author: ZEHMER, Judge. ZEHMER, Judge.

text:
    D.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. AM-431.
    District Court of Appeal of Florida, First District.
    June 9, 1983.
    'Rehearing Denied Aug. 24, 1983.

      Paula S. Saunders, Asst. Public Defender, Second Judicial Circuit, for appellant.
    Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

This case presents a perfect example of a disturbing societal proclivity toward settling all disputes through resort to a severely overburdened judicial system. In summary, we are asked to review a juvenile court order finding that the defendant, a 13 year old boy, committed the crime of battery when he engaged in a brief scuffle with the alleged victim, an 8½ year old boy. The scuffle, in which neither boy was hurt, began when the defendant tossed a forkfull of ravioli in the direction of the victim and ended a minute or two later with the defendant holding the victim in a loose headlock for several seconds. In between the ravioli and the headlock, various forms of shoving and name calling occurred. We shudder to think what would happen to the wheels of justice if every such childhood scuffle resulted in criminal prosecution. Such matters are best handled on a personal and informal basis, not through the expensive, time-consuming judicial process.

As a result of the above-described “fight,” a complaint was filed in juvenile court on March 22, 1982, charging the defendant with battery. As the following chronology demonstrates, this complaint triggered a chain of events which evidences the inappropriateness of injecting the judicial process into common childhood squabbles.

On March 30, 1982, the complaint was referred to an intake counselor at the Department of Health and Rehabilitative Services. Pursuant to Section 39.04, Florida Statutes (1981), an intake counselor’s job is to review each juvenile case and recommend to the State Attorney the most appropriate action to take. The counselor in the present case deemed it appropriate to refer the defendant to a statutorily authorized community arbitration program specifically designed to handle minor childhood offenses.

On April 6, 1982, defendant signed a “Waiver of Rights” form authorizing his referral to the arbitration program. On April 14, the counselor sent his recommendation to the State Attorney and filed an Arbitration Referral Notice indicating that defendant had been referred to arbitration. Unfortunately, the counselor’s recommendation turned out to be meaningless because the State Attorney, prior to receiving the recommendation, filed a Petition for Delinquency on April 9.

On April 21, defendant appeared before the juvenile judge and entered a plea of not guilty to the charges made in the Petition for Delinquency. An adjudicatory hearing was held on April 29 in the Alachua County Courthouse to determine whether defendant had committed the offense of battery and should be adjudicated a delinquent. Witnesses at the hearing consisted of the defendant, the victim, a neighbor who witnessed the incident, and a 14 year old boy who was with the defendant and the victim at the time of the incident.

At the conclusion of the hearing, the judge called the victim and the defendant up to the bench and said:

Judge (speaking to defendant): You’re obviously guilty of the offense of battery. You, thirteen, fourteen year old eighth-grader, 125 pounds, picking on a third-grader. ... I want a pre-dispositional report to find out what should happen to you in the case, but you owe him an apology.
Defendant: Sorry.
Victim: Accept.
Judge: Wanna shake hands?
Judge (speaking to victim): I gotta give you credit kid, you came back fighting. You’re spunky.
Judge (speaking to defendant): Next time you want to get into a ravioli thing, get somebody [your own size].

On May 5, 1982, a predisposition report was prepared by the intake counselor at HRS who had originally reviewed defendant’s case. His findings are summed up as follows:

The court is faced with a young man who has never been in trouble before. The court has determined that a battery does indeed exist. However, I can’t help but reflect upon the circumstances of this alleged battery. The victim was not injured. There were no blows exchanged. The parents of the victim refused to discuss the incident with the alleged perpetrator and his parents. I had hoped initially that judicial involvement could be avoided in this case. However, since judicial disposition is at hand I would recommend, as I did initially, that [the defendant] be referred to the [community arbitration program] with withheld adjudication for arbitration purposes. I would hope that resolution of this matter would be quickly found.

Based upon this report, the judge entered an order on May 12 finding that the defendant committed the offense of battery, withholding adjudication of delinquency, and referring the defendant and the victim to the community arbitration program. The order also required the parents of both the defendant and the victim to attend the arbitration sessions. On June 11, defendant filed a notice of appeal to this Court.

The defendant raises basically two points on appeal. His first argument is that the criminal count of battery, as described in Section 784.03, Florida Statutes (1981), is not intended to proscribe or punish harmless child’s play which does not cause injury. While we agree that defendant’s conduct in this case is more properly dealt with outside the context of criminal law, we cannot impose our preferences on the discretion of the trial judge, particularly in light of the clear language of Section 784.-03, which states that a person commits criminal battery if he “actually and intentionally touches or strikes another person against the will of the other.” The defendant has not referred us to any case law holding that the degree of injury caused by an intentional touching is relevant to determining whether a criminal battery has been committed; rather, it is clear from Section 784.03 that any intentional touching of another person against such person’s will is technically a criminal battery. The trial judge acted within his discretion in finding that the defendant committed the offense of battery.

The defendant’s second point on appeal is that he acted in self-defense. There is competent and substantial evidence to show that the defendant was the aggressor; therefore, this point is without merit.

Although the trial judge correctly found that the defendant committed the offense of battery, he disposed of the case in a manner not authorized by law. As discussed earlier, Section 39.04, Florida Statutes (1981), requires that the intake officer in a juvenile proceeding make a recommendation to the State Attorney as to whether the State Attorney should file a petition for delinquency, refer the child to a community arbitration program, or take such other action as may be appropriate in the circumstances. The State Attorney is vested with the sole discretion to decide what action to take. In the present case, the State Attorney chose to file a petition for delinquency.

