text:
    Eddie L. REMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 62715.
    Supreme Court of Florida.
    Feb. 2, 1984.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Eddie Rembert appeals his convictions of first-degree felony murder and robbery and his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the convictions but vacate the sentence of death.

After drinking for part of the day and worrying about how to make his car payment, Rembert entered the victim’s bait and tackle shop. He hit the elderly victim in the head once or twice with a club and took forty to sixty dollars from the victim’s cash drawer. Shortly thereafter, a neighbor entered the shop and found the victim on the floor, bleeding from his head. He died several hours later of severe injury to the brain.

A two-count indictment charged Rembert with first-degree felony murder and robbery. The jury convicted him of both counts as charged and recommended the death sentence. The trial court sentenced Rembert to death for the murder and to life imprisonment for the robbery, but later deleted the sentence for robbery.

Rembert now claims that the evidence was insufficient to prove that he killed the victim. He argues that the evidence, while possibly suggesting his guilt, is equally consistent with the theory that he merely robbed the victim and that an unknown assailant later beat him so severely that he died. Therefore, according to Rembert, the evidence has failed to exclude a reasonable hypothesis of innocence.

Rembert argued the same theory about an unknown assailant to the jury. Besides hearing that theory, however, the jury also knew that Rembert had hit the victim “once or twice” and heard the medical examiner testify that the victim could have been hit as many as seven times or as few as one time. The jury obviously did not believe Rembert’s contentions to be reasonable, and our review of the record shows the convictions to be supported by competent substantial evidence. This argument therefore fails. Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, — U.S.-, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).

Relying on State v. Anderson, 270 So.2d 353 (Fla.1972), Rembert claims that the trial court erred in refusing to give his requested instruction on circumstantial evidence. In In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981), we found the instruction on circumstantial evidence to be unnecessary and deleted it from the standard instructions. A trial court can, of course, give such an instruction if, in the court’s discretion, it finds it necessary due to the particular facts of any case. Williams v. State, 437 So.2d 133 (Fla.1983); Standard Jury Instructions in Criminal Cases. The trial court did not find the circumstantial evidence instruction necessary in this case, and we find no abuse of discretion in his refusal to give such an instruction.

After the verdict had been returned and the jury had been polled, the foreman informed the court of the jury’s readiness to make a penalty recommendation. The court refused to let him articulate this premature recommendation and told the jury:

It will be necessary before you can properly take any action of this kind to proceed with additional instructions by the Court and the presentation of additional evidence to you by the State and by the Defendant for you to consider the proper factors as outlined by Florida law in making this advisory opinion to the Court.

Both the defense and the state requested that the jury’s tentative recommendation be published. The court properly refused, however, and stated: “The whole purpose of this [sentencing] proceeding is to let them [the jury] make an objective decision after weighing all the proper factors....” The sentencing proceeding was then held the following week, and, after deliberating for an hour, the jury recommended the death penalty.

Rembert now claims that the jury failed to follow the court’s instructions and considered improper matters during its deliberations as to guilt or innocence. Relying on Nelson v. State, 362 So.2d 1017 (Fla. 3d DCA 1978), Rembert urges that he should receive a new trial. In Nelson the jury drew improper inferences based on an absence of explanation of some of the evidence when the trial court refused to permit cross-examination as to that evidence. Nelson is not on point with the instant case, and we find nothing in the record to support Rembert’s contentions.

Under ideal circumstances there would be perfect trials with the courts, the state, the defense, and the juries performing their duties precisely and exactly. This is, however, an imperfect world. Confusion among jurors as to when to vote on what sometimes exists. E.g., Hitchcock v. State, 413 So.2d 741, 744 (Fla.), cert. denied, — U.S. -, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). The court gave the standard jury instructions here, but the jury seems to have misconstrued them.

The jury’s consideration as to a penalty during its deliberations on guilt or innocence, however, appears to have been harmless. The sentencing hearing proceeded normally, and the trial court instructed the jury as to its role in sentencing. There is nothing in the record to support Rem-bert’s contention that the jury prejudged the penalty issue. Rather, the record supports the state’s claim that the jury performed its duty properly during the penalty proceeding.

The trial court gave the standard jury instruction on sentencing. Rembert now claims that this instruction improperly requires a vote by seven or more jurors to recommend any penalty. We. recently considered this issue and rewrote the concluding portion of that instruction. Harich v. State, 437 So.2d 1082 (Fla.1983). Even more recently, however, we held that this instruction must be objected to at trial before relief will be granted on appeal. Jackson v. State, 438 So.2d 4 (Fla.1983). Rem-bert did not object to this instruction and, therefore, has failed to preserve this point for appeal.

Regarding his death sentence, Rem-bert argues that the trial court improperly found several aggravating circumstances and erred in holding that no mitigating circumstances had been established and that the capital sentencing statute is unconstitutional both on its face and as applied. We find no merit in his constitutional challenges. We agree, however, that the trial court erroneously relied on some aggravating factors.

The court found that the following aggravating circumstances had been established: 1) felony murder; 2) avoiding or preventing arrest; 3) heinous, atrocious, and cruel; and 4) cold, calculated, and premeditated. The court reasoned that, because Rembert and the victim had known one another for a number of years, Rem-bert eliminated the only witness who could testify against him, thereby establishing the avoidance or prevention of arrest. In Riley v. State, 366 So.2d 19, 22 (Fla.1978), this Court considered murder to eliminate a witness and stated that “the mere fact of a death is not enough to invoke this factor when the victim is not a law enforcement official. Proof of the requisite intent to avoid arrest and detection must be very strong in these cases.”

The victim was alive when Rembert left the premises and could conceivably have survived to accuse his attacker. If Rem-bert had been concerned with this possibility, his more reasonable course of action would have been to make sure that the victim was dead before fleeing. We do not find that the state demonstrated beyond a reasonable doubt the requisite intent needed to establish this aggravating factor.

We also disagree with the trial court’s finding cold, calculated, and premeditated in aggravation. This is a classic example of a felony murder, and very little, if any, evidence of premeditation exists. The criteria set out in Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), have not been met here.

Nor do we find this murder to have been especially heinous, atrocious, and cruel. While reprehensible, this crime simply does not meet the test set out in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), for finding a killing to have been especially heinous, atrocious, and cruel. Compare Stewart v. State, 420 So.2d 862 (Fla.1982), cert. denied, — U.S.-, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983), and Scott v. State, 411 So.2d 866 (Fla.1982), with the facts of this case.

Although Rembert also attacks the finding that the murder occurred during the commission of a felony, we hold that the trial court properly found that this aggravating factor had been established. Thus, we are left with only one valid aggravating circumstance. Rembert introduced a considerable amount of nonstatutory mitigating evidence, but the trial court chose to find that no mitigating circumstances had been established. Given the facts and circumstances of this case, as compared with other first-degree murder cases, however, we find the death penalty to be unwarranted here. Compare Swan v. State, 322 So.2d 485 (Fla.1975). We therefore vacate the death sentence and remand for the trial court to impose a sentence of life imprisonment with no possibility of parole for twenty-five years. Rembert’s convictions are affirmed.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, MCDONALD, EHRLICH and SHAW, JJ., concur.

       At oral argument the state conceded that in similar circumstances many people receive a less severe sentence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. T. Lamar HAZEN, Respondent.
    No. 62900.
    Supreme Court of Florida.
    Feb. 2, 1984.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel, Tallahassee, and Diane Victor Lutes, Bar Counsel, Tampa, for complainant.
    William R. Korp of Isphording, Payne, Korp, Muirhead & Gay, Venice, for respondent.
   PER CURIAM.

The Florida Bar filed an eight-count complaint against Hazen, charging him with violating Florida Bar Integration Rule, article XI, Rule 11.02(4) and DR 9-102(A). The referee appointed by this Court held a hearing, at which time the bar dismissed three of the counts. The referee recommends that Hazen be found not guilty of two of the counts and that he be found guilty of the remaining three counts. As to discipline, the referee recommends that Hazen be suspended for six months from the date of his initial temporary suspension (February 15, 1982) and thereafter until he proves his rehabilitation pursuant to rule 11.10(3).

Neither Hazen nor the bar has petitioned for review of the referee’s report and recommendations. We have examined the record and adopt both the report and the recommended penalty. Costs in the amount of $3,883.57 are hereby taxed against Hazen.

It is so ordered.

BOYD, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.

       The period of suspension, therefore, has already expired. We note, however, that the temporary suspension has never been lifted.


text:
    Alphonso CAVE, Appellant, v. STATE of Florida, Appellee.
    No. 63172.
    Supreme Court of Florida.
    Feb. 2, 1984.

      Wayne R. McDonough of Saliba & McDo-nough, Vero Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James P. MeLane, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Alphonso Cave, was found guilty of first-degree murder and sentenced to death by the trial court. On January 28, 1983, appellant filed a timely notice of appeal which is currently pending before this Court. On November 3, 1983, appellant moved to dismiss for lack of jurisdiction and, further, that the death sentence be vacated, that the cause be remanded for the imposition of a sentence of life imprisonment, and that the matter be directed to the Fourth District Court of Appeal for further appellate review. As grounds therefor the appellant cites section 921.141(3), Florida Statutes (1981) which reads in pertinent part:

In each ease in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with s. 775.082.

Because of this alleged omission, appellant contends that the trial court’s order imposing the death sentence is null and void and requires the imposition of a life- sentence.

Appellee, State of Florida, agrees that no separate written findings of facts are contained in the record on appeal but, instead, moves this Court to temporarily relinquish jurisdiction to the trial court so that the written findings required under section 921.141(3), Florida Statutes (1981), may be prepared by the trial court and the record on appeal supplemented with these written findings.

