author: DANIEL S. PEARSON, Judge.

text:
    OCEANUS MUTUAL UNDERWRITING ASSOCIATION, (BERMUDA) LTD., Appellant, v. Noemy Fernandez FUENTES, as personal representative of the Estate of Alberto Fernandez Fuentes, Noemy Fernandez Fuentes, individually, and Meryan Esther Fernandez Fuentes, Appellees.
    No. 82-2483.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Rehearing Denied Oct. 30, 1984.
    Holland & Knight and Michael L. Rosen and Julian Clarkson, Tallahassee, for appellant.
    Horton, Perse & Ginsberg, Arnold R. Ginsberg, Edward A. Perse and Charles R. Lipcon, Miami, for appellees.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   DANIEL S. PEARSON, Judge.

In 1973, Alberto Fuentes died from an illness allegedly contracted in 1972 while he was employed as a seaman aboard the cargo ship “Carlos Miguel.” His wife, Noemy Fuentes, on behalf of herself and a child of the marriage, brought a wrongful death action in the United States District Court for the Southern District of Florida against InterAmerican Lines, Inc. (IAL), the registered owner of the ship, and Oceanus Mutual Underwriters Association, (Bermuda) Ltd. (Oceanus), alleged to be IAL’s insurer. Asserting, inter alia, that it was not IAL’s insurer but instead the insurer of Florida Panama Lines, Inc. (FPL), under whose policy the “Carlos Miguel” was entered, Oceanus moved to dismiss the action against it. The suit against Oceanus was dismissed without prejudice, but Mrs. Fuentes chose not to amend her complaint. The federal court action ultimated in a default judgment in the amount of $401,000 being entered against IAL.

Judgment against IAL in hand, Mrs. Fuentes brought the present state court action against Oceanus, again alleging that Oceanus was IAL’s insurer. The trial court denied Oceanus’ motions for summary judgment, directed verdict, and judgment notwithstanding the intervening adverse jury verdict. Oceanus appeals, and we reverse with directions to enter judgment for Oceanus.

The evidence reveals, without dispute, that in 1966, IAL, the operator of a cargo service between Panamanian and United States ports, sold the “Carlos Miguel” to FPL, a charterer of ships. Notwithstanding the sale, the ship’s registry remained in the name of IAL.

After its purchase of the “Carlos Miguel,” FPL authorized its general agent, In-terAmerican Shipping Corporation (IAS), to obtain fleet insurance for all ships owned by FPL. Soon thereafter, Oceanus accepted the risk for a Protection and Indemnity (P&I) Policy and issued a Certificate of Entry on the “Carlos Miguel” naming FPL as the sole entering member. The Certificate of Entry provided in pertinent part that FPL, as the assured, had entered the “Carlos Miguel” subject to the Articles and Rules of the Oceanus Mutual Underwriting Association Ltd.; that the insurance was to cover Protection and Indemnity Risks on a mutual call basis in accordance with the Rules of the Association; and that the limit of liability for any one accident or occurrence was to be five million dollars.

Unlike more familiar types of insurance policies, the documents which formed the subject policy, as the trial court recognized, were the cover slip (issued at the inception of the policy and upon annual renewal) and the Rules of the Association. The cover slip named and briefly described the vessels for which FPL was to be indemnified and protected, the period of insurance, the amount of the deductible and limit of liability, and incorporated the Rules of the Association as a condition of the policy.

At the outset, it is clear that the Rules of the Association, an integral part of the policy, protect against risk incurred only by members of the Association in respect to an entered ship. While one must have an insurable interest to be afforded this protection, having an insurable interest in the entered vessel does not make one a member, that is, an insured. It is also clear that only FPL was a member of the Association, and thus the sole insured, under the policy in question. Therefore, although there was ample proof adduced below to show that IAL was the owner of the vessel “Carlos Miguel,” such proof did not and could not vary the clear and unambiguous provision of the policy that only members are insured or alter the fact that only FPL was a member. The well-settled rule “that a court shall not rewrite a contract of insurance extending the coverage afforded beyond that plainly set forth in the insurance contract,” United States Fire Insurance Co. v. Morejon, 338 So.2d 223, 225 (Fla. 3d DCA 1976), cert. denied sub nom. Rebozo v. Morejon, 345 So.2d 426 (Fla.1977); see also Travelers Insurance Co. v. Bartoszewicz, 404 So.2d 1053 (Fla.1981); Saha v. Aetna Casualty & Surety Co., 427 So.2d 316 (Fla. 5th DCA 1983); Velasquez v. American Manufacturers Mutual Insurance Co., 387 So.2d 427 (Fla. 3d DCA 1980); Parliament Insurance Co. v. Bryant, 380 So.2d 1088 (Fla. 3d DCA), cert. denied, 388 So.2d 1110 (Fla.1980); Valdes v. Prudence Mutual Casualty Co., 207 So.2d 312 (Fla. 3d DCA 1968), is controlling here.

The appellees’ suggestion that in fact, if not in name, it was the “Carlos Miguel” or persons or entities having an insurable interest in the vessel which were the insureds under this protection and indemnity contract is without merit. The essence of this contract of marine insurance has been said to be:

“that it is a contract of INDEMNITY; its sole and exclusive object is to procure for the assured indemnity, in the strictest sense of that word, for any losses he may sustain through the agency of those perils against the effect of which the underwriter by the terms of his policy stands pledged to protect him.”
1 M. Mustill and J. Gilman, Arnauld, Law of Marine Insurance & Average § 3 at 5 (16th ed. 1981) (footnote omitted) (hereinafter Arnauld).

See ABA Admiralty and Maritime Law Committee, Marine P&I Policy Annotations (ABA 1982). A P&I policy indemnifies the named insured only unless the policy is issued “to whom it may concern,” thereby creating an obligation in the insurer to indemnify anyone with an insurable interest in the entered vessel or listed property. Id. at 2. See also Arnauld, Ch. 8 — “Persons Who May Claim On The Policy.” Evidence that IAL was the real owner of the “Carlos Miguel” proved at most that IAL had an insurable interest in the vessel, not that IAL was an insured member of Oceanus or that its liabilities were covered under the policy. See S. Huebner, K. Black, Jr. and R. Cline, Property and Liability Insurance 44-45 (3d ed. 1982).

Nor did evidence tending to show that IAS was an agent for IAL aid Fuentes’ efforts to prove that IAL was an insured of Oceanus. While it is true that an agent can act for an undisclosed principal who, in turn, can sue to enforce the benefits of the contract, Western Union Telegraph Co. v. Redding, 100 Fla. 495, 129 So. 743 (1930); see 2 Fla.Jur.2d, Agency & Employment, § 88, 105 (1977), and that “[p]arol evidence is admissible to identify a principal as the real party in a transaction,” Pittman v. Roberts, 122 So.2d 333, 334 (Fla. 2d DCA 1960), whether or not IAS was IAL’s agent is irrelevant to the issue in this cause, that is, whether IAL was an insured under the Oceanus policy in 1972. As has been previously noted, see n. 3, supra, IAS was listed as a member under the policy when the policy was first procured in 1966, but from the time when the policy was first renewed on February 2, 1967 — and therefore, during the time pertinent to this case — FPL was the sole listed member.

