declare this agreement terminated.

The supplemental agreement sent by the City on August 4, 1983, provided:

Further, paragraph No. 28 of the June 8, 1977 agreement is amended as follows: No liability of any kind shall be incurred by either of the parties hereto should the ORANGE BOWL Stadium, during the term of- this Agreement become unfit for events to be pla4ed [sic] or stated therein because of any Act of God or Public Enemy except that this provision will in no fashion or way relieve the PARTNERSHIP of its obligation to pay Thirty Thousand Dollars ($30,000.00) per each guaranteed tenth home game in the 1985 and 1986 seasons not played as set forth in paragraph No. 2 of this SUPPLEMENTAL AGREEMENT as such obligation is assumed in partial compensation for the PARTNERSHIP’S failure of performance under the June 8, 1977 AGREEMENT prior to July 18, 1983....

The supplemental agreement sent by the City, with its “compensation for ... failure of performance” language, contradicted the “no liability” provision of the release and added the additional term of modification of paragraph 28, the force majeure clause.

The Dolphins filed a motion to enforce the settlement provided the changes proposed to paragraph 28 were stricken. They attached as exhibits the transcript of the July 18, 1983, city commission meeting, the stipulation of settlement and order of dismissal (drafted by the City) and the release of all claims (also drafted by the City). The trial court entered an order and final judgment enforcing the settlement and dismissing the action and struck the proposed changes to paragraph 28 but enforced the remainder of the settlement.

Interpretation of settlement agreements is guided by certain well settled principles of law. “Settlement agreements are highly favored in the law and will be upheld whenever possible because they are a means of amicably resolving doubts and preventing lawsuits.” Pearson v. Ecological Science Corp., 522 F.2d 171, 186 (5th Cir.1975), cert. denied mem., 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976) (quoting D.H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215 (5th Cir.1971)); see Dorson v. Dorson, 393 So.2d 632 (Fla. 4th DCA 1981). Settlement agreements are to be interpreted by the same principles governing the interpretation of contracts. See Florida Education Association, Inc. v. Atkinson, 481 F.2d 662 (5th Cir.1973); Gaines; Dorson.

“A municipal corporation is bound to recognize its contracts, the same as an individual.” City of Miami v. Bus Benches Co., 174 So.2d 49, 52 (Fla. 3d DCA 1965); accord Williams v. City of Jacksonville, 118 Fla. 671, 160 So. 15 (1935). “[W]here the applicable laws have authorized a municipality to make a contract but do not require it to be done by ordinance the legislative body of the municipality may contract ... by passage of a resolution.” City of Homestead v. Raney Construction, Inc., 357 So.2d 749, 752 (Fla. 3d DCA 1978) (quoting 10 E. McQuillin, The Law of Municipal Corporations § 29.19 (3d Ed.1966)). As in the instant case the contract in Ra-ney was signed by the mayor, the city clerk attested the signature and the city attorney approved the contract as to form. The court in Raney held that once a contract was accepted by a motion of the Homestead City Council and notification of the acceptance was sent to the other party to the contract, a binding contract came into being which the city council could not subsequently unilaterally rescind. We did not allow the Homestead City Council to take such a reprehensible action then and should not allow the City of Miami to do so now.

The court in Raney, quoting the Florida Supreme Court, State ex rel. Wadkins v. Owens, 62 So.2d 403, 404 (Fla.1953), said,

Fair dealing is required by all parties and public officials should set the example. There is no question raised in this proceeding of any concealment, fraud, collusion or any other misconduct on the part of the [citizen] and the [government] should have been required to comply with the plain and unmistakable provisions of the law.

Raney at 754. The City of Miami should be held to this same standard.

The settlement agreement in question is a modification of an existing contract between the parties and must be viewed as a component of the whole 1977 agreement. The intention of the parties to a contract must be determined from a consideration of the whole agreement. Florida Power Corp. v. City of Tallahassee, 154 Fla. 638, 18 So.2d 671 (1944); Torcise v. Perez, 319 So.2d 41 (Fla. 3d DCA 1975); Transport Rental Systems v. Hertz Corp., 129 So.2d 454 (Fla. 3d DCA 1961).

Considering the settlement reached by the Dolphins and the City (as reflected in the transcript of the city commission meeting and the original settlement documents) not in a vacuum, but as a part of the whole 1977 agreement between the parties, the inescapable conclusion is that the parties did reach an agreement “sufficiently specific as to be capable of implementation,” Gaines at 1039, following which the' city attempted to unilaterally alter certain terms. If ambiguity does in fact exist in a contract, “the court should arrive at an interpretation ‘consistent with reason, probability and the practical aspect of the transaction between the parties.’ ” Biltmore Systems v. Mai Kai, Inc., 413 So.2d 458, 459 (Fla. 4th DCA 1982) (quoting Blackshear Manufacturing Co. v. Fralick, 88 Fla. 589, 593, 102 So. 753, 954 (1925)).

