author: GRIMES, Acting Chief Judge.

text:
    OLD BRIDGE CORPORATION d/b/a Old Bridge Park, Appellant, v. James R. DUGAN d/b/a Dugan Realty; Sabal Realty, Inc., a Florida corporation; Fred Bischoff; Sidney Lloyd; John Petrick; John Obertein; Jerome Piereth; and Al Deerwester, Appellees.
    No. 84-999.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1985.
    Rehearing Denied Feb. 27, 1985.

      Frank DePena and Harry Blair of Harry A. Blair, P.A., Fort Myers, for appellant.
    Robert L. Waltemyer of O’Halloran, Johnson & Waltemyer, North Fort Myers, for appellees James R. Dugan d/b/a Du-gan Realty and Sabal Realty, Inc.
    Wallace C. von Arx of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Fort Myers, for appellee Bischoff.
    Emily Moore and Christine E. Larson of Florida Rural Legal Services, Inc., Fort Myers, for appellees Piereth, Deerwester, Lloyd, Obertein and Petrick.
   GRIMES, Acting Chief Judge.

Appellant seeks review of a final judgment denying its complaint for injunctive relief regarding the posting of “for sale” signs in its mobile home park.

Appellant owns and operates the Old Bridge Mobile Home Park in Lee County. It leases home spaces to residents who own their mobile homes, and it also sells mobile homes to prospective park residents. Appellant brought suit for an injunction against several mobile home owners in the park who had placed “for sale” signs in front of their mobile homes and against two real estate brokers whose “for sale” signs had been placed on the premises of mobile home owners. Appellant contended that the erection of “for sale” signs violated rules 18 and 19 of its rules and regulations to which all residents agreed when they moved into the park. These rules provided as follows:

18. There shall be no FOR SALE or FOR RENT signs erected or displayed on Lessee’s premises. Lessee may post notice of Sale or Rental on the Park Bulletin Board.
19. Peddling and/or soliciting within the Park is forbidden. Residents annoyed by such activity are requested to report same to the Park Management. Necessary services within the Park are franchised by Park Management.

Following a hearing at which testimony was taken, the court denied appellant’s claim for injunctive relief.

In Blair v. Mobile Home Communities, Inc., 345 So.2d 1101 (Fla. 2d DCA 1977), this court construed section 83.71, Florida Statutes (1975), to preclude a mobile home park owner from enforcing a rule prohibiting the display of “for sale” signs by mobile home owners in the windows of their homes. The applicable provisions of section 83.71 have now been carried forward into section 83.765(1), Florida Statutes (1983), with the addition of certain language apparently taken from the Blair opinion. The portion of this statute which pertains to the instant case reads as follows:

(1) No mobile home park shall make or enforce any rule which shall deny or abridge the right of any resident of such mobile home park or any owner of a mobile home located in such park to sell said mobile home within the park, which shall prohibit the mobile home owner from placing a “for sale” sign on or in his mobile home, the size, placement and character of all signs to be subject to reasonable rules and regulations of the mobile home park, or which shall require the resident or owner to remove the mobile home from the park solely on the basis of the sale thereof.

Appellant, as it must, now concedes that the flat prohibition against the erection of “for sale” signs as contemplated by rule 18 cannot stand in the face of the statute. However, appellant argues that its rules can be enforced insofar as they may be construed to prohibit the erection of a real estate broker’s sign on the premises of a mobile home owner. Appellant admits that its motivation for the suit is to protect its advertising investment and profits related to the sale and resale of mobile homes to prospective park residents.

Testimony taken below supported the conclusion that the posting of a notice of sale on the park bulletin board could not be reasonably expected to bring about a sale. Several witnesses testified that the most effective way for an owner to sell his mobile home was by employing a real estate broker who would post a “for sale” sign bearing the broker’s name on the owner’s premises. This method was said to be particularly useful to an owner who was absent from the park for long periods of time.

Section 83.765(1) is designed to prevent a mobile home park from unreasonably restricting its mobile home owners from selling their mobile homes. As we stated in Blair v. Mobile Home Communities, Inc., “Although a law which guarantees a right which by its terms shall not be denied or abridged may permit a reasonable curtailment of that right, it cannot be construed to permit restrictions which would render the right useless.” Id. at 1103. Therefore, we hold that the appellant’s efforts to prevent the posting of real estate brokers’ signs on the mobile home owners’ premises cannot prevail. The issues concerning the “size, placement and character” of the signs are not before us because appellant’s rules do not address these matters.

AFFIRMED.

SCHEB and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hobert McKAY, Appellant, v. CONNECTICUT NATIONAL BANK, f/k/a Hartford National Bank and Trust Company, Appellee.
    No. 84-505.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.
    Rehearing Denied March 13, 1985.
    Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellant.
    Gunster, Yoakley, Criser & Stewart and Dennis J. Powers and Thomas D. DeCarlo, Palm Beach, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART, and JORGENSON, JJ.
   PER CURIAM.

Contrary to appellee's assertion that it is protected under the provisions of section 94 of the National Bank Act, 12 U.S.C. § 94 (1976), the special venue privilege for national banks was removed by Congress except in cases involving a closed bank or Federal Deposit Insurance Corporation receivership; these exceptions do not apply here. See Garn-St. Germain Depository Institutions Act of 1982, Pub.L. No. 97-320, § 406, 96 Stat. 1469, 1512 (codified at 12 U.S.C. § 94 (1982)) (amending 12 U.S.C. § 94 (1976)); Board of Managers of Dominion Plaza One Condominium Association No. 1-A v. Chase Manhattan Bank, N.A., 116 Ill.App.3d 690, 72 Ill.Dec. 257, 452 N.E.2d 382 (1983) (amendment applies retroactively).

The complaint demonstrates sufficient activities by Hartford National Bank and Trust Company, now known as Connecticut National Bank, to provide a basis for the exercise of in personam jurisdiction under section 48.193(l)(g), Florida Statutes (1983). See Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982).

Reversed and remanded.


author: HENDRY, Judge.

text:
    FLORIDA SONESTA CORPORATION, d/b/a Sonesta Beach Hotel, Petitioner, v. Sam ANIBALLI and Margaret Aniballi, his wife, Respondents. Sam ANIBALLI and Margaret Aniballi, his wife, Petitioners, v. FLORIDA SONESTA CORPORATION, d/b/a Sonesta Beach Hotel, Respondent.
    Nos. 84-2097, 84-2103.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Rehearing Denied March 6, 1985.

      Ress, Gomez, Rosenberg & Howland and David R. Howland, North Miami, for Florida Sonesta Corp.
    Katz, Barron, Squitero, Linden & Faust and Neil P. Linden, Miami, for Sam Aniballi and Margaret Aniballi.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   HENDRY, Judge.

In this proceeding, we are presented with two petitions for writ of certiorari requesting this court to review and to quash certain portions of an opinion entered by the Circuit Court, Appellate Division. The opinion affirmed an order entered by the county court, which incorporated two previous circuit court rulings on the matter. The first circuit court ruling granted the motion of Florida Sonesta Corporation, d/b/a Sonesta Beach Hotel (Sonesta/the Hotel) for summary judgment, determining that no material issues of fact existed regarding the Hotel’s compliance with sections 509.101 and 509.111, Florida Statutes (1979). The second circuit court ruling limited both compensatory and punitive damages against the Hotel to $1,000, denied the Hotel’s motion for summary judgment grounded on negligence because of the existence of material issues of fact, and transferred the cause to county court. The county court’s order granted the Aniballis’ motion for summary judgment, finding Sonesta to be negligent as a matter of law, and awarded the Aniballis $1,000 in damages. We have jurisdiction pursuant to Rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure, and accept certiorari and quash the order under review.

This case arose upon the filing of a complaint by the Aniballis for the loss of $85,-000 in jewelry owned by them which was stolen from a safe deposit box at the Sones-ta Beach Hotel by an employee of the Sonesta Corporation. Long, the employee, had been hired as a desk clerk by the Hotel several weeks before the loss in question and one day thereafter left for lunch and did not return. It was discovered that he took approximately $5,500 from the Hotel’s cash drawer, as well as the contents of the safe deposit box which the Aniballis had been assigned. Further investigation revealed that Long had used fictitious identifications and references when he applied for the position and that while he was employed, he had made an extra key for the safe deposit box later used by the Ani-ballis.

The Aniballis had checked into the Sones-ta Beach Hotel on February 22, 1980 and were assigned room 602. While they were unpacking, they noticed a sign which the Hotel had placed in the room and which read, “Be safe ... put valuables in the hotel’s safe deposit box.” Mr. Aniballi returned to the desk and asked for a safe deposit box. He was given a “Safe Deposit Box — Statement of Value” card and instructed to print his name and to sign on a line marked with an “X”.

The desk clerk and Mr. Aniballi then proceeded to the safe deposit box room. Two keys were needed to open and close the safe deposit box — one held by the customer and the other by the hotel clerk. After the employee left the room, Mr. Ani-balli deposited a pouch into the box. He then called for the clerk and the two men closed and locked the safe deposit box. This procedure took place on three separate occasions during the Aniballis’ stay at the Sonesta. On the fourth occasion, the safe deposit box was empty.

As required by the Florida statutes, the Hotel had posted a “Notice to Guest” sign which set forth verbatim sections 509.-101(1) and 509.111(1), Florida Statutes (1979). This sign was posted only on the interior door of the bathroom in each of the guest rooms.

The Aniballis’ amended complaint sought damages based on the above facts and additionally alleged that the Sonesta had failed to comply strictly with the requirements of section 509.101(1), Florida Statutes (1979), and, as a consequence, waived the $1,000 limitation of liability established under section 509.111, Florida Statutes (1979). Both compensatory and punitive damages were sought by the Aniballis, based upon the Hotel’s breach of contract and negligent hiring of the employee which proximately resulted in the loss of their property. The Hotel’s answer denied the allegations of breach of contract and negligence. Its affirmative defenses alleged that the Aniballis were comparatively negligent in depositing valuables over the $1,000 amount; that the damage claim was limited by section 509.111, Florida Statutes (1979); and that the hotel employee acted outside the scope of his employment.