Section 39.09(3), Florida Statutes (1981), states that after an adjudicatory hearing on a petition for delinquency the trial judge may dispose of the case in basically three ways:

1. Dismiss the case upon a finding that the defendant has not committed a delinquent act;
2. Enter adjudication of delinquency; or
3. Withhold adjudication of delinquency and impose upon defendant community-based sanctions in a community control program.

Section 39.10, Florida Statutes (1981), which deals specifically with adjudication, also sets forth the above alternatives as the only dispositional acts authorized.

In the present case, the trial judge found that the defendant committed the offense of battery, withheld adjudication of delinquency, and referred the defendant to a community arbitration program. This is not a statutorily authorized disposition of the case. In addition, it conflicts with the judgment and discretion of the State Attorney, who decided against arbitration, and it imposes upon the parties the burden of retrying the case.

Pursuant to Section 39.331, Florida Statutes (1981), a community arbitration program is specifically designed to:

[Pjrovide a system by which children who commit certain minor offenses may be dealt with in a speedy and informal manner at the community or neighborhood level, in an attempt to reduce the ever-increasing instances of juvenile crime and permit the judicial system to deal effectively with cases which are more serious in nature.

The entire arbitration procedure is designed as a substitute for the actual trial of a juvenile on a criminal charge, not as a means for disposing of an already-completed delinquency trial.

We are sympathetic with the trial judge’s desire to dispose of this matter by arbitration. Arbitration, not a judicial trial, was obviously preferable in this case. But having proceeded with the judicial proceeding, it was fundamental error for the trial judge to dispose of this case in a manner not authorized by statute. We affirm the trial court’s finding that defendant committed the offense of battery; however, we reverse the order of referral to arbitration and remand for disposition in accordance with applicable law.

BOOTH and LARRY G. SMITH, JJ., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

On motion for rehearing, the state contends that our statement in footnote 3 to the opinion filed June 9, 1983, erroneously implies that we have jurisdiction to review the state’s exercise of prosecutorial discretion. We intended no such intimation, one way or the other. The intent of our statement in that footnote was simply to point out that the propriety of the state attorney’s exercise of such discretion in this case was not properly before us for review. The other matters raised in the motion for rehearing warrant no further discussion.

The motion for rehearing is DENIED.

BOOTH and LARRY G. SMITH, JJ., concur.

      . Section 39.33, Florida Statutes (1981).

      . On June 17, rules to show cause were issued against the defendant’s father and the victim’s parents charging them with failure to attend the arbitration sessions and requiring them to show cause why they should not be held in contempt of court. On June 29, defendant’s father was arrested, formally charged with contempt, and, after a hearing, was found in contempt and sentenced to six days in jail. There is no evidence that either the defendant or the victim ever attended arbitration sessions. Apparently, the defendant’s and the victim’s parents felt that the dispute was too trivial to require their continued participation.

      . By holding that the trial judge properly found the defendant guilty of the offense of battery, we do not intend to open the door to a flood of criminal prosecutions based upon such insignificant squabbles. We note that Section 39.04, Florida Statutes (1981), vests in the State Attorney, with respect to complaints alleging delinquent acts, the discretion to determine what prosecutorial action is most appropriate. Pursuant to this section, the State Attorney may dismiss any complaint when he determines that such dismissal is in the best interests of both the public and the child. Since in the present case the discretion of the State Attorney is not at issue before us, we are unable to make a ruling on whether he abused his discretion in filing a petition for delinquency against defendant.

      . Though not excusing his noncompliance, we note that defendant’s father was apparently required to spend six days in jail for failure to comply with the trial judge’s erroneous order.


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    STATE of Florida ex rel. Stephen L. BOYLES and Stephen L. Boyles, individually and as State Attorney of the Seventh Judicial Circuit of Florida, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe, Respondents. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, STATE OF FLORIDA, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe, Respondents. Jim SMITH, as Attorney General, State of Florida, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION and Sidney L. Jaffe, Respondents.
    Nos. AS-96, AS-110 and AS-111.
    District Court of Appeal of Florida, First District.
    June 9, 1983.
    As Corrected on Denial of Rehearing Sept. 8, 1983.

      Stephen L. Boyles, pro se.
    William A. Hatch, Staff Atty., Dept, of Business Regulation, Tallahassee, for petitioner Div. of Florida Land Sales and Condominiums, Dept, of Business Regulation, State of Fla.
    Jim Smith, Atty. Gen., Stephen L. Boyles, Sp. Asst. Atty. Gen., Palatka, and William A. Hatch, Sp. Asst. Atty. Gen., Dept, of Business Regulation, Tallahassee, for petitioner Jim Smith, As Attorney General, State of Fla.
    Enoch J. Whitney, Gen. Counsel, Tallahassee, Florida Parole and Probation Com’n, for respondent Florida Parole and Probation Com’n.
    Daniel S. Dearing, of Dearing & Smith, Tallahassee, and Fletcher N. Baldwin, Jr., Gainesville, for respondent Sidney L. Jaffe.
   SHIVERS, Judge.

Jim Smith, as Attorney General, petitions for common law writ of certiorari, as does Stephen L. Boyles, as State Attorney of the Seventh Judicial Circuit, and as does the Division of Florida Land Sales and Condominiums, Department of Business