author: LETTS, Judge.

text:
    EVERGLADES PLAZA CONDOMINIUM ASSOCIATION, INC., Appellant, v. George D. BUCKNER, Appellee.
    No. 83-1474.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing and Rehearing En Banc Denied Feb. 25, 1985.

      Larry Klein, and Pucillo & Schilling, West Palm Beach, for appellant.
    Edna L. Caruso, Edna L. Caruso, P.A., West Palm Beach, and Edward E. Kuhnel, P.A., Palm Beach, for appellee.
   LETTS, Judge.

A condominium amended its declaration, previously silent on the subject, so that children under 16 could no longer reside there. An apartment owner, who had purchased his unit prior to the amendment, but had no children residing there when the amendment was passed, subsequently remarried thereby acquiring a ten year old stepchild whom the Association sought to exclude by injunction. The trial judge held the original provision in the declaration concerning amendments, to be ambiguous, to be discriminatory and to excuse this particular owner from compliance because he would not alter the charted course of the complex as an “adults only” community. We reverse.

The original provision in the declaration concerning amendments read:

[n]o amendment shall discriminate against any apartment owner nor against any apartment or class or group of apartments unless the apartment owner, so affected shall consent; and no amendment shall change any apartment nor the share in the common elements appurtenant to it, nor increase the owner’s share of the common elements unless the record owner of the apartment and all record owners of liens therein, shall join in the execution of the amendment.

Additionally, the declaration required an affirmative vote of 80% of the owners before any amendment could become effective. In fact, an 87% vote barring children was obtained in the instant case, the stepfather abstaining from that vote because of heart problems, hypertension and belief that he was “grandfathered in” and thus unaffected.

Addressing the trial judge’s reasons in order, we see no ambiguity in the proviso on amendments for it plainly states, and we paraphrase, that the Association cannot discriminate against an apartment or its owner, unless he consents and cannot physically alter an apartment or increase its proportionate share in the common elements. What could be less ambiguous than that?

The only questions that need be answered are, was the owner discriminated against or was he grandfathered in?

At the time of the instant amendment, the stepfather had no resident child and so far as the record reveals, no plans to acquire one. To hold that an apartment owner could forever immunize himself from any changes in the condominium declaration because he might in the future want to exercise claimed prerogatives under the founding document, would prohibit any amendment ever unless 100% of the owners acquiesced or consented. That simply is not the law which even contemplates amendment by state statute. Section 718.-110, Florida Statutes (1983). With certain exceptions, condominium documents can be changed and changes have been upheld in a legion of cases which need no citation.

The stepfather argues that the portion of the proviso which begins: “and no amendment shall change any apartment” effectively blocks the amendment here adopted. However, this latter portion of the proviso, separated by a semicolon, in our view is intended only to protect the apartment’s physical character, its proportionate share of the common elements and lien holders. In this regard, though we were not cited to it, the proviso obviously tracks Section 718.110(4), Florida Statutes (1983).

As the Association’s brief remarks: “The prohibition against children residing in the apartment building is applicable to everyone and there were no children residing in the building at the time the amendment was passed .... The obvious purpose of the provision against discrimination is to protect the unit owner who has a child living with him at the time the amendment is passed.”

In the same vein the cases of White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979) and Star Lake North Commodore Association, Inc. v. Parker, 423 So.2d 509 (Fla. 3d DCA 1982) establish that a prohibition against children is not invalid and does not discriminate against those who buy an apartment and later have children. It is true, as the stepfather points out, that the original documents in both White Egret and Parker prohibited children prior to purchase whereas there was no such prohibition at time of sale in the case at bar. Nonetheless, the slate was wiped clean at the time of the adoption of the amendment when, as in White Egret and Parker, the stepfather had no resident children, so far as the record shows, and no prospect of having any. This is altogether different from the parent who has a child already permanently living with him at the time of an amendment barring children.

The trial judge in finding discrimination appeared to discover it from the fact that the “adults only” desired status of the building would be preserved because the vast majority of the owners were too old (“over the ages of sixty and seventy”) to have children or get remarried. By contrast, he found that this comparatively youthful stepfather, despite adult children of his own, was not. Ergo, he was discriminated against because of youth. We decline to accept this argument. Not only are the woods full of old men who marry young women and demonstrate unexpected virility, but, more to the point, the woods are more full of children consigned to their grandparents because of domestic tragedy. To allow this stepfather to bring in after-the-amendment children, but prohibit another more elderly unit owner from bringing in his grandchildren, even though he also had purchased his apartment before the amendment, would constitute the very discrimination which the stepfather erroneously claims here.

We find the facts and circumstances of this case, and our comments set forth above, equally dispositive of the grandfather claim which we likewise reject.

REVERSED AND REMANDED.

DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Diane L. UPTON, Appellant, v. Wayne Leroy UPTON, Appellee.
    No. 84-774.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1984.
    Rehearing En Banc Denied Feb. 25, 1985.
    James P. O’Flarity of the Law Offices of James P. O’Flarity, P.A., West Palm Beach, for appellant.
    Timothy W. Gaskill of DeSantis, Cook, Gaskill & Silverman, P.A., North Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Agramonte v. Aviles, 454 So.2d 57 (Fla. 4th DCA 1984); Winland v. Winland, 416 So.2d 520 (Fla. 2d DCA 1982); see also, Section 95.11(2)(a), Florida Statutes (1983).

DOWNEY, HURLEY and WALDEN, JJ., concur.


author: DAUKSCH, Judge.

text:
    In re the Marriage of Rose E. STONE, Appellant/Cross-Appellee, v. Harry C. STONE, Appellee/Cross-Appellant.
    No. 83-1791.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 1985.
    Rehearing Denied Jan. 25, 1985.
    James K. Freeland, Orlando, for appellant, cross-appellee.
    Lawrence W. Solodky, Marvin E. Newman, Orlando, for appellee, cross-appellant.
   DAUKSCH, Judge.

This is an appeal from an order modifying a judgment in a marriage dissolution case.

Upon a review of the evidence in the case we must conclude the trial judge erred in increasing the alimony to only $150.00 per week. All the evidence shows the disabled former wife needs at least $335.00 to maintain herself and that the former husband is well able to provide that amount. There has been a substantial change in circumstances in both the needs of the former wife and the ability of the former husband to assist in providing those needs.

At the time of the hearing, and for a while before that, the wife was unable to work, has been very ill and unable to receive any real assistance except from her former husband, The former husband, a physician, earns in excess of $100,000 per year and enjoys a lifestyle the exact opposite of his former wife’s. Since the reduction in her income because their children came of age, she has been reduced to a life of virtual poverty; living in a small room with no cooking facilities, walking around and “... healing my head from adverse medication I have received in the past.” She has no job, cannot get one because she is not “capable to function.” She has been hospitalized intermittently over the past years, has been diagnosed as acutely psychotic, very paranoid, chronically schizophrenic, and in need of medical attention.

All the evidence shows she has been reduced to a sub-standard lifestyle with little hope for ordinary comforts and unable to provide for herself. Her former husband unquestionably has the ability to help and certainly the duty to do so. While our society has the duty and custom of taking care of the less fortunate amongst us, it is the family which must first do its share. A former husband does not lose that obligation unless totally relieved of it by the court.

The order is reversed and this cause remanded for entry of an appropriate order requiring payment of $335.00 per week permanent alimony.

REVERSED and REMANDED.

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


text:
    VILLAGE ZOO, INC., Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 84-760.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Rehearing Denied Feb. 22, 1985.
    Raymond A. Doumar of Allsworth, Dou-mar, Cazel & Curtis, Fort Lauderdale, for appellant.
    Louisa E. Hargrett, Staff Atty., Dept, of Business Regulation, Tallahassee, for ap-pellee.
   PER CURIAM.

Affirmed. Although we agree with appellant that the penalty imposed upon it by the appellee seems severe, we are nevertheless compelled to affirm because of the legislature’s broad grant of discretionary authority to the agency as to the appropriate penalty to be imposed. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978) and Lash v. State of Florida, Dept. of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982). We reject appellant’s contention that the agency added any findings of fact inconsistent with the hearing officer’s findings.

ANSTEAD, C.J., and LETTS and DELL, JJ., concur.


author: SMITH, Judge.

text:
    Mack BROWN, Appellant, v. STATE of Florida, Appellee.
    No. AX-452.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1985.
    Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   SMITH, Judge.

Brown appeals his convictions for second degree murder and second degree arson. He contends that he is entitled to a new trial due to an erroneous jury instruction as well as an improper closing argument made by the prosecutors below. We agree with appellant and therefore reverse and remand for a new trial.

Lester Paul “Speedy” Ketchum was found dead in his mobile home trailer by the Jacksonville police at approximately 1:50 p.m. on February 24, 1983. Several months later, appellant was arrested and charged with second degree murder and second degree arson. The state filed a statement of particulars, on request by appellant, specifying that the crimes charged occurred on or about February 24, 1983, “between 12:15 p.m. and 1:45 p.m.” Whether or not the trial court’s jury instructions and the state’s closing argument allowed the jury to disregard the legal import of the statement of particulars is at issue.

The primary inculpatory evidence came from two of appellant’s acquaintances, Michael Holmes and Daniel Anderson, Jr. They testified that in the summer of 1983 appellant told them that he had killed the victim (who died of multiple stab wounds). Holmes said appellant stated that he had attempted to set fire to the victim’s mobile home to “cover up” the death.

Since appellant relied in part upon alibi evidence, the time of death was a crucial issue and was the subject of much conflicting and contradictory evidence at trial. Testimony from Dr. Floro, the medical examiner, placed the time of the victim’s death at two to four hours before the police arrived at the victim’s partially burned mobile home, or between 10:00 a.m. and 12:00 noon. Two of the victim’s neighbors testified they saw Speedy’s van, with two black male occupants, drive away from Speedy’s mobile home on the day of the offense. Stansell Smith fixed the time of the sighting at 11:30 a.m., and Jenell Gilmer testified that she saw the departing van at between 1:00 and 1:30 p.m. Appellant is black; the deceased was white.