The City argues and the majority agrees that (1) the agreement reached between the parties requires the Dolphins to pay $30,-000 if the tenth game is not played in 1985 or 1986 for any reason including act of God or public enemy or (2) the parties did not have a meeting of the minds as to this “essential” element of the settlement agreement. The logic of this argument fails when considered in light of the provision of the 1977 contract it was intended to replace.

The 1977 contract provides that the “[partnership agrees to pay the tax for 9 games in each regular football season whether or not 9 games are actually played in the ORANGE BOWL” (emphasis added). Any meaningful difference between the phrases “for any reason” and “whether or not” when used in the context of the agreement at issue is beyond comprehension.

The intention of the parties as determined “from the language used, objects to be accomplished, other provisions in the agreement which might shed light upon the question, and circumstances under which it was entered into,” Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., 274 So.2d 13, 15 (Fla. 3d DCA 1973), was that the. Dolphins would pay $30,000 to the City if the tenth game were not played. See J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So.2d 38 (Fla. 3d DCA 1978). The payment of the $30,000, as well as any other terms of the settlement, must be viewed as a modification and in light of the provisions of the whole 1977 agreement between the parties.

In Florida Power Corp. the court was faced with a contract containing two conflicting provisions; one, a liquidated damage clause to be paid to its customer, the City of Tallahassee, if power were interrupted for certain periods of time, and, two, a provision excusing the company for interruptions caused by an act of God. After a hurricane interrupted power for several hours the city sought to collect under the liquidated damage provision. In holding that the act of God clause prevailed, Justice Chapman, speaking for the court, said that

conditions and circumstances surrounding [sic] the parties and the object or objects to be obtained when executing the contract should be considered.... courts should place themselves, as near as possible, in the exact situation of the parties to the instrument, when executed, so as to determine the intention of the parties, objects to be accomplished, obligations created, time of performance, duration, consideration, mutuality, and other essential features.

Id. 18 So.2d at 674.

Considering these principles of contract construction I conclude that the parties did reach and agree to a judicially enforceable settlement agreement. Should the “highly improbable” events occur and render the Orange Bowl unfit to play a tenth game in 1985 or 1986 the parties should then be free to litigate any differences concerning interpretation of the whole 1977 agreement, including the modification agreed to in the settlement. That issue is not now before this court. The sole issue is whether an enforceable settlement was reached. For the foregoing reasons I believe that one was and would affirm the final judgment of the trial court.

      . At the commission meeting, Mayor Maurice Ferre commented,
      My problem is that I am willing that [sic] to settle this thing because I think that is a fair settlement. There is only one thing you have forgotten. I want to make sure that when we settle this we have settled everything. I don’t want any personal law suits. I don’t want law suits on suiting [sic] Howard Gary for what he said or Ferre for what he said, or anybody in the City for what they said, or any other pending law suits. In other words, the same thing that we did, I want the same clause as the last time we had a fight with Mr. Robbie, we said we would go back to ground zero. No more law suits. In other words, if we settle this, we settle them all.
      Commissioner Joe Carrollo's description of the proposed settlement was:
      I think that number one, the Dolphins have increased the insurance benefits, that is a plus that we have received, and a compromise on their part. Number two, the proposal that they have made for the extra game in ’85 and ’86 is going to represent to this City [a] more substantial amount than even if we were to take it to court and win the most we possibly could. I think that Mr. Shevin and the Mayor have presented this quite well. So, I think that what we have now is a situation where both parties are willing to compromise. I think that while it is a fair compromise for the Dolphins, it is an excellent compromise for the City of Miami.

      . A careful reading of the record below reveals that the City drafted all versions of all settlement documents, both those that reflect and those that contradict the settlement agreed to by the parties. Contrary to the majority’s assertion, there is no Dolphins’ version. The only versions are the agreed-upon settlement and the City’s unilaterally altered version of the settlement.

      . The findings of the court were in part:
      3. The terms of the_ settlement are consistently encompassed by the transcript of the proceedings before the Miami City Commission on July 18, 1983, at which time the settlement was reached, and Resolution Number 83-625 passed by the Miami City Commission (Defendants’ Exhibit D, as supplemented), which properly authorized the settlement of this action.
      4. The documents prepared and forwarded to Defendants’ counsel by Plaintiff's counsel for purposes of consummation of the settlement, i.e., the Stipulation of Settlement (with proposed Order of Dismissal with respect to same), the Release of Claims to be executed on behalf of the Defendants, the Supplemental Agreement to the June 8, 1977 Agreement and the Release of Claims to be executed on behalf of the City of Miami (Defendants’ Exhibits E, F, G and H, respectively, and collectively referred to herein as the "Settlement Documents”), were and are in full conformity with the expressed intent of the parties to the settlement, save and except for the single change proposed by the City of Miami for inclusion in the Supplemental Agreement (Defendants' Exhibit G, middle of Page Number 3) to Paragraph 28 of the original June 8, 1977 Agreement, the so-called "Act of God/Public Enemy” clause.

      6. There is no material variation in the proposed Settlement Documents which were forwarded to the Defendants by the City of Miami that was not contained in the Resolution and not covered in the meeting of the City Commission on July 18th, except, as noted, the proposed change to the Act of God/Public Enemy clause of the June 8, 1977 Agreement.
      7. The Court is not determining, in the event that an act of God or an act of public enemy occurs, how that problem would be decided. If such an event occurs, then that will be adjudicated under the original Agreement of June 8, 1977, which covers it very succinctly in Paragraph 28, as supplemented by the Settlement Documents, exclusive of the proposed change to Paragraph 28. The terms of that original contract in regards to Paragraph 28 were plainly not discussed, and in the event that any other of the terms of the main contract were to be changed beyond those discussed as part of the settlement, the City of Miami should have brought them up and discussed them at the time of the settlement, which it did not do. Otherwise, the Defendants are entitled to rely upon the original contract of June 8, 1977 being enforced, subject only to the modifications thereof by the terms of the settlement where were expressly agreed upon.


author: BASKIN, Judge.

text:
    Bob GLICKMAN a/k/a Bob Glick, Appellant, v. Alan POTAMKIN, Appellee.
    No. 83-2858.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Rehearing Denied Sept. 7, 1984.

      Frederick C. Sake, Miami, for appellant.
    Paige & Catlin and William M. Tuttle, II, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

In a defamation action, the affirmative defenses of truth, good motive and qualified privilege present factual questions for resolution by the jury. See Curtis Publishing Co. v. Fraser, 209 F.2d 1 (5th Cir.1954); Lewis v. Evans, 406 So.2d 489 (Fla.2d DCA 1981); Drennen v. Westinghouse Electric Corp., 328 So.2d 52 (Fla. 1st DCA 1976). Because appellant asserted these defenses, we find that the trial court erred in granting summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.


author: PER CURIAM.

text:
    SOUTHEAST REGIONAL CONSTRUCTION CORP., Appellant, v. LEADERSHIP HOUSING SYSTEMS OF FLORIDA, INC., Porlick Poliquin Samara, Inc., f/k/a Porlick Gorman Poliquin, Inc., a Florida corporation, Edward C. Tietig, P.A., Murray Slatnick, et al., Appellees.
    No. 83-1107.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Sept. 18, 1984.
    Hugh F. Quinn, Coral Gables, and Gerald Mager of Abrams, Anton, Robbins, Res-nick, Schneider & Mager, P.A., Hollywood, for appellant.
    Edward C. Tietig of Edward C. Tietig, P.A., Miami, pro se.
    No appearances for other appellees.
   PER CURIAM.

Upon review of the record we conclude that there is an adequate evidentiary basis to support a finding that the appellee, attorney Edward C. Tietig, was entitled to a lien for his fees to be imposed against the real property which appellant recovered by settlement of litigation prosecuted on its behalf by the attorney. See Scott v. Kirtley, 113 Fla. 637, 152 So. 721 (1933); and Billingham v. Thiele, 107 So.2d 238 (Fla. 2d DCA 1958), aff'd, 109 So.2d 763 (Fla.1959). However, we do not believe the evidence supports the trial court’s award of a one-third undivided legal interest in the real property. • In our view, the attorney was entitled to a fee based on the value of the property recovered, and he was further entitled to imposition of a lien against the property to secure payment of that fee.

Accordingly, we affirm in part and reverse in part, and remand this cause for further proceedings consistent herewith.

ANSTEAD, C.J., DOWNEY, J., and RODGERS, EDWARD, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Peter WOLOFSKY, Appellant, v. Harold BEHRMAN and Elaine Behrman, Appellees.
    No. 83-2092.
    District Court of Appeal of Florida, Fourth District.
    July 5, 1984.
    Rehearing Denied Sept. 13, 1984.
    Allan M. Rubin, Hollywood, for appellant.
    Jeffrey Michael Cohen of Fromberg, Fromberg, Gross, Cohen, Shore & Berke, P.A., Coral Gables, for appellees.
   DOWNEY, Judge.

In a suit for breach of a contract to sell a condominium apartment, the trial court awarded appellant-purchaser as damages only a return of the purchaser’s deposit money plus interest. Contending that he was entitled to damages for loss of his bargain, the purchaser has perfected this appeal.

In developing a condominium complex, appellant, Wolofsky, sold one of the apartments to appellees, Harold and Elaine Behrman. The Behrmans intended to move into the apartment when they were successful in selling their single family residence. When the residence did not sell the Behrmans decided to sell the condominium instead. After some futile efforts to sell the apartment, Behrman accepted Wolof-sky's offer to buy it for $73,000 and a memorandum contract was signed. Although Wolofsky was not interested in the furnishings therein, his sales agent agreed to try to sell them for the Behrmans for $4,000. Behrman delivered the keys to the apartment to the agent, who was able to obtain an offer of only $3,000, which Behr-man refused. A few weeks before the closing was due, Behrman visited the apartment and found evidence that someone had been staying there without his permission. The electricity was on; he found a T.V. and radio, bedclothes on the bed, food in the kitchen, and a few clothes in a closet. Behrman testified he was very upset; he was outraged; he felt violated. As a consequence, he advised Wolofsky that there could be no further relationship between them and he returned the deposit and refused to close. Apparently, Wolofsky had obtained a purchaser for the apartment for $100,000 and the sales agent had allowed that purchaser to stay briefly in the apartment.

Wolofsky sued the Behrmans for specific performance and damages. The former claim was abandoned and the case went to trial on the claim for damages and Behr-mans’ counterclaim for trespass. The final judgment states that the Behrmans admit they breached the contract and admit they are liable therefor. However, they denied they acted in bad faith. The trial court accepted Behrmans’ contention and found no showing of bad faith.

Before discussing the applicable legal principles, we think it advisable to point out that a) the Behrmans never lived in this apartment, nor did they ever intend to after contracting with Wolofsky, b) while Wolof-sky did not have permission to allow anyone to occupy the apartment, the contract between the parties was silent as to possession, c) Wolofsky offered to compensate the Behrmans for the use of the apartment, d) under the doctrine of equitable conversion the equitable title was in Wolofsky and any loss or destruction to the property would fall upon him, and e) the closing was only a few weeks away.

There are numerous Florida cases involving the measure of damages for breach of a contract to sell realty. Florida has long since aligned itself with the English rule announced in Flureau v. Thornhill, 2 W.Bl. 1078, 96 Eng.Rep. 635, to the effect that, except where a vendor has acted in bad faith, his liability for breach of a land sale contract is limited to the amount of the deposit paid by the purchaser, with interest and reimbursement for expenses in investigating title to the property. However, absent good faith, he is liable for full compensatory damages, including the loss of his bargain, which is the difference between the value of the property and the contract price.

In Key v. Alexander, 91 Fla. 975, 108 So. 883 (1926), the Supreme Court of Florida quoted from Sutherland on Damages as follows:

“If the person selling is in default, — if he knew or should have known that he could not comply with his undertaking; if he, being an agent, contracted in his own name, depending on his principal to fulfill his contract merely because he had power to negotiate a sale; if he has only a contract of the owner to convey, or a bond for a deed; if his contract to sell requires the signature of his wife to bar an inchoate right of dower, or the consent of a third person to render his deed effectual; if he makes his contract without title in the expectation of subsequently being able to acquire it and is unable to fulfill by reason of cause so known the want of concurrence of other persons; or if he has title and refused to convey, or disables himself from doing so by conveyance to another person — in all such cases he is beyond the reach of the principle of Flureau v. Thornhill, 2 W. Black (Eng.) 1078, and is liable to full compensatory damages including those for the loss of the bargain.”

108 So. at 885 (emphasis added).

In analyzing the good faith-bad faith dichotomy, which pertains to this rule, Professor McCormick suggests that the present refinements of the rule seem to lean heavily on the requirement that the vendor must “do his best” by reasonable efforts or expenditures to complete the conveyance. McCormick on Damages, § 179, p. 189.

The Behrmans had legal title to the property in question but refused to convey. Thus it is clear to us that the Behrmans did not “do their best” to complete the conveyance. While they may be justified in not acceding to someone’s living in the apartment until closing, that is an inadequate reason for refusing to close. The trial court was correct in finding that refusing to close for the reason given constituted a breach of the contract; he erred in finding that it did not demonstrate a failure to exercise the good faith required to preclude full compensatory damages. The inability of a vendor to close for reasons beyond his control, as in Bosso v. Neuner, 426 So.2d 1209 (Fla. 4th DCA 1983), Vogel v. Vandiver, 373 So.2d 366 (Fla. 2d DCA 1979), and Horton v. O’Rourke, 321 So.2d 612 (Fla.2d DCA 1975), does not necessarily mean the vendee should recover the loss of his bargain. In each of the cited cases the vendor wanted to close but was precluded by factors beyond his control. Here, there were no factors beyond the Behrmans’ control except their excessive pique over the unauthorized brief use of their apartment without their consent. Thus, they not only did not do their best, they did nothing to effectuate the completion of the contract. This constitutes lack of good faith. Thus, under the applicable rules, they were liable for full compensatory damages.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED, with directions.

HURLEY and WALDEN, JJ., concur.