Following discovery, the Aniballis moved for partial summary judgment on the issues of the Hotel’s failure to comply with the posting requirements of section 509.101 and the receipt requirements of section 509.111. The Hotel filed a cross-motion for summary judgment on the grounds that it had complied with the statutes; that its employee’s criminal act could not be imputed to the Hotel; that no evidence existed to find the Hotel negligent; and no basis existed upon which to award punitive damages. The circuit court ruled that the “Notice to Guest” sign complied with section 509.101, Florida Statutes (1979), and that the “Safe Deposit Box — Statement of Value” card constituted compliance by the Hotel with the requirements of section 509.-111, Florida Statutes (1979), and therefore, ruled that the Hotel’s liability was limited to $1,000 in compensatory damages. At a subsequent hearing, the court ruled that the $1,000 limitation also included punitive damages and, in accordance with the court’s jurisdictional limitations, transferred the cause to the county court for a determination of negligence.

After transfer, the county court granted the Aniballis’ summary judgment motion on the issue of the Hotel’s negligence, entered a final summary judgment, and awarded the Aniballis $1,000 in damages. The Aniballis appealed to this court, which appeal was transferred to the Circuit Court, Appellate Division. The appellate division affirmed the order entered by the county court and subsequently denied the Aniballis’ motion for rehearing.

Both the Aniballis and the Sonesta Corporation separately petitioned this court to review the opinion of the Circuit Court, Appellate Division, each requesting quashal of that portion of the opinion that adversely affects each party. In particular, the Sonesta desires reversal of that portion of the opinion affirming the county court’s determination that the Hotel was negligent, arguing that the existence of material fact issues precludes summary judgment on this issue. The Aniballis seek vacation of that portion of the opinion which affirmed the county court’s ruling that Sonesta complied with the applicable statutes, thus limiting its liability to $1,000.

We begin our review with the initial determination of whether the Circuit Court, Appellate Division, afforded procedural due process and applied the correct law. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). The court based its affirmance on the record evidence supporting the Sonesta Hotel’s compliance with section 509.101(1), Florida Statutes (1979). The basis for this ruling was that the posting of the “Notice to Guest” sign on the interior door of the bathroom in each guest room was done “in a conspicuous place.” We disagree, however, with this determination. This unambiguous statute states that any regulation established pursuant to section 509.101(1), shall be printed in English and “posted, together with a copy of ss. 509.111, ... in the office, hall, or lobby or another prominent place of such public lodging establishment.” (e.s.). § 509.101(1), Fla.Stat. (1979). There was no record evidence to indicate that the posting of section 509.111 was done in any of the places set forth and required by the statute. Furthermore, this provision of section 509.101 must be read as a part of the exculpatory provisions contained in section 509.111, Fuchs v. Harbor Island Spa, Inc., 420 F.2d 1100, 1102 (5th Cir.1970), and section 509.111, enacted in derogation of the common law, must be strictly construed. de Saric v. Miami Caribe Investments, Inc., 512 F.2d 1013 (5th Cir.1975). Thus, the Sonesta could not seek the shelter of the statutory limitation of liability without bearing the burden of strict compliance therewith. Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 203 (2d Cir. 1982); Garner v. Margery Lane, Inc., 242 So.2d 776 (Fla. 4th DCA 1970); Safety Harbor Spa, Inc. ¶. High, 137 So.2d 248 (Fla. 2d DCA 1962).

Section 509.111(1), Florida Statutes (1979), requires that a hotel follow certain procedures .in order to limit its lia-, bility for losses of property which it accepts for safekeeping. If a hotel accepts property for safekeeping but does not follow the procedures outlined in the statute, it cannot claim the benefit of a limitation of liability. Great American Insurance Co. v. Coppedge, 405 So.2d 732, 735 (Fla. 4th DCA 1981), pet. for rev. denied, 415 So.2d 1359 (Fla.1982). The statute provides that a hotel is under no obligation to accept property for safekeeping, and may refuse to accept those valuables in excess of $1,000, but affirmative conduct by the hotel is required to exercise this right. Additionally, the hotel’s liability may be limited only if the hotel gave a receipt for the property (stating the value). Zacharia v. Harbor Island Spa, Inc., 684 F.2d at 203; Garner v. Margery Lane, Inc., 242 So.2d at 779; § 509.111(1), Fla.Stat. (1979). The burden of compliance is on the hotel rather than the guest. Garner v. Margery Lane, Inc., 242 So.2d at 779.

Subjudice, the Aniballis were given no document of any kind in connection with their use of the safe deposit box. All of the documentation was retained by the Hotel in accordance with its established practices. Thus, the Hotel’s non-compliance with the plain language of the statute, requiring that a receipt be given to the guest depositing valuables, deprived it of the benefit of the limitation of liability under section 509.111(1). We hold, therefore, that the statutory limitation of liability is inapplicable and quash the opinion of the Circuit Court, Appellate Division, and remand for further proceedings.

Upon remand, the parties will, in all likelihood, pursue their respective claims. The Aniballis’ amended complaint sought both compensatory and punitive damages, which were subsequently ordered limited to $1,000 because of the determination of the applicability of section 509.111(1). This court’s determination that the statute is inapplicable to the present case effectively vacates the $1,000 limitation. Thus, the Aniballis may proceed to prove their claim for the amount of their actual property loss. They may not, however, proceed with their claim for punitive damages. In an effort to avoid a future appeal of this matter, we hold that the Hotel, even if proven negligent, did not act outrageously, or with fraud, malice, wantonness, or oppression so as to warrant a punitive damage award. See Arab Termite & Pest Control, Inc. v. Jenkins, 409 So.2d 1039 (Fla.1982); Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla. 1981); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978).

Accordingly, the petitions for writ of cer-tiorari are granted, the order of the Circuit Court, Appellate Division, is quashed, and the matter is remanded with directions.

      . The front side of the card, as filled out by Mr. Aniballi, read as follows:

      . 509.101. Establishment rules; maintenance of guest register.—
      (1) Any operator of a public lodging establishment ... may establish reasonable rules and regulations for the management of the establishment and its guests and employees; and each guest or employee staying, sojourning, eating, or employed in the establishment shall conform to and abide by such rules and regulations so long as he shall remain in or at the establishment. Such rules and regulations shall be deemed to be a special contract between the operator and each guest or employee using the facilities of or at any public lodging establishment ... Such rules and regulations shall control the liabilities, responsibilities, and obligations of all parties. Any rules or regulations established pursuant to this section shall be printed in the English language and posted, together with a copy of ss. 509.111, ... in the office, hall, or lobby or another prominent place of such public lodging establishment ....

      . 509.111. Liability for property of guests.— (1) The operator of a public lodging establishment is under no obligation to accept for safekeeping any moneys, securities, jewelry, or precious stones of any kind belonging to any guest, and, if such are accepted for safekeeping, he shall not be liable for the loss thereof unless such loss was the proximate result of fault or negligence of the operator. However, the liability of the operator shall be limited to $1,000 for such loss, if the public lodging establishment gave a receipt for the property (stating the value) on a form which stated, in type large enough to be clearly noticeable, that the public lodging establishment was not liable for any loss exceeding $1,000 and was only liable for that amount if the loss was the proximate result of fault or negligence of the operator.


author: PER CURIAM. HURLEY, Judge,

text:
    Charlett L. LONING, Appellant, v. Thomas LONING, Appellee.
    No. 84-1324.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Rehearing Denied March 18, 1985.
    Andrew M. Chansen of Chansen & Chan-sen, Boca Raton, for appellant.
    Frederic D. Kaufman, Law Offices of Kaufman & Houchins, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm all of the provisions of the final judgment except that provision denying appellant’s request to change her legal name, and we remand the case to the trial court for purposes of granting the request for name change.

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

HURLEY, J., concurs in part and dissents in part with opinion.

HURLEY, Judge,

concurring in part and dissenting in part.

The testimony is undisputed that the wife, through her mother, contributed $25,-000 to the purchase of the second marital residence. Thus, I would hold that the trial court erred by failing to award the wife a special equity.


author: SMITH, Judge.

text:
    CHARLOTTE COUNTY LODGE, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATIONS, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. AX-384.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1985.

      George L. Waas of Slepin, Slepin, Lambert & Waas, Tallahassee and Robert Bad-er, Port Charlotte, for appellant.
    Louisa E. Hargrett, Dept, of Business Regulation, Tallahassee, for appellee.
   SMITH, Judge.

Appellant Charlotte County Lodge No. 2153 (hereinafter “appellant” or the “club”) timely appeals a final order of the appellee Department of Business Regulation (hereinafter “DBR”) imposing a $500.00 fine or, upon failure to pay this fine within fifteen (15) days of rendition, a thirty (30) day suspension of the appellant’s liquor license. We reverse.

The DBR served upon appellant a show cause order on March 18, 1983, alleging appellant’s violation of Section 561.29(l)(a) and Chapter 849, Florida Statutes (1981). Specifically, the DBR alleged that appellant’s employees were maintaining a “gaming house,” engaging in bookmaking and other gambling activities, and possessing and/or utilizing various objects the DBR characterized as “prima facie evidence” of gambling. After a formal administrative hearing conducted pursuant to Section 120.-57, Florida Statutes (1981), the hearing officer recommended that appellant be found not guilty of the charges alleged in the notice to show cause since, the hearing officer concluded, the evidence presented failed to establish that a violation of Chapter 849, and hence Section 561.29(l)(a), Florida Statutes, had occurred. Although the DBR accepted the hearing officer’s findings of fact, it rejected his conclusion of law that no violation of the cited statutes had been shown. Instead, the DBR concluded that the evidence established simple negligence on appellant’s part by failing to supervise appellant’s employees so as to prevent gambling on the premises. Consequently, the DBR ordered the penalties imposed upon appellant.