Appellant’s girl friend, Rubie Follow, testified that appellant was with her at her home for 45 minutes to an hour, between 11:00 a.m. and 1:00 p.m. She emphasized that he was there before a particular “soap opera” came on television at 12:30 p.m. Appellant, testifying in his own behalf, stated that it was he who reported the murder to the Jacksonville Sheriff’s Office at approximately 1:45 p.m. on the day in question. Appellant gave the following account of the incident: The victim, who was a co-worker, picked appellant up at 8:00 a.m. on the day of the murder-arson. After dropping another of the victim’s work vehicles off at a nearby mechanic’s garage, the victim and appellant proceeded to another part of town in the victim’s white van to install a washer and dryer. After returning to their then-current employer, McDuff Appliances, appellant dropped the victim off at the victim’s trailer at approximately 12:30 p.m., and proceeded in the victim’s van to the residence of appellant’s girl friend, where he stayed for approximately 45 minutes. Appellant then returned to the mechanic’s garage to inquire as to the repair status of the victim’s truck. Subsequently, appellant proceeded to the victim’s trailer. Upon arrival, he discovered the victim’s trailer padlocked and apparently on fire. Appellant forced his way into the trailer, discovered the victim, then drove to a convenience store where he telephoned the police, after which he returned to the victim’s trailer with the mechanic who was working on the victim’s other truck.

The events at trial relied upon for reversal by appellant occurred after both sides had rested. During the rebuttal portion of closing argument, the prosecutor referred to the testimony of Dr. Floro that the victim probably died between two and four hours prior to the arrival of the police. Emphasizing this testimony, as well as that of Stansell Smith regarding the departure of the victim’s van from the murder-arson scene at 11:30 a.m., the prosecutor argued that the victim’s murder could have taken place before noon on the day in question:

Then, we know according to Dr. Floro that Speedy Ketchum died no earlier than 10:00 o’clock....
******
Now, all of a sudden Stansell Smith sees the defendant at 11:30 coming out of Speedy’s drive and we know between these two times to be the time that Lester Ketchum died and we know the defendant came out of the driveway, that the defendant had it in his custody all day long and we know they were coming out of the driveway at 11:30, so all of a sudden it makes a little more sense.
******
We know that ... Lester Paul Ketc-hum was dead at 12:30. As a matter of fact, he was dead by 12:00 o’clock....

In response to this argument, appellant’s counsel moved for a mistrial, arguing that the prosecutor was implying that the crime took place at a time outside the statement of particulars. This motion, as well as counsel’s motion for a judgment of acquittal based on the same grounds, were both denied by the trial court. The prosecutor then drew a chart indicating the various events described by the testimony, as well as the times these events allegedly occurred. This chart utilized Dr. Floro’s testimony by characterizing 10:00 a.m. as the “earliest [time of] death” and 12:00 noon as the “latest [time of] death.” The state’s rebuttal jury argument theorized that the homicide took place before noon, and that Brown returned to the mobile home later to set the fires.

Appellant’s counsel renewed her motions for mistrial and acquittal at the close of the state’s final argument. During argument on these motions, the prosecutor made an oral motion to amend the statement of particulars to change the alleged time of death from 10:00 a.m. to 1:48 p.m. (1:48 p.m. is the time Brown telephoned police to report the crimes), rather than 12:15 p.m. to 1:45 p.m. The trial court denied appellant’s motions, but also denied the state’s motion to amend the statement of particulars, finding that prejudice would otherwise result to appellant with respect to his alibi defense. Appellant’s counsel then requested a jury instruction to clarify for the jury its legal duty to disregard the evidence outside the statement of particulars alluded to by the prosecutor. The trial court denied the instruction as requested, and instead gave a portion of the requested instruction — after being incorrectly advised by the state that its Statement of Particulars contained the word “approximately” — as follows:

In this case the State has by a separate pleading entitled a Statement of Particulars, alleged that the crime occurred at a particular time and date.
The State is bound by their pleadings and must prove beyond a reasonable doubt that the crime alleged in the case occurred in the time period — that is, between approximately 12:15 P.M. and 1:35 P.M. [sic], February 24, 1983.- (emphasis supplied)

As can be seen from the arguments of counsel, briefly summarized here, the issues on appeal are far from clear-cut. Appellant contends that the prosecutor’s actions in arguing that the crime occurred before noon changed the prosecution’s theory of the case, allowing appellant’s counsel no opportunity for rebuttal. He also contends that the trial court’s amended jury instruction effectively granted the state’s motion to amend the statement of particulars. Appellant further maintains that the state’s argument amounts to a waiver of its original theory of prosecution; that is, that the crimes occurred between 12:15 p.m. and 1:45 p.m., and that since the evidence actually presented at trial failed to conform to the statement of particulars, appellant was entitled to a judgment of acquittal. Finally, he asserts that since the state’s argument to the jury clearly shows the state’s reliance upon evidence supporting a finding that appellant committed the crimes before the time period specified in the statement of particulars, as well as evidence pointing to commission of the crimes within the specified period, the trial court erred in allowing the jury to return a general verdict which does not specify which theory the jury adopted, as they may have impermissibly found that the crimes occurred outside the statement of particulars, or may not have been unanimous in their determination of this factual issue.

In response, the state contends that Dr. Floro’s testimony was recognized during closing argument by the prosecutor as tentative and uncertain, and hence did not point unequivocally towards an occurrence of the crimes outside the statement of particulars. Accordingly, the state argues, the prosecutor’s argument did not represent a “new theory” of prosecution, but merely a comment on the evidence well in line with the traditional wide latitude given prosecutors on closing argument. Regarding the disputed jury instruction, the state argues that appellant’s trial counsel failed to specifically object to the instruction, and hence waived the point in this court. Moreover, the state asserts, even if the objection was properly preserved, and even if it is assumed, arguendo, that the instruction amounted to an amendment to the statement of particulars, the “amendment” was proper because appellant was not prejudiced. The state points out that appellant was able to offer a number of alibi witnesses who testified as to appellant’s whereabouts between 11:00 a.m. and 12:30 p.m., which tended to negate appellant’s participation in the crimes during a portion of the “time of death” testimony of Dr. Floro. In addition, the state also notes that a defense witness placed the victim, alive, in the McDuff Appliance Store at approximately 11:45 a.m. to 12:30 p.m.

The arguments presented by both sides revolve around appellant’s major premise that the prosecutor’s closing argument was improper, and that this impropriety, coupled with the erroneous jury instruction, prejudiced appellant in his defense. Accordingly, we do not address the various arguments seriatim, but focus on what appear to us to be the critical issues. Initially, we agree with appellant that the trial court’s amended jury instruction, which included the word “approximately,” amounted to a functional granting of the state’s motion to amend the statement of particulars in derogation of the court’s formal denial of the motion. See Gaines v. State, 406 So.2d 523, 525-526, n. 4 (Fla. 4th DCA 1981). As noted by both parties, amendments to a statement of particulars are allowed only where a trial court finds that the defendant will not be prejudiced in his defense. Taylor v. State, 444 So.2d 931, 935 (Fla.1983); Stang v. State, 421 So.2d 147, 149 (Fla.1982); Hoffman v. State, 397 So.2d 288, 290 (Fla.1981). Here, the trial court specifically found that appellant would be prejudiced by any amendment. We are inclined to accord great weight to this ruling, given the trial court’s superior vantage point from which to gauge the evidence. This is especially so in a case such as this where the credibility of the various witnesses is crucial to the case, and where the evidence of guilt is virtually all circumstantial, except for appellant’s own alleged admissions.

The challenged instruction, indicating that the jury could convict appellant for committing the crimes even if they found the crimes occurred at a time outside the statement of particulars, invited the jury to tread on impermissible territory. See, Lynch v. State, 293 So.2d 44, 46 (Fla.1974). Where, as here, the evidence is conflicting, confusing, and susceptible to interpretations favorable as well as adverse to the accused, depending entirely on the jury’s evaluation and determination of its legal effect, the giving of confusing and misleading instructions is harmful, not harmless error. Clark v. State, 461 So.2d 131 (Fla. 1st DCA 1984); Blitch v. State, 427 So.2d 785, 787 (Fla. 4th DCA 1983). Other courts have reached the same result where confused and misleading jury instructions are combined with prosecutorial misstatements of the law. Harvey v. State, 448 So.2d 578 (Fla. 5th DCA 1984); see also Gordon v. State, 449 So.2d 1302, 1304 (Fla. 4th DCA 1984); Barnes v. State, 348 So.2d 599, 601 (Fla. 4th DCA 1977). Here, the prosecutor’s “misstatements,” while indirect, nevertheless implied that the jury was legally free to convict appellant of having committed the crimes at a time other than that period specified in the statement of particulars.

We think procedural confusion was created by the prosecution’s actions and by the trial court’s conflicting rulings formally denying but effectively granting the state’s motion to amend. Defense counsel had tried the case and had completed her closing argument when these events occurred. We note the trial judge’s serious concern as to the posture of the case at the time the issues were being argued below. The net effect, in our judgment, is that the trial court erred in giving the challenged instruction including the word “approximately,” as well as in failing to grant a new trial based on the prosecutor’s eleventh hour rebuttal argument urging the jury’s reliance upon evidence establishing that the crime might have taken place outside the statement of particulars. Considering the seriousness of the charges and the equivocal nature of much of the evidence relied upon for conviction, we are persuaded that appellant has demonstrated prejudice. Stang v. State, supra.

Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED with directions.

ZEHMER and BARFIELD, JJ., concur.

      . The trial court stated: “The motion to amend the statement of particulars will be denied. I find prejudice to the [appellant] arising from the completion of the evidence, his inability to cope with the evidence as argued by the Assistant State Attorney.”