Accordingly, the judgment in favor of Fuentes is reversed with directions to enter judgment in favor of Oceanus. Our disposition of this case makes it unnecessary to address Oceanus’ remaining points on appeal.

Reversed and remanded with directions.

      . Oceanus suggests that Fuentes did not amend her complaint to join FPL as a defendant because after an attorney appeared on IAL’s behalf solely to accept service of process and not to defend the suit, Fuentes knew that no one would defend IAL and that, accordingly, she would obtain a default judgment against IAL.

      . This was apparently done for the sake of convenience, since a change in the registry of the ship can tie up the use of the ship for months.

      . The cover slip issued on November 11, 1966, when the “Carlos Miguel” was entered, showed FPL "and/or” IAS as the insured. When the policy was renewed on February 2, 1967, the cover slip then issued, and all cover slips thereafter, including the cover slip in effect at the time Fuentes sustained his illness in 1972, named FPL only.

      . "Owner” is defined in the Rules as “owner, owners in partnership, owners holding separate shares in severalty, managing owners, part owner, mortgagee, trustee or charterer, operator or manager of a ship” — in effect, one with an insurable interest. This definition of owner closely approximates the list of persons having an insurable interest found in The England Marine Insurance Act, 1906, 6 Edw. 7, Ch. 41, §§ 5(1) and (2). The purpose of restricting members to those having an insurable interest is to prevent the contract from being void as a mere wager. See 1 M. Mustill and J. Gilman, Arnauld, Law of Marine Insurance & Average § 3 (16th ed. 1981). It is clear that as charterer, FPL was an "owner" under the Oceanus policy. FPL’s lack of legal title is arguably significant as it relates to the type of coverage available to FPL, since Oceanus insured FPL as title owner, but is not significant in the sense that membership was thereby extended to IAL.

      . While it is true that under Rule 10 "[t]he Association shall be at liberty to accept entries upon the condition that the Owner shall not become a Member," it does not follow that IAL was covered as a non-member owner. It is undisputed that IAL never applied for this special entry status or followed the necessary procedures to obtain this status.

      . Although the words “agent for IAL” were printed on IAS’s stationery, there is no evidence to show that IAS otherwise held itself out as IAL’s agent when in 1966 it procured the insurance from Oceanus.

      . Oceanus correctly suggests that given the facts that FPL was the sole insured under the policy and that Fuentes’ judgment was against IAL, the only potentially viable theories for recovery under the policy were that FPL was either the agent for or alter ego of IAL. Neither of these theories was advanced by Fuentes below nor was there any evidence adduced at trial to support either theory.


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    METROPOLITAN DADE COUNTY, Appellant, v. Ramon V. COLINA, as Personal Representative of the Estate of Martha Colina, deceased, Appellee.
    No. 83-406.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    Rehearing Denied Oct. 31, 1984.
    Robert A. Ginsburg, County Atty., and Craig H. Coller and Addison J. Meyers, Asst. County Attys., for appellant.

      Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Spence, Payne, Masington & Grossman, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Dade County appeals a final judgment rendered on a jury verdict in a wrongful death action. The county argues that the trial court erred in refusing to direct a verdict in its favor because any negligence on the county’s part was not the proximate cause of Martha Colina’s death. We agree and reverse.

On June 20, 1980 at about 10:00 p.m., Ramon Colina was driving his van south-boiind on S.W. 16th Avenue in Miami. Ramon’s wife, Martha, was seated in the right front passenger seat. Stormy weather had caused power outages throughout the county and, as a result, a number of traffic lights were reported out, including the light at S.W. 16th Avenue and S.W. 6th Street. Dade County did not, on June 20th, either place traffic control signs at the intersection or send a repair crew out.

When he neared S.W. 6th Street, according to his own testimony, Colina appreciated the hazardous condition and stopped his vehicle. He looked to his left and saw two cars traveling westbound on S.W. 6th Street, approaching 16th Avenue. He moved the van forward a few feet and stopped again. He testified that he realized the vehicles might not stop, but decided to try to cross the intersection ahead of them. One of the cars traveling on 6th Street, driven by Miguel Masferrer, did not stop. The Masferrer and Colina vehicles collided. Mrs. Colina was thrown from the car sustaining injuries which resulted in her death.

The jury found negligence on the part of both co-defendants, apportioning the negligence seventy-five percent to Masferrer and twenty-five per cent to the county. The jury also found no contributory negligence on the part of Ramon Colina. All of the county’s directed verdict motions were denied by the trial court.

The issue for decision is whether reasonable people could differ on the question of whether the county’s omission to act was a proximate cause of Mrs. Colina’s death. We find that they could not and, as a matter of law, the county’s failure to act was not a proximate cause of Mrs. Colina’s death.

An exhaustive review of proximate cause law in Florida is unnecessary since a thorough and insightful analysis has recently been done by Judge Hubbart of this court. See Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983).

Application of the traditional “but for” test results in a conclusion that the county’s omission was a cause in fact of Mrs. Colina’s death. The case, however, turns on whether Masferrer’s and Colina’s actions constituted superseding, intervening causes relieving the county of liability. We hold that their actions were such intervening causes.

As previously noted, section 316.1235, Florida Statutes (1979) requires drivers to treat intersections with malfunctioning traffic lights as if controlled by stop signs. Section 316.123(2), Florida Statutes (1979) describes the manner of stopping and requires that a driver yield the right-of-way to any vehicle “which is approaching so closely ... as to constitute an immediate hazard during the time when the driver is moving across or within the intersection.” While Mr. Colina complied with the requirement calling for a stop, he failed to observe the right-of-way requirement. It is true that Mr. Masferrer was also required by law to stop, but that did not relieve Mr. Colina of his duty to proceed with due care to avoid a collision. See Dade County Metropolitan Transit Authority v. Even, 262 So.2d 685 (Fla. 3d DCA 1972); Gordon's Tractor Service, Inc. v. Bilello, 336 So.2d 1208 (Fla. 2d DCA 1976); MacNeill v. Neal, 253 So.2d 263 (Fla. 2d DCA 1971), cert. denied, 259 So.2d 719 (Fla.1972). Although he realized the intersection presented a danger and that Masferrer might not stop, Mr. Colina proceeded across the intersection hoping to beat the oncoming vehicles. He would be expected, as a matter of law, to cross the intersection only when it was reasonably safe to do so. The facts of this case are controlled by our decision in Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980). See also Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977), cert. denied, 354 So.2d 986 (Fla.1978); Fonda v. City of Mesa, 10 Ariz. App. 111, 456 P.2d 957 (1969); Carr v. Shirland Township, 66 Ill.App.3d 1033, 23 Ill.Dec. 655, 384 N.E.2d 449 (1978); Lytle v. City of Newark, 166 N.J.Super. 191, 399 A.2d 333 (1979).

Any negligence on Dade County’s part simply provided the occasion for the actions of Masferrer and Colina, which together were the proximate cause of Mrs. Colina’s death. Banat v. Armando, 430 So.2d 503, 505 (Fla. 3d DCA 1983), review denied, 446 So.2d 99 (Fla.1984). Both Masferrer and Colina could see that the traffic light was not functioning and, by complying with statutory requirements, could have avoided the collision. To hold the county liable on these facts would make it an insurer of motorists acting in disregard of their own safety and that of others. Such a responsibility would be an unwarranted social burden. Finding that reasonable persons could not differ on the proximate cause issue, we reverse the trial court’s order denying the county’s motion for directed verdict.