The hearing officer’s findings of fact are as follows: Appellant is the local chapter of the national Elks Lodge. The lodge premises consists of a number of rooms, including a lobby, lounge area with bar, kitchen, and large dining and meeting room. Located behind the lounge area is a small room called the “stag room,” which, according to the rules of the club, is open for and used only by club members. Located inside the stag room is a pool table, a number of card tables, a shuffle board court, and a bar.

On January 27, 1983, Beverage Officer Stephen Tompkins visited the club to investigate a complaint from an unidentified complainant that the club had sold kegs of beer to another fraternal organization. After a short discussion on this subject with the club’s manager, Officer Tompkins made what he characterized as a routine inspection of the club’s premises. During this inspection, he observed a number of documents and other items which he seized as evidence of violations of Section 849, Florida Statutes (1981), relating to prohibited gambling activities. Included in the seizure were a white piece of paper with notations of figures, names, dollar signs, and references to professional football teams scheduled to play in the near future, three pieces of white paper which Officer Tompkins interpreted to be score sheets for a card game of some sort, and three yellow envelopes marked on the front of each with the notation “three players” or “four players.” The yellow envelopes were empty. Officer Tompkins also found two paper bags bearing the business name of “Quick Print” on the outside of each, and containing several hundred pages of “tally sheets” all of which Officer Tompkins interpreted as suitable for calculation of points accumulated during games of chance, such as cards or pool. Officer Tompkins also found a yellow folder containing a typewritten rule book called “Eight Ball Tournament House Rules,” dated August 23, 1982. This rule book was apparently in reference to an upcoming pool tournament to be played on the club premises, although the hearing officer found no evidence in the record establishing the identity of the planners of this tournament. One of the club’s officers testified without contradiction that upon being informed of the existence of the proposed pool tournament, he took steps to insure that no such tournament took place. The record does not establish that the planned tournament actually occurred.

As previously noted, appellant was charged with violating Section 561.29(l)(a), Florida Statutes (1981), which grants the DBR authority to revoke or suspend a beverage license when it finds that either the licensee or its agents have violated the laws of this state on the licensed premises. Lash, Inc. v. State, Dept. of Business Regulation, 411 So.2d 276, 278 (Fla. 3d DCA 1982). The DBR here based its conclusion of law that appellant had violated certain sections of Chapter 849 primarily on two grounds: First, it concluded that the three yellow envelopes, as well as the tally sheets found in the Quick Print bags, confiscated by Officer Tompkins, constituted “prima facie” evidence of gambling under Section 849.05, Florida Statutes; and second, the fact that some of the evidence found by Officer Tompkins was located either in plain view or in areas on the premises under the exclusive control of the appellant’s officers and employees was evidence of simple negligence on the part of appellant’s officers in the supervision of its premises. The DBR cites Lash, supra, for the proposition that a finding of simple negligence will suffice in support of the imposition of an administrative penalty, including license revocation. However, the findings of fact made by the hearing officer and accepted by the DBR do not support the DBR’s conclusion of law, and render Lash inapposite.

For example, the evidence upon which the DBR based count 1 of the show cause order, the “bookmaking” charge, a single piece of paper apparently recording betting information found lying in the open behind the bar in the “stag room,” was undated and unsigned. In addition, the origin of the paper was unknown, and the persons whose names appeared on it were not identified. Accordingly, that evidence does not establish that any bets regarding the football game were taken or received within the lodge so as to make out a violation of Section 849.25(1), Florida Statutes (1981). For similar reasons, the evidence the DBR suggests supports a violation of Section 849.08 is insufficient to support such a charge. Here, Officer Tompkins, upon examining the contents of a cabinet located in the “stag room,” found three white sheets of paper containing first names or the designations “we” or “they” as well as columns with running totals seemingly indicative of the scoring of some sort of card game. The hearing officer found without contradiction that no proof was adduced below that any of the white sheets of paper were actually used for gambling or were implements of gamblers. Likewise, the evidence supportive of counts 3 and 4 of the show cause order, relating to Section 849.05 prima facie evidence, is innocuous, and in any event, again no evidence was offered below showing that these items were actually used for gambling on the lodge premises.

Moreover, the evidence adduced below urged by the DBR in support of counts 5, 6, and 7 of its show cause order, relating to the “Elks Lodge 2153 pool tourney,” does not establish violations of Chapter 849 because no evidence was produced below indicating that the proposed pool tournament actually took place. On the contrary, appellant’s evidence is uncontra-dicted that one of its officers took positive action to insure that the tournament would not take place. Finally, under count 8 of the show cause order relating to Section 849.01’s prohibition against “keeping gambling houses,” this section requires a showing of the element of habitualness in connection with the use of the premises for gambling. Ferguson v. State, 377 So.2d 709 (Fla.1979). Here, none of the evidence introduced below establishes that any gambling activity ever took place on the premises. At best, the evidence indicates one instance of the presence of gambling implements or paraphernalia which arguably could be considered as prima facie evidence of the use of the premises for gambling purposes. However, one violation may not be equated with the statute’s habitualness requirement. Ferguson v. State, supra, at 711.

The evidence relied upon to support appellee's final order below suffers from one fatal flaw overall: It merely points towards one, apparently isolated, violation of Chapter 849, rather than a series of violations “committed in a persistent and recurring manner,” Lash, supra, at 278. Although it is generally true that a holder of a beverage license may suffer revocation by the DBR under Section 561.29(1) upon a showing of simple negligence, this standard is not met where the evidence established that the violation occurred on only one occasion and that the licensee otherwise took measures to comply with applicable law. Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276, 278 (Fla. 3d DCA 1982), Golden Dolphin No. 2, Inc. v. State, Division of Alcoholic Beverages & Tobacco, 403 So.2d 1372 (Fla. 5th DCA 1981), Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1980), (dicta), Pauline v. Lee, 147 So.2d 359 (Fla. 2d DCA 1962), cert. den., 156 So.2d 389 (Fla.1963). In those instances where courts have sanctioned revocation by the DBR because of simple negligence on a licensee’s part for failing to exercise due care in the supervision, of agents or employees who engage in unlawful activity on the licensee’s premises, the courts have found repeated and flagrant violations by the employees which allows an inference that said violations had been fostered, condoned, or negligently overlooked by the licensee. Pauline v. Lee, supra. It is this evidence of continued violations of statutory law by a licensee or the licensee’s employees that the courts characterize as simple negligence supportive of license revocation. Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36 (Fla. 1st DCA 1980).

Here, there is no showing of evidence suggestive of illegal gambling activity at any time other than January 27,1983, when Officer Tompkins conducted his inspection of the appellant’s premises. All of the appellant’s officers or trustees who appeared at the hearing before the hearing officer below testified that they were unaware of any gambling activity having ever taken place on the lodge premises. Moreover, when informed by Officer Tompkins of the proposed upcoming pool tournament, which would have included cash prizes to the winner of the tournament, and was to be held in the “stag room,” the “Exalted Ruler” of the appellant testified without contradiction that he took steps to assure that the pool tournament never took place. On this record, we hold that the DBR is precluded from determining, contrary to the findings and conclusions of the hearing officer, that appellant was guilty of “simple negligence” which would constitute a violation of Section 561.29(l)(a), Florida Statutes (1981). See Jones v. State, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 448 So.2d 1109, 1111 (Fla. 1st DCA 1984).

Accordingly, the final order of appellee fining or suspending appellant’s license is reversed and the cause is remanded for entry of an order dismissing the administrative complaint filed against appellant.

REVERSED and REMANDED with directions.

WENTWORTH and WIGGINTON, JJ., concur.

      . This evidence consisted of three yellow envelopes, two of which were empty but had the notations “three players" or "four players" written on the outside of the envelopes, and a third containing a notation "tally sheets” on the outside and two sheets of paper appearing to be tally sheets on the inside. Also offered in support of counts 3 and 4 of the show cause order were two paper bags bearing a business name "Quick Print.” The bags contained several hundred blank tally sheets. The hearing officer pointed out in his findings of fact that the tally sheets confiscated by Officer Tompkins were almost identical to those used to keep score in bridge and other similar innocent card games.


author: WIGGINTON, Judge.

text:
    BOARD OF OPTOMETRY, DEPARTMENT OF PROFESSIONAL REGULATION, Appellant, and Florida Optometric Association, Inc., James A. Stephens, O.D., and Donnie D. Dance, O.D., Appellants, v. FLORIDA MEDICAL ASSOCIATION, INC., Florida Society of Ophthalmology, and William J. Broussard, M.D., Ap-pellees.
    No. AY-253.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1985.
    Rehearing Denied March 14, 1985.
    Susan Tully, Asst. Atty. Gen., for appellant Bd. of Optometry.

      Leonard A. Carson, Carson & Linn, P.A., Tallahassee, for appellants Fla. Optometric Ass’n, James A. Stephens, O.D., and Donnie D. Dance, O.D.
    Kenneth G. Oertel and Segundo J. Fernandez, Oertel & Hoffman, P.A., Tallahassee, for appellees.
   WIGGINTON, Judge.

Before us is an appeal from a challenge to the validity of the Board of Optometry’s proposed rule 21Q-3.10 and the Board’s 1975 policy statement, both relating to the use and prescription of legend drugs by optometrists. Section 120.54(4)(a), Florida Statutes (1983). The hearing officer held, inter alia, that the petitioners, appellees herein, had standing to challenge the rule and policy statement; that the policy statement is a “rule” within the meaning of section 120.52(15), Florida Statutes (1983), but not adopted in accordance with section 120.54, and therefore an invalid exercise of delegated legislative authority; and that the proposed rule is also an invalid exercise of delegated legislative authority. For the reasons hereinafter set forth, we affirm.

By virtue of section 463.005, Florida Statutes (1983), the Board of Optometry

... is authorized to make such rules not inconsistent with law as may be necessary to carry out the duties and authority conferred upon the board by this chapter and as may be necessary to protect the health, safety, and welfare of the public. Such rules shall include, but not be limited to, rules relating to:
(1) A standard of practice for licensed optometrists....