It must be stressed that the trial judge did dictate his findings in support of the sentence of death into the record at the time of sentencing. We have previously held that “[s]uch dictation, when transcribed, becomes a finding of fact in writing and provides the opportunity for meaningful review, as required by 921.141, Florida Statutes.” Thompson v. State, 328 So.2d 1 (Fla.1976). Accordingly, we deny appellant’s motion to dismiss for lack of jurisdiction to vacate the death sentence, to remand for imposition of a life sentence, and to order this matter to the Fourth District Court of Appeal for further appellate review.

Nevertheless, we find it prudent to require that written findings of fact be entered into the record on appeal and grant appellee's motion to relinquish jurisdiction and to supplement the record. Accordingly, this cause is temporarily remanded to the trial court so that written findings of fact as required under section 921.141(3), Florida Statutes (1981), may be prepared by the trial court and entered as a supplement to the record on appeal.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM. EHRLICH, Justice,

text:
    In re INQUIRY CONCERNING A JUDGE, MARK A. SPEISER.
    82-208.
    No. 64077.
    Supreme Court of Florida.
    Feb. 2, 1984.
    John S. Rawls, Gen. Counsel, Florida Judicial Qualifications Com’n, Tallahassee, for petitioner.
    J. David Bogenschutz, Hollywood, for respondent.
   PER CURIAM.

On August 9, 1983, the Judicial Qualifications Commission filed its Notice of Formal Proceedings and Stipulation for Submission to the Supreme Court. In the stipulation the parties agreed that the following factual matters stated in the Notice of Formal Proceedings were true:

1. On the 7th day of September, 1982, you were nominated to the position of Circuit Judge of the 17th Judicial Circuit of Florida; and on the 2nd day of November, 1982, you were elected to said position; and on the 4th day of January, 1983, you assumed the office of Circuit Judge of said Circuit.
2. You had been employed as an Assistant State’s Attorney in the 17th Judicial Circuit for more than four years immediately prior to you resigning this position on or about July 1, 1982, to qualify for election as Circuit Judge. Your primary duty as an Assistant State’s Attorney was to prosecute persons charged with major drug violations, and in that capacity you acquired special knowledge and expertise in the prosecution of same.
3. On or about the 8th day of September, 1982 (one day after your nomination), you entered into the employment of Kay and Silber, Attorneys at Law, Fort Lauderdale, Florida, a firm specializing in the defense of persons charged with crimes, including a substantial number of clients charged with offenses of the type which you had prosecuted. You remained in the employ of this firm until early December, 1982, at which time you terminated your employment only after suggestions to that effect by a Circuit Judge of the 17th Judicial Circuit. While so employed by these attorneys, you advised them as to the “weak points” of the State in the prosecution of drug related cases.
4. Furthermore, in or about November, 1982, while you were employed by Kay and Silber, you secretly conferred at length, with Greg Ross, at his request and urging, an Assistant State Attorney in the 17th Judicial Circuit of Florida, who was assigned to prosecute a case styled as State vs. Murphy in which a defendant was represented by Kay and Silber. This case involved drug-related offenses of the type which you had frequently prosecuted in the past. At this conference you advised Prosecuting Attorney Ross, in general terms, of the “weak points” in the defense of drug-related cases such as the Murphy case, made suggestions as to the best methods to secure a successful prosecution, and especially requested Attorney Ross not to disclose your meeting with anyone, including your employers, from whom you withheld knowledge of this meeting.

The Judicial Qualifications Commission has recommended a public reprimand. We accept the Commission’s recommendation and the publication of this opinion in Southern Reporter shall serve as Judge Speiser’s public reprimand for his conduct as an attorney which occurred prior to his becoming a circuit judge.

ALDERMAN, C.J., and BOYD, OVER-TON and McDONALD, JJ., concur.

EHRLICH, J., dissents with an opinion with which SHAW, J., concurs.

EHRLICH, Justice,

dissenting.

The Florida Constitution provides that “There shall be a judicial qualifications commission invested with jurisdiction to investigate and recommend to the Supreme Court of Florida, the removal from office of any justice or judge whose conduct, during term of office or otherwise ... demonstrates a present unfitness to hold office, and to investigate and recommend the reprimand of a justice or a judge whose conduct, during term of office or otherwise ... warrants such reprimand.” (Emphasis supplied.)

Although not specifically discussed in the majority opinion, I concur that the Judicial Qualifications Commission (JQC) has jurisdiction to proceed against a circuit judge for conduct which occurred prior to his assuming judicial office, and that this Court has authority to discipline the circuit judge under these circumstances.

The record here consists solely of Notice of Formal Proceedings and Stipulation For Submission to The Supreme Court of State of Florida. The notice recites the charge against the subject judge (judge) about which inquiry is to be made. The Stipulation executed by the judge and his counsel and by the JQC states that the factual matters stated in the Notice of Formal Proceedings are true. The facts relating to the occurrence in question do not contain the detail that would result if a formal hearing had been held, and to that extent we are handicapped.

The judge apparently had developed an expertise in the prosecution of persons charged with major drug violations as a result of his work as an assistant state attorney in the Seventeenth Judicial Circuit. After leaving that position, he became associated with a law firm in Ft. Lauderdale which specialized in the defense of persons charged with crimes, including those charged with drug violations. At the time in question, the firm with which the judge was associated was representing a defendant in State v. Murphy. We do not know to what extent the judge was familiar with the facts of that particular case or whether he had in fact conferred with the firm’s client or whether he was familiar with the firm’s file. The case was being prosecuted by an assistant state attorney in the Seventeenth Judicial Circuit who requested and held a secret conference with the judge. At this meeting, the judge counseled the assistant state attorney as to the weak points in the defense of drug-related cases, such as the one his firm was defending and which the assistant state attorney was prosecuting, and suggested suitable methods for securing a successful prosecution of such cases. The judge specifically requested that the assistant state attorney maintain the secrecy of this meeting, and the judge never advised the members of the firm with whom he was associated of the fact of the secret meeting.

Here again, we lack facts which would make us better informed as to what was said at the secret meeting. At any rate, I conclude that the judge knew he was doing something wrong, and indeed he was. He was violating the trust that clients are entitled to and do repose in their lawyers. While the gentleman who was being defended by the judge’s firm may not have had any direct dealing with the judge, he was nonetheless the firm’s client and the firm could not breach his confidence or do any act or take any position that would create a conflict with the client’s interest, and this is precisely what the judge did. Because of the lack of a record, we do not know how severely the client’s interests were compromised, and because of the seriousness of the charges and the position of the judge, I do not believe we should attempt to pass judgment on the recommendations of the JQC on the basis of the record at hand.

Our adversary system hangs on the slender thread of the integrity of the lawyer. Weaken or damage that thread or the confidence that the people repose in it and the system is destroyed. That very integrity is perhaps the single most important ingredient in the moral fiber of the lawyer. It must never be breached or compromised. The lawyer makes the system work and without him and his functions the system would collapse. Nor can the system survive when its judges fail to embody integrity, impartiality and justice. In this regard, the burden on judges exceeds that on lawyers to avoid even the appearance of impropriety.

If the judge were not a judge and were a practicing lawyer, his breach of the Code of Professional Responsibility would undoubtedly merit a suspension in excess of three months (thus requiring proof of rehabilitation before being readmitted to practice) or perhaps disbarment. Should the punishment be any less now that the lawyer has in the meantime become a circuit judge? I think not.

The JQC has recommended a reprimand and the majority of the Court is approving that punishment. I do not believe that this disposition comports with justice. I am apprehensive that the public’s confidence in the judge will have been seriously undermined, or perhaps destroyed, by his past conduct as a lawyer. What confidence in the impartiality of the judiciary will a defendant in a criminal case have when he appears before the judge knowing that as a lawyer the judge secretly conferred with the prosecutor in a case which was being defended by his firm and counseled the prosecutor on how to obtain a conviction in that very type of case? Will he not, with some reason, feel that the judge’s sympathies are still with the prosecutor? How can the judge, in the eyes of the public or of those who appear before him, possibly eradicate the lingering doubts about the judge’s integrity and impartiality, all stemming from this secret meeting? The charges made against the judge are far too grave for a simple reprimand to suffice, but by the same token I am loathe to vote to remove him from office on the basis of the stipulated facts.

The issue before us is far too serious, and the consequences too far-reaching, to handle on the basis of the facts given to us. I would therefore refuse to accept the recommendations of the JQC and would remand the matter to the JQC to handle by means of formal proceedings.

I therefore dissent.

SHAW, J., concurs.

      . Art. V, § 12.


text:
    THE FLORIDA BAR, Complainant, v. Bernard R. YOUNG, Respondent.
    No. 64625.
    Supreme Court of Florida.
    Feb. 2, 1984.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel,

      Tallahassee, and Paul A. Gross, Bar Counsel, Miami, for complainant.
    Leonard Frishman, Coral Gables, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Respondent’s Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(4), 1-102(A)(6), 9-102(A) and Florida Bar Integration Rule, article XI, Rule 11.-02(4). We approve the Petition, and we hereby suspend Respondent, Bernard R.Young, for a period of ninety days effective March 3, 1984, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients. Respondent shall not accept any new business. Respondent is placed on probation for a period of two years with his trust account being audited every four months at his own expense. The reports of each audit shall be delivered to the Miami office of The Florida Bar in a timely manner.

Costs in the amount of $661.47 are hereby taxed against the respondent.

It is so ordered.

BOYD, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    James TWEED, Appellant, v. STATE of Florida, Appellee.
    No. 83-1479.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1983.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    James Tweed, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Gary 0. Welch, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This case comes to us on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has filed a handwritten letter which we have treated as a supplemental brief. Having reviewed the Anders brief, appellant’s pro se brief and the record on appeal, we find no reversible error with respect to the judgment and sentence. Accordingly, we affirm.