Reversed.

      . A city of Miami police officer testified that he had reported the failure of the traffic light at S.W. 16th Avenue and S.W. 6th Street on June 20th at approximately 5:20 p.m. However, Dade County has no record of the report. Additionally, according to standard procedure the county would not respond to such a report because in the vast majority of cases the light begins working again when power is restored.

      . His stop complied, whether knowingly or not, with section 316.1235, Florida Statutes (1979).
      316.1235 Vehicle approaching intersection in which traffic lights are inoperative. — The driver of a vehicle approaching an intersection in which the traffic lights are inoperative shall stop in the manner indicated in s. 316.-123 (2) for approaching a stop intersection. In the event that only some of the traffic lights within an intersection are inoperative, the driver of a vehicle approaching an inoperative light shall stop in the above-prescribed manner.
      316.123 Vehicle entering stop or yield intersection.—
      (1) The right-of-way at an intersection may be indicated by stop signs or yield signs as authorized in s. 316.006.
      (2)(a) Except when directed to proceed by a police officer or traffic control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when the driver is moving across or within the intersection.


author: FERGUSON, Judge.

text:
    Scott LAWSON and Connie Lawson as mother of Scott Lawson, a minor, Appellants, v. ALLSTATE INSURANCE COMPANY, a foreign insurer, Clarence Neville, Jim Hazelrig, Northcut & Sons Nursery & Landscape Co., and Florida Farm Bureau Casualty Insurance Co., a Florida insurer, Appellees.
    No. 83-855.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 1984.
    As Corrected on Rehearing Oct. 30, 1984.

      Horton, Perse & Ginsberg and Edward Perse, Brumer, Cohen, Logan & Kandell, Miami, for appellants.
    Weinstein & Bavly, Richard M. Gale, Miami, for appellees.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

At issue is whether a vehicle was in “dead storage” at the time it caused injury to a minor plaintiff so that coverage was available under a homeowner’s policy of insurance.

The facts show that in July 1979 Jim Hazelrig towed a truck to his truck repair business for the purpose of replacing an engine. He could not find a replacement engine so he removed the one from the truck and sent it to another company to be rebuilt. The truck sat outside his building in that condition for almost seven months. On or about February 6, 1980, the rebuilt engine was returned. Two days later, Ha-zelrig completed reinstalling the engine and attempted to start the truck. His friend, Clarence Neville, who volunteered to help, poured gasoline into the carburetor from a cup while Hazelrig cranked the engine. A spark ignited the gasoline and Neville threw the cup and gasoline over his shoulder. Neville’s minor grandson, Scott Lawson, who was standing nearby, was severely burned. Lawson brought suit against, inter alia, Allstate Insurance Company, Neville’s insurer under a homeowner’s insurance policy. Allstate’s denial of coverage was based on the following exclusionary provision:

We do not cover bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any motorized land vehicle or trailer. However, this exclusion does not apply to:
(a) a motorized land vehicle in dead storage or used exclusively on the residence premises....

At a hearing on a Request for Declaratory Judgment, the trial court concluded that because the truck was not in dead storage at the time of the incident, the exclusion applied, resulting in no coverage.

We agree that generally where a vehicle is left with a garageman for the purpose of making repairs it is not in storage. See Owens v. Pyeatt, 248 Cal.App.2d 840, 57 Cal.Rptr. 100, 105 (1967) (no charge for storage is implied during the period of time an automobile left with a garageman is undergoing repairs); Topeka Railway Equipment, Inc. v. Foremost Insurance Co., 5 Kan.App.2d 183, 614 P.2d 461 (1980) (where the primary purpose of a bailment contract was to carry out modification and repair of railroad cars, possession or physical control of that property by insured and its incidental storage or safekeeping while insured was awaiting opportunity to carry out purpose of contract did not amount to “storage or safekeeping” within meaning of exclusionary portion of insurance contract). Commercial storage contemplates a safekeeping, generally for a reasonable value, with an agreement that the property be returned in the same condition. See Bankers Commercial Corp. v. Mittleman, 21 Misc.2d 1096, 198 N.Y.S.2d 184, 186 (Sup.Ct.1960). It is unnecessary to decide whether there was a “live” or “dead” storage because we find no storage in the first instance.

Affirmed.


author: JOANOS, Judge.

text:
    STATE OF DELAWARE, ex rel, Richard S. GEBELEIN, the Attorney General, and the State of Florida, ex rel, Jim Smith, Attorney General, Appellants, v. J. C. BELIN, T. S. Coldewey, W. L. Thornton, William B. Mills, Alfred duPont Dent, Jacksonville National Bank, and the Nemours Foundation, a non-profit Florida corporation, Appellees.
    Nos. AS-119, AS-255.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.
    Rehearing Denied Nov. 1, 1984.

      John F. Corrigan of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville; of counsel: Charles M. Oberly, III, Atty. Gen., Fred S. Silverman, State Sol., Regina M. Mullen, Deputy Atty. Gen., State of Del, Dept, of Justice, Wilmington, Del., for appellant State of Del.
    Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel, Tallahassee, T. Edwards Austin, State Atty., Sp. Asst. Atty. Gen., Jacksonville, Stephen R. White, Asst. State Atty., Sp. Asst. Atty. Gen., Jacksonville, for appellant State of Fla.
    Fred H. Kent, Jr. of Kent, Watts, Dur-den, Kent, Nichols & Mickler, Jacksonville, for appellees.
   JOANOS, Judge.

The States of Delaware (Delaware) and Florida (Florida) appeal from a final judgment of the circuit court finding that the Trustees of the Alfred I. duPont testamentary trust (Trust) had not violated the provisions of the prudent person or prudent trustee rule and had not breached the Stipulation and Settlement Agreement between Delaware, Florida, the Trustees and the Nemours Foundation (Nemours), finding no detriment to the trust beneficiaries or cause for removal of the Trustees by their inherent or potential conflict in serving as officers and directors of corporations whose stock is owned by the Trust, and ordering additional payment of income to the income beneficiary based upon the court’s determination of a greater valuation of trust assets than had been made previously. Also appealed is a final order clarifying the final judgment, ordering that payment of not less than 3 percent of $805,290,384.00, less any amounts already paid by the Trust, be made to Nemours for the year 1980. The appeals were consolidated for review. We affirm.