On the strength of that authority, the Board proposed an amendment to rule 21Q-3.10 which would set forth standards for the prescribing and use of legend drugs by optometrists, and provide guidelines for determining the competence of individual optometrists who use such drugs. In so doing, the Board admits it had assumed that chapter 463 authorizes optometrists to use drugs, an assumption arising from its interpretation of section 463.002, Florida Statutes (1981), already embodied in its 1975 policy statement. Appellants’ position is that the Board’s interpretation of section 463.002, which defines “optometry,” is a permissible one, logically flowing from its duty under section 463.005 to promulgate rules necessary to protect the health, safety and welfare of the public, and supported by the chapter’s legislative history and the educational evolution of the practice of optometry.

Section 463.002(4) defines “optometry” as meaning

... the diagnosis of the human eye and its appendages; the employment of any objective or subjective means or methods for the purpose of determining the refractive powers of the human eyes, or any visual, muscular, neurological, or anatomic anomalies of the human eyes and their appendages; and the prescribing and employment of lenses, prisms, frames, mountings, contact lenses, or-thoptic exercises, light frequencies, and any other means or methods for the correction, remedy, or relief of any insuffi-ciencies or abnormal conditions of the human eyes and their appendages.

In support of their position, appellants point to the fact that in 1939, the legislature omitted the earlier statutory prohibition against optomestrists’ utilizing drugs in their practice and performing surgery. Appellants reason that that omission necessarily implied legislative authorization, citing to the rule of statutory interpretation which holds that when the legislature amends a statute by omitting words, it is presumed to have intended the statute to have a meaning different from that accorded it before the amendment. See e.g., Capella v. City of Gainesville, 377 So.2d 658 (Fla.1979); Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977).

We do not dispute the validity of that venerable rule of statutory construction, but we are convinced that strictly applying it to this context to span the chasm between an omission and a substantive authorization would require a quantum leap in logic. Instead, we approve the hearing officer’s approach, that the statute at best neither expressly authorizes nor prohibits the prescription and use of legend drugs by optometrists. The issue of whether the Board has the authority to adopt the rule is resolved by determining whether section 463.002(4) may be permissibly interpreted as authorizing optometrists to use legend drugs. Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982).

The legislative purpose behind enacting chapter 463 was to protect the public’s health, safety, and welfare by establishing minimum qualifications to shield the public from “unskilled and incompetent” practitioners. Section 463.001, Florida Statutes (1983). We are of the opinion that the Board’s interpretation of sections 463.-002(4) and 463.005 to authorize the use of legend drugs by optometrists is an impermissible one, one that substantively amends, or adds to, the statute and materially departs from the stated legislative purpose. State, Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980); Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980). There is absolutely no indication in chapter 463 that the legislature could have intended such a result. Although section 463.002(4) utilizes the broad phrases “any objective or subjective means or methods” and “any other means or methods,” there is no competent evidence in the record that legend drugs can be included within the classes encompassed by those phrases. As the hearing officer observed in his order:

The BOARD fails to comprehend the limits of its power. It may only adopt rules consistent with Chapter 463 and for the purpose of carrying out the terms of the statute. § 463.005. It may .adopt standards of practice for licensed optometrists, Id. But it may not adopt standards which exceed or attempt to expand the scope of optometry as defined by Section 463.002(4). There may be, as the BOARD argues, good reasons for expanding the bounds of optometry, but the power to do so rests with the legislature, not the BOARD. Here, the statute does not authorize optometrists to prescribe or use legend drugs in their practice. The BOARD cannot adopt a rule which attempts to supply this authority. The proposed rule, standing alone, can neither add to nor vary the scope of practice defined by Section 463.002(4), F.S.

Accordingly, we hold that the proposed rule constitutes an invalid exercise of the Board’s delegated legislative authority.

Appellants also argue that appellees are barred by the doctrine of laches from challenging the 1975 policy statement. Although their argument could be a valid one, see generally Devine v. Department of Professional Regulation, Board of Dentistry, 451 So.2d 994, 997 (Fla. 1st DCA 1984), since we now hold their interpretation of authorization to be an impermissible one, the policy statement in any event must fall along with the rule. Thus, we need not reach this issue.

Finally, appellants challenge appel-lees’ standing. Their argument is founded on an interpretation of this Court’s opinion in an earlier appeal in this same cause brought by appellees when their rule challenge petition was dismissed for lack of standing. See Florida Medical Association v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983). Despite the fact that in that appeal we reversed the hearing officer’s dismissal of the petition, appellants contend the import of our opinion was to grant appellees only conditional standing which, hinged on the correctness of their challenge. Appellants must have overlooked, however, the following language in Florida Medical Association:

Our review convinces us that the petition sufficiently alleges facts to establish standing with respect to the Florida Medical Association, Inc., Florida Society of Ophthalmology, and William J. Brous-sard, M.D. ...

426 So.2d, at 1113. Clearly, we held that appellees had standing. In any event, if appellees’ standing did hinge on the correctness of their position, then by our opinion today the correctness of their position is established and we approve the hearing officer’s conclusion that appellees had standing.

For the foregoing reasons, the final order of the hearing officer is AFFIRMED.

WENTWORTH and THOMPSON, JJ., concur.

      . Most of the drugs optometrists have used are intended for topical application to the eye, and are generally classified as topical anesthetics, mydriatics, cycloplegics, miotics, and antibiotics.

      . Interestingly, the record indicates that, despite the 1939 amendment, the “practitioners” themselves did not feel authorized by chapter 463 to use legend drugs until the mid-1970's, at which point they reinterpreted the chapter in light of their expanded education, by then including courses in pharmacology. Also, during that period and up to the present, legislative activity has vacillated between specifically authorizing the use of drugs and prohibiting such use.


author: WIGGINTON, Judge. THOMPSON, Judge,

text:
    TALLAHASSEE HOUSING AUTHORITY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Connell Barron, Appellees.
    No. BC-126.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1985.
    Paula L. Walborsky and Edgar C. Booth of Booth & Walborsky, and James C. Conner, Jr., Tallahassee, for appellant.

      Janet L. Smith, Tallahassee, for appellee Unemployment Appeals Com’n.
   WIGGINTON, Judge.

Appellant, Tallahassee Housing Authority, an employer, appeals an order of the Unemployment Appeals Commission (Commission) reversing a decision of an appeals referee and finding that appellee Barron is entitled to unemployment compensation benefits. We affirm.

Barron was employed by appellant as a painter from 1981 until his termination in January, 1984 for excessive absenteeism. After being denied his claim for unemployment compensation benefits, Barron appealed to a claims referee and was granted an evidentiary hearing in March, 1984. At that hearing, Barron represented himself and appellant was represented by an administrative assistant for appellant who was responsible for maintaining employee time records and attendance sheets.

At the hearing, the only evidence presented by appellant to justify its termination of Barron was the testimony of its administrative assistant together with a summary of the daily attendance logs regarding Barron which the administrative assistant had prepared and to which her testimony was limited. The summary showed that during the year 1983, Barron took ninety-five hours of approved annual leave, eighty-five hours of approved sick leave, and was charged with 118 hours of unapproved leave without pay. However, the summary provided no clue as to any criteria used by appellant in approving or disapproving leave. At the times when most of Barron’s leave was not approved, Barron had sufficient accrued vacation and sick leave days to cover the leave taken. Although certain of the entries in the summary allude to reasons for a leave being unapproved, the reasons are not clear nor are they consistent with the fact that other approved leave was taken by appellant for similar reasons. The record contains no evidence that Barron was given any specific warning concerning his excessive absenteeism prior to his notice of a pretermination hearing that was held immediately before his discharge.

Barron was given an opportunity at the hearing before the claims referee to explain or take issue with the entries in the summary, but he was not able to offer specific reasons or disagreement with those entries. He maintains that he had never been confronted with the summary prior to that hearing and was unprepared to contest specific entries therein. Based primarily on the summary, the appeals referee found that competent substantial evidence was presented to show that Barron’s absenteeism constituted misconduct under the law; that an employee has a duty and responsibility to report for work as scheduled and to remain on the job during the hours specified by the employer; that an employee’s failure to discharge that responsibility constitutes grounds for severing the employer/employee relationship. Thereupon, he determined that Barron was disqualified from receiving benefits.

The commission reversed the appeals referee’s decision, concluding that the evidence offered by appellant was insufficient to show misconduct on the part of Barron as there was no showing that absence alone violated any policy of the employer nor that such absences showed an intentional disregard on the part of Barron for the employer’s interest so as to constitute misconduct within the meaning of section 443.036(24), Florida Statutes. That statute defines misconduct connected with work as including:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

The commission went on to find that the summary, relied upon so heavily by appellant and by the appeals referee, was inadmissible evidence on the ground that it was hearsay.

Even accepting the summary as admissible evidence, we affirm the commission’s reversal of the appeals referee on the basis of the commission’s application of the law to this case. In our view, although excessive absenteeism or tardiness may constitute misconduct which justifies termination of employment and therefore precludes collection of unemployment compensation benefits, an employer has the burden under section 443.036(24), Florida Statutes, to show misconduct with a preponderance of proof that the absences were indeed unexcusable and in detriment to the employer’s interests. Compare City of Riviera Beach v. Florida Department of Commerce, 372 So.2d 1007 (Fla. 4th DCA 1979), in which an employee was fired for “ ‘... [ajbsence from duty without leave, or failure to report after leave of absence has expired’.” The court reversed an Order of the Board of Review, affirming the Department of Commerce Unemployment Compensation Appeals Referee’s decision to allow the employee to collect unemployment compensation benefits. According to the opinion, evidence in the record showed that the employee had received one week of paid vacation, at the expiration of which she requested another week but received only two days and was instructed by certified mail and verbally by telephone to return to work at the end of her approved leave. However, she failed to report for work, explaining that she requested the additional leave due to her need to be with her newly adopted baby. Her employer, the City, presented evidence justifying its refusal of additional vacation time on the basis that late requests made it difficult to get replacements and otherwise plan for her absence. The court stated:

An employer has a right to expect reasonable work habits from an employee. Continued absenteeism, which hampers the operation of a business, constitutes an intentional disregard of the employer’s vital interests, and of the employee’s duties, and amounts to misconduct per se. Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2nd D.C.A. 1971).