HOBSON, A.C.J., and SCHEB and RYDER, JJ., concur.


author: COBB, Judge.

text:
    SOUTHEAST BANKS TRUST COMPANY, N.A., Trustee, Appellant, v. HIGGINBOTHAM CHEVROLET-OLDSMOBILE, INC., Appellee.
    No. 83-427.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1984.
    Rehearing Denied Feb. 14, 1984.
    J. Boyd DeLoach, of DeLoach & Peterson, P.A., New Smyrna Beach, for appellant.
    Wayne L. Hogeboom of Kennedy & Ho-geboom, P.A., South Daytona, for appellee.
   COBB, Judge.

The appellee herein, Dennis Higginbot-ham, purchased an automobile dealership from H.D. and Betty Nieburger on June 1, 1976. The Nieburgers leased to Higginbot-ham the land and building where the dealership operated. Paragraphs 2 and 3 of the lease provided:

2. The Lessee covenants and agrees that he will at his expense maintain the interior and exterior of said premises and will maintain and keep in good working order the plumbing and electrical wiring and heating and air conditioning of said premises and will during continuance of this lease pay all utility charges incurred in his use and occupancy of said premises.
3. The Lessor hereby covenants and agrees that he will during the continuance of this lease keep structural elements of the building in good and substantial repair at his expense.

Subsequently, H.D. Nieburger died and the realty became a trust asset administered by Southeast Banks Trust Company, N.A., which has been the landlord of the premises since 1980. In 1982 Higginbot-ham sued the trustee because of a leaky roof, seeking relief through specific performance and declaratory judgment. The trial judge found that the two paragraphs quoted above, when read in conjunction, created an ambiguity sufficient to allow the admission of parol evidence to ascertain the intent of the parties.

The evidence at trial showed that both H.D. Nieburger and the trustee, as landlords, had sent men on occasion to patch the roof. Both parties introduced expert testimony from architects as to the meaning of the term “structural elements” in paragraph 3 of the lease. Both architects agreed that a roof is not considered a structural element of a building in architectural terminology.

Higginbotham testified, over objection, that he understood paragraph 3 to mean that the Nieburgers would take care of the walls and the roof of the building. The son of the Nieburgers, who was present during the lease negotiations with Higginbotham, testified that his parents did not agree to maintain the roof. He further testified that the term “structural elements” as used in paragraph 3 had been discussed and it was intended to encompass only the walls and floor of the building and nothing more. He further testified that the roof repairs made by his parents had been done simply to avoid controversy.

The trial judge found that the greater weight of the evidence indicated that the intent of the parties at the time of execution of the lease had been that the lessors should repair, and if necessary replace, the roof during the term of the lease. He also found that the evidence showed that the roof had reached the point where it could no longer be repaired and had to be replaced. Final judgment was entered against the trustee directing it to replace the roof. This appeal ensued.

The real question in this case is whether the term “structural elements” is truly ambiguous or merely necessitates definition because of its technical nature. As pointed out by the Florida Supreme Court in the early case of Hinote v. Brigman, 44 Fla. 589, 33 So. 303, 305 (1902):

[Wjhere words or phrases used in a contract have acquired a definite meaning generally or by local usage, or, where used in reference to certain things or commodities, have acquired a definite meaning among those dealing with such things or commodities, arid the language used in the writing is such that the court does not understand it, oral testimony is admissible to explain the meaning of such words or phrases. [Cites omitted.]

In Chase Manhattan Bank v. First Marion Bank, 437 F.2d 1040, 1048 (5th Cir.1971), it was stated that evidence to “show the meaning of technical terms, and the like, is not regarded as an exception to the ... [parol evidence rule], because it does not contradict or vary the written instrument, but simply places the court in the position of the parties when they made the contract, and enables it to appreciate the force of words they used in reducing ... [the agreement] to writing.” In accordance with this reasoning, the expert testimony of the two architects defining the phrase “structural elements” was properly admitted. Both experts defined a structural element to mean that part of a building which supports it; both excluded a roof from this definition.

Given this clear definition of the term, there is no conflict between paragraph 2 and paragraph 3 of the contract — and no ambiguity. It is beyond reasonable dispute that a roof is part of the exterior of the leased premises, and therefore encompassed by the express language of paragraph 2 covering the responsibilities of the lessee, Higginbotham. We believe the trial court erred in its finding of an ambiguity in this case, and its admission of parol testimony to vary, as opposed to explaining, the meaning of the contract. Merely because a party has erroneously construed the meaning of a contract does not prevent the court from applying the true construction where the meaning of the words used is clear. People’s Savings Bank & Trust Co. v. Landstreet, 80 Fla. 853, 87 So. 227 (1920).

We find the trial court erred in its conclusion that the roof (i.e., the exterior waterproofing membrane above the supporting rafters) of a building is a “structural element,” and in entering judgment for the plaintiff below.

REVERSED.

PRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.


author: PER CURIAM. JORGENSON, Judge,

text:
    Willette HARMON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2290.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1984.
    Rehearing Denied March 2, 1984.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The order finding the defendant in contempt of court is reversed as there is no showing, based on statements or other circumstances, that she intended to “embarrass, hinder or obstruct” the court. See Thomson v. State, 398 So.2d 514, 517 (Fla. 2d DCA 1981).

Reversed.

JORGENSON, Judge,

dissenting.

I respectfully dissent. The showing required by the majority opinion is not, in my view, necessary. See Fla.R.Crim.P. 3.130(b)(4)(i)(3).


text:
    GAF CORPORATION, Appellant, v. The ZACK COMPANY, Appellee.
    No. 82-46.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied March 7, 1984.
    Thomson Zeder Bohrer Werth Adorno & Razook, and Jon W. Zeder and Sanford L. Bohrer and Richard J. Ovelmen and Charles V. Senatore, Miami, for appellant.
    Britton, Cohen, Kaufman & Schantz and Frank J. Sinagra and Stuart R. Silver and Valeria A. Stott, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered upon a jury verdict in favor of the plaintiff in a products liability action sounding in negligence and breach of implied warranty. Because the plaintiff herein did not sustain any personal injuries or property damage due to the defective roofing materials sued upon and otherwise has no privity of contract with the defendant manufacturer, we hold that the plaintiff has no actionable tort or contract claims against the defendant manufacturer, and reverse the final judgment under review.

The facts of this case are as follows. The plaintiff Zack Company is a roofing contractor which installs roofs. In connection with two building projects on which it had roofing contracts, the plaintiff Zack purchased from East Coast Supply Corporation certain roofing materials which had been manufactured and marketed by the defendant GAF Corporation. These materials, in turn, were installed by the plaintiff Zack upon roofs for the Howard Johnson Motor Lodge in downtown Miami, Florida and the Boca West Condominium in Boca Raton, Florida. Without dispute, the installed roofs were greatly defective in many respects on both projects. Although hotly contested below, there was sufficient evidence adduced at trial to show that the roofing materials which had been used in these roofing jobs were defective and had been negligently manufactured by the defendant GAF, thereby causing the installed roofs to be defective. Howard Johnson Motor Lodge and Boca West Condominium Association both brought actions against the plaintiff Zack based on the admittedly defective roofs installed by Zack. The Howard Johnson suit was litigated in an arbitration proceeding resulting in an arbi-' tration award adverse to the plaintiff Zack. A final judgment confirming the arbitration award in favor of Howard Johnson was entered against the plaintiff Zack in the amount of $33,925.89; attorney’s fees and certain other costs were also incurred by the plaintiff Zack in defending this arbitration proceeding. The Boca West suit was settled for $10,000; in addition, the plaintiff Zack incurred a $32,000 attorney’s fee and other costs in defending this action.

The plaintiff Zack, when the above suits were completed, brought this products liability action below against the defendant GAF. It claimed, in counts sounding in negligence and breach of implied warranty, that it was held liable in the above Howard Johnson and Boca West suits because of the defective roofing materials negligently manufactured by the defendant GAF. It sought compensatory damages for its out-of-pocket expenses in paying the judgment and settlement, as well as attorney’s fees and other costs in the above third-party actions; it also sought punitive damages in a separate count. The case proceeded to trial in which the above facts were established. Defense motions for a directed verdict were denied below and the jury returned a verdict in favor of the plaintiff Zack in the amount of $96,875 in compensatory damages and $600,000 in punitive damages. The defendant GAF appeals.

Without dispute, no personal injury or property damage was sustained by the plaintiff Zack or any other person as a result of the allegedly defective materials in this case. This fact, we think, is fatal to the plaintiff Zack’s claims in this case, assuming without deciding that all such claims sound in tort rather than contract as urged by the plaintiff Zack. If, of course, the breach of implied warranty claim sounds in contract, as urged by the defendant GAF, this claim would be barred for lack of contractual privity between the parties herein.

The plaintiff Zack’s proofs adduced at trial below established at best that it purchased certain defective roofing materials from the East Coast Supply Corporation, which materials had been negligently manufactured and marketed by the defendant GAF, that it installed these defective materials on roofing jobs in connection with two separate roofing contracts, and that it was sued in contract by third parties and was forced to pay a judgment and settlement as well as incur attorney’s fees and costs due to the faulty roofs it constructed with the defective roofing materials. No one was ever personally injured due to the defective roofing materials; no one’s property was ever damaged due to the defective roofing materials; and no claim was ever made below for personal injuries or property damage. This being so, the law of torts affords no cause of action for the plaintiff Zack to recover for its purely economic losses in this case. W. Prosser, Law of Torts § 101 at 665 (4th ed. 1971).