Alfred I. duPont’s will provided for the creation of a perpetual, charitable trust which, after the death of his wife Jessie Ball duPont, would pay all of its net income to Nemours, “a charitable institution for the care and treatment of crippled children, but not of incurables, or the care of old men and old women, and particularly old couples, first consideration, in each instance, being given to beneficiaries who are residents of Delaware,_” Mr. duPont’s express testamentary reason for establishing Nemours was his “firm conviction throughout life that it is the duty of everyone to do what is within his power to alleviate human suffering .... ” His will specifically provided that the Trustees should “carry on any business enterprise in which I am interested in my lifetime, ..., or to enter into an incorporation of the same and accept corporate stock in lieu of any individual interest, at such valuation or valuations, or to sell out my paid interest at such price or prices, as in the judgment of my said Executors or Trustees shall seem fair and adequate.” Additionally, the will directed the Trustees “[t]o do every and all things that they may deem best for the conservation, protection and betterment of my estate, as fully and completely as I might do, personally, were I alive and able to act for myself.” The initial Trustees were Mrs. duPont, Edward Ball (Mrs. du-Pont’s brother), Reginald Huidekoper (du-Pont’s son-in-law) and The Florida National Bank of Jacksonville, as corporate trustee. The Trust initially was comprised of two companies, Gulf Coast Properties, Inc. and Panama Beach Development Co., consisting of: timberlands; fifty (50) percent interest in St. Joe Paper Co. (St. Joe); St. Joe Telephone and Telegraph Co.; Apalachicola Northern Railroad; Port St. Joe Dock and Terminal Railway Co.; and a substantial block of the common stock of E. I. duPont Co., and other small companies which in turn owned mortgages, notes and other securities. Upon receipt of these assets the Trustees purchased the outstanding interest in St. Joe, merged Gulf Coast Properties, Inc. and Panama Beach Development Co. into St. Joe and began to purchase Florida East Coast Railway bonds while the railway was in receivership, ultimately obtaining a 57 percent interest when the railway came out of receivership. Following the inception of the Trust in 1939, some Trustees died, were replaced, and additional trustees were elected, ultimately leading to Coldewey, Mills, Thornton, Belin, Alfred duPont Dent (duPont’s grandson), Ball and Mrs. duPont as Trustees. Mrs. duPont died in 1970. Ball died in 1981, with no successor Trustee appointed. Jacksonville National Bank, successor to Florida National Bank, resigned as corporate trustee in 1982. The present Trustees, Belin, Thornton, Coldewey and Dent, also serve as directors and officers of St. Joe or its subsidiaries. St. Joe, the primary asset of the Trust and a holding company for the consolidated assets, provides the Trustees a vehicle to regulate the Trust income, all of which by the terms of the Trust must be distributed to Nemours.

Delaware’s initial complaint filed in 1977, seeking injunctive relief, removal of some of the Trustees and other relief, was dismissed without prejudice for failure to state a cause of action. The trial court dismissed Delaware’s amended complaint with prejudice, holding that Delaware did not have standing to bring the suit. The dismissal was reversed in State of Delaware v. Florida First National Bank of Jacksonville, 381 So.2d 1075 (Fla. 1st DCA 1973). In 1980, the parties entered into a “Stipulation and Settlement Agreement” in which the valuation of the Trust assets was settled for 1978 and 1979. For years after 1979, it was agreed that the net income of the Trust or 3 percent of the fair market value of the Trust assets, whichever was greater, would be paid to Nemours. The Trustees would be bound to the prudent trustee’s rule to try to raise the Trust income above 3 percent.

For 1980, the Trustees relied upon a $5,500.00 per share fair market value of the St. Joe stock made by an expert appraiser, First Research Corp. This per-share figure was based upon an appraisal requested by St. Joe to calculate the intangible tax due the State of Florida for 1980. First Research valued the St. Joe stock at $5,500.00 per share after applying a 30 percent discount due to non-marketability to the $7,700.00 per share value which was based upon an appraisal of St. Joe’s assets.

Following execution of the Stipulation and Settlement Agreement and Ball’s death, Delaware amended its complaint twice, with the third amended complaint forming the basis for this action. Delaware charged that the Trustees had not acted in the beneficiaries’ best interests, nor had they carried out duPont’s intent. Count I charged a breach of the Stipulation and Settlement Agreement by the Trustees’ failure to make a fair market valuation of the St. Joe stock when they accepted the First Research appraisal, by the Trustees’ retention of underproductive assets, St. Joe stock, and by the Trustees’ failure to raise Trust income above 3 percent of the total value of the Trust corpus. Count II sought reimbursement of all funds due by the Trustees’ failure to act' as prudent trustees in retaining underproduc-tive assets and sought removal of Belin, Coldewey, Thornton and Jacksonville National Bank as Trustees. Count III charged a conflict of interests in the Trustees’ positions as corporate directors and officers and their fiduciary duties as Trustees, alleging specific incidents where corporate decisions were not in the beneficiaries’ best interests.

The Trustees answered the third amended complaint, denying any failure to ascertain the fair market value of the St. Joe stock by using the First Research appraisal and alleging that they had paid in excess of three percent of the fair market value of the Trust assets. Previously, the Trustees had counterclaimed, asking the trial court to approve the 1980 appraisal of the Trust assets, to determine there was no duty to maximize trust income to appease Delaware and Florida, and to determine if the continued filing of statements of accounts needed to be made.

The trial that ensued was an extended one with conflicting expert testimonies offered by both sides showing the “proper” valuation of the Trust assets and reflecting the actions which prudent trustees would take. The interlocking relationships between the Trustees and the Trust assets were also shown.

In addressing Count I, the trial court found the First Research appraisal to be valid, proper and believable, with the exception of the application of the 30 percent discount due to non-marketability which was found to have no basis in the evidence. The trial court stated that equally unfounded was the attachment of a premium to the St. Joe stock due to the Trust’s controlling interest. No breach of the Stipulation and Settlement Agreement was found since the Trustees had used an expert appraiser and followed the given valuation in paying the 3 percent minimum required by Section 738.12, Florida Statutes (1979). The trial court found that there was no evidence to show that the Trustees had failed to exert good-faith efforts to raise the productivity of the Trust assets. In fact, testimony by the Trustees reflected proposed programs specifically to raise income, one such proposal being a joint-venture between the Trust and Florida East Coast Railroad which was approved by the trial court. In response to charges that the Trustees had failed to provide charitable benefits to the elderly residents of Delaware, the trial court pointed to several projects, including the Nemours Health Clinic, a pharmaceutical assistance program and proposed programs to provide dental care and eyeglasses, to show the Trustees’ adherence to the agreement.

The trial court’s resolution of Count II focused upon the conflicting philosophies of the opposing parties. Admittedly oversimplifying the issue, the trial court characterized Delaware and Florida as advocating high yields for present beneficiaries, while the Trustees believe duPont clearly intended investment in assets which would provide for beneficiaries in perpetuity. The trial court considered the unique nature of a perpetual trust, requiring that all income be distributed, with no reinvestment, and the testimony of Dr. Peter Williamson, a trustee of several trusts, consultant on matters of investment and trust assets and expert on the effects of inflation on trusts, to conclude that the Trustees’ retention of St. Joe displayed asset management to preserve and conserve the Trust assets for the benefit of the beneficiaries, did not breach the Stipulation and Settlement Agreement, and is proper and lawful.

The trial court determined that the alleged conflicts of interests in Count III were no more than potential conflicts created by the Trustees’ dual capacity. The trial court found no evidence to show that the Trustees used their status to secure corporate positions, rather the present Trustees were officers and directors long before becoming Trustees. Considering the positions held by the initial trustees and duPont’s intention that individuals familiar with his business interests should or could serve as Trustees, the trial court concluded that identity between trustees and corporate directors could lawfully exist, with no basis for discharge unless there was an abuse of discretion. The trial court found that none of the specific acts alleged by Delaware was a result of divided loyalties or shown to be improper or harmful to the beneficiaries.