Unlike the employer in City of Riviera Beach, appellant employer failed to meet its burden in this case. The commission was justified in so finding and in reversing the appeals referee.

AFFIRMED.

WENTWORTH, J., concurs.

THOMPSON, J., dissents with written opinion.

THOMPSON, Judge,

dissenting.

I would reverse. During 1983, the year prior to his discharge, the employee took 95 hours of annual leave, 85 hours of sick leave, and was charged with 118 hours of leave without pay for unexcused absences. Thus, based on a 40 hour work week the employee’s absences totaled seven weeks and two days, with almost three weeks’ absences being unexcused. When the employee applied for unemployment compensation, a claims examiner for the Bureau of Unemployment Compensation determined he was not eligible for benefits due to the fact that he was fired for excessive absenteeism, which continued even after warning and that the employee’s actions were not in the employer’s best interests and constituted misconduct within the meaning of the law. The employee appealed this decision and after a full hearing de novo the appeals referee found that there was competent substantial evidence to show that the employee was fired for excessive absenteeism; that the employee’s absenteeism constituted misconduct under the law; that the employee had a duty and responsibility • to report for work as scheduled and to remain on the job during the hours specified by the employer; that the employee’s failure to discharge that responsibility constituted grounds for severing the employer-employee relationship and that the employee should be disqualified from receiving benefits. The employee gave no reasonable explanation for the absences although he had an opportunity to do so to his employer, to the Hearing Officer at the pretermination hearing, to the claims examiner and to the claims referee on appeal. Such unexcused absences are to the detriment of the employer and clearly constitute misconduct on the part of the employee. Sanchez v. Department of Labor & Employment Security, 411 So.2d 313 (Fla. 3d DCA 1982); Florida Junior College at Jacksonville v. Florida Department of Labor, 381 So.2d 1120 (Fla. 1st DCA 1979); City of Riviera Beach v. Florida Department of Commerce, 372 So.2d 1007 (Fla. 4th DCA 1979). In City of Rivera Beach, the court found that continued absenteeism amounts to misconduct per se.

The decision of the appeals referee is supported by competent substantial evidence and I would reverse Commission’s order overruling the appeals referee.

      . Sanchez v. Department of Labor, Etc., 411 So.2d 313 (Fla. 3d DCA 1982).


text:
    OTIS ELEVATOR COMPANY and Liberty Mutual Insurance Company, Appellants, v. Harry ROSS and Katherine Ross, his wife, Appellees.
    No. 84-889.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Rehearing Denied March 20, 1985.
    Barwick & Dillian and Lyndall M. Lambert, Miami Shores, for appellants.
    Richard A. Barnett, Hollywood, and Michael Gerrod, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Dragon v. Grant, 429 So.2d 1329 (Fla. 5th DCA 1983); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978); Zack v. Centro Espanol Hospital, Inc., 319 So.2d 34 (Fla. 2d DCA 1975); LaBarbera v. Millan Builders, Inc., 191 So.2d 619 (Fla. 1st DCA 1966); see Jaime v. Vilberg, 363 So.2d 386, 388 (Fla. 3d DCA 1978) (hospital records are admissible under the business record exception to the hearsay rule only upon the laying of a proper foundation).


author: FERGUSON, Judge.

text:
    Kenneth W. MAYER, Appellant, v. Dominic CIANCIOLO, as Personal Representative of the Estate of Anita Ann Mayer Reeves, Appellee.
    No. 84-740.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Rehearing Denied March 19, 1985.

      Ronald L. Buschbom, Miami, for appellant.
    Burt E. Redlus, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   FERGUSON, Judge.

By this appeal, plaintiff challenges an amended final judgment which denied a constructive trust on certain real property owned by the decedent, plaintiff’s mother.

The salient facts of the case are well-stated in the trial court’s order. From veteran’s benefits and the proceeds from the sale of another home, plaintiff, in late 1947 or early 1948, completed construction of a home for himself and his mother, Anita Mayer.

Mrs. Mayer sold the home in 1970, and with the sale proceeds made a downpayment on a home in Key Largo which was titled to herself and a second husband as tenants by the entirety. The two obtained a mortgage which secured the purchase price balance. Mrs. Mayer gained sole title when the marriage was dissolved in 1979. Soon thereafter she conveyed the property by quitclaim deed to herself and plaintiff-son as joint tenants with right of survivor-ship.

In 1981, Mrs. Mayer, suffering from an illness, made plans to sell the Key Largo home so as to buy another place near her son in Fort Lauderdale. To facilitate the sale in Monroe County, plaintiff-son quit-claimed his interest to his mother, Mrs. Mayer. She died in 1982 before the home could be sold. After the property had been conveyed to her for the purpose of effecting a sale, and unknown to plaintiff, Mrs. Mayer executed a will giving one-half of the property to the Watch Tower Bible and Tract Society.

Plaintiff sued the personal representative of his mother’s estate contending that the last quitclaim deed which transferred the jointly owned property to his mother as sole owner should be set aside. He asked for either a constructive or resulting trust. The trial court first imposed a constructive trust but on rehearing amended the final judgment to vacate the finding that plaintiff had established entitlement to a constructive trust. Plaintiff appeals the amended judgment.

The trial court made a factual finding, which is not challenged here, that the final quitclaim deed was not intended to vest all of the plaintiff’s beneficial interest in his mother as sole owner, but was rather done as a matter of convenience to facilitate the sale of the home by his mother. The court held, however, that on those facts a constructive trust could not be imposed because plaintiff failed in his burden to prove by clear, strong, and unequivocal evidence that Mrs. Mayer, through fraud, abuse of confidence, or other questionable means had deprived him of something which in equity or good conscience he should have, citing Barnett Bank of Tallahassee v. Applegate, 379 So.2d 1284 (Fla. 1st DCA 1978). We think the court was correct in its original judgment. The instant case presents a situation in which relief in the form of a constructive trust is entirely appropriate.

The controlling principle was explained in Craft v. Craft, 74 Fla. 262, 76 So. 772 (1917). There the Florida Supreme Court held that where one conveys real property to another, without consideration, in order to promptly consummate a sale of such property by the grantee and where it is expressly agreed that upon making the sale the grantee will remit the purchase money received therefor to the grantor, a trust in the property is created, and the grantee holds only the bare legal title while the grantor retains the beneficial interest in the property.

Craft was cited with approval in Johnson v. Johnson, 349 So.2d 698 (Fla. 4th DCA 1977). In Johnson, a husband and wife owned certain real property as tenants by the entirety. The parties wished to sell the property, a large residence which they called the The Harborage. Before Mrs. Johnson left for a vacation trip outside the country, she executed a quitclaim deed conveying her interest in the property to Mr. Johnson. The transfer was solely for the purpose of allowing the husband to sell the property while the wife was away. The property was never sold, and the title remained in Mr. Johnson’s name. When the marriage was later dissolved, Mrs. Johnson sought a constructive trust on one-half of the interest in the property. In reversing the trial court’s denial of a constructive trust, the fourth district held:

In the light of these circumstances, it would be inequitable and contrary to the original intent of the parties for the husband to retain full title to The Harbor-age. When Mrs. Johnson conveyed her interest in The Harborage to her husband, she became the beneficiary under a constructive trust and he became the trustee....
A beneficiary under a constructive trust is entitled to have his original interest restored, and to be re-established in his title, [cite omitted].

349 So.2d at 699. See also Brown v. Hanger, 368 So.2d 63 (Fla. 3d DCA 1979) (imposing constructive trust in favor of widow on proceeds derived from sale of real property owned as tenants by the entireties which had been deposited in deceased husband’s individual account).

Contrary to the trial court’s implicit holding, proof of evil design on the part of the trustee is not necessary predicate to imposition of a constructive trust. Where there is “a confidential relation, a transaction induced by the relation, and a breach of the confidence reposed,” a constructive trust may arise even in the absence of fraud. Matter of Topeka Motor Freight, Inc., 553 F.2d 1227, 1231 (10th Cir.1977) (quoting Silvers v. Howard, 106 Kan. 762, 190 P.l (1920)). Thus, where one person having legal and equitable title in property transfers it to another with whom he has a confidential relationship to hold for a particular purpose, a constructive trust arises in favor of the promisee which may be enforced where the promisor acts in a fashion so as to harm the beneficiary’s interest. See Craft; Johnson; see also Estate of Sheets v. Sheets, 558 S.W.2d 291 (Mo.Ct.App.1977).

The relationship between plaintiff and his mother, as evidenced by the origin of the property, the numerous conveyances between the two, the purpose and intent of the conveyances, and the kinship of the parties, all point to a confidential relationship which was misused by the mother, even if by mistake, so that imposition of a constructive trust is justified. Plaintiff as beneficiary under a constructive trust is entitled to have restored his original title as joint tenant with right of survivorship, which ripened to ownership of the entire fee upon the death of his mother as joint tenant.

Reversed and remanded with instructions to enter judgment for plaintiff accordingly.

      . "Confidential relations,” as a legal concept, is not confined to the strict fiduciary relationship existing between those having definite, well-recognized legal relations of trust and confidence, but extends to every possible case in which a fiduciary relation exists as a fact, though it may be a moral, social, domestic, or merely personal relationship. Robbins v. Law, 48 Cal.App. 555, 192 P. 118 (1920); Hitchcock v. Tackett, 208 Ky. 803, 272 S.W. 52 (1925). But the mere existence of kinship, without more, does not give rise to such a relation. In re Null’s Estate, 302 Pa. 64, 153 A. 137 (1930).


author: SHIVERS, Judge.

text:
    Robert E. BRANTLEY, Appellant, v. DIVISION OF RETIREMENT, Appellee.
    No. BA-86.
    District Court of Appeal of Florida, First District.
    Feb. 12, 1985.

      Richard A. Sicking, of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom, & De Castro, Miami, for appellant.
    Augustus D. Aikens, Jr., Division of Retirement, Tallahassee, for appellee.
   SHIVERS, Judge.