      .We find support for the trial judge’s ruling. The purpose of a statement of particulars is to fully advise the defendant of the nature and cause of the accusation against him, and to afford him the opportunity to prepare a defense. Hunter v. State, 200 So.2d 577 (Fla. 3d DCA 1967). To charge that the crime was committed during one specific time, and to prove that it was committed at another time can have a devastating effect upon an accused’s ability to prepare.and present a defense. See, Jackson v. State, 350 So.2d 808, 809 (Fla. 2d DCA 1977).

      . There is a dearth of direct factual evidence or physical evidence tying appellant to the crimes. The murder weapon was never found.

      . Although not all prosecutorial error is per se reversible, such error will be reversible where the result is to deny a defendant a fair trial, or where the error is so basic as to never be harmless; that is, the error is fundamental. State v. Murray, 443 So.2d 955 (Fla.1983).


text:
    Shirley LESTER, Appellant, v. J. Lancelot LESTER, Jr., Appellee.
    No. 83-2891.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Rehearing Denied Feb. 13, 1985.
    Evan J. Langbein, Eleanor Levingston Schockett, Miami, for appellant.
    Albury, Morgan & Hendrick, P.A., and James Hendrick, Key West, Horton, Perse & Ginsberg, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Farkas v. Farkas, 452 So.2d 963 (Fla. 3d DCA 1984).


author: BASKIN, Judge. JORGENSON, Judge,

text:
    F.T. LANDRY, Appellant, v. Michael HORNSTEIN and Curtiss Pharmacy, Inc., a Florida corporation, Appellees.
    No. 84-984.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Rehearing Denied Feb. 12, 1985.

      Michael Lechtman and Burton B. Loebl, North Miami Beach, for appellant.
    Edward C. Vining, Jr., Miami, for appel-lees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

This is an appeal from a judgment entered upon a jury verdict awarding Landry damages for unpaid rent and awarding Hornstein compensatory damages and punitive damages on his counterclaim for interference with an advantageous business relationship and wrongful exclusion from his rented premises. Appellee cross-appeals. We affirm.

Hornstein, a pharmacist, rented premises for his drugstore from Landry. When Hornstein’s pharmaceutical license was suspended, Hornstein, with Landry’s permission, entered into negotiations with prospective purchaser Moreno to sell the business and to assign the lease. Discussions between the parties ceased, and Moreno subsequently rented the drugstore from Landry. When Hornstein sold most of his business stock, halted day to day operations, and failed to pay rent on time, Landry instituted an action for unpaid rent, entered the store, and changed the locks. Hornstein had often been late with rent payments; at the time Landry commenced his action, however, Hornstein had failed to pay only one month’s rent. Hornstein filed a counterclaim alleging interference with a business relationship and wrongful exclusion from his rented premises. The jury awarded Landry $1,824 for unpaid rent and Hornstein $5,000 compensatory damages as well as $10,000 punitive damages. The court entered final judgment in accordance with the verdict.

In his appeal, Landry asserts that Horn-stein failed to prove the elements necessary to establish intentional interference with an advantageous business relationship and failed to establish a wrongful exclusion. In addition, Landry challenges the award of punitive damages and claims entitlement to additional rent. Hornstein, on the other hand, contends that his award was insufficient and that Landry lacked standing to bring the action for unpaid rent.

In order to establish the tort of interference with a business relationship, it is necessary to prove (1) the existence of a business relationship under which the claimant has legal rights; (2) intentional and unjustified interference with that relationship by defendant; and (3) damage to the claimant as a result of the breach of a business relationship. Ethyl Corp. v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981); International Funding Corp. v. Krasner, 360 So.2d 1156, 1157 (Fla. 3d DCA 1978).

The thwarted business relationship need not be evidenced by an enforceable contract. An action for intentional interference is appropriate even though it is predicated on an unenforceable agreement, if the jury finds that an understanding between the parties would have been completed had the defendant not interfered. United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979); Scussel v. Balter, 386 So.2d 1227 (Fla. 3d DCA 1980), review denied, 392 So.2d 1371 (Fla.1981). A mere offer to sell, however, does not, by itself, give rise to sufficient legal rights to support a claim of intentional interference with a business relationship. Lake Gateway Motor Inn, Inc. v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979).

The evidence in the case before us was sufficient to sustain a jury finding that the negotiations had progressed beyond the stage of a mere offer, to an understanding between Hornstein and Moreno for the sale of the business and assignment of the lease, transactions which would have been consummated had Landry not interfered. Evidence disclosed that Landry or his attorney had undertaken their own negotiations with Moreno regarding the rental of the drugstore premises while Moreno and Hornstein were still involved in negotiations. That evidence demonstrated an intentional and unjustified interference.

Hornstein testified, without objection:

What had happened was I was seriously negotiating with the man Siegfred Moreno, and he and we had several conversations and he kept telling me that he spoke with Landry and he was very frustrated by this also that it was — the thing wouldn’t be consummated.
We had sort of been to contract and all of that. He asked me to call his attorney because he couldn’t calm him anymore and he was ashamed and I pretty much wanted to get out of the store at that time and I had called his attorney, a man by the name of Mr. Dias.
And Mr. Dias said the problem is I really don’t want my client to buy it from you because I have spoken with your landlord and your landlord is going to get rid of you as a tenant, and there’s no need for him to buy it from you. And that was the end of that.

Hornstein’s testimony justified a conclusion that negotiations between Hornstein and Moreno ceased only because Landry told Moreno or his attorney that he was “going to get rid of” Hornstein as a tenant and would rent the premises directly to Moreno.

Reconciliation of conflicting testimony that negotiations ceased for other reasons rested upon a credibility determination within the province of the factfinder. Povia v. Melvin, 66 So.2d 494 (Fla.1953); S. Kornreich & Sons, Inc. v. Titan Agencies, Inc., 423 So.2d 940 (Fla. 3d DCA 1982); Hunt v. Palm Springs General Hospital, Inc., 352 So.2d 582 (Fla. 3d DCA 1977). Where substantial evidence supports a jury determination, an appellate court lacks authority to interfere. Estate of Cohen v. Holland, 370 So.2d 40 (Fla. 3d DCA 1979). An appellate court should not reevaluate evidence and substitute its judgment for that of the jury. Helman v. Seaboard Coast Line R.R. Co., 349 So.2d 1187 (Fla.1977). We therefore approve the jury determination that Landry unjustifiably interfered with Hornstein’s business relationship.

As to the next element, damage resulting from the interference with a business relationship, we find ample evidence. See Born v. Goldstein, 450 So.2d 262 (Fla. 5th DCA 1984); E.T. Legg & Associates, Ltd. v. Shamrock Auto Rentals, Inc., 386 So.2d 1273 (Fla. 3d DCA 1980), review denied, 392 So.2d 1379 (Fla.1981). Horn-stein’s damage included the loss of a purchaser and the proceeds of a negotiated sale in the vicinity of $35,000.

Landry’s next point is that Horn-stein failed to prove that he was wrongfully excluded from the premises and that reversal is required on that basis. We disagree. Under the “two issue” rule, where two of more determinative issues are resolved by a general verdict, affirmance is appropriate when either ground is sustained. Whitman v. Castlewood International Corp., 383 So.2d 618 (Fla.1980); Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978); Middelveen v. Sibson Realty, Inc., 417 So.2d 275 (Fla. 5th DCA), review denied, 424 So.2d 762 (Fla.1982). The jury returned a general verdict for Hornstein on evidence of interference with a business relationship and wrongful exclusion. Our affirmance of the judgment on the issue of interference with a business relationship renders consideration of the wrongful exclusion claim unnecessary.

Insofar as Landry’s challenge to the award of punitive damages to Hornstein is concerned, we find no error. "A legal basis for punitive damages exists where torts are committed in an outrageous manner and with fraud, malice, wantonness or oppression.” Wackenhut Corp. v. Canty, 359 So.2d 430, 435-36 (Fla.1978); Aero International Corp. v. Florida National Bank of Miami, 437 So.2d 156, 158 (Fla. 3d DCA 1983), review denied, 449 So.2d 264 (Fla.1984). This court has upheld jury awards of punitive damages in actions for interference with an advantageous business relationship under appropriate circumstances. Puga v. Suave Shoe Corp., 427 So.2d 288 (Fla. 3d DCA 1983); Scussel; Susman v. Schuyler, 328 So.2d 30 (Fla. 3d DCA 1976). The evidence established that Landry had nothing to gain by interfering with the negotiations between Hornstein and Moreno. Thus, there was support for a jury finding that Landry’s interference was malicious and that punitive damages were appropriate. By excluding Hornstein from the premises, Landry foreclosed the possibility of Hornstein selling the business to another purchaser and prevented Hornstein from reopening the store on reinstatement of his license for the purpose of resuming his business.

We find no merit in Landry’s remaining point. Landry has failed to demonstrate a basis for increasing the amount of the award on his claim for unpaid rent.

Turning next to the points raised by Hornstein on his cross-appeal, we reject his contention that Landry lacks standing to sue for unpaid rent. Landry executed the lease in his own name, personally collected rent money, and was directly injured by Hornstein’s failure to pay rent, acts which afford him standing. Thus, the trial court was correct in offsetting Landry’s award for unpaid rent against the amounts recovered by Hornstein on his claims. See Rebo-zo v. Royal Indemnity Co., 369 So.2d 644 (Fla. 3d DCA), cert. denied, 379 So.2d 209 (Fla.1979).

As to Hornstein’s last point, the record provides no support for his contention that the jury award on his counterclaim was insufficient.

For these reasons, we affirm the judgment.

JORGENSON, Judge,

dissenting.

I respectfully dissent. The majority’s reliance upon the “two-issue” rule is misplaced. The jury was instructed only upon the issue of wrongful eviction. The intentional interference with a business relationship claim was not submitted to the jury. Because it is clear from a reading of the record that the evidence could not support a jury finding that Landry wrongfully evicted Hornstein, I would reverse.