Delaware raises three issues on appeal: I. Whether the trial court erred in holding the Trustees’ conflicts of interest permissa-ble; II. Whether the trial court erred in accepting the First Research appraisal as the basis for the fair market value of the Trust’s interest in St. Joe; and III. Whether the trial court erred in allowing the Trust to retain its interest in St. Joe. Flori-da raises a fourth issue, IV: Whether the trial court erred in finding no breach of the Stipulation and Settlement Agreement.

I. We agree with the trial court’s determination that potential conflict in and of itself is not necessarily improper. A trustee has wide discretion in the exercise of his power and a court will not interfere unless he abuses his discretion. Scott on Trusts, § 193.2 (1967 3rd ed.). Florida courts have followed the well settled rule that where a trustee places himself in a position antagonistic to the trust, he should retire from the trusteeship. Smith v. Fleetwood Building Corp., 120 Fla. 481, 163 So. 293 (1935). The trustees here, however, were officers or employees of St. Joe and its subsidiaries long before they were appointed Trustees. There is no evidence that the Trustees took advantage of their positions and control of St, Joe to install themselves as officers or to benefit themselves personally. We also agree with the trial court’s determination that du-Pont’s will evidences an intent that there could or should be identity between Trustees and corporate directors. As shown by the appointment of the initial Trustees, Mr. duPont intended for those involved in his various businesses to be Trustees. Interestingly, as pointed out by the trial court, Delaware and Florida seek removal of only Belin, Coldewey and Thornton, while Alfred duPont Dent, who has the same potential conflict, but who testified favorably for Delaware and Florida, is deemed satisfactory to remain a Trustee. We have found no law, nor have Delaware and Flori-da cited authority, which prohibits an officer of a corporation whose controlling stock is held by a trust from being a trustee of that trust. In re Flagg’s Estate, 365 Pa. 82, 73 A.2d 411 (1950), provides guidance in looking at the administration of the trust, not potential conflicts, to determine if the trustees have acted in the best interests of the trust beneficiaries.

II. While there was conflicting expert opinion as to the value of the St. Joe stock held by the Trust, we see no error in the circuit court’s determination that the Trustees did not act other than as prudent persons and prudent trustees when they accepted the First Research appraisal. Admittedly, the fact that First Research was initially hired by St. Joe to value the stock for intangible tax purposes would, at first glance, appear to make the valuation meaningful only for that purpose. The chairman of First Research, however, who was not told prior to the valuation that it would be used to value the Trust, testified that there would be no difference in the valuation for that purpose. Sitting as the trier of fact, the circuit court has the right to accept or reject testimony. Grapes v. Mitchell, 159 So.2d 465 (Fla.1963). The circuit court, here, accepted the First Research appraisal as valid, proper and believable. We will not disturb this determination on appeal. That the trial court disallowed the 30 percent discount due to non-marketability of the St. Joe stock does not require rejection of the ebasie valuation established by the appraisal. While the trial court rejected the $5,500.00 per share valuation, the appraisal was not found to be lacking. The per share value before applying the 30 percent discount was based upon an evaluation of all St. Joe assets and was properly accepted by the trial court as representing fair market value. The trial court correctly ruled out the 30 percent discount since this was an obviously arbitrary mathematical adjustment having no basis in the evidence.

III. Considering the broad powers given to the Trustees and Mr. duPont’s intent that his wealth be used to alleviate human suffering and his apparent underlying expectation that his wealth would be sufficient or preserved to effectuate his intent in perpetuity, together with the expert testimony of Dr. Williamson, there is ample basis for the trial court’s determination that the Trustees did not abuse their discretion in retaining St. Joe. The record further supports the trial court’s favorable impression of and reliance upon Dr. Williamson’s thorough knowledge of asset management of charitable trusts. His testimony supports a determination that St. Joe can be regarded as the proper vehicle to carry out Mr. duPont’s intent and the terms of the Trust.

IV. The major issue regarding the Trustees’ adherence to the Stipulation and Settlement Agreement is the provision that the Trustees would work to increase the productivity of trust to higher than the statutory minimum of 3 percent. Since we have concluded that the trial court properly determined that there was no abuse of discretion in accepting the First Research appraisal and in retaining St. Joe, there has been no breach of the agreement in those respects. The record contains competent substantial evidence which supports the trial court’s conclusion that the Trustees were working to raise the productivity of the Trust.

Accordingly, the trial court’s final judgment and the order appealed are AFFIRMED.

SMITH and BOOTH, JJ., concur.


text:
    Jim SMITH, as Attorney General of the State of Florida, and Charles M. Oberly, III, as Attorney General of Delaware, Appellants, v. J.C. BELIN, T.S. Coldewey, W.L. Thornton, William B. Mills, Alfred duPont Dent, and the Jacksonville National Bank, as Trustee of the Alfred I. duPont Testamentary Trust, and FEC Terminal Warehouses, Inc., a Florida corporation, Appellees.
    Nos. AO-160, AO-171.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.

      John F. Corrigan of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellant Delaware.
    Fred H. Kent, John R. Crawford of Kent, Watts, Durden, Kent, Nichols & Mickler, Jacksonville, for appellees J.C. Belin, T.S. Coldewey, L.W. Thornton, William B. Mills, Alfred duPont Dent, and the Jacksonville Nat. Bank, as Trustees of the Alfred I. duPont Testamentary Trust.
    Charles B. Evans, St. Augustine, for ap-pellee FEC Terminal Warehouses, Inc.
   JOANOS, Judge.

Appellants, Attorneys General of Florida and Delaware, separately appeal from a final judgment in which the trial court authorized a joint venture between the Alfred I. duPont Trust (Trust) and the Florida East Coast Railway (FEC). The appeals are consolidated for review. We affirm.

Pursuant to Section 737,403, Florida Statutes the trial court authorized the proposed joint venture. The trial court presumed that a conflict existed, but did not determine if the trustees had conflicts of interests which should or could preclude them from acting.

Appellants’ arguments focus upon the trustees’ conflicts of interest. There is no argument that Section 737.403 is invalid or that it would not allow the trial court to proceed under the assumption that a conflict of interests exist. Here, the trustees properly petitioned the court for authorization of .the joint venture and the trial court authorized it without regard to the existence of conflicts of interests which would disqualify the trustees to act. No abuse of discretion has been shown.

Accordingly, we affirm.

SMITH and BOOTH, JJ., concur.

      . In Delaware v. Belin, 456 So.2d 1237 (Fla. 1st DCA 1984), this Court affirmed the trial court's determination that there were no conflicts of interests which would disqualify the trustees of the Alfred I. duPont Trust.

      . Prior to disposition of these appeals, appellees moved to dismiss the action based upon the sole issue being moot since FEC and the Trust had abandoned the joint venture. Our review of the merits precludes dismissal. Appellees’ motion to dismiss is denied.


author: BARFIELD Judge.

text:
    Sally MALONE and Doris L. Schott, Appellants, v. Cecil G. COSTIN, Jr. and Thomas S. Gibson, Appellees.
    No. AV-139.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.
    Rehearing Denied Oct. 22, 1984.
    Sally Malone and Doris L. Schott, pro se.
    Cecil G. Costin, Jr., Port St. Joe, for appellees.
   BARFIELD Judge.