A negligence action against the defendant GAF cannot lie herein because no cognizable tort damages were sustained by the plaintiff Zack, see McIntyre v. McCloud, 334 So.2d 171, 172 (Fla.3d DCA 1976); stated differently, no personal injury or property damage was sustained by the plaintiff Zack as a result of its purchase and installation of the defective roofing materials manufactured by the defendant GAF and therefore no negligence action is maintainable herein. See W. Prosser, Law of Torts § 30 at 143 (4th ed. 1971). A breach of implied warranty action against the defendant GAF also cannot lie for precisely the same reason — that is, assuming, without deciding, that the action be viewed as a tort action requiring no privity of contract as urged by the plaintiff Zack; the action, of course, would otherwise be barred for lack of contractual privity between the parties if the action be viewed as a contract action requiring privity of contract. See West v. Caterpillar Tractor Co., 336 So.2d 80, 92 (Fla.1976).

Under no tort or contract theory known to our law, then, does the plaintiff Zack have a cause of action for negligence or breach of implied warranty against the defendant GAF for the economic losses it sustained in this case. The plaintiff Zack’s sole remedy, if any, for these economic losses would be an action for breach of implied warranty of merchantability under the Uniform Commercial Code [§ 672.314, Fla.Stat. (1981)] or a related breach of contract action against the party, East Coast Supply Corporation, which sold the defective roofing materials to the plaintiff Zack — actions which were not brought below. The trial court, accordingly, committed reversible error in denying the defendant GAF’s motions for directed verdict at trial as no cognizable tort or contract action was established below against the defendant GAF. As the compensatory damage award must be reversed, so too must the punitive damage award.

The final judgment under review is reversed and the cause is remanded to the trial court with directions to enter judgment for the defendant GAF as to all claims brought herein.

Reversed.


author: HUBBART, Judge.

text:
    Arthur STEINHARDT, Appellant, v. Milton E. STEINHARDT and Esther Steinhardt, his wife, Appellees. Milton E. STEINHARDT and Esther Steinhardt, his wife, Appellants, v. Betty D. LEHMAN and Julian Lehman, Appellees. Betty D. LEHMAN and Julian Lehman, Appellants, v. Milton E. STEINHARDT and Esther Steinhardt, his wife, Appellees.
    Nos. 78-1187, 81-606, 81-1078 and 81-1160.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied March 7, 1984.

      Horton, Perse & Ginsberg and Mallory Horton, Miami, for Arthur Steinhardt.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for Milton E. & Esther Steinhardt.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul Siegel and Bayard Heath, Horton, Perse & Ginsberg and Mallory Horton, Miami, for Betty and Julian Lehman.
    Before HUBBART and DANIEL S. PEARSON and JORGENSON, JJ.
   HUBBART, Judge.

This is an appeal and cross-appeal from a final judgment which imposed a resulting trust on certain property and confirmed a prior dismissal at trial of constructive trust claims relating to certain other property. The judgment was entered in an action brought below by members of a certain family to impose a constructive or resulting trust upon the property held by one member of the family and his wife. A cost judgment entered thereafter is also appealed. For the reasons which follow, we conclude that all these claims should have been dismissed at trial at the conclusion of the plaintiffs’ evidence. We accordingly affirm in part and reverse in part.

I

On November 1, 1973, the instant lawsuit was filed below. The complaint, as later amended, sought the imposition of a constructive trust on all the assets held by the defendants Milton Steinhardt and his wife Esther Steinhardt, which property, it was alleged, had been entrusted to the defendant Milton Steinhardt to manage for the benefit of his family, the plaintiffs herein. The suit was brought by the blood relatives and in-laws of the defendant Milton Stein-hardt, to wit: Arthur Steinhardt (brother), Betty Lehman (sister), Julian Lehman (brother-in-law; husband of Betty Lehman), Ruth Steinhardt (sister-in-law; widow of deceased brother Julius Steinhardt), and Steven Steinhardt, Sandra Margolesky, Shirley Villazon (nephew and nieces; children of deceased brother Julius Steinhardt and sister-in-law Ruth Steinhardt). The plaintiffs sought a constructive trust as the heirs of the deceased patriarch of the family Morris Steinhardt, and in their individual capacities as well, in the following proportions: 25 percent to the plaintiff Arthur Steinhardt, 25 percent to the plaintiff Betty Lehman, 25 percent to the plaintiffs Ruth Steinhardt, Steven Steinhardt, Sandra Mar-golesky and Shirley Villazon, and 25 percent to the defendants Milton and Esther Steinhardt. An accounting was also sought of all monies due the plaintiffs under the asserted constructive trust.

The complaint also sought the imposition of a resulting trust for the benefit of the plaintiffs Betty Lehman and Julian Lehman on properties held by the defendants in a development known as the Palm Beach White House, an alleged offshoot of the family businesses. Specifically, the complaint alleges that the defendant Milton Steinhardt orally agreed to pay to each of the plaintiffs Betty Lehman and Julian Lehman 2lk percent of the income from the 99-year ground rental leases of a condominium project developed and owned by the defendants and known as the “Palm Beach White House,” that the plaintiff Betty Lehman was to receive title to an apartment in the complex, and that the plaintiff Betty Lehman was to receive 2⅝ percent interest in any future developments of the defendant. The complaint further alleges that the defendant Milton Steinhardt breached all these agreements and prays for the imposition of a resulting trust and an accounting to enforce these agreements.

The defendants filed answers in this cause denying the material allegations of the complaint and setting up certain affirmative defenses: laches, statute of limitations, statute of frauds, res judicata and collateral estoppel. A defense motion for summary judgment was denied below and affirmed by this court on an interlocutory appeal taken under Fla.R.App.P. 4.2(a) (1962). Steinhardt v. Lehman, 338 So.2d 64 (Fla. 3d DCA. 1976). Upon remand, following certain amendments to the complaint and an additional answer thereto, the case finally proceeded to non-jury trial below. The trial court received eighteen days of testimony and argument in a series of truncated hearings beginning in March 1977 and ending in December 1980.

At the conclusion of the plaintiffs’ case in chief, the trial court dismissed the constructive trust claims filed herein on the ground that such claims were barred by res judicata and laches. The trial court, however, denied a defense motion to dismiss the resulting trust claim. The defendants then presented their evidence relating to this claim and a brief rebuttal was thereafter presented by the plaintiffs. At the conclusion of all the evidence, the trial court ruled in favor of the plaintiffs, stating “I am satisfied that there is a resulting trust in the Palm Beach White House to Betty and Julian Lehman.” A written order was subsequently entered which imposed a resulting trust upon the Palm Beach White House in the amount of 2⅝ percent each for the benefit of the plaintiffs Betty and Julian Lehman, and ordered an accounting of sums due to the plaintiffs under this resulting trust. Lengthy hearings were thereafter conducted on the accounting phase of this case. Ultimately, a final judgment was entered confirming the above court rulings and ordering the payment of certain sums of money as part of the accounting on the resulting trust. A cost judgment was subsequently entered against the defendants herein.

Numerous appeals and cross-appeals have been filed in connection with this case, all of which have been consolidated. The defendants Milton Steinhardt and Esther Steinhardt appeal the final judgment insofar as it imposes a resulting trust on the Palm Beach White House and orders an accounting thereon. The plaintiffs Betty Lehman and Julian Lehman appeal the final judgment insofar as it confirms the prior dismissal at trial of their constructive trust claims; the plaintiff Arthur Stein-hardt appeals a prior written order dismissing his constructive trust claim, which order was a final judgment as to him. Prior appeals lodged by the plaintiffs Ruth Stein-hardt, Steven Steinhardt, Sandra Margole-sky and Shirley Villazon have previously been dismissed by this court for lack of prosecution. Interlocutory appeals have also been taken from the cost judgment by the plaintiffs Betty Lehman and Julian Lehman and by the defendants Milton Ste-inhardt and Esther Steinhardt.

II

We turn first to the constructive trust claims of the plaintiffs Arthur Steinhardt, Betty Lehman and Julian Lehman, which claims were dismissed by the trial court at the conclusion of the plaintiffs’ evidence at trial. We have no difficulty in concluding that the trial court was eminently correct in dismissing these claims.

A

First, it is plain that “clear and convincing evidence” was not presented below, as required by law, to establish a prima facie case for the imposition of a construe-tive trust in favor of the above-stated plaintiffs in their individual capacities. See, e.g., Brown v. Vining, 334 So.2d 647 (Fla. 3d DCA 1976); Carberry v. Foley, 213 So.2d 635 (Fla. 3d DCA 1968), cert. denied, 222 So.2d 750 (Fla.1969). It is settled that a constructive trust is imposed by a court of equity “to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.” Wadlington v. Edwards, 92 So.2d 629, 631 (Fla.1957). No such unjust enrichment was shown in this case as to the plaintiffs individually.

At best, the plaintiffs’ evidence establishes that in 1935 Morris Steinhardt— the deceased father of the plaintiffs Arthur Steinhardt and Betty Lehman and the defendant Milton Steinhardt — sold his oil business and entrusted the funds derived therefrom to his son, the defendant Milton Steinhardt, to invest in real estate and businesses, for the benefit of Morris and other family members; that the defendant Milton Steinhardt converted these funds to his own use and has never offered a satisfactory accounting despite repeated demands over the years by members of the family; and that the defendant Milton Steinhardt has been unjustly enriched at the expense of his father Morris Steinhardt. The plaintiffs Arthur Steinhardt, Betty and Julian Lehman contributed no funds to this venture and therefore the defendants could not have been unjustly enriched at the plaintiffs’ expense. Indeed, it was conceded below that the plaintiffs’ constructive trust claims originated entirely from the 1935 agreement between the father Morris Ste-inhardt and the defendant Milton Stein-hardt, and that the family business was, in effect, the father Morris Steinhardt’s business, not the plaintiffs’ business. The individual constructive trust claims were, without doubt, properly dismissed below.