The uncontroverted evidence is that Landry changed the locks on the store after Hornstein closed down his business and that a key to the new lock was made available to Hornstein. These facts belie any claim that Hornstein was evicted. Moreover, even if Landry’s act of changing the locks on the store constituted an eviction, the eviction was not wrongful. The lease entered into between Landry and Hornstein provided that Landry could retake possession of the premises upon Hornstein’s failure to pay the rent promptly.

Assuming the issue of intentional interference with a business relationship was properly submitted to the jury, the evidence does not support a jury finding that Landry intentionally interfered with the negotiations between Moreno and Hornstein. Hornstein’s testimony, quoted in relevant part by the majority, can support, at the most, that (1) Moreno’s attorney had conversations with Landry at the time Horn-stein was negotiating with Moreno, during which Landry made the statement that he intended to “get rid of” Hornstein; (2) as a result of Landry’s statement, Moreno’s attorney advised Moreno that he need not buy Hornstein’s business, and (3) Moreno ceased negotiations based on his attorney’s advice. There is no evidence that the conversations between Landry and Moreno’s attorney consisted of negotiations for the rental of the drugstore by Moreno from Landry. The only evidence regarding the nature of these conversations is Moreno’s testimony that Landry and his attorney discussed the possibility of Landry’s granting an extension on the lease between Landry and Hornstein. Moreno testified that his negotiations with Landry did not begin until July, 1982. (Negotiations between Moreno and Hornstein had ceased in October, 1981.) Moreno’s testimony is bolstered by the fact that he did not begin occupying the store until August, 1982. Moreover, there is no evidence that Landry made the alleged statement that he was going to “get rid of” Hornstein with the intent to interfere with the negotiations between Moreno and Hornstein.

Because the evidence does not support a recovery of compensatory damages, it cannot support the award of punitive damages.

       We have jurisdiction. Landry’s claim was filed in county court; Hornstein’s claim was filed in circuit court, and the two cases were consolidated for trial before an acting circuit judge. Hornstein’s claim was treated as a compulsory counterclaim to Landry’s action.

      . Landry testified that he had stopped by the store, found it closed down, smelled an obnoxious odor emanating from it, saw through the store window thousands of dead cockroaches littering the floor, and, since he did not have a key to the store, broke the lock on the door to gain entrance. Once inside, he found the source of the stench to be rotting food that apparently had been left behind when the store was closed. Landry then replaced the broken lock with a new lock.

      . Landry did not waive this provision. The evidence established that Landry had brought earlier suits to collect payments of rent from Hornstein.
      The lease provided that Landry could retake possession of the premises upon Hornstein’s failure to comply with its terms. One term provided that Hornstein would "run [his] business as a clean and orderly establishment and prevent and control unhealthy or obnoxious odors." Thus, under the lease, Landry was justified in evicting Hornstein for Hornstein’s failure to keep the premises clean, see n. 1, as well as for Hornstein's failure to pay rent promptly.

      . At the time Landry allegedly made this statement, Landry may have honestly and justifiably intended to "get rid of” Hornstein for Horn-stein’s failure to pay his rent on time. An earlier suit by Landry to remove Hornstein for Hornstein’s failure to pay his rent when due was settled in November, 1981.


text:
    Carole Emerson ROYAL and James Thornton Royal, Appellants, v. Annie Chitty PARADO, Appellee.
    No. AV-185.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1985.

      Walter R. Stedeford, and Peter L. Dear-ing and Thomas F. Harkins, Jr., Mahoney, Hadlow & Adams, Jacksonville, for appellants.
    Charles Cook Howell, Jr., Howell & Howell, P.A., Jacksonville Beach, for appellee.
   SMITH, Judge.

Appellants seek reversal of a final judgment rescinding a quitclaim deed and quieting title to certain parcels of land located in St. Johns County, Florida. We affirm the trial court’s jurisdiction, but find error on other issues, and vacate the final judgment and remand for further proceedings.

The issues are (1) whether under the “local action” rule the trial court had jurisdiction of the cause of action, which sought rescission of the deed to property located in a county other than the one in which suit was filed; (2) whether it was error to allow appellee (plaintiff), after the trial but before final judgment, to re-assert a claim for monetary relief against appellants, in addition to rescission, where appellee announced at the beginning of the trial that the claim for monetary relief was withdrawn; and (3) whether the court erred in granting rescission of appellee’s deed to appellants, especially since there was no finding of fraud on the part of appellants, and the judgment does not return them to their status quo. We find error in the court’s ruling on the latter two issues, requiring reversal.

I — FACTS

The facts of this drawn-out episode were found by the trial court at the conclusion of a non-jury trial substantially as follows. Appellee is an 80 year old widow who has lived on a 75 X 100 foot parcel of land located in St. Johns County since 1945. Appellants, defendants below, are the great-niece and great-nephew-in-law of ap-pellee, respectively. During the extended illness of appellee’s second husband, both appellants provided appellee with housekeeping and other assistance. The appellants’ assistance to the appellee included transporting appellee to the grocery store, to the doctor, and various other errands, assisting her to purchase an automobile, repairs and other maintenance around ap-pellee’s property, cooking, and other activities. The trial court characterized the activities of appellants during this time as that of two “devoted, attentive younger relatives.” Subsequently, in 1979 the parties began discussions of a possible arrangement whereby appellee would convey the easterly one-half of her land to appellants, in exchange for a promise from the appellants that they would live on the conveyed property and provide care and attention to appellee for the rest of her life. Apparently, appellee had a dread of living her later life in a nursing home, and hence was willing to give up possession of a portion of her property in exchange for assurances that this would never come to pass.

As a result of these discussions, on August 1, 1980, appellee conveyed the easterly one-half of her property to the appellants. Later, pursuant to the agreement, she granted appellants an easement across her retained western one-half of the parcel, in order to allow appellants access to the adjoining waterway. On February 25, 1981, appellee also executed a deed to herself and appellant Carole Royal, as joint tenants with right of survivorship, covering the western half of the lot, on which appel-lee’s home was located. In order to provide a residence for themselves, appellants then borrowed approximately $33,000 from the Beach Federal Savings and Loan Association, Jacksonville Beach, mortgaging the property conveyed by appellee as security, and commenced construction of a residence on the eastern half of the property at issue here. The total investment by appellants in the residence was $74,178.

In early June 1981, appellants and their two children moved into the newly constructed residence, although the residence was still without electricity and water. With appellee’s permission, appellants and their children used the utilities in appellee’s home for cooking and bathing. Approximately two to three weeks after this arrangement began, the relationship between the parties began to deteriorate. From that time until August of 1981, appellants apparently provided minimal “care and attention” to appellee. For example, after appellee’s hospitalization and surgery, ap-pellee received attention from her niece, Lillian Mack Emerson (appellant Carole Emerson Royal’s mother), rather than from the appellants. Also, when appellee returned to her home after surgery on October 4, 1981, she was cared for by a professional companion. According to the trial court, the only evidence that appellants were continuing to provide appellee with “care and attention,” as agreed, was appellant James Royal’s continued mowing of appellee’s yard and watering of her tomato plants.

Two significant events (characterized by the trial court as “shocking”) took place on August 12,1981. First, Lillian Mack Emerson and appellant Carole Royal went to the savings and loan association where appel-lee conducted her banking business, and attempted to cash certain certificates of deposit, in the amount of $85,000, which were owned jointly in the names of appel-lee, Mrs. Emerson, and appellant Carole Royal. The attempt was unsuccessful, however, because on the preceding day a freeze had been placed on the certificates of deposit by appellee after she had discovered that the certificates were missing from her safety deposit box. Appellee testified at trial that she had placed the certificates in the joint names of herself, Mrs. Emerson, and appellant Carole Royal in an effort to reduce probate costs upon her death, as well as to see to it that money would be available for her burial. Apparently, Mrs. Emerson had been allowed by appellee to write and sign checks from a joint savings account opened in the name of Mrs. Emerson and appellee for groceries and medical expenses. Regarding the August 12, 1981 effort to cash the certificates of deposit, Mrs. Emerson testified that she removed the certificates from their safety deposit box and attempted to cash them “for [appellee’s] own good.”

The second August 12, 1981 incident also involves Mrs. Emerson and the appellants. Mrs. Emerson petitioned the Circuit Court of St. Johns County for an emergency mental evaluation of the appellee pursuant to Section 394.463, Florida Statutes, advising the deputy clerk of court that appellee was in need of long-term convalescent care and emergency evaluation. Appellants Carole and James Royal accompanied Mrs. Emerson to the courthouse, where they signed two affidavits in support of Mrs. Emerson’s petition. As a result of the petition, appellee was transported by the St. Johns County Sheriff’s Department to Flagler Hospital, St. Augustine. Appellee was evaluated — and immediately released— when neither the intake examiner nor the clinical psychologist could find any basis for detention or treatment of appellee. No evidence was introduced at trial that appel-lee had ever received treatment for mental or emotional problems.

II — LITIGATION COMMENCED

Appellee initially filed a one-count complaint against Mrs. Emerson, seeking equitable remedies concerning the certificates of deposit Mrs. Emerson attempted to cash. Shortly thereafter, on October 30,1981, she filed an amended six-count complaint, adding the appellants as defendants in one count seeking rescission of the deeds and easement granted to appellants. As grounds, appellee alleged that appellants had obtained the deeds and easement by fraud, by means of their promise to see that she would be cared for in her home the rest of her life, with fraudulent intent not to perform the same. Later, appellee filed an amendment to Count II of her amended complaint, requesting in paragraph D of her prayer for relief that the trial court order appellants to pay in full and satisfy the mortgage placed on the easterly one-half of her parcel of land by appellants. Appellants filed an answer and a counterclaim seeking relief, in the event rescission was granted to appellee, in the form of a lien or trust on the property due to their improvement by building the residence thereon, or in the alternative, that damages be awarded in the amount of the improvement.