We treat appellants’ attempt to appeal from a notice of voluntary dismissal filed in the trial court and from subsequent related orders as a petition for writ of certiorari. Upon motion by the appellants, the trial judge reviewed the notice and determined it to be a complete dismissal of all causes then pending under a two count amended complaint. We find no abuse of discretion by the trial judge in his review of the notice and no departure from the essential requirements of law. Accordingly, the petition is denied.

JOANOS and WIGGINTON, JJ., concur.


author: PER CURIAM. JOANOS, Judge,

text:
    Natal EL-RA-SUL, Appellant, v. STATE of Florida, Appellee.
    No. AY-199.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1984.
    Rehearing Denied Nov. 1, 1984.
    Michael E. Allen, Public Defender and Michael Minerva, Asst. Public Defender, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a denial of motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As grounds for relief appellant alleged that the trial court erred in finding that the decision of this court in Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983), was not binding because the issue in Phillips had been certified to the Florida Supreme Court as a question of great public importance. We reverse, but as in Phillips we certify the instant case as presenting a question of great public importance.

In Phillips, and in the instant case, the respective defendants were charged with felony petit theft. The caption of the charging documents recited that appellants were charged under Statute § 812.-014(2)(c), Information for Felony Petit Theft. In each instance there was no recitation in the body of the charging document that the respective defendant had ever been convicted of two prior felony thefts.

The question in Phillips and the underlying question here is whether the information was sufficient to charge a felony through incorporating by reference the language of the cited section. The court in Phillips answered this question in the negative, saying:

To omit the historical fact of prior convictions from the charging language of an information such as this is to charge only a petit theft, and is said to be a jurisdictional defect, not merely an imperfection in a felony charge that must be challenged by proper motion or else is waived, (citations omitted). Id., 888.

The Phillips decision has been followed by subsequent panels of this court.

The trial court, in denying appellant’s motion, found as a matter of law that Phillips was not binding since the issue in Phillips had been certified to the Florida Supreme Court for resolution. The trial judge noted that he found the rationale of the dissenting judge in Phillips to be persuasive on the jurisdictional issue.

We reverse the trial court, finding error in the failure to follow Phillips. In Re Rule 9.331, etc., 416 So.2d 1127, 1128 (Fla.1982); State ex rel. Price v. McCord, 380 So.2d 1037, 1039 (Fla.1980); Schaeper v. J.M. Fields, Inc., 362 So.2d 350 (Fla. 1st DCA 1978). However, since we believe the jurisdictional issues raised in Phillips and in the case here to be of great public importance, we certify the following question to the Florida Supreme Court:

Is a circuit court deprived of subject-matter jurisdiction when the caption of the charging document charges the defendants] with felony petit theft and the body thereof cites the proper Florida Statute, § 812.014(2)(c), but the text of the charge alleges the value of the property to be less than $100 and does not specify the substantive elements of two prior petit theft convictions?

SMITH and ZEHMER, JJ., concur.

JOANOS, J., dissents in part.

JOANOS, Judge,

dissenting in part.

Since I agree with Judge Wentworth’s dissenting opinion in Phillips v. State, 438 So.2d 886 (Fla. 1st DCA 1983), I dissent from the majority’s reversal of the trial court. I concur, however, in the decision to certify to the Florida Supreme Court, the question set forth in the majority opinion.

      . Section 812.014(2)(c), Florida Statutes, provides:
      Theft of any property not specified in paragraph (a) or paragraph (b) is petit theft and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084.

      . O’Neal v. State, 444 So.2d 1142, 1143 (Fla. 1st DCA 1984); Donald v. State, 442 So.2d 271, 272 (Fla. 1st DCA 1983).


author: DAUKSCH, Judge. SHARP, Judge,

text:
    Charles BURKE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 84-7.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 1984.
    Rehearing Denied Oct. 10, 1984.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction and sentence for robbery with a firearm. Appellant alleges as error the trial court’s failure to sentence him in accordance with the sentencing guidelines enumerated in Florida Rule of Criminal Procedure 3.701.

Although appellant committed the robbery before the effective date of the guidelines, he elected to be sentenced under them. The recommended sentence range for this category 3 offense is three and one-half to four and one-half years incarceration. The trial court departed from the guidelines and sentenced appellant to fifteen years incarceration.

Subsection d.ll. of criminal rule 3.701 requires that the trial court accompany any sentence outside of the guidelines with a “written statement delineating the reasons for the departure.” In the instant case the trial court did not provide a written statement. The court did, however, dictate its reasons for departure into the record. Those reasons are transcribed and are part of the record on appeal. Like the Fourth District Court of Appeal, we believe that oral explanation in the record sufficiently provides the opportunity for meaningful appellate review for purposes of Florida Rule of Criminal Procedure 3.701. Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984); cf Cave v. State, 445 So.2d 341 (Fla.1984); Thompson v. State, 328 So.2d 1 (Fla.1976).

The trial court explained that the guideline sentence is inappropriate in this case because appellant’s prior record (which includes juvenile dispositions) reflects an escalating pattern of violent criminal activity over a ten-year period and reflects that appellant has failed to respond to the state’s repeated efforts to rehabilitate and/or punish him. In reaching these conclusions about appellant, the lower court considered portions of appellant’s pri- or adult criminal and juvenile delinquency record which the guidelines preclude him from considering when tallying up the scoresheet to determine the recommended sentence. This is proper. A trial court could never deviate from a guideline sentence if, in deciding to deviate, it cannot consider factors other than those it considers in arriving at the guideline sentence. We hold that a trial court may base a departure from the guidelines on factors which it could not contemplate in calculating the guideline sentence. Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984).

We are aware that the Fourth District Court of Appeal reached a contrary result in Harvey v. State. We do not follow Harvey because that result unduly limits the court from deviating from the sentencing guidelines. We certify a conflict with Harvey.

The trial court stated reasons sufficient to support sentencing appellant above the recommended range and we affirm.

AFFIRMED.

COWART, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The trial judge in this case did not place of record his written reasons for departing from the presumptive sentence under the sentencing guidelines. I think this is error given the mandatory language in both Flor-ida Rule of Criminal Procedure 3.701(d)(ll) and the stated purpose of the guidelines in rule 3.701(b)(6). Beyond that, the reasons verbally articulated by the judge in this case are possibly impermissible under the guidelines, but the record does not clearly show what the judge relied upon. Meaningful appellate review is therefore impossible.