B

Second, it is plain that the plaintiffs’ evidence adduced below conclusively established that the constructive trust claim of the plaintiffs Arthur Steinhardt, Betty Lehman and Julian Lehman, as heirs of the deceased father Morris Steinhardt, was barred by both res judicata and laches. Indeed, all individual and derivative constructive trust claims asserted by all plaintiffs were barred by laches, as the plaintiffs’ evidence in their case in chief clearly demonstrated.

1

In 1954, Ellen Steinhardt, as admin-istratrix of the estate of the father Morris Steinhardt, brought in the court below a suit which is virtually identical to the constructive trust suit brought in the instant case by the plaintiffs as the heirs of the deceased father Morris Steinhardt. This suit was dismissed by stipulation of the parties, and was re-opened only for the limited purpose of allowing the attorneys for the administratrix to recover their contingent fee in the matter. This dismissal of the claim operates as a judgment or decree against the administratrix Ellen Steinhardt; it is also binding as to the heirs of the estate, the plaintiffs herein, and bars their derivative constructive trust claims under the doctrine of res judicata. Ballard v. Kennedy, 34 Fla. 483, 16 So. 327 (1894); Merritt v. Daffin, 24 Fla. 320, 4 So. 806 (1888); Restatement (Second) of Judgments § 41(l)(c), comment c, illustration 5, reporter’s note to comment c and cases collected (1982).

We are unpersuaded by the plaintiffs’ argument that an injustice would be perpetrated if the defense of res judicata were applied here; no such injustice has been demonstrated on this record. Moreover, we see no prejudice to the plaintiffs based on the general allegations of res judicata pled by the defendants in their answer, as plaintiffs were actually advised as to the specifics of the defense well in advance of trial. Finally, our decision affirming the denial of summary judgment in this case, Steinhardt v. Lehman, 338 So.2d 64 (Fla. 3d DCA 1976), did not, as urged, foreclose the defense of res judicata because it is settled that “[t]he failure to grant a summary judgment does not establish the law of the case [but] merely defers the matter until final hearing.” City of Coral Gables v. Baljet, 250 So.2d 653, 654 (Fla. 3d DCA 1971); see also Wallace v. P.L. Dodge Memorial Hospital, 399 So.2d 114, 116, n. 2 (Fla. 3d DCA 1981).

2

Furthermore, it is plain beyond peradventure that the plaintiffs’ derivative constructive trust claims, as well as their individual constructive trust claims, were barred by the defense of laches. The plaintiffs’ evidence in chief conclusively establishes that numerous demands for an accounting of the family business were made by members of the family and were routinely and repeatedly refused by the defendant Milton Steinhardt over the years beginning in 1946. Yet no action was brought by the plaintiffs herein until 1973. During this time, three of the protagonists in this long-standing family dispute died (Morris Steinhardt, Ellen Steinhardt, and Julius Steinhardt); their version as to the hotly contested facts relating to the constructive trust claim herein is therefore unavailable. Moreover, it is undisputed that the value of the family businesses has vastly increased during this time. All of these factors combine together to establish the defense of laches as to all the constructive trust claims asserted herein. The plaintiffs herein have unreasonably slept on their rights over a period in excess of 20 years, to the prejudice of the defendants herein. We have not overlooked plaintiffs’ arguments to the contrary but find them unpersuasive. Blocker v. Ferguson, 47 So.2d 694 (Fla.1950); Rosenthal v. Largo Land Co., 146 Fla. 81, 200 So.2d 233 (1941); Gables Racing Ass’n v. Persky, 148 Fla. 627, 6 So.2d 257, 263 (1940); Hayes v. Belleair Development Co., 120 Fla. 326, 162 So. 698 (1935); Geter v. Simmons, 57 Fla. 423, 49 So. 131 (1909); Martin v. Wilson, 115 So.2d 573 (Fla. 1st DCA 1959).

Ill

We turn next to the resulting trust claim of the plaintiffs Betty and Julian Lehman in the Palm Beach White House, which claim the trial court found was established in this case. We have no difficulty in reversing this determination as no “clear and convincing evidence” was adduced below, as required by law, to establish this claim at trial. Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA), pet. for rev. denied, 407 So.2d 1103 (Fla.1981).

The basis of the plaintiffs’ resulting trust claim rests entirely on the breach of an alleged 1961 oral agreement by the defendant Milton Steinhardt to convey a 2½ percent interest in the Palm Beach White House condominium project to each of the plaintiffs Betty and Julian Lehman in return for certain services rendered by the said plaintiffs with respect to the above project. The monies for the purchase and development of this project which began in 1961 came entirely from the defendant Milton Steinhardt. Although one or both of the plaintiffs were utilized, at various times, as straw men to hold technical title to the property, to facilitate technical requirements for financing on the project, and to serve as a partial conduit for funds, the record is abundantly clear that they contributed no funds whatever of their own to this project, only their services. They did, however, receive income derived from the project for a time as promised, but this income was eventually terminated. We have not overlooked the plaintiffs’ contrary position with respect to the complex fact pattern in this case, but are unpersuaded thereby.

The law is well-settled that “[i]n the creation of a resulting trust it is essential that the parties actually intend to create the trust relationship but fail to execute documents or establish adequate evidence of the intent.” Wadlington v. Edwards, 92 So.2d 629, 631 (Fla.1957). A resulting trust, in turn, arises in three situations, none of which exists in this case, to wit: (1) where an express trust fails in whole or in part, (2) where an express trust is fully performed without exhausting the trust estate, and (3) where a person furnishes the money to purchase property in the name of another, with both parties intending at the time that the legal title be held by the named grantee for the benefit of the unnamed purchaser of the property. Wadlington v. Edwards, supra at 631; Harnish v. Peele, 386 So.2d 8, 9-10 (Fla. 5th DCA 1980), pet. for rev. denied, 394 So.2d 1153 (Fla.1981); V. Scott, The Law of Trusts § 404.1 (3d ed. 1967).

In the instant case, no express trust was attempted and no express trust failed in whole or in part. Moreover, the plaintiffs herein did not supply the funds in whole or in part to purchase or develop the property in question; on the contrary, the defendant Milton Steinhardt supplied all the money to purchase and develop this property. As a consequence, the essentials of a resulting trust were never established in this case. At best, the plaintiffs had a breach of contract action against the defendant Milton Steinhardt, which action was never brought below as it would have been barred by the statute of limitations. The trial court’s determination that a resulting trust had been established in this case as to the Palm Beach White House condominium project must therefore be reversed.

IV

We have considered the remaining errors urged upon this appeal and cross-appeal and find them either without merit or moot. The cost judgment, however, assessed against the defendants herein must be reversed in view of our decision that all the plaintiffs’ claims herein should have been dismissed at trial.

The final judgment under review is affirmed insofar as it confirms the prior dismissal of the constructive trust claims in this case, and is reversed insofar as it imposes a resulting trust on the Palm Beach White House property and issues accounting orders thereon. The cost judgment under review is also reversed.

Affirmed in part; reversed in part.


author: PER CURIAM. FERGUSON, Judge

text:
    A.M. SHANDLOFF, INC. and Advance Realty of Florida, Inc., Appellants, v. Daniel M. RICHTER, Alvin C. Richter, and Shirley Richter Landwirth, Appellees.
    No. 82-2570.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied March 2, 1984.
    Joe N. Unger, W.L. Gautier, Miami, for appellants.

      Kenny, Nachwaiter & Seymour and Brian F. Speetor, Miami, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The final judgment entered upon a directed verdict is affirmed as there was insufficient evidence adduced below to sustain appellants’ claim for a brokerage fee in this case in that (a) no real estate brokerage agreement with the appellees was established and (b) no showing was made that appellants’ prospect, through an alter ego corporation, purchased the appellees’ property, as claimed by the appellants in their complaint. See New Deal Cab Co. v. Stubbs, 90 So.2d 614, 615 (Fla.1956). We are unable to say, however, that the entire claim was frivolous so as to justify the order entered below awarding attorney’s fees under Section 57.105, Florida Statutes (1981). Although the plaintiffs’ evidence was insufficient to survive a defense motion for directed verdict and the trial court warned counsel of this probability at the outset of the trial, this showing, without more, was insufficient to establish, as urged, a basis for the award of attorney’s fees herein under the above statute. We must therefore reverse the order awarding attorney’s fees to the appellees under Section 57.105, Florida Statutes (1981). See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 504-06 (Fla.1982), and cases collected.

The final judgment appealed from is affirmed; the order awarding attorney’s fees is reversed.

FERGUSON, Judge

(dissenting in part).

On point (a) the question is, more precisely, whether the fact that Shirley Richter Landwirth (one of the owners of the jointly held property) did not participate in the negotiations for a brokerage agreement establishes conclusively that her two brothers were not authorized to act on her behalf and that, therefore, no oral agreement was ever consummated with appellants.

According to the evidence at trial, the brothers showed the property to prospective purchasers and represented that they had authority to deal on the sister’s behalf. In particular, one of the brothers told appellants that he was dealing for his sister and brother and that he represented the family. Various meetings and negotiations between the brothers and appellants further supported appellants’ belief that the brothers had authority to act for the sister. When the property was subsequently sold, only one brother executed the contract for sale. Although the sister did not sign the contract, she appeared at the closing on the sale of the property. Finally, the sister never denied the existence of authority in her brother to contract on her behalf.

The authority of one to act as an agent for another in entering into an agreement for the sale of land may be implied from acts, conduct, and circumstances, including the relations of the parties. Smith v. Shackleford, 92 Fla. 731, 110 So. 358 (1926); Rushing v. Garrett, 375 So.2d 903 (Fla. 1st DCA 1979). Unless the evidence is susceptible of but one reasonable interpretation, the question of whether an agency relationship exists is for the jury. Cirou v. Basler, 432 So.2d 628 (Fla. 3d DCA 1983), and cases cited therein. Here, the issue of agency should not have been taken away from the jury and decided as a matter of law because the evidence, although susceptible to different inferences, supported appellants’ theory of the case, thereby precluding a directed verdict. See Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981).