This is a case of entitlement to an ordinary disability retirement. Robert E. Brantley appeals from adverse decision of the Florida Retirement Commission, which ruled that he was not entitled to disability retirement pursuant to § 121.091(4)(f), Fla. Stat. in that he was not disabled as of the date of his termination. We remand for a new hearing.

Appellant was employed with Metro-Dade County and Dade County Board of Public Education. He had accumulated 19.7 years of creditable service in the Florida Retirement System. Although a “good worker” in the past, he was terminated as a result of “failing health” by the school system, and for absenteeism due to “illness” by Metro-Dade County. The date of termination was April 20, 1981.

In March and May of that year, he applied for disability benefits citing a variety of somatic ills, including chest and leg pain, fatigue, and lack of energy. In May of 1982, he began to see Dr. Gonzalez, a psychiatrist, who diagnosed Mr. Brantley as suffering from chronic, undifferentiated schizophrenia.

Armed with this information, he applied to the State Retirement Commission. The Division of Retirement had Appellant Brantley evaluated by Dr. Halpern, an internist, who found appellant to be physically, perfectly normal, and that from the medical standpoint, he would not give Brantley any degree of disability at all. The Commission adopted the findings of Dr. Halpern as the findings of the Commission. Although the Commission made reference to the testimony of Dr. Gonzalez, it made no note that on May 21, 1982, Dr. Halpern wrote the Division of Retirement about appellant:

He is currently under the care of a psychiatrist who would be in a better position to determine how disabling his mental aberrations would be. In my opinion, it is only in that area that he would be totally and permanently disabled from rendering useful and efficient service as an officer or employee.

Dr. Gonzalez, appellant’s psychiatrist, testified that the onset of a condition such as appellant’s may be insidious and generally begins in a person’s twenties or thirties. Mr. Brantley was 42. His supervisors and co-workers testified that his actions at work had changed in the year prior to his termination. He would say things and when questioned about it would deny speaking. He would start to speak and not finish and would say things out of the ordinary. He would talk to himself. He would not eat and began to lose weight. Dr. Gonzalez was of the opinion that at present Mr. Brantley was totally disabled.

This court’s standard of review is limited by § 121.23(4), Fla.Stat. (1983). Kennedy v. Wiggins, 368 So.2d 454 (Fla. 1st DCA 1979). The function of this court is not to substitute its judgment or discretion for that of the Commission, nor weigh the evidence on a disputed finding of fact where there is substantial evidence.

In this case, however, we find that the decision was not based on substantial evidence and must therefore reverse.

Appellant’s contention and proof are that he is disabled as a result of chronic undifferentiated schizophrenia, which had its onset prior to the appellant’s termination date. The Board appeared to scantly consider the testimony of the treating psychiatrist, Dr. Gonzalez, to whom Dr. Halpern, the medical doctor, deferred in regard to the appellant’s mental condition.

We therefore hold the action of the Commission was not based on substantial evidence, and remand for a new hearing.

BOOTH and ZEHMER, JJ., concur.


text:
    Charles ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2472.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Rehearing Denied March 12, 1985.
    Bennett H. Brummer, Public Defender, and Sheryl J. Lowenthal, Sp'. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

The defendant takes this appeal from an adjudication of guilt of burglary and sentence to five years’ imprisonment. He also seeks review of a judgment of direct criminal contempt and a sentence to six months in the county jail.

The several grounds relied on for reversal have been considered in the light of the record, briefs and arguments of counsel, and we have found no reversible error upon any of the alleged grounds. The verdict of the jury is supported by the evidence and the rulings of the trial court are without error. See Rose v. State, 425 So.2d 521, 523 (Fla.), cert. denied, 460 U.S. 1049, 103 S.Ct. 1496, 75 L.Ed.2d 928 (1983); White v. State, 377 So.2d 1149, 1150 (Fla.1979), cert. denied, 449 U.S. 845, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980); Miller v. State, 430 So.2d 611, 615 (Fla. 4th DCA 1983); Grissom v. State, 405 So.2d 291 (Fla. 1st DCA 1981); Ward v. State, 354 So.2d 438 (Fla. 3d DCA 1978). Therefore the judgments of conviction and sentences are affirmed.

Affirmed.


text:
    Federico MARULANDA, Appellant, v. The STATE of Florida, Appellee.
    No. 84-403.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Luis E. Rojas, Hialeah, for appellant.
    Jim Smith, Atty. Gen., and G. Bart Bill-brough and Jacki B. Geartner, Asst. Attys. Gen., for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

The defendant appeals from a judgment of conviction and sentence for trafficking in cocaine; possession with intent to sell, manufacture or deliver cocaine; and carrying a concealed firearm.

It is contended by the defendant on appeal that the trial court erred in denying his motion for a judgment of acquittal, and in admitting hearsay testimony under the co-conspirator exception, and furthermore, that certain remarks of the prosecutor made in the closing argument to the jury were so prejudicial that defendant was denied a fair and impartial trial.

We have carefully considered these contentions in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652, (1982); Lynch v. State, 293 So.2d 44 (Fla.1974); Muwwakil v. State, 435 So.2d 304 (Fla. 3d DCA 1983), pet. for rev. denied, 444 So.2d 417 (Fla. 1984); Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA), pet. for rev. denied, 408 So.2d 1096 (Fla.1981); Lynn v. State, 395 So.2d 621 (Fla. 1st DCA), pet. for rev. denied, 402 So.2d 611 (Fla.1981); Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980); Ragin v. State, 348 So.2d 923 (Fla. 3d DCA 1977).

However, as to the judgment of conviction and sentence entered upon the count charging the defendant with possession of cocaine, we are compelled to reverse upon the authority of Bell v. State, 437 So.2d 1057 (Fla.1983). Reyes v. State, 462 So.2d 1198 (Fla. 3d DCA 1985).

Affirmed in part and reversed in part.


text:
    Albert James SOREY, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1258.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 1985.
    Rehearing Denied March 12, 1985.
    Don S. Cohn, Miami, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Following a hearing on the issue of the effectiveness of defendant Sorey’s trial counsel, the trial court entered an order denying defendant’s Motion to Vacate Judgment and Sentence pursuant to rule 3.850, Florida Rules of Criminal Procedure. Sorey appeals.

We find no merit in defendant’s claim of ineffective assistance of counsel predicated on his attorney’s failure to file a motion to suppress fingerprint standards and on his failure to object to the prosecutor’s closing argument comment on defendant’s silence. In order to demonstrate ineffective assistance of trial counsel, defendant must establish that counsel’s performance was unreasonable under the circumstances of the case and that counsel’s deficiencies prejudiced him. Downs v. State, 453 So.2d 1102 (Fla.1984); Knight v. State, 394 So.2d 997 (Fla.1981). From the record before us, it appears that defense counsel’s failure to move to suppress fingerprint standards was not unreasonable under the circumstances since the state could have obtained this evidence through discovery. In addition, the record indicates that the prosecutor’s statement during closing argument constituted a fair response to defense counsel’s comments rather than an impermissible comment on defendant’s silence. Furthermore, there is no showing that counsel’s actions prejudiced defendant Sorey.

For these reasons, we affirm the order denying defendant’s Motion to Vacate Judgment and Sentence pursuant to rule 3.850.

Affirmed.

       Sorey's convictions were appealed and affirmed in Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982).


author: DELL, Judge.

text:
    Ruth Johnson McCUTCHEON and Louis N. McCutcheon, Appellants, v. The HERTZ CORPORATION, a Delaware corporation, Frank A. Stuart, M.D., individually, Frank A. Stuart, M.D., P.A., and Underwriters at Lloyds, Appellees.
    Nos. 83-2698, 84-138.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    Rehearing Denied March 18, 1985.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and George P. Telepas, P.A., Miami, for appellants.
    Nancy Little Hoffmann of Hoffmann & Burris, P.A., and George B. Pomeroy of Pomeroy, Betts & Pomeroy, Fort Lauder-dale, for appellee Hertz.
    James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees Stuart and Underwriters.
   DELL, Judge.

This appeal presents the question of whether an injured plaintiff who accepts an offer of judgment from the defendant who caused the initial injury may thereafter maintain an action against a physician who allegedly aggravated the initial injury. We answer this question in the negative and affirm the court below.

This is the fifth appearance of this case before the appellate courts. In HERTZ IV, this court summarized the history of this case:

In 1971, Mrs. McCutcheon was injured in an automobile accident with a Hertz owned car driven by a Hertz lessee. As a result of the auto accident, Mrs. McCutcheon was treated by Dr. Frank Stuart, who, it is alleged, was negligent in his medical treatment and greatly aggravated her initial injuries. McCut-cheon initially sued Hertz and its driver in a personal injury suit. Hertz asserted a third party claim for indemnity against Stuart based on his aggravation of plaintiffs injuries. This litigation produced the three above cited Stuart v. Hertz opinions. Eventually, the McCutcheon v. Hertz personal injury action was disposed of when Hertz made a $1.1 million offer of judgment on the morning of trial. McCutcheon accepted the offer of judgment pursuant to Florida Rule of Civil Procedure 1.442. Judgment was entered against Hertz which was satisfied in full. Meanwhile, McCutcheon had filed a separate suit against Stuart seeking recovery for Stuart’s alleged medical malpractice. This action, yet untried, remains pending in the Circuit Court.
After paying McCutcheon $1.1 million, Hertz sued Stuart in a separate action on the theory of subrogation. Hertz alleged that all or part of the McCutcheon damages were caused or aggravated by Stuart’s medical malpractice, that Hertz was nevertheless liable under the law for all of McCutcheon’s damages (including those caused by Stuart), and that Stuart was liable in subrogation to Hertz by reason of its $1.1 million satisfaction to McCutcheon. Hertz alleged that its payment to McCutcheon extinguished that party’s claim against Stuart and that McCutcheon had already received full payment for all damages due from Hertz or Stuart. Hertz also joined McCutcheon and Stuart in a prayer for declaratory relief on the issues of satisfaction, subro-gation, and contribution. On motions of both defendants, Stuart and McCutcheon, the trial court dismissed the complaint with prejudice for failure to state a cause of action. Hertz appeals; we find error and reverse.