The trial judge said he relied on Burke’s juvenile record as the basis for departing from the presumptive sentence. He said:

But the record should show that in Mr. Burke’s case, he is presently 18 years old, turned 18 in September of this year [after the offense in this case had been committed]. His encounters with the law go back to the time when he was eight years old. And in that period of time, he has encountered the law twenty-two times, this being his twenty-second encounter with the law.
He has a consistent history of theft, escalating to burglary, escalating to car theft, escalating to violence: aggravated assault, aggravated assault a second time, numerous burglaries, and now for armed robbery, one of the most serious offenses that can be made or can be charged against a person.
During his rather checkered career, since he was eight years old, he has served time in every branch of the juvenile system available. He has served time at the Eckerd Camp, which is the non-incarceration equivalent of Devil’s Island, and if they can’t straighten you out at Eckerd Camp, I’m not sure you can be straightened out. He has also served time in three separate state institutions with regard to these matters.
It appears to me that Mr. Burke has had numerous opportunities to straighten up his life and one of the things that he needs to realize is that crime doesn’t pay. He has been singularly unsuccessful at it. If he would devote his energies to gainful employment, he would certain have fared better since I don’t think he’s ever gotten much from the thefts that he’s committed except incarceration.
I think that Mr. Burke has had the benefit of everything that we can give him. He’s had probation, he’s had the chance to go to a non-incarceration camp-type environment, and then he’s been incarcerated. Nothing has served to help or deter Mr. Burke.
I am not, with an escalating pattern of violent crimes like this, going to abide by the sentencing guidelines. The sentencing guidelines in and of themselves in this case are a farce.
If I sentence Mr. Burke to four years, he would not serve but two years because he would undoubtedly receive day-for-day gain time. I simply think that this escalating pattern of violence, violent crime, deserves the Sentence outside the guidelines. And those are the reasons spread upon this record to be followed by a written order that I am going outside these guidelines.

The following is Burke’s prior history as revealed by the Pre-Disposition Report:

Date of Referral Reason Referred_Specific Disposition/Date
5/7/74 Shoplifting Dismissed after initial counseling 5/22/74
10/8/74 Beyond Control Dismissed after initial counseling 11/4/74
Date of Referral Reason Referred Specific Disposition/Date
8/6/76 Runaway Information only 8/6/76
11/21/77 Runaway/Ungovernable Runaway returned 12/7/77
3/21/78 Ungovernable Delinquent Probation 7/13/78
4/14/78 Larceny/Burglary of a Dwelling Closed after Initial Contact 4/22/78
4/14/78 Runaway Closed after initial Counseling 4/28/78
4/24/78 Burglary Closed after Initial Counseling 4/28/78
6/5/78 Ungovernable Delinquent Probation 7/13/78
6/5/78 Using Vehicle Without Owner’s Consent Delinquent Probation 7/13/78
7/6/78 Disorderly Intoxication Information only 7/13/78
8/16/78 Aggravated Assault (2 cts) Auto Theft (1 count) Committed 9/7/78
8/29/78 Grand Theft Committed 9/7/78
9/5/78 Burglary Committed 9/7/78
5/10/79 Burglary Recommitted 5/17/79
5/10/79 Aggravated Assault Recommitted 5/17/79
5/18/79 Auto Theft Recommitted 5/17/79
6/23/81 Runaway Complaint Withdrawn 7/8/81
7/17/81 Retail Theft Committed 8/6/81
7/28/81 Grand Theft Committed 8/6/81
6/2/83 Grand Theft Auto Involuntary Transfer to Adult Court— Case Dismissed 6/8/83
7/22/83 Armed Robbery Involuntary Transfer to Adult Court 8/23/83 —Pled Guilty — Pending Sentencing

All but four of Burke’s juvenile offenses were disposed of more than three years before the offense for which he was being sentenced. Many of the charges were not the equivalent of crimes, and many did not culminate in the equivalent convictions.

The sentencing guidelines specifically provide how a juvenile’s record shall be treated. “Prior record” regarding a juvenile is defined as:

All prior juvenile dispositions which are the equivalent of convictions as defined in section d(2), occurring within three (3) years of the current conviction and which would have been criminal if committed by an adult....

Fla.R.Crim.P. 3.701(d)(5)(c). Accordingly, on Burke’s score sheet he was properly only given twelve points for the two crimes he committed and was convicted for within the past three years. One was a third degree felony (grand theft) and one was a misdemeanor (retail theft). Those additional twelve points were added into his score sheet to push his presumptive maximum sentence to three and one-half to four and one-half years. Using them alone as a basis to depart an additional five brackets appears to me unwarranted as a kind of double-enhancement under the guidelines system.

In addition, reliance on the balance of Burke’s juvenile record, if in fact the trial judge did so, appears to me to be barred by other guidelines provisions. Rule 3.701(d)(5)(c) bars scoring for offenses committed more than three years previously. Rule 3.701(d)(5)(c) prevents scoring for noncriminal acts and rule 3.701(d)(5)(a)(l) prevents scoring for anything less than conviction: i.e., dismissals or arrests. Because the guidelines detail how a past record should be treated, it follows that matters in the history which the guidelines mention as not permissible to be used in scoring should not be used as the basis for departure. Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984). This does indeed limit the exercise of the trial judge’s discretion, but without some limitation the guidelines’ goals of uniformity and elimination of unwarranted variation in the sentencing process will not be achieved.

      . Fla.R.Crim.P. 3.701 c.

      . Fla.R.Crim.P. 3.988(c).

      . Fla.R.Crim.P. 3.701(b).


author: PER CURIAM.

text:
    HOTEL PROPERTIES, LTD., Appellant, v. HERITAGE INSURANCE COMPANY OF AMERICA, a corporation, and Mount Vernon Fire Insurance Company, a corporation, Appellees.
    No. 83-1422.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Rehearing Denied Oct. 26, 1984.
    Cohen, Brown, Reed, Ivans & Schwartz and Allen P. Reed, Miami, for appellant.
    Daniel W. Levin, Fort Lauderdale, Walton, Lantaff, Schroeder & Carson and Joan S. Buckley, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The judgment below, based on the jury’s findings that the appellee-insurance companies did not provide business interruption insurance coverage to the appellant for a loss resulting from a fire on the premises of its business tenant, a restaurant, is affirmed upon a holding that (1) even if arguable, the appellant’s claim that its business was interrupted by reason of a loss of rental income under a lease calling for appellant to receive a percentage of the restaurant’s gross income as rent was specifically waived at the outset of trial; (2) the appellant’s other claim that its business was interrupted when the occupancy of its hotel rooms was reduced by virtue of the closing and unavailability of the restaurant was correctly resolved against it as this diminution in business did not constitute an interruption of the appellant’s business within the policies in question, see Pacific Coast Engineering Co. v. St. Paul Fire and Marine Insurance Co., 9 Cal.App.3d 270, 88 Cal.Rptr. 122 (1970) (purpose of business interruption insurance is to indemnify for loss due to inability to continue to use specified premises); Rothenberg v. Liberty Mutual Insurance Co., 115 Ga.App. 26, 153 S.E.2d 447 (1967) (recovery under business interruption policy denied where theft of merchandise resulted in loss of business; court held insured had not suffered an interruption of business, but rather a diminution in volume); Howard Stores Corp. v. Foremost Insurance Co., 82 A.D.2d 398, 441 N.Y.S.2d 674 (1981), affd, 56 N.Y.2d 991, 439 N.E.2d 397, 453 N.Y. S.2d 682 (1982) (recovery denied for water damage to business where there was no actual suspension of business, but rather an alleged adverse effect on continuing sales); accord, National Children’s Expositions Corp. v. Anchor Insurance Co., 279 F.2d 428 (2d Cir.1960) (recovery denied under insured’s use and occupancy policy for reduction in attendance due to severe snowstorm, since building was open during entire period in question; court held recovery unavailable in absence of interruption in use and occupancy of building); and (3) the error, if any, in submitting the question of coverage to the jury for its decision was totally harmless under the circumstances of this case.