The pertinent facts relative to point (b) are that appellants as brokers, in August, 1977, brought to appellees a prospective purchaser named Vegas who expressed an interest in appellees’ offer to sell their property for $1,000,000, out of which a 10% commission was to be paid to the broker. Vegas subsequently said he was no longer interested in the property. Less than two months later appellees sold the property to Sedunum Corporation, N.V., an entity formed by Vegas for the purpose of buying the same property, and in which corporation Vegas held a 16%% interest. The sale price was $900,000 — the original offering price less the 10% which would by terms of the alleged agreement have been owed as a commission. In directing a verdict against appellants, the trial court ruled that even if there had been a listing agreement (the issue presented in point (a)) there was not even “a scintilla of evidence” that Vegas was acting on behalf of Sedunum Corporation. I think that the facts just stated alone constitute more than a scintilla of evidence and at the least presented a jury question. See American United, Inc. v. Kroll Realty, Inc., 443 So.2d 217 (Fla. 4th DCA) (evidence that broker produced ready, willing, and able purchaser, and property was later sold to business entity in which purchaser was a principal, was sufficient to support submission to jury of issue of brokerage commission).


text:
    William ASHLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-552.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied March 7, 1984.
    Bennett H. Brummer, Public Defender and Carin Kahgan, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The final judgment of conviction for the crime of attempted manslaughter is affirmed upon a holding that: (a) there is a cognizable crime of attempted manslaughter under Florida law, at least under circumstances where, as here, the facts will support a reasonable inference that the manslaughter attempted would have been a voluntary manslaughter at common law, Taylor v. State, 444 So.2d 931 (Fla.1983); Rodriguez v. State, 443 So.2d 286 (Fla. 3d DCA 1983), and (b) no fundamental error has been shown as to the trial court’s jury instructions on attempted manslaughter, Ray v. State, 403 So.2d 956 (Fla.1981).

The five-year sentence imposed for the crime of attempted manslaughter is also affirmed. The order entered one day subsequent thereto, however, which purports to retain jurisdiction in the trial court for one-half of the above sentence so as to permit the trial judge to review any decision to parole the defendant pursuant to Section 947.16(3), Florida Statutes (1981) is reversed, as said order aggravates the defendant’s previously imposed sentence in violation of the defendant’s constitutional right against double jeopardy. Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Rizzo v. State, 430 So.2d 488 (Fla. 1st DCA 1983); Farber v. State, 409 So.2d 71 (Fla. 3d DCA 1982); Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977).

Affirmed in part; reversed in part.


text:
    Charles REINEKE, Appellant, v. John E. McKINSTRY and Cynthia Joan McKinstry, Appellees.
    No. 82-2324.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.
    William P. Jacobson, P.A., West Palm Beach, for appellees.
   PER CURIAM.

This was an action to foreclose on a mechanic’s lien. Appellant entered a voluntary dismissal. Thereafter, attorney’s fees were awarded to appellee under the provisions of Section 713.29, Florida Statutes (1975). ■ Appellant appeals relying upon Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978).

We affirm upon authority of Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976); Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla. 3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974); Lion Oil Co. v. Tamarac Lakes, Inc., 232 So.2d 20 (Fla. 4th DCA 1970). See also In re Estate of Lewis, 442 So.2d 290, (Fla. 4th DCA 1983); McKelvey v. Kismet, Inc., 430 So.2d 919 (Fla. 3d DCA 1983); State, Department of Health and Rehabilitative Services v. Hall, 409 So.2d 193 (Fla. 3d DCA 1982); Knott v. Knott, 395 So.2d 1196 (Fla. 3d DCA 1981); Dolphin Towers Condominium Association v. Del Bene, 388 So.2d 1268 (Fla. 2d DCA 1980); MacBain v. Bowling, 374 So.2d 75 (Fla.3d DCA 1979).

We distinguish Randle-Eastern Ambulance Service, Inc. v. Vasta, supra. While its peripheral sentiments would seem at first blush to militate against an award of attorney’s fees following voluntary dismissal, a closer analysis reveals that this is not true as concerns cases where a statute or contract provides for such an award. The cause of action in Randle-Eastern was for wrongful death and there was no statute or mentioned contract mandating attorney’s fees. In the instant case there is such a statute, Section 713.29, Florida Statutes (1975).

We are of the opinion that Randle-East-ern must be read in light of and in reconciliation with Campbell v. Maze, 339 So.2d 202, 203 (Fla.1976), where the Supreme Court specifically held in the case of a voluntary dismissal of a personal injury action:

“It has long been the law of Florida that except where attorney’s fees may be allowed in equity from a specific fund or property which may be lawfully charged with their payment, attorney’s fees may not be recovered except when specifically authorized by statute or by agreement of the parties....” (Emphasis added) (citations omitted.)

See also, In re Estate of Lewis, 442 So.2d 290 (Fla. 4th DCA 1983), Order on Rehearing filed January 11, 1984.

We hold that attorney’s fees may be recovered following voluntary dismissal in those cases where such fees are authorized by statute or by agreement of the parties.

AFFIRMED.

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


author: ERVIN, Chief Judge. NIMMONS, Judge,

text:
    Joseph Ensign GRANVILLE, Appellant, v. Paulina Delp GRANVILLE, Appellee.
    No. AV-3.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1984.

      Elaine N. Duggar of Gardner, Shelfer & Duggar, P.A., Tallahassee, for appellant.
    David A. Barrett of Barrett, Bajoczky & Barrett, Tallahassee, for appellee.
   ON PETITION FOR WRIT OF CERTIORARI

ERVIN, Chief Judge.

Petitioner (husband) seeks a writ of cer-tiorari directed to an interlocutory order denying his motions to strike alimony and for protective order preventing respondent’s (wife) inquiry into his financial status. Finding that the denial of the motion to strike alimony is a departure from the essential requirements of law, and that the denial of the protective order would result in irreparable harm not remedial by direct appeal, we grant the petition and quash the trial court’s order.

A final judgment dissolving the Gran-villes’ marriage was entered on July 25, 1980, which approved and incorporated a property settlement that the parties had executed. Pursuant to the terms of the judgment, the wife received custody of the two minor children, aged fourteen and fifteen, and the husband was ordered to pay child support in the total sum of $2,000 per month until the younger child’s either reaching age eighteen, dying, marrying or becoming self-supporting, without any reduction upon the older child’s achieving her majority. The husband also agreed to provide for the reasonable expenses of the children’s college and graduate education. The wife was awarded lump sum alimony of $250,000, payable in four installments, and husband assigned to her any rights he had in the Joseph E. Granville Irrevocable Trust of Westport, Connecticut, and in royalties from sales of his books then published by Prentice Hall. The parties also agreed to a mutual release which was incorporated into the final judgment, wherein each party released the other from “any claim or entitlement either may have against the other for any and all alimony (permanent, temporary and rehabilitative all inclusive), support and maintenance.” The trial court retained jurisdiction only for the purpose of entering “such further orders as may be deemed necessary by this court to enforce the provisions of this final judgment.”

The wife later filed a petition seeking both to enforce and modify the final judgment, by asking for an increase in alimony and child support. In an attempt to accomplish these goals, she requested the husband to produce certain documents, and filed extensive interrogatories, demanding extensive information concerning the husband’s financial status. The latter responded by moving to strike from the petition all references to alimony, asserting that lump sum alimony is not subject to modification. The lower court, as stated, denied the motion.

We agree with husband’s position in regard to the wife’s request for increased alimony. The law is well settled that an award of lump sum alimony is a vested right which is neither terminable upon death or remarriage, nor is it subject to modification, even if made payable in installments. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980); Philipose v. Philipose, 431 So.2d 698 (Fla.2d DCA 1983); Sedell v. Sedell, 100 So.2d 639 (Fla.1st DCA 1958). We therefore find that the trial court erred in denying the motion to strike the request for additional alimony.

The husband’s motion for protective order sought to prohibit inquiry into his financial status on the following grounds: (1) Wife is importuning modification solely on her changed financial circumstances, and husband should be protected from annoyance, embarrassment, oppression, or undue burden or expense. (2) Husband is willing to stipulate that he is financially able and willing to pay a reasonable amount to support the children. (3) Husband has sought to ascertain from the wife the specific sum of child support she wishes, but has been unable to obtain this information from her. (4) Husband’s private finances should- not be made a matter of public record as he earns his livelihood by rendering financial advice to the public. This motion was also denied.

We recognize that child support agreements are always subject to judicial modification whenever there is a sufficient showing of a change in circumstances from the time of the award, Cannon v. Morris, 407 So.2d 372 (Fla.1st DCA 1981), and that it is within the discretion of the trial judge to allow evidence of assets owned by either or both parties when considering modification of child support. See Dixon v. Moody, 352 So.2d 950 (Fla.1st DCA 1977). Such discretion is not unbridled, however. Florida Rule of Civil Procedure 1.280(c), dealing with protective orders, provides:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoy-anee, embarrassment, oppression, or undue burden or expense that justice requires, ....

In view of the unique circumstances regarding husband’s reputation and career as a market forecaster; the fact that he has stipulated to his financial ability and willingness to pay a reasonable increase in child support; the almost oppressive interrogatories requested by the wife, as well as her failure to specify any dollar amounts of the modifications requested, we find that the trial court erred in denying husband’s motion for protective order in that such denial would, in our opinion, result in irreparable harm that could not be cured on direct appeal. Cf. Alterman v. Alterman, 361 So.2d 773 (Fla.3d DCA 1978); Palmar v. Palmar, 402 So.2d 20 (Fla.3d DCA 1981).