Trial on Count II of the amended complaint against the appellants was held on January 31 and February 1, 1983. Prior to taking any testimony at the trial, counsel for appellee stated on the record that appellee was voluntarily waiving any claim for the relief requested in paragraph D of Count II of the amended complaint — the request that appellants continue payment of the mortgage. However, after the trial, appellee moved to withdraw her pre-trial waiver of any claim that appellants be required to pay the mortgage. Although it is unclear from the record, apparently oral argument was heard on this motion, which was granted by the terms of the final judgment.

On June 30, 1983, the trial court entered a final judgment for appellee setting aside the deeds and easement, requiring appellants either to move the house or remove themselves and their belongings from the house, and requiring them to continue making mortgage payments and otherwise denying them any relief under their counterclaim. In support of the judgment, the trial court concluded that appellants had provided no care for appellee since August, 1981; that the strong relationship of trust and confidence which appellee had for the appellants and which was a motivating factor for the conveyance of the property to the appellants was breached by appellants’ participation in the efforts to redeem the certificates of deposit, and their participation in the Baker Act evaluation of appel-lee; and that the comfort and support given by appellants to appellee from 1978 to August 1981 was “reversed” by these acts and amounted to a failure of consideration. This appeal followed.

Ill — JURISDICTION

Appellants first claim that the trial court was without jurisdiction to render any judgment affecting the property in question, based on the local action rule which requires that a suit seeking transfer of title to real property be brought in the county where the real property is situated. Franklin v. Sherwood Park, Ltd., Inc., 380 So.2d 1323 (Fla. 3d DCA 1980); Hendry Corp. v. State Board of Trustees of Internal Improvement Trust Fund, 313 So.2d 453 (Fla. 2d DCA 1975). Appellants note that the rule has been phrased in jurisdictional terms, Georgia Casualty Co. v. O’Donnell, 147 So. 267 (Fla.1933), and hence is not subject to exceptions or waiver. Appellants point out that here appellee sought to cancel and rescind a quitclaim deed to real property, as well as an easement over a portion of this property; that the trial court’s order declared appellee to be the owner in fee simple of the entire parcel of property in dispute; and that appellee’s title to the property was thereby quieted. Therefore, appellants contend, since the result of this action was to transfer title to real property located in a county beyond the territorial jurisdiction of the court below, the local action rule applies. Parra v. Parra, 362 So.2d 380 (Fla. 1st DCA 1978). Appellants’ statement of the law is correct but not controlling here.

Appellee here sought rescission, an equitable remedy. Leesburg State Bank v. Lyle, 99 Fla. 535, 126 So. 791 (1930); Davis v. McGahee, 257 So.2d 62 (Fla. 1st DCA 1972). The local action rule does not apply with its full rigidity in suits in equity. Baum v. Corn, 167 So.2d 740 (Fla. 2d DCA 1964), quoting 56 Am.Jur. 24:

[Tjhis is because the decree made will not of itself necessarily be binding on the lands, but will take effect only through the action which the parties to the suit are compelled to take.

167 So.2d at 743. See also, Annot., 77 ALR 2d 1014 (1961), stating that generally, an action merely for rescission or cancellation of a contract for the sale or exchange of land is transitory or in personam, and not a local action. Thus, in Coon v. Abner, 246 So.2d 143 (Fla. 3d DCA 1971), the court found that venue for the cancellation of a note representing a mortgage was proper where the defendant or defendants reside, and not where the real property the note applied to was located. The court said that such an action did not involve title to, or a cloud or lien on, real property, and hence was not covered by the local action rule. See also, Singer v. Tobin, 201 So.2d 799, 801 (Fla. 3d DCA 1967) (equitable actions can be maintained in any jurisdiction where the defendants can be found even though the suit will affect lands not within the territorial jurisdiction of the court). Cf. Sales v. Berzin, 212 So.2d 23 (Fla. 4th DCA 1968) (local action rule applies where the suit is primarily seeking transfer of title to real property. In such a case, the suit is considered to be quasi in rem, and must be brought where the land in question is located.)

Here, appellee’s action was not instituted primarily to seek transfer of title to the property in dispute, but rather to invoke the equitable remedy of rescission, which would operate primarily as a coercive, in personam action against the appellants. Although it is true that the judgment also purports to declare appellee the owner in fee simple of the property in question and to quiet title to the property, the judgment speaks only as to appellants’ claims to the land, not the claims of any other people wherever situated. Accordingly, this action appears to be governed by the language found in Lakeland Ideal Farm & Drainage Dist. v. Mitchell, 97 Fla. 890, 122 So. 516, 518 (Fla.1929), quoting from Columbia National Sand Dredging Co. v. Morton, 28 App.D.C. 288, 7 L.R.A. (N.S.) 114, 8 Ann.Cas. 511:

... From a very early period, courts of equity having jurisdiction of the person of a party have exercised the power to compel him to perform a contract, execute a trust, or undo the effects of a fraud, notwithstanding it may relate to or incidentally affect the title to land in another jurisdiction. The doctrine is thoroughly well established within this limitation, that the principal question involved must be one of contract, trust, or fraud, raising up a duty which a person within the power of the court may be compelled to perform, although the act when performed may operate to affect, and even to pass, the title to land outside the territorial jurisdiction of the Court.

Here, appellants do not dispute that the trial court below could exercise in person-am jurisdiction over them. Since this action primarily serves to strip appellants of rights acquired by means of their unperformed promises and agreements, the fact that it will impact by operation of law on the title to appellee’s land does not in our judgment prevent application of the rule announced in Lakeland Ideal, supra. See, also Jutagir v. Marlin, et al., 453 So.2d 503 (Fla. 3d DCA 1984). Therefore, the trial court properly denied the appellants’ motion to dismiss for lack of jurisdiction.

IV — MONETARY RELIEF

Appellants next contend that the trial court erred in ordering that appellants would continue to be obligated on the mortgage. We agree. As noted previously, appellee’s counsel had specifically waived appellee’s prayer for relief requesting appellants’ continued payment of the mortgage. Appellee had agreed on the record, prior to trial, that if she succeeded in recovering the disputed property, she would assume payment of the mortgage on the property. The trial court clearly erred in ordering them to continue to make mortgage payments upon rescission of their deed, appellee’s counsel having withdrawn that claim prior to trial.

Reversible error may occur when an issue is reinjected into a cause once the evidence at trial has been closed, and after the party has previously voluntarily withdrawn the issue prior to trial. Lee v. A. Duda & Sons, Inc., 310 So.2d 391 (Fla. 2d DCA 1975). Moreover, prejudice may occur when a party is allowed to occupy inconsistent positions on the factual and legal issues pursued. See, Federated Mutual Implement and Hardware Insurance Co. v. Griffin, 237 So.2d 38 (Fla. 1st DCA 1970), cert. dismissed, 240 So.2d 641 (Fla. 1970). Since appellee withdrew her claim on the record at the outset of the trial, appellants had no opportunity or apparent need to offer evidence or give argument on the mortgage payment issue, and therefore were prejudiced by the trial court’s post-trial order granting the mortgage payment relief sought. This error requires reversal.

Y — RESCISSION

Finally, appellants contend that the trial court erred in granting rescission. Although we do not foreclose the granting of rescission, we do agree that the judgment as rendered improperly grants such relief. As a rule, a court of equity will ordinarily rescind an instrument only for fraud, accident or mistake, and not because of the mere want or failure of consideration; an action for damages at law is usually considered adequate where failure of consideration exists. Rennolds v. Rennolds, 312 So.2d 538, 541 (Fla. 2d DCA 1975). Here, the trial court’s order and subsequent final judgment predicates the granting of the remedy of rescission on failure of consideration occasioned by appellants’ actions culminating in the events of August 12, 1981. The trial court did not make a specific factual finding that appellants were guilty of fraud. It appears, therefore, that the remedy applied does not coincide with the trial court’s findings. It is unclear to us, however, whether the trial court upon re-examination of the evidence in the light of applicable legal principles might nevertheless find rescission justified in this case.

The facts recited by the trial court suggest fraudulent inducement as a possible alternate ground for rescission. This ground for rescission exists where at the time of execution of a contract, the party promising to perform an act in the future has a secret undisclosed intent not to carry it out, but fraudulently represents that he will perform as an inducement to the other party to enter into the contract. The rule, which may be applicable to the facts in the case at bar, is well recognized where a deed is executed in consideration of an agreement by the grantee to support the grantor. Where the grantee had no intention of carrying out the agreement, this constitutes a fraud vitiating the conveyance. 9 Fla.Jur.2d, Cancellation, § 20. Recognition of the sometimes difficult evi-dentiary problem in proving fraudulent inducement at the time the agreement is consummated no doubt persuaded the Florida Supreme Court to hold, in Collins v. McKelvain, 138 Fla. 463, 189 So. 655, 656 (1939), on facts similar to the case at bar, that:

Conduct of the grantee, after accepting conveyance of property, and failing to provide support and maintenance for the grantor, gives rise to the presumption of an abandonment of the contract (to provide support and maintenance for the grantor) and of a fraudulent intent in entering into it and taking conveyance of the property; and relief is given upon this ground rather than upon the right to rescind for failure of grantee to carry out the terms of the contract, (citations omitted)

Quoted in Brown v. Phillips, 330 So.2d 510, 511-512 (Fla. 2d DCA 1976). See also, Thomas v. Vickers, 196 So. 602 (Fla.1940); Cook v. Adams, 89 So.2d 6 (Fla.1956). Here, the trial court found that the appellants provided nominal care and attention to appellee after June 1981, when the new house was substantially completed. The trial court also found that the “shocking” character of appellants’ actions of August 12, 1981, in effect nullified all previous efforts of appellants in providing care and attention to appellee. Arguably, these actions were sufficiently egregious to raise a presumption of fraudulent inducement under the authorities above cited. However, whether rescission is justified under this theory is a matter we leave to the further consideration of the trial judge on remand.