Id. at 39 (footnote omitted).

On remand, the trial court considered the declaratory judgment action on its merits and found that the cause of action against Stuart for malpractice resides in Hertz. It entered a judgment in favor of Hertz in the declaratory judgment action, and it dismissed McCutcheon’s separate complaint against Stuart. McCutcheon appeals.

In HERTZ I, this court concluded that the defendant, Hertz, had an equitable right to indemnity from Stuart, the third party defendant, and held that an initial tortfeasor could maintain a third party malpractice action as part of the initial litigation.

On certiorari review, Hertz II, the Supreme Court disagreed with our conclusion and quashed the Hertz I opinion, for reasons which are not material to the point presented here. As part of its legal analysis, however, the Court held that Hertz, the initial tortfeasor, was liable for all of McCutcheon’s injuries, including those caused by the alleged negligence of Stuart:

Where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and in following his advice and instructions, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor.

351 So.2d at 707, quoting J. Ray Arnold Corp. v. Richardson, 105 Fla. 204, 141 So. 133, 135 (1932). See also Texas & Pacific Ry. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918 (1915).

Justice Overton anticipated the question before us today in his Hertz II dissent:

A plaintiff should not be allowed to recover for the same wrong from both tortfeasors, which may be possible under the majority opinion as I understand it.

Id. at 708.

This is precisely the situation sub judice. McCutcheon, having collected a 1.1 million dollar judgment as compensation for all damages for which Hertz was responsible, seeks to pursue a medical malpractice action against Stuart. Additionally, after Hertz II, the Supreme Court considered the following question in Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702, 703 (Fla.1980):

DOES THE DECISION IN STUART V. HERTZ [HERTZ II] BAR A SEPARATE LAWSUIT BY THE INITIAL TORT-FEASOR AGAINST A SUCCESSOR TORTFEASOR WHO AGGRAVATES THE ORIGINAL INJURIES?

The Supreme Court answered this question in the negative, thereby providing for a separate subrogation action between initial and subsequent tortfeasors. Therefore, in addition to McCutcheon’s potential double recovery, Underwriters at Lloyds raised the possibility that Stuart will face double liability: to McCutcheon, in her separate malpractice action and to Hertz, in its authorized separate subrogation action.

The resolution of this dilemma lies in the proper interpretation of the effect of McCutcheon’s acceptance of Hertz’s offer of judgment. The trial court concluded that only one cause of action remains against Stuart, and that it resides in Hertz. It therefore dismissed McCutcheon’s separate suit against Stuart. McCutcheon here argues that by dismissing her suit, the trial judge denied her a day in court against Stuart.

We agree with the trial court. When McCutcheon accepted Hertz’s offer of judgment, it is undisputed that her claim included not only the damages caused by Hertz’s driver but also the damages allegedly caused by Stuart. McCutcheon could have rejected the offer and presented the claim to the jury, or she could have offered to accept upon the condition that the judgment would represent compensation only for damages caused by Hertz and its driver, reserving her claim against Stuart. Hertz would then have had the option to accept the conditions or to reject them. The record fails to demonstrate that McCutcheon did either of these things. Instead, she accepted the offer of judgment without qualification as full settlement of all claims pending against Hertz. As early as Hertz II, these claims have been held to include damage allegedly caused by Stuart. The trial court’s declaratory judgment in favor of Hertz and dismissal of McCut-cheon’s complaint against Stuart are perfectly consistent with the law of this case and with Underwriters at Lloyd’s, and avoid the unjust result which concerned Justice Overton in his Hertz II dissent.

Accordingly, we affirm the final summary judgment in favor of Hertz and dismissal of McCutcheon’s complaint against Stuart.

AFFIRMED.

HERSEY and WALDEN, JJ., concur.

      . Stuart v. Hertz Corp., 302 So.2d 187 (Fla. 4th DCA 1974) [HERTZ I]

        Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977) [HERTZ II]

        Stuart v. Hertz Corp., 381 So.2d 1161 (Fla. 4th DCA 1980) [HERTZ III]

        Hertz Corp. v. Stuart, 422 So.2d 38 (Fla. 4th DCA 1982) [HERTZ IV]


text:
    Elena GONZALEZ and Francisco Gonzalez, her husband, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellee.
    No. 84-715.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1985.
    Rehearing Denied March 13, 1985.
    Louise H. McMurray of Daniels & Hicks, P.A., Miami, and Friedman & Lipcon, P.A., Coral Gables, for appellants.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee.
   DELL, Judge.

Appellants challenge the adequacy of a jury verdict in a personal injury action and seek reversal of an order denying their motion for new trial.

In 1980, Mrs. Gonzalez suffered injuries to her foot when an escalator suddenly stopped. The appellee manufactured, installed, maintained and serviced the escalator. Mrs. Gonzalez had previously injured her foot and required six months to recover and return to full time work, but she had no significant problems or complaints until the 1980 accident. After the injuries which she sustained in the 1980 accident, Mrs. Gonzalez had a triple arthrodesis performed on her foot. She testified that she has not been able to return to work because she cannot stand or walk for very long and that she has lost $9,320.86 in wages. Mrs. Gonzalez claimed the usual elements of damage arising out of a personal injury accident, including medical expenses in the amount of $16,473.47, pain and suffering, lost wages and diminution of earning capacity. The jury returned a verdict in the amount of $16,400 in favor of Mrs. Gonzalez and nothing for her husband’s derivative claim.

Appellants contend that the amount of the jury’s verdict shows that the jury awarded only the medical expenses and therefore the verdict is inadequate as a matter of law.

In both Pichel v. Rosen, 214 So.2d 730 (Fla. 3d DCA 1968) and Stevens v. Mount Vernon Fire Insurance Co., 395 So.2d 1206 (Fla. 3d DCA 1981), the jury awarded the exact amount of medical expenses, although the record contained uncontradicted evidence of pain, and in Stevens, evidence of permanent disability. In both cases, the court held the award grossly inadequate.

[WJhere ... a jury awards the plaintiff the exact amount of medical expenses incurred by her, despite indisputable evidence that the plaintiff suffered at least some pain from her injury, and uncontro-verted evidence that the pain continued and would continue well after the injury, the damage award is grossly inadequate, and a new trial on the issue of damages is required.

Stevens, 395 So.2d at 1207.

In Rodriguez v. Allgreen Corp., 242 So.2d 741 (Fla. 4th DCA 1971), the jury, after asking the court whether it could award only medical expenses, awarded an amount approximately the same as the medical bills. The record contained uncontradicted evidence that the plaintiff also suffered permanent disability, lost wages and pain and suffering. This court held the award grossly inadequate and legally inconsistent with the proof. More recently in Shelly v. Hartford Casualty Insurance Co., 445 So.2d 415 (Fla. 4th DCA 1984), this court reversed and remanded for an additur or a new trial because the jury returned a verdict in the exact amount of the plaintiffs medical bills, notwithstanding clear evidence of pain and suffering and permanent disability.

Here the jury’s award coincides with appellant’s medical expenses, except for a difference of only $73.47. The record clearly demonstrates that appellant sustained an aggravation of a pre-existing condition which caused her pain and suffering and resultedi in a loss of wages. It is apparent from the face of the verdict the jury failed to award any sum for these elements of damage. Therefore we hold that the jury’s verdict is inadequate as a matter of law. The jury also failed to compensate Mr. Gonzalez for his derivative claim. Where the jury finds the defendant negligent and returns a verdict in favor of the main plaintiff, a zero verdict on the derivative claim is inconsistent with the main verdict and is grossly inadequate. See Worley v. Kirkland, 360 So.2d 447 (Fla. 1st DCA 1978); Kinne v. Burgin, 311 So.2d 695 (Fla. 3d DCA 1975).

Accordingly, we reverse and remand this cause for a new trial on the issue of damages only.

REVERSED and REMANDED.

HERSEY and WALDEN, JJ., concur.


text:
    Bernard BROWN, a/k/a Renard D. Johnson, Appellant, v. STATE of Florida, Appellee.
    No. AY-397.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1985.

      Michael Allen, Public Defender, and Douglass P. Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant appeals his judgment of conviction and sentence for forgery. We affirm appellant’s conviction and hold that: (1) appellant’s right against double jeopardy was not violated; and (2) appellant was not entitled to an opportunity to withdraw his plea before sentencing.

Appellant, defendant in the proceedings before the trial court, was charged on September 26, 1983, with forgery and uttering a forged credit card.

On November 1, 1983, pursuant to negotiations, appellant appeared before the trial court and entered a plea of nolo contendere to the forgery charge. In exchange, the other count was dropped by the State. The court subsequently accepted the plea and appellant chose to be sentenced under the sentencing guidelines. The court deferred sentencing and ordered a presentence investigation (PSI). On November 15, 1983, the court withheld adjudication and placed appellant on three years probation.

On February 14, 1984, an affidavit of violation of probation was filed alleging that appellant had been arrested for grand theft and escape and that appellant had given a false name when arrested for the instant forgery. An amended affidavit alleged that appellant owed $.50 in court costs and that he had been sentenced to three and one half years for the escape.

On March 30, 1984, appellant appeared before the trial court for a probation violation hearing. Appellant stipulated that he had previously given a false name in the instant case. Appellant’s probation officer testified that appellant’s true name was Renard D. Johnson and that he had been arrested on January 20, 1984, for grand theft and escape. The escape allegedly occurred in October 1982 .from the Jacksonville Community Correctional Center and the grand theft allegedly occurred in October 1983. (The grand theft charge had been dropped by the State in the interim.) The court noted that both of the alleged occurrences predated its probation order. Nevertheless, the court set aside the probation order and ordered a new PSI. Subsequently, on April 6, 1984, appellant was adjudicated guilty of forgery and sentenced to four years in state prison. This appeal followed.

Appellant first contends that the trial court violated appellant’s right against double jeopardy by vacating the probation order and imposing a four-year prison sentence nearly five months after said order was entered. We disagree.