Accordingly, husband’s petition for writ of certiorari is granted, and the cause is remanded for further proceedings consistent with this opinion.

THOMPSON, J., concurs.

NIMMONS, J., concurs specially with an opinion.

NIMMONS, Judge,

specially concurring.

I concur in the Court’s opinion with the exception of the weight that the opinion appears to attach to the “unique circumstances regarding husband’s reputation and career as a market forecaster.” Although a party may be entitled to appropriate limitations on discovery of such matters as trade secrets, he is not entitled to blanket insulation from discovery merely because he happens to be a financial market forecaster.

      . The petition alleged that beginning in December of 1982, the husband paid only $1,000 per month child support, but that he had declined to pay various expenses related to the education of the children, and that she and the minor son were involved in an auto accident, so that she was less able to provide for herself and the son's greater needs.

      . The request was for production of the following documents:
      (1) copies of all personal and corporate income tax returns for 1980, 1981 and 1982;
      (2) copies of all checks, bank statements, bank records, financial affidavits, financial statements, profit and loss statements, and net worth statements prepared or filed in the last year;
      (3) original check stubs from paychecks received in the past 12 months;
      (4) copies of all policies of insurance (life, health, disability, casualty) in effect during the past 2 years;
      (5) evidence of all ownership of real or personal property; and
      (6) evidence of all ownership of corporate stock, bonds and securities.

      . The interrogatories inquired, inter alia, as to all property, personal and real, owned by husband and any gifts made thereof during the previous five years, any encumbrances or liens on the property, all corporate stocks and bonds owned by husband, any partnership interests, all bank accounts and certificates of deposit, loans, tax deductions taken and tax returns for 1980 through 1982, insurance policies, and safety deposit boxes and their contents.

      . Husband is a nationally known financial market forecaster.

      . Wife argues that Orlowitz v. Orlowitz, 199 So.2d 97 (Fla.1967) requires us to uphold the denial of husband’s motion for protective order. We find Orlowitz distinguishable on the facts, and note also the statement of the court that ‘‘[t]here are no doubt many instances in which a court should exercise its power to protect a party against an unwarranted disclosure of the details of his financial holdings." Id. at 98.


author: SCHEB, Judge.

text:
    In re GUARDIANSHIP OF Andrew James BARRY, a minor.
    No. 83-2230.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.

      E.J. Salcines, State Atty., and Joryn Jenkins and Claire L. Cours, Asst. State Atty s., Tampa, for appellant.
    Anthony B. Márchese, Tampa, for appel-lees Mark and Laura Barry.
    Barbara Pankau of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for amicus curiae Women’s Hosp.
   SCHEB, Judge.

On appeal by the state, we review a trial court order authorizing removal of a life support system from Andrew James Barry, the infant son of Mark and Laura Barry. We affirm.

These proceedings were initiated by Mr. and Mrs. Barry, the child’s natural parents. After their appointment as legal guardians of Andrew, they petitioned for approval to terminate the use of his life support system. They alleged that their child was in a chronic permanent vegetative coma, absent cognitive brain function, and terminally ill. Further, they alleged that Andrew had no independent respiratory function and, should the ventilator sustaining his life be removed, he would expire in a matter of hours. Their petition was accompanied by supporting affidavits of three physicians who had examined and attended the infant and who concurred in their decision.

A guardian ad litem, appointed by the court, filed a report concurring in the con-elusion of the three physicians. He recommended that the parents’ petition be granted on the assumption that the infant, if competent to make the decision on his own, would exercise his judgment to terminate the life support system. The state attorney, however, denied the allegations, demanded strict proof, and prayed that the petition be dismissed.

Counsel for the petitioners, the state, and the Humana-Women’s Hospital where the child is an inpatient, appeared at an eviden-tiary hearing along with the guardian ad litem and the parents. The court heard testimony from the parents and from the three physicians.

At the conclusion of the hearing, the trial court took the matter under advisement. Three days later, on October 21, 1983, the court announced the following findings:

1. Andrew James Barry was born on December 25, 1982 and is approximately ten months old. He is presently at Women’s Hospital, Tampa, Florida and is on a ventilator life support system in a permanent vegetative state with in excess of 90 per cent of his brain function gone and is without cognitive brain functioning. He has been on the ventilator life support system since about 36 hours following birth. However, death} cannot be determined under the stan-j dard set forth in F.S. 382.085 because! there has not been irreversible cessa-j tion of the functioning of the entire! brain there being some minimal functioning in the brain stem. The child' is terminally ill and even if the life support system was maintained he could not reasonably be expected to live much beyond two years. He has no independent respiratory functions and if the life support system is removed the child will die within an estimated one-half to two hours. His condition is permanent and irreversible.
2. Under the facts established in this case the ventilator life support system is an extraordinary life prolonging measure.
3. That the natural parents, legal co-guardians, have consulted with attending physicians, family members, grandparents and priests and each other and feel that the ventilator is an extraordinary measure and that the best interest of Andrew required that it be discontinued and removed.
4. The Court appointed Guardian Ad Li-tem for Andrew James Barry has filed a Report and concluded that if Andrew James Barry were competent to make such a decision his decision would be to terminate the life support systems. The Guardian Ad Litem has therefore recommended that the petition be granted.
5. The Office of the State Attorney advanced the interests of the State of Florida in obtaining a denial of the subject petition but this Court expressly finds that the interests of the State of Florida in having the petition denied are far outweighed by the facts in this case and Andrew James Barry’s right to privacy notwithstanding the fact that such right is recognized on the basis of substituted judgment and in the absence of any evidence of intention. Satz v. Perlmutter, 379 So.2d 359 (Fla.) and 362 So.2d 160 (Fla.App.) and cases cited therein.
6. The standard set forth in F.S. 382.-085 is not the exclusive standard for determining death or for the withdrawal of life support systems. John F. Kennedy Memorial Hospital v. Bludworth, 432 So.2d 611 at page 619 (Fla.App.).
7. The costs of care for Andrew James Barry have been and will continue to be fully covered by insurance. It was also established by the testimony of the doctors in this case that had they known at the time the respirator was first ordered what they now know the respirator would not have been ordered. Further, the possibility of legal or criminal liability prevented their termination of the life support at this time without Court Order.

On that same date the court entered an order authorizing the parents to cause the ventilator life support system to be terminated and to instruct the attending physicians not to furnish life-sustaining procedures thereafter, except for the sole purpose of alleviating the child’s pain and suffering and to keep him comfortable and provide him with normal nutrition. Finally, the court ordered that no person acting in accordance with its order would be held civilly or criminally responsible.

This appeal by the state ensued, with the trial judge’s order stayed pending resolution by this court.

This appeal vividly demonstrates the tragedy of a comatose infant with a severe birth defect being kept alive only by extraordinary medical measures. While this type of problem is not new, it is one that is viewed today from a new perspective as dramatic advances in medical technology have made it possible to sustain life in many infants who would otherwise have died at birth. As a consequence, parents and medical personnel now face some very real moral and ethical judgments on the issue of life and death.

The law has begun to respond to this new technology. For example, in 1980 the legislature enacted section 382.085, Florida Statutes,' to recognize “brain death” under certain circumstances. In some states legislatures have enacted laws allowing competent individuals to refuse application of extraordinary medical or surgical means to prolong life, and one state even allows either parent of a minor to execute a refusal on behalf of the minor.

While Florida has defined brain death, Andrew does not fully meet the necessary criteria because there is a minimal function of his brain stem. Section 382.085(4), however, recognizes that the statutory recognition of brain death “is not the exclusive standard for determining death or for the withdrawal of life-support systems.” Moreover, while there is legal precedent to allow a competent individual to order removal of life support systems, there are no Florida statutes or controlling judicial precedents which address the removal of life support systems from a minor. Thus, after arriving at what they considered an informed and moral judgment, Mr. and Mrs. Barry petitioned the circuit court to sanction their decision.

The state contends here, as it did below, that its interest in preserving life outweighs the parents’ assertion of their child’s right of privacy to require removal of the life support system. The state also challenges the trial court’s finding that Andrew is terminally ill and argues that the court erred in basing its order on the doctrine of substituted judgment in the absence of evidence of the infant’s intention.

While we agree that the state has a definite interest in preserving life, we must balance that right against the rights of an individual. For example, in January 1980 the Supreme Court of Florida held that a constitutional right of privacy affords a competent adult suffering from a terminal illness the right to refuse or order discontinued extraordinary medical treatments where all affected family members consent. While characterizing the issue as being more suitable to being addressed in the legislative forum, the court recognized that absent a response by the legislature, courts must proceed on a case-by-case basis to meet this type of problem. Satz v. Perlmutter, 379 So.2d 359 (Fla.1980).

While the court’s observation in Perlmutter did not evoke any specific legislative response, the electors of this state, on November 4, 1980, adopted Article I, section 23, of the Bill of Rights to the Florida Constitution. That section provides an express right of privacy for every natural person and makes no distinction as to whether a natural person is competent to exercise that right. However, we agree with the Fourth District Court of Appeal which recently observed that the constitutional right of privacy would be an empty right if one who is incompetent were not granted the right of a competent counterpart to exercise his rights.

The record refutes the state’s contention that Andrew is not terminally ill and fully supports the trial judge’s findings that the child is in a permanent vegetative coma without any cognitive brain function, that his condition is permanent and irreversible, and that his life is being sustained only through the use of extraordinary life prolonging measures.