In the event the trial court, on remand, continues to opt for rescission as the appropriate remedy here, considering all the circumstances, one further matter must be addressed. As previously noted, appellants complain (and rightly so, as the facts recited demonstrate), that the final judgment does not return them to their status quo. The law is well settled that a condition precedent to the granting of the remedy of rescission is that the other party be returned to his status quo. 9 Fla. Jur.2d, Cancellation, § 34. Generally, a contract will not be rescinded even for fraud when it is not possible for the opposing party to be put back into his pre-agreement status quo condition. Id. at § 36. Moreover, a party who makes good faith improvements to the land to be returned to another is entitled to compensation to the extent that the improvements have added value to the returned property. Id. at § 35. It is manifestly clear that the judgment did not return appellants to their status quo, for they not only made improvements to appellee’s property for which no compensation was received, they were also ordered to continue making mortgage payments on a residence they no longer are able to occupy and from which they can derive no benefit.

Finally, we direct that on remand the trial court be guided by the rule that the court should go no further than is reasonably necessary to balance fully the equities flowing between the parties, and in exercising its discretion should grant relief appropriate to the wrongs suffered, or as may be reasonably called for by the circumstances of the case. See, Rennolds v. Rennolds, supra, 312 So.2d at 542.

Accordingly, the judgment below is affirmed in part, and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

MILLS and NIMMONS, JJ., concur.

      . The case against Mrs. Emerson, tried earlier, was concluded by appellee’s dismissal, with prejudice, of all counts of the complaint against Mrs. Emerson.

      . Courts of equity possess the fullest liberty to mold decrees to do equity. Singer v. Tobin, 201 So.2d at 801; Circle Finance Co. v. Peacock, 399 So.2d 81, 84 (Fla. 1st DCA 1981); Sottile v. Mershon, 166 So.2d 481 (Fla. 3d DCA 1964).

      . The parties erroneously argue this point in terms of whether appellee "voluntarily dismissed" her claim for relief regarding payment of the mortgage on the residence. Appellee did not dismiss her cause of action, either in whole or in part, or any counts in her cause of action. Rather, she waived her claim for that particular form of relief. Thus, Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978), and its progeny are irrelevant.

      . We have not overlooked the provision of the final judgment which allowed appellants thirty days within which to remove the newly constructed dwelling from appellee's property. The extent to which this might be considered as restoring the status quo would depend, in turn, upon the feasibility, both physical and economic, of such removal, neither of which were mentioned in the final judgment.

      . Nothing in this opinion should be construed as preventing the trial court on remand from allowing appellee to amend her second amended complaint to seek mortgage payment relief, from reopening the evidence regarding appel-lee’s entitlement to such relief, or from conducting such further proceedings and entering such further or amended order or judgment as may be necessary to balance the equities between the parties.


author: ERVIN, Chief Judge.

text:
    In the Interest of W.R., a child, Appellant, v. STATE of Florida, Appellee. In the Interest of D.H., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. AY-151, AY-152.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1985.

      Michael E. Allen, Public Defender, Andrew Thomas, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Andrea Smith Hil-lyer, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ERVIN, Chief Judge.

W.R. and D.H. appeal individual orders of restitution following an adjudication of delinquency for criminal mischief. These cases are consolidated for purposes of the appeal since they arose out of the same incident and involve similar factual and legal issues. Appellants argue that the trial court erred in concluding that the appellants’ mothers possess the financial ability to pay the restitution ordered. We agree and reverse.

On December 22, 1983, a petition was filed charging W.R. and D.H. with burglary of a conveyance, grand theft and criminal mischief. Appellants admitted the criminal mischief charge and the state nolle prossed the other two counts. Appellants admitted in a predisposition report that on December 3, 1983, they and one other individual climbed into a farm combine belonging to Melvin Barber and drove the combine around the cornfields and ultimately into a tree, causing extensive damage to the combine. On February 24, 1984, at a restitution hearing, the trial judge, although finding both mothers indigent, ordered appellants and their mothers to pay $50 per month, plus a $2.00 clerk’s fee ($52.00 per month), until the court no, longer had jurisdiction, or until the insured value of the combine was paid.

Appellants argue that the court erred in concluding that appellants’ mothers possessed the financial ability to make restitution. When restitution is ordered, Section 39.11(l)(a)l, Florida Statutes, mandates that “the amount of restitution shall not be greater than an amount the child and his parents could reasonably be expected to pay or make.” (e.s.) D.H.’s mother is unemployed, supports herself and three children, and receives $231 per month in AFDC and $40 per month from an undisclosed source for support of one of her children. W.R.’s mother is supporting W.R., two younger daughters and an aunt on a monthly salary of $250. She pays $200 per month for rent, $80 for electricity, $15 for telephone service and $50 for furniture rental. W.R.’s natural father was in prison at the time of the hearing. Both W.R. and D.H. are unemployed and are attending school full-time in the Gadsden Vocational Technical School Plumbing Program.

Under these circumstances, the evidence does not support a finding that appellants and their mothers can reasonably be expected to pay $52 per month in restitution.

REVERSED.

MILLS and ZEHMER, JJ., concur.

      . Payments received by appellant under the Aid to Families with Dependent Children Program (AFDC) should not be considered by the court in assessing the present financial ability to pay restitution. See M.P. v. State, 443 So.2d 482 (Fla. 2d DCA 1984).


author: LOGAN, PAUL E., Associate Judge.

text:
    Charles Laverne JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 84-696.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1985.

      James Marion Moorman, Public Defender, and W.C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   LOGAN, PAUL E., Associate Judge.

Appellant Charles Laverne James appeals his judgment and sentence. We affirm in part and reverse and remand for correction of a sentencing error.

Appellant James was charged with armed robbery, two counts of aggravated assault, two counts of attempted first degree murder, grand theft, and possession of a firearm by a convicted felon. He pled guilty to armed robbery, aggravated assault, attempted second degree murder, and grand theft and was sentenced to the following consecutive sentences: ten years with a three-year minimum mandatory for armed robbery, five years with a three-year minimum mandatory for aggravated assault, ten years with a three-year minimum mandatory for attempted second degree murder, and five years for grand theft. The appellant filed a motion to correct sentence, urging that the trial court had erred by imposing minimum mandatory sentences consecutive to each other where the offenses were committed during the same criminal transaction. The trial judge denied the motion, with the exception of deleting the three-year minimum for aggravated assault.

The series of events leading to the charges against the appellant was as follows. The appellant and two other men, all armed with firearms, entered a bank in Fort Meade. They robbed a bank employee of bank money while holding her at gunpoint and herded the bank customers into a back room. While directing the customers into the back room, the appellant pointed a gun at a man named Mr. Baker.

The Fort Meade Police Department then arrived, having been summoned by a silent alarm system. The robbers saw the police officers, and one announced they were going to have to shoot their way out. The appellant engaged in a gunfight with the police chief; then he and another of the robbers took the police captain’s car and stole it.

Appellant contended, both in the trial court and on appeal, that the imposition of consecutive minimum mandatory sentences was erroneous in light of Palmer v. State, 438 So.2d 1 (Fla.1983). The Palmer court struck down the imposition of thirteen consecutive minimum mandatory sentences for thirteen counts of robbery committed against mourners at a funeral parlor. At the same time, the Palmer court specifically held that it did not prohibit consecutive mandatory minimum sentences for “offenses arising from separate incidents occurring at separate times and places.” 438 So.2d at 4.

In this case the prosecutor conceded that the armed robbery and aggravated assault were part of the same criminal transaction. The judge agreed and deleted the three-year minimum mandatory for aggravated assault. Although the finding that the crimes arose from the same transaction was correct, the remedy was improper. The judge should have corrected the aggravated assault sentence to run concurrently with the armed robbery sentence, because section 775.087(2), Florida Statutes, requires imposition of a three-year minimum sentence for aggravated assault committed by a person possessing a firearm.

The state did not concede, however, that the attempted second degree murder and the armed robbery were part of the same criminal transaction, and the judge found that the armed robbery and aggravated assault were essentially completed criminal episodes when the police arrived. The appellant’s gunfight with the police chief began at a distinct time in the chain of events. Furthermore, it occurred as the appellant and the other robbers were exiting the bank. Although the prosecutor admitted at the hearing on the motion to correct sentence that the location of the shooting was not entirely clear from the factual basis for the plea, the depositions taken reflected that the appellant was at the back door of the bank when the shooting began, ducked back, and then went outside and fired additional shots. By any construction of the events it is clear that the police chief who was the target of attempted second degree murder was not within the bank when the shooting began. Thus, the .Palmer requisite that the incidents occur at separate times and places in order for the legal imposition of consecutive minimum mandatory sentences was indeed met.

What Palmer prohibits is the imposition of consecutive mandatory sentences for crimes arising out of a single criminal episode, such as the situation in Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984). There, our sister court struck down the imposition of consecutive minimum mandatory sentences for aggravated assault and armed robbery where the defendant placed a handgun in the victim’s side and robbed her. The fourth district found that the assault was “part and parcel” of the armed robbery. 446 So.2d at 198. Here, however, the attempted second degree murder was an outgrowth of the appellant’s attempt to escape from the bank, where he had already committed armed robbery and aggravated assault.

Therefore, we affirm the trial court’s imposition of consecutive minimum mandatory sentences for attempted murder and armed robbery, but we reverse the trial judge’s decision to delete the minimum mandatory for aggravated assault and remand for correction of this sentencing error.

RYDER, C.J., and GRIMES, J., concur.


author: WENTWORTH, Judge.

text:
    Herman JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AW-171.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1985.
    Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Thomas H. Bate-man, III, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a sentence imposed for the offense of robbery with a firearm. Although appellant has raised several issues on appeal, we find the only point of reversible error to be the court’s failure to provide a written statement of reasons for departing from the presumptive guideline sentence established pursuant to Fla.R.Crim.P. 3.701. For this limited reason we therefore vacate the sentence imposed and remand the cause for resentencing. See Johnson v. State, 462 So.2d 49 (Fla. 1st DCA 1984).