The general rule regarding the right against double jeopardy is that once a defendant has begun serving a sentence, double jeopardy protections attach and the sentence cannot thereafter be increased. Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). Appellant’s argument that the probation order constituted a sentence is incorrect. In placing a defendant on probation, Florida’s courts must “withhold the imposition of sentence.” § 948.-01(3), Fla.Stat. (1983). In addition, a sentence can only be imposed following an adjudication of guilt. Rule 3.700(a), Fla.R. Crim.P.; Corn v. State, 332 So.2d 4 (Fla. 1976). Appellant in the instant case was not adjudicated guilty until April 6, 1984, when the court imposed a sentence for the first and only time. Until that date, jeopardy did not attach and the court retained jurisdiction to properly amend any earlier, in effect, inchoate, pronouncement. Farber v. State, 409 So.2d 71 (Fla. 3d DCA 1982).

We note that the double jeopardy argument was not raised by appellant in the court below and is generally waived when raised for the first time on appeal. Bell v. State, 262 So.2d 244 (Fla. 4th DCA), cert, denied, 265 So.2d 50 (Fla.1972).

In the alternative, appellant contends that he should have been afforded the opportunity to withdraw his plea because the sentence imposed by the court did not comport with the plea agreement. Again, we must disagree.

Although we agree with appellant that such an opportunity would be appropriate and necessary under those circumstances, State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978); Williams v. State, 448 So.2d 1236 (Fla. 1st DCA 1984), the facts in this case reflect a different situation. Appellant agreed to plead nolo contendere to the charge of forgery and in exchange, the State dropped a second charge of uttering a forged credit card. Appellant elected, as was his right, to be sentenced pursuant to Florida’s sentencing guidelines. Pursuant to said guidelines, the appellant was informed that he could be sentenced to a prison term not to exceed five years. The presentence report prepared for the court in November 1983 persuaded the court that a probation order would be appropriate. Pursuant to Rule 3.700(a), Fla.R.Crim.P., . and § 948.01(3), Fla.Stat. (1983), the court therefore withheld adjudication of guilt. Inasmuch as said presentence report later proved to have been prepared based on appellant’s fictitious name, the court, in April 1984, ordered a new report reflecting appellant’s true background. Based on this second PSI, the court determined that probation was not appropriate. The court subsequently adjudicated appellant guilty and pursuant to the guidelines, sentenced appellant to four years of incarceration.

The plea agreement did not contemplate probation for appellant as a part of the bargain. Appellant agreed to plead nolo to the forgery and, pursuant to the guidelines, was informed that he could receive a maximum sentence of five years incarceration. Appellant did not at any time thereafter indicate that he no longer wished to proceed with the bargain or that he wished to withdraw his plea. Since all conditions of said agreement were complied with, we affirm on this issue as well.

Accordingly, appellant’s conviction and sentence for forgery is AFFIRMED.

BOOTH, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: ZEHMER, Judge.

text:
    Billy MARLAR, Appellant, v. The QUINCY STATE BANK, Appellee.
    No. BE-16.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1985.
    Daniel S. Dearing, of Dearing & Smith, Tallahassee, for appellant.
    Blucher B. Lines, of Lines, Henson & Lines, Quincy, for appellee.
   ZEHMER, Judge.

We reverse the summary judgment in favor of appellee, The Quincy State Bank, against appellant, Billy Marlar, as guarantor of payment of the secured note made by Charles G. Ryals and Kenneth A. Powell.

It is apparent that the judgment was based in material part on the affidavit of the bank’s vice president, Jerry Smith, which affidavit was filed by the movant a day before the summary judgment hearing and was served on appellant’s counsel at the hearing. The party moving for summary judgment must serve and file supporting affidavits with the motion at least twenty days before the hearing. Coastal Caribbean Corp. v. Rawlings, 361 So.2d 719 (Fla. 4th DCA 1978); rule 1.510(c), Fla.R.Civ.P. The obvious purpose of the rule is to permit the adverse party to prepare and controvert the factual basis of the motion for summary judgment. Coastal Caribbean Corp. v. Rawlings, supra. It was error for the court below to rely on this affidavit in granting summary judgment.

The bank insists that the Smith affidavit was merely supplemental to other affidavits filed with the motion and, thus, was proper under rule 1.510(e). It is true that rule 1.510(e) provides that “the court may permit affidavits to be supplemented” without specifying any time limit. As the court noted in Coastal Caribbean, supra, there may well be occasions when extraordinary or cogent reasons require the court to permit affidavits to be filed by the mov-ant less than twenty days before the hearing. But we believe, and so hold, that under the rule a movant may file supplemental affidavits less than twenty days prior to the summary judgment hearing only upon written stipulation and agreement by the adverse party affected or upon leave of court granted by written order after written application, notice to the adverse party, and the opportunity for a hearing. As in Coastal Caribbean, supra, we do not undertake to venture an opinion as to what may constitute sufficiently cogent or extraordinary reasons because in this case no such application was made prior to the summary judgment hearing. The requirement that application for leave and order thereon be in writing is prompted by the silence of the record on the dispute between appellate counsel as to whether appellant did or did not object to or agree to the filing of the subject affidavit. “If affidavits are to be supplemented under this rule, the approval must be clearly indicated on the record for the benefit of all parties.” Ellis v. Barnett Bank of Lake-land, 341 So.2d 545, 546 (Fla. 2d DCA 1977).

Unlike Hart v. Colonial Penn Insurance Co., 397 So.2d 1208 (Fla. 1st DCA 1981), we cannot treat the trial court’s improper reliance on the affidavit as harmless error. Appellant’s answer placed the amount actually due on the note in controversy. Therefore, the burden was on the bank to establish by undisputed evidence the correct amount due. It did not do this in the original affidavits filed with the motion; therefore, it is apparent that the trial court relied on the Smith affidavit.

The dispute over the amount due arose out of uncertainty regarding amounts paid to and applied by the bank in reducing the original principal amount. The bank contends that appellant failed to allege “payment” as an affirmative defense and, thus, was precluded from relying on this as a disputed issue, citing Meigs v. Lear, 191 So.2d 286 (Fla. 1st DCA 1966); Fink v. Powsner, 108 So.2d 324 (Fla. 3d DCA 1958); Wingreen Co. v. Montgomery Ward & Co., 171 So.2d 408 (Fla. 3d DCA 1965). We have no quarrel with the general propositions for which these cases have been cited, but we find them inapposite in this case. Here, appellant did not contend that the guaranty was discharged by reason of full payment having been made on the note; he only questioned the amount of damages actually due on the guaranty and, thereby, placed on the bank the burden of proving that amount. The affirmative defense of payment required to be pleaded or else waived under rule 1.110(d) is in the nature of a confession and avoidance of liability. Since appellant was not seeking to avoid liability, but only disputed the amount of damages claimed, we deem the answer sufficient to place this amount in controversy for purposes of summary judgment.

We find it unnecessary to consider the other arguments made by the parties concerning whether the guaranty was conditional or unconditional, or whether appellant is relieved of liability on the basis of the bank’s oral representations and contemporaneous agreements or the bank’s mishandling and depletion of the security, and whether these issues have been adequately raised by the pleadings. Since this case must be remanded for further proceedings in any event, those issues may become relevant and, if not within the ambit of the existing pleadings, may become the proper subject of amended or supplemental pleadings by leave of court if appellant shows Rule 1.190(a), that “justice so requires; Fla.R.Civ.P.

REVERSED and REMANDED.

SMITH and BARFIELD, JJ., concur.

      . The allegation that appellant was "without knowledge" of the amount due operates as a denial of the alleged amount. Rule 1.110(c), Fla.R.Civ.P.


text:
    OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, INC., Appellant, v. PEPSI-COLA BOTTLERS OF MIAMI, INC., Raul E. Echevarria and Liberty Mutual Insurance Company, Appellees.
    No. 84-1273.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.
    Thornton & Herndon and Gail Ferring-ton, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt, Miami, for appellees.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Weintraub v. Field, 143 So.2d 54 (Fla. 3d DCA 1962); Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950). See also Durrance v. Sanders, 329 So.2d 26 (Fla. 1st DCA), cert. denied, 339 So.2d 1171 (Fla.1976) (trial court has wide discretion in taxing costs).


text:
    In the Interest of M.B., juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1363.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See State v. Young, 217 So.2d 567 (Fla.1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969).


text:
    Raul E. SOLARES and Jackie Solares, Appellants, v. Jimmie ALEXANDER, Sam Mizrahi, M & H Enterprises, Inc. d/b/a Biscayne Exxon and Exxon Corporation, Appel-lees.
    No. 84-1393.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.

      Henry T. Courtney, Miami, for appellants.
    Mitchell, Harris, Canning, Murray & Usich and C. Robert Murray, Miami, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Cardounel v. Shell Oil Co., 397 So.2d 328 (Fla. 3d DCA), appeal dismissed, 407 So.2d 1102 (Fla.1981).


text:
    Patricia H. PAGE, as Personal Representative of the Estate of Fred T. Page, on behalf of the Estate and Survivors, Appellant, v. Joseph L. BURD, Clara Burd, Allstate Insurance Company, Dennis J. O’Donnell, the Travelers Insurance Company, and National Car Rental System, Inc., Appellees.
    No. 84-1504.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1985.
    Colson, Hicks & Eidson, Green & Cooper and Marc Cooper, Miami, for appellant.
    Nelson & Schwait and Lorraine S. Cohen, Miami for appellees.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Iglesia v. Floran, 394 So.2d 994 (Fla.1981); Proprietors Insurance Co. v. Valsecchi, 435 So.2d 290 (Fla. 3d DCA 1983), pet. for rev. denied, 449 So.2d 265 (Fla.1984); Carriers Insurance Co. v. Leroy, 309 So.2d 35 (Fla. 3d DCA 1975); Hunker v. Royal Indemnity Co., 57 Wis.2d 588, 204 N.W.2d 897 (Wis.1973); Oliver v. Travelers Insurance Co., 103 Wis.2d 644, 309 N.W.2d 383 (Wis.Ct.App. 1981).