Dr. Richard Inwood, a neonatologist, explained that Andrew was the second of twins. The first was stillborn, and Andrew, who arrived shortly thereafter, was asphyxiated with very little spontaneous activity. He developed seizures and problems of breathing soon after birth and was placed on a ventilator. Attempts to wean him from that have been unsuccessful. Dr. Inwood pointed to the CAT scan and sonograms which confirm his diagnosis of hy-poxic eschemic encephalopathy of marked degree with overwhelming destruction of the child’s brain tissue. In layman’s terms, Dr. Inwood said there is basically a hole where a large part of the child’s brain would normally be. Furthermore, he said the condition was incurable and irreversible, and he characterized the life support system as merely postponing the moment of the child’s death. Dr. Kenneth Solomon, another neonatologist, and Dr. J. Richard Gunderman, a child neurologist, concurred in Dr. Inwood’s diagnosis and prognosis. Dr. Gunderman added that, while Andrew was not dead by the definition of brain death per se, that medically speaking he has no life.

Each doctor was sensitive to the ethical and moral problems of discontinuing the respirator, but given the assurance that there would be no legal ramifications of a civil or criminal nature, each would abide by the decision of the parents which they regarded as correct. If the life support system were removed, it was their consensus that the child would die within an hour. If Andrew were to remain on the ventilator, they estimated he would continue to live anywhere from one to five years.

As noted, the state also argues that the court erred in basing its order on the doctrine of substituted judgment in the absence of evidence of Andrew’s intent. The doctrine of “substituted judgment” was developed by the courts to afford incompetent patients the same rights as competent ones in determining whether medical treatment which merely prolongs the time of their death should be discontinued. Under this doctrine the court substitutes its judgment for what it finds the patient, if competent, would have done. The doctrine has been helpful in the case of adults, but it is difficult to apply to children or young adults. The widely quoted case of In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), concerned Karen Quinlan, a twenty-one-year old comatose woman being kept alive by life support systems. There, the court heard evidence of Karen’s previous conversations with friends on questions concerning prolongation of life by artificial means. The court, however, found such views inconclusive and concluded that the only practical way of permitting Karen to exercise her right of privacy was to permit her family to exercise its best judgment as to what she would want done under the circumstances.

As the trial court noted in the present case, it is proper for the court to exercise its substituted judgment even ab-' sent evidence of intention of the incompetent person. However, in the case of a child who has not reached'maturity, it is j the parents and their medical advisors who generally must make these decisions. And, where judicial intervention becomes necessary or desirable, the court must be guided primarily by the judgment of the parents who are responsible for their child’s well-being, provided, of course, that their judg->,] ment is supported by competent medical evidence.

Here, the parents testified that they had been adequately informed by their physicians as to their child’s condition. Further, as members of the Catholic Church, they discussed the situation with several priests and determined their position was a moral one, and one supported by their church. This view was echoed by one of the physicians of their own faith who testified. They also noted their decision was not motivated by any financial strain because one hundred percent of all the medical expenses were being covered by their insurance.

Where, as here, the parents’ informed decision is backed by uncontrovert-ed medical evidence that their young child is terminally ill and that his condition is incurable and irreversible, their decision, we think, overrides any interest of the state in prolonging their child’s life through extraordinary measures. We can conceive of no state interest great enough to compel the parents to continue to submit their child to a life support system in this instance. To do so would merely prolong the death of a child terminally ill, wholly lacking in cognitive brain functioning, completely unaware of his surroundings, and with no hope of development of any awareness. The means now being employed are measures which even the physicians testified they would not now initiate given their present knowledge of the situation. It is, we think, the right and obligation of the parents in such an instance to exercise their responsibility and prerogative, as did Mr. and Mrs. Barry, of making an informed determination as to whether these extraordinary measures should be continued. See In re Quinlan.

The record discloses that the proceedings below were thorough and handled with great care and concern. We conclude that there is clear and convincing evidence to support the trial judge’s findings. Moreover, we affirm his conclusion that the interests of Andrew outweigh those of the state in this instance, and that his parents could validly assert a privacy interest on his behalf. We also agree that the trial court correctly applied the doctrine of substituted judgment. Therefore, we affirm the trial court in all respects.

Finally, while the issue is not squarely before us, the state has requested that we require judicial review before life support can be withheld from a non brain-dead child. We decline to so hold as we recognize that decisions of this character have traditionally been made within the privacy of the family relationship based on competent medical advice and consultation by the family with their religious advisors, if that be their persuasion.

As noted, the increased availability of advanced technology to artificially sustain life through extraordinary measures has caused the medical community to look very closely at their ethical and legal responsibilities. Furthermore, lack of legislation and controlling judicial precedent and the omnipresent threat of malpractice litigation causes the medical community to proceed with great caution- in acting on parental direction absent court approval. Nevertheless, where, as here, the question concerns a young child, we do not think the parents must always qualify as legal guardians and seek judicial sanctions to discontinue these extraordinary measures. A decision by parents supported by competent medical advice that their young child suffers from a permanent, incurable and irreversible physical or mental defect likely to soon result in the child’s death should ordinarily be sufficient without court approval. Of course, diagnosis should always be confirmed by at least two physicians. We must remember that the conscience of society in these matters is not something relegated to the exclusive jurisdiction of the court.

Although judicial intervention need not be solicited as a matter of course, still the courts must always be open to hear these matters on request of the family, guardian, affected medical personnel, or the state. In cases where doubt exists, or there is a lack of concurrence among the family, physicians, and the hospital, or if an affected party simply desires a, judicial order, then the court must be available to consider the matter. Medical personnel and hospitals may well consider the suggestion made by Dr. Solomon in his testimony that an advisory committee should be available to assist families and physicians in these matters. When called upon to resolve a controversy as to whether it is appropriate to remove a life support system from a comatose child or to sanction the judgment of affected parties, the court must be satisfied from clear and convincing evidence that the child suffers from an irreversible physical or mental defect, and there is no reasonable medical probability of the infant gaining a cognitive sapient state. When dealing with these problems, courts will, of necessity, have to apply the doctrine of substituted judgment.

Finally, we urge the trial courts to handle these matters on an expedited basis with due concern for the delicacy of the issues and the feelings of the parties involved.

AFFIRMED.

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

      . (1) For legal and medical purposes, where respiratory and circulatory functions are maintained by artificial means of support so as to preclude a determination that these functions have ceased, the occurrence of death may be determined where there is the irreversible cessation of the functioning of the entire brain, including the brain stem, determined in accordance with this section.
      (2) Determination of death pursuant to this section shall be made in accordance with currently accepted reasonable medical standards by two physicians licensed under chapter 458 or chapter 459. One physician shall be the treating physician, and the other physician shall be a board-eligible or board-certified neurologist, neurosurgeon, internist, pediatrician, surgeon, or anesthesiologist.
      (3) The next of kin of the patient shall be notified as soon as practicable of the procedures to determine death under this section. The medical records shall reflect such notice; if such notice has not been given, the medical records shall reflect the attempts to identify and notify the next of kin.
      (4)No recovery shall be allowed nor shall criminal proceedings be instituted in any court in this state against a physician or licensed medical facility that makes a determination of death in accordance with this section or which acts in reliance thereon, if such determination is made in accordance with the accepted standard of care for such physician or facility set forth in s. 768.45. Except for a diagnosis of brain death, the standard set forth in this section is not the exclusive standard for determining death or for the withdrawal of life-support systems.

      . Ark.Stat.Ann. § 82-3801.

      . John F. Kennedy Memorial Hospital, Inc. v. Bludworth, 432 So.2d 611 (Fla. 4th DCA 1983) (wife acted on behalf of comatose husband pursuant to his prior direction in a "living will").

      . Of course, all medical and hospital personnel will have to abide by any state or federal regulations in this area.

      . This concept was suggested in 1975 by the court in In re Quinlan. The New Jersey court there referred to Teeler, The Physician’s Dilemma: A Doctor's View: What the Law Should Be, 27 Baylor L.Rev. 6 (1975). Dr. Teeler discusses how an ethics committee could provide for dialogue in individual situations and for shared responsibility in making necessary decisions.


text:
    Clayton WHITEHOUSE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-474.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Rehearing Denied March 7, 1984.

      Lamchick, 'Glucksman & Johnston and Steven G. Glucksman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill and William Thomas, Asst. Attys. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant was charged in a six count information with two counts of aggravated assault, two counts of battery and two counts of false imprisonment. A jury found him guilty of one count of aggravated assault, one count of simple assault, two counts of battery and two counts of false imprisonment. The trial court sentenced the appellant to a minimum term of three years on the aggravated assault count, and concurrent sentences of sixty days on the assault count, ninety days on each of the two counts of battery, and six months on each of the two false imprisonment counts.

Appellant seeks reversal on the grounds that the trial court erred in (1) denying his motion for new trial based upon newly discovered evidence, (2) failing to grant him a new trial based upon the fact that the verdict was contrary to the weight of the evidence, and (3) failing to exclude the testimony of Michael Salina, one of the victims.

The several grounds relied upon by the appellant for reversal have been considered in the light of the record, briefs and arguments of counsel, and we have concluded that no reversible error has been shown. The record discloses that the case was fully and fairly tried, that the jury’s verdict is supported by the evidence and that the rulings challenged by the appellant did not on the record and under the law constitute harmful error. Jent v. State, 408 So.2d 1024 (Fla.1981); Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981); Mikenas v. State, 367 So.2d 606 (Fla.1978); Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Dale v. Ford Motor Co., 409 So.2d 232 (Fla. 1st DCA 1982); Florida First National Bank of Jacksonville v. Dent, 404 So.2d 1123 (Fla. 1st DCA), dismissed 411 So.2d 381 (Fla.1981); Lamberti v. State, 338 So.2d 909 (Fla. 3d DCA 1976); Dames v. State, 314 So.2d 171 (Fla. 3d DCA 1975).

Therefore the judgments and sentences appealed are affirmed.

Affirmed.