MILLS and SHIVERS, JJ., concur.


text:
    Frank A. BAILEY, as a General Partner in N-Site Associates, a Florida General Partnership; Cuyahoga Equipment Corp.; Marvin Silverman, Samuel Berke, Jerome S. Morris, Harvey Kaiser, Herbert W. Brash, Clifford Bragman, Donald A. Ritholz, and William Dacy, as General Partners of 800 Ventura Associates, an Illinois General Partnership, Appellants, Cross Appellees, Cross Appellants, v. Leslie J. HARRINGTON, Paul Roepnack, John Dec, Charles B. Maddera, Andrew H. Warner, Carl Mayes, John W. Partridge, and Arthur Korfage, as Trustees of the Broward County Carpenter’s Pension Fund, Appellees, Cross Appellants, Cross Appellees.
    No. 83-2383.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Cooper, Shahady, Frazier & Pugatch and Marshall Cooper, Fort Lauderdale, Lapidus & Stettin and Richard Lapidus, Miami, for appellants, cross appellees, cross appellants.
    Cristol, Mishan & Sloto and Steven Mish-an and Julie Feigeles, Miami, for appellees, cross appellants, cross appellees.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The amended final judgment under review is reversed on the cross appeal only, and the cause is remanded to the trial court with directions to grant a mortgage foreclosure in the amount of the principal and interest due under the note, as prayed for in the complaint filed below by the plaintiff/cross appellant Leslie J. Harrington. We conclude that the trial court erred in striking the profit participation provision of the loan agreement herein, in refusing the requested mortgage foreclosure and in finding that the mortgage loan charged a usurious rate of interest. We reach this result based on the following, briefly stated, legal analysis.

The note in question charged an interest rate of 24.99% which was plainly not usurious as the amount of money loaned herein was in excess of $500,000. §§ 687.03(1), 687.071, Fla.Stat. (1983). The profit participation provision of the loan agreement did not, as the trial court found, charge any additional interest on the loan. It provided that the lender was entitled to share in 43% of the profits, if any, from the construction project which the loan financed. This payment cannot constitute additional interest on the loan as it was not payable at all if no profits were realized from the project. Indeed, no profits were realized as the project entirely failed and all agree that no payment whatever is due under the profit participation provision. Moreover, this profit participation provision is expressly authorized by our usury statutes as not constituting additional interest, § 687.03(4), Fla. Stat. (1983), and has long been approved by well-established principles of usury law. Schwab v. Quitoni, 362 So.2d 297 (Fla. 3d DCA 1978).

The main appeal of the defendant/appellant Yenom Associates Corp. is rendered moot by our ruling today; so is the first point in the main appeal of the defendant/appellant Frank A. Bailey. The remaining point raised by the defendant/appellant Bailey has no merit.

Reversed and remanded.


author: SCHWARTZ, Chief Judge.

text:
    Arnold M. WEINBERG, Appellant, v. George D. PENNINGTON, a/k/a Don Pennington, Rita Pennington and Charles V. Graul, Appellees.
    No. 84-935.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Hoffman & Hertzig and Carl Hoffman, Coral Gables, for appellant.
    Perlman & Perlow and Mark Perlman, Hallandale, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

In 1980, Weinberg paid $10,000 for 150 shares of Associated Industries, Inc., a newly formed corporation engaged in the meatpacking business in Honduras. When the company perhaps predictably went (pork) belly up, Weinberg sued the corporation and three of its principals, the present appellees, for rescission of the transaction and other attendant relief. § 517.211, Fla. Stat. (1981). The action was based on theories of common law fraud, fraudulent sale of securities contrary to § 517.301, Fla. Stat. (1981), and the sale of unregistered securities in violation of § 517.07, Fla.Stat. (1981). After a paper default judgment was entered against the defunct corporation for its failure to make discovery, the cause proceeded to a non-jury trial against the individual defendants. The trial court found that no fraud of any variety had been established and that the transaction in question was exempted from the registration requirement pursuant to § 517.-061(12)(a), Fla.Stat. (1981). Judgment was consequently entered for the defendants and Weinberg appeals.

While the evidence supports and we thus may not disturb the trial court’s findings against the plaintiff as to fraud, Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982), we find otherwise on the unregistered securities count. The exemption contained in § 517.061(12)(a) applies only if all five specified statutory conditions are established, an issue upon which the parties relying upon the exemption, the appellees, bear the burden of proof. § 517.171, Fla.Stat. (1981); State v. Buchman, 361 So.2d 692 (Fla.1978). In this case, it affirmatively appears without contradiction that the transaction did not conform with condition 3, which requires that

[pjrior to the sale, each purchaser or his representative, if any, [be] provided with, or given reasonable access to, full and fair disclosure of all material information.

Specifically, among other things, Weinberg was neither told of the existence of a highly unfavorable report by the Price, Wa-terhouse accounting firm concerning the corporation’s financial status, nor given equivalent information, or means of access to it, about that vital issue. Cf. Thiele v. Davidson, 440 F.Supp. 585 (M.D.Fla.1977), aff’d, 612 F.2d 578 (5th Cir.1980); Krutel v. Stolberg, 356 So.2d 1299 (Fla. 3d DCA 1978). This failure alone establishes the unavailability of the exemption applied below.

The basis of the lower court’s decision rendered it unnecessary for it to consider whether any or all of the present appellees were individually liable under § 517.211(2), Fla.Stat. (1981). We find, as we did in Artistic Door Corp. v. Rheney, 384 So.2d 179, 182 (Fla. 3d DCA 1980), pet. for review denied, 392 So.2d 1371 (Fla. 1980), that the activities of George Pennington, the primary actor in the sale to Weinberg, were such as to render him liable as a matter of law. The liability, if any, of Rita Pennington and Charles V. Graul, is, however, subject to the resolution of disputed questions of fact and may therefore be determined only after trial by the lower court.

For these reasons, the judgment under review is reversed and the cause remanded for the entry of an appropriate judgment for Weinberg against George Pennington and for trial on the issue of the individual liability of Rita Pennington and Charles Y. Graul.

Reversed and remanded.

      .The registration provisions of s. 517.07 do not apply to any of the following transactions:
      ******
      (12)(a) The offer or sale, by or on behalf of an issuer, of its own securities, which offer or sale is part of an offering made in accordance with all of the following conditions:
      1. There are no more than 35 purchasers, or the issuer reasonably believes that there are no more than 35 purchasers, of the securities of the issuer in this state during an offering made in reliance upon this subsection or, if such offering continues for a period in excess of 12 months, in any consecutive 12-month period.
      2. Neither the issuer nor any person acting on behalf of the issuer offers or sells securities pursuant to this subsection by means of any form of general solicitation or general advertising in this state.
      3. Prior to the sale, each purchaser or his representative, if any, is provided with, or given reasonable access to, full and fair disclosure of all material information.
      4. No person defined as a dealer in this chapter is paid a commission or compensation for the sale of the issuer’s securities unless such person is registered as a dealer under this chapter.
      5. When sales are made to five or more persons in this state, any sale in this state made pursuant to this subsection shall be voidable by the purchaser in such sale either within 3 days after the first tender of consideration is made by such purchaser to the issuer, an agent of the issuer, or an escrow agent or within 3 days after the availability of that privilege is communicated to such purchaser, whichever occurs later.

      . We need not decide whether, as the appellant claims, the defendants failed in their burden to establish any other conditions to (12)(a).

      . (2) Any person purchasing or selling a security in violation of s. 517.301, and every director, officer, partner, or agent of or for the purchaser or seller, if the director, officer, partner, or agent has personally participated or aided in making the sale or purchase, shall be jointly and severally liable to the person selling the security to or purchasing the security from such person in an action for rescission, if the plaintiff still owns the security, or for damages, if the plaintiff has sold the security.


text:
    TECNITUR, S.A., a foreign corporation, Appellant, v. TRAVEL AMERICA ENTERPRISES, INC., a Florida corporation, and Alberto Figari Rodrigo, individually, Appellees.
    Nos. 84-1163, 84-1164.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Stabinski & Funt and Cristina DeOli-veira, Miami, for appellant.
    Gustavo Gutierrez, Miami, for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

These appeals question the propriety of orders requiring the appellant’s case to be prosecuted in Peru because of a forum selection provision of an agreement. The action by the plaintiff sought to collect on certain checks issued in this state by the corporate defendant, payment of which was stopped in this state. We reverse on the authority of Zurich Ins. Co. v. Allen, 436 So.2d 1094 (Fla. 3d DCA 1983) and Huntley v. Alejandre, 139 So.2d 911, 912 (Fla. 3d DCA 1962) and also because the defendant corporation sought affirmative relief in this jurisdiction by filing a counterclaim for breach of contract. Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961).

The orders under review be and they are hereby reversed and the cause is remanded to the trial court for further proceedings as to both defendants.

Reversed and remanded with directions.

      . The action against the individual defendant, who is domiciled in Florida, was over an alleged guarantee of the corporate obligations.


text:
    Burton S. LIEBERMAN, d/b/a Burt’s Jewelers, Appellant, v. JEWELERS MUTUAL INSURANCE COMPANY, Appellee.
    No. 84-1422.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Ullman & Ullman and Michael W. Ullman and Steven B. Sprechman, North Miami Beach, for appellant.
    Fuller & Feingold and Lawrence A. Fuller, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Treasure Craft Jewelers, Inc. v. Jefferson Ins. Co., 431 F.Supp. 1160 (E.D.Pa.1977), aff'd, 583 F.2d 650 (3d Cir.1978). See St. Paul Fire & Marine Ins. Co. v. Mayor’s Jewelers, 465 F.2d 317 (5th Cir.1972).


text:
    Arthur EDELSON, Appellant, v. Carol EDELSON, Appellee.
    Nos. 84-2415, 84-2247.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Chaykin, Karlan & Jacobs and Sharon Jacobs, Coral Gables, for appellant.
    Frederick C. Sake, Miami, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).


author: GUNTHER, BOBBY W., Associate Judge.

text:
    Dean G. CHRISTIE, Appellant, v. GENERAL ELECTRIC CREDIT CORPORATION, a New York corporation d/b/a Eastlakes a private country club community at Eastpointe Country Club, Appellee.
    No. 83-1338.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Basil S. Diamond of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant.
    Thomas L. Brown, West Palm Beach, for appellee.
   GUNTHER, BOBBY W., Associate Judge.

The sole issue is whether the trial court erred in granting the appellee’s motion for involuntary dismissal. To aid in answering this question, a review of an extremely condensed version of the facts is necessary.

Appellant entered into a contract to purchase a patio home from appellee. The contract was contingent upon appellant obtaining 80% financing. The contract also provided for appellee to retain the deposit and sum prepaid for extras as liquidated damages if appellant obtained the mortgage financing but failed to close the transaction. Appellant applied for mortgage financing but never received any written commitment. In spite of this, appellant attended a scheduled closing upon the assumption that this 80% financing would be available through Barnett Bank. At the time of closing appellant refused to close because he was being charged with additional sums for insurance required by the bank which he claimed he had not agreed to pay. For this reason he claimed he had not in fact received 80% financing. After the aborted closing, appellee took a contrary position and refused to return to appellant his deposit and prepaid sum for extras, retaining them as liquidated damages. Appellant then sued appellee for their return plus expenses incurred in anticipation of closing.

The action was tried by the court without a jury. Only the appellant testified and at the conclusion of his evidence, the court granted appellee’s “motion for judgment.” Under Rule 1.420(b), Florida Rules of Civil Procedure, in a non-jury trial, the court may grant a dismissal after proper motion if the party seeking affirmative relief has shown no right to relief.

The record reveals that appellant established a prima facie case. Appellant testified:

Q. Then they arranged for this m insurance, right, this mortgage insurance?
A. Right.
Q. And you agreed to that.
A. Yes, because as far as I was concerned, they had come up with 80 percent financing.
Q. Absolutely. So there you were. You talked these folks into transferring to this contract, that is the patio home you were satisfied with, the patio home, you agreed to this purchase of the mortgage insurance provision and you went to the closing?
A. Agreed in the sense that they were telling me how they had arranged to come up with it. At this point it’s of no interest to me. The fact that they were going to give me 80 percent financing. That’s all that was of interest to me.
Q. That’s what you got.
A. No, I did not, because there was an addition, sir, of what you mentioned, $216. a year to pay for that insurance, (emphasis added).

There was no testimony to contradict appellant’s assertion that he was not responsible for paying for the insurance required by the bank. Appellant may have orally agreed to mortgage insurance but nowhere in the record is it established that he also agreed to pay for it or that he was responsible for the charge. The court may not weigh and judge the credibility of the evidence when ruling upon a motion pursuant to Rule 1.420(b) of the Florida Rules of Civil Procedure. Service Facilities Corp. v. Lanier, 371 So.2d 1083 (Fla. 4th DCA 1979); Tillman v. Baskin, 260 So.2d 509 (Fla.1972).

Thus, the court was premature in granting appellee’s motion. Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED.

DOWNEY and GLICKSTEIN, JJ„ concur.


text:
    Irving KERN, Appellant/Cross Appellee, v. Benny L. MARTZ, et al., Appellees/Cross Appellants.
    No. 83-1951.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Edward A. Perse and Mallory H. Horton of Horton, Perse & Ginsberg, Miami, and Joel A. Savitt, P.A., North Miami Beach, for appellant/cross appellee.
    W. Jay Hunston, Jr. and Brian B. Joslyn of DeSantis, Cook, Gaskill & Silverman, P.A., North Palm Beach, for ap-pellees/cross appellants.

      Richard F. O’Brien III of Hall & O’Brien, P.A., Miami, for appellee/cross appellant— The Hayden Group.
   LETTS, Judge.

The trial court dismissed, with prejudice, an amended complaint filed by a broker seeking a real estate commission and other relief. We reverse.

The facts are complex, but we see no need to set them forth in agonizing detail. Basically, the broker had suffered dismissal of his complaint against the buyer and his associates after they successfully argued that the complaint, and its attached exhibits, called for payment of any brokerage fee due by the seller not the buyers. Apparently they were also successful in their contention that in any event, the contemplated sale never took place. However, the complaint alleged that the buyers were obligated to pay the commission and that the sale was concluded. Indeed, the sales agreement attached to the complaint, while obligating the seller to pay the commission in one segment thereof appeared elsewhere to place the onus of actually paying over any commission on the buyers.

As we view the amended complaint, it stated a cause of action against all the defendants and the defenses thereto must be affirmatively pled. We do not hold that the broker’s allegations can survive a directed verdict or even a summary judgment. That remains to be seen. We simply hold that it was reversible error to dismiss the amended complaint in favor of the buyer and his associates.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.


text:
    Timothy James O’MALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 84-583.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon finding appellant guilty of violation of his probation, the parties agreed that the appellant had a guideline score of fifty points, which placed him in the twelve to thirty months sentence range. However, the trial court felt he could elevate the sentence to the next category or grid on a violation of probation and thus sentenced appellant to two years, ten months, and nine days, with credit for time served. Appellant objected to raising the sentence to the next grid because the amendment to the rule (Florida Rule of Criminal Procedure 3.701(d)(14)) was not adopted until May 8, 1984, and the sentencing took place on March 5, 1984.

We hold that appellant’s contention has merit. Recently approved changes in the sentencing guidelines have no retroactive effect. Dorman v. State, 457 So.2d 503 (Fla. 1st DCA 1984); see also Kelly, v. State, 461 So.2d 192 (Fla. 4th DCA 1984). Furthermore, the court’s record explanation of why he was deviating from the guidelines (assuming that he was) is inadequate under the rule to demonstrate clear and convincing reasons therefor. Fla.R.Crim.P. 3.701 (d)(ll).

Accordingly, we reverse the appellant’s sentence and remand for further sentencing.

DOWNEY, DELL and BARKETT, JJ., concur.


text:
    PALM GREENS AT VILLA DEL RAY MASTER CONDOMINIUM ASSOCIATION, INC., Appellant, v. PALM GREENS LIMITED, a Florida limited partnership, etc., et al., Appellees.
    No. 84-591.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Howard I. Weiss and George H. Aslani-an, Jr. of Sachs & Weiss, P.A., Boca Raton, for appellant.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee — Villadelray Investors, Ltd.
   LETTS, Judge.

We are of the opinion that the trial court erred in dismissing the complaint with prejudice as to this defendant.

There are allegations that this particular defendant is a partner of other defendants who are accused of wilful, wanton and wrongful conduct and breach of fiduciary duty.

The complaint, though perhaps inartfully worded and unclear, spins a tale of incestuous transfers of easements without consideration among interrelated corporations allegedly owned or controlled by the developer to the ultimate detriment of the association composed of unit owners.

All of the above, coupled with the trial judge’s grant of the motion to dismiss on the original complaint without leave to amend, even once, causes us to reverse and remand to allow an amended complaint which reinstates the dismissed corporation as a defendant.

REVERSED AND REMANDED.

ANSTEAD, C.J., and DELL, J., concur.


text:
    Gary WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 84-830.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction under Section 843.01 Florida Statutes (1983). See Coney v. State, 417 So.2d 777 (Fla. 3d DCA 1982).

However, we reverse the assessment of $17.00 in costs against appellant and remand for a hearing pursuant to Jenkins v. State, 444 So.2d 947 (Fla.1984).

Affirmed in part; reversed in part.

DOWNEY, HERSEY and WALDEN, JJ., concur.


text:
    Clifford PETTIS, Appellant, v. STATE of Florida, Appellee.
    No. 84-889.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.

      Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Pettis violated parole. The trial court went outside the sentencing guidelines and increased the sentence given Pettis solely under the provisions of Florida Rule of Criminal Procedure 3.701(d)(14). It was error to employ this Rule because it did not become effective until a full month following sentencing. We reverse the retroactive application of Florida Rule of Criminal Procedure 3.701(d)(14) under authority of O’Malley v. State, 462 So.2d 868 (Fla. 4th DCA 1985) and remand for further sentencing.

Reversed and remanded.

HERSEY, DELL and WALDEN, JJ., concur.


author: BARKETT, Judge.

text:
    Johnny WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 84-1546.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1985.
    Johnny Williams, appellant, Belle Glade, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Barton, Asst. Atty. Gen., West Palm Beach, for appellee.
   BARKETT, Judge.

Appellant, Johnny Williams, appeals the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850.

The only ground proposed by appellant that can be considered by the trial court is the denial of effective assistance of counsel. The remaining grounds could have been raised on direct appeal and, therefore, will not support a subsequent claim for collateral relief under Rule 3.850. Palmes v. State, 425 So.2d 4 (Fla.1983).

The trial court erred, however, in finding that appellant’s motion was legally insufficient. Rule 9.140(g), Florida Rules of Appellate Procedure, provides:

Unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing, [emphasis added]

Appellant’s sworn allegations, which raised the possibility of ineffective assistance of counsel in connection with the defense of drug use at the time of the robbery for which appellant was convicted, entitled him to more than a summary denial of his motion. See, e.g., Vaught v. State, 442 So.2d 217 (Fla.1983). Because this record fails to meet the standard of Rule 9.140(g), Florida Rules of Appellate Procedure, we reverse and remand for an evidentiary hearing on appellant’s claim of ineffective assistance of counsel. In all other respects, the trial court’s order is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

DOWNEY and WALDEN, JJ., concur.