Affirmed.


author: BASKIN, Judge.

text:
    FLORIDA KEYS COMMUNITY COLLEGE, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA and Fidelity Fire Insurance Company, Appellees.
    No. 84-527.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Rehearing Denied Oct. 26, 1984.

      Lawson, McWhirter, Grandoff & Reeves and Leonard R. Poe and C. Thomas Davidson, Tampa, for appellant.
    Welbaum, Zook, Jones & Williams and R. Earl Welbaum; Judith Kazer Lamet and David L. Swimmer and Steven Berger, Miami, for appellees.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Within four years of completion of construction of the Fine Arts Center for Flori-da Keys Community College, pursuant to a construction contract between the college, Sherrod Construction Company, and C.A. Davis, Inc., Florida Keys Community College instituted an action against those responsible for building the center and against their sureties. The action alleged construction defects. The sureties, Insurance Company of North America and Fidelity Fire Insurance Company, were obligors on the construction contract bonds. The trial court dismissed the claims against the sureties on the ground that they had not been filed within the one year period set forth in section 255.05(2), Florida Statutes (1977). These appeals ensued.

Finding that the bonds in question were common law bonds which were not subject to the one year limitation, we hold that the claims against the sureties were filed within the four year limitation period applicable to common law bonds. § 95.11, Fla.Stat. (1977). Accordingly, we reverse and remand for further proceedings.

Appellant argues that Florida courts have recognized a distinction between statutory bonds and common law bonds. Statutory bonds are those which meet the minimum requirement of section 255.05; common law bonds are those which provide coverage in excess of the minimum statutory requirements. United Bonding Insurance Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971). When the sureties’ obligations have not been extended beyond minimum requirements, the bond remains a statutory bond. Quality Glass & Mirror, Inc. v. Ritch, 373 So.2d 723 (Fla. 1st DCA 1979), cert, denied, 385 So.2d 760 (Fla.1980).

The primary test in determining whether a bond is a statutory bond or a common law bond depends upon an examination of the obligations imposed upon the principal and its surety. The test requires a comparison of the minimum requirements enunciated in the statute and the language contained within the bond. State ex rel Consolidated Pipe & Supply Co. v. Houdaille Industries, Inc., 372 So.2d 1177 (Fla. 1st DCA 1979).

Section 255.05, Florida Statutes (1977) requires:

(1) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of any public building, for the prosecution and completion of any public work, or for repairs upon any public building or public work shall be required, before commencing the work, to execute a payment and performance bond with a surety insurer authorized to do business in this state as surety.

The statute requires bonds to be conditioned so that the contractor shall promptly make payments to persons whose claims derive directly or indirectly from the performance of the work required by the contract.

The bonds in question provide:

1. PERFORMANCE: Said Principal (Contractor) shall well and truly perform, carry out and abide by all the terms, conditions and provisions of said Contract and complete the structure therein specified in accordance with the terms thereof and in the event said Principal (contractor) fails to perform said Contract as aforesaid, it shall be the duty of the Obligor herein to assume responsibility for the performance of said Contract and to complete the structure therein specified in accordance with the terms thereof; and the Obligor herein shall and does hereby agree to indemnify the Obli-gee and hold it harmless of, from and against any and all liability, loss, cost, damage or expense including reasonable attorney fees, engineering and architectural fees or other professional services which said Obligee may incur or which may accrue or be imposed upon it by reason of any negligence, default and/or misconduct on the part of the said Contractor, and his agents, servants, and/or employees, in, about, or on account of the construction of said structures and performance of said contract by the said contractor, and shall repay to and reimburse to the said Obligee, promptly upon demand, all sums of money including reasonable attorneys, architects and other professional services, each and every, reasonably paid out or expended by the said Obligee on account of the failure and/or refusal of said contractor to carry out, do, perform, and/or comply with any of the terms and provisions of said contract at the time and in the manner therein provided.

It is clear that the performance provisions of the bonds are broader than those required by the statute in that the sureties have assumed the risks of negligence and of misconduct by employees of the contractor. Thus, under the Houdaille Industries test, the bonds qualify as common law bonds.

We reject the argument proposed by the sureties that it was incumbent upon the college to obtain a bond which qualified under section 255.05 and that no other bond was allowable. They maintain that any bond obtained in satisfaction of the statute must be deemed a statutory bond regardless of its expanded provisions. Their argument ignores the many cases which recognize distinctions in bonds issued in connection with public projects. Even though a bond is furnished pursuant to a public works project, it will be construed as a common law bond if its provisions are more expansive than those required by section 255.05. Southwest Florida Water Man agement District ex rel Thermal Acoustic Corp. v. Miller Construction Co., 355 So.2d 1258 (Fla. 2d DCA 1978). Cf. Motor City Electric Co. v. Ohio Casualty Insurance Co., 374 So.2d 1068 (Fla. 3d DCA 1979) [bond not governed by sections 255.-05 and 713.23, Florida Statutes (1977) even though it incorporates those statutes].

In Houdaille the court was concerned with the absence of a reference to section 255.05 in the bond. The court concluded, in effect, that failure to mention section 255.-05 did not automatically render the bond a common law bond.

For these reasons, we conclude that the expanded liability in the bonds under review renders them common law bonds subject to the general limitations period of section 95.11 and that the claims against the sureties were timely.

The fact that the lawsuit was brought by the college rather than by a materialman provides no basis for limiting the period for filing claims. See School Board of Pinellas County v. St. Paul Fire & Marine Insurance Co., 449 So.2d 872 (Fla. 2d DCA 1984).

Reversed and remanded.


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Roy B. BRUBAKER, Appellant, v. Marilyn BRUBAKER, Appellee.
    No. 84-1119.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 1984.
    Rehearing Denied Oct. 26, 1984.
    Papy, Poole, Weissenborn & Papy and Sheridan K. Weissenborn, Coral Gables, for appellant.
    David F. Cerf, Jr., Miami, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the ruling of the trial court in ordering a trial de novo in this cause and note that our prior opinion in Brubaker v. Brubaker, 435 So.2d 290 (Fla. 3d DCA 1983), by which we are bound, only requires that the trial court entertain a motion pursuant to Rule 1.540(b), Fla.R. Civ.P. on the question of the appellee’s status as an irrevocable beneficiary of appellant's pension plan.

Reversed.

DANIEL S. PEARSON, Judge,

concurring.

When this case was first before us, we affirmed the final judgment of dissolution, stating that our affirmance was without prejudice to the wife to file a Rule 1.540 motion in the trial court on her claim that the trial court was misled into believing that the wife was an irrevocable beneficiary of the husband’s pension plan. See Brubaker v. Brubaker, 435 So.2d 290 (Fla. 3d DCA 1983). We were not then made aware that the wife had already filed a Rule 1.540 motion urging that very claim and that that motion had been denied. Because the denial of the wife’s Rule 1.540 motion was never questioned on any appeal taken by the wife, that denial is now res judicata, and the wife is precluded from relitigating this issue. Accordingly, I would reverse with directions to dismiss the wife’s Rule 1.540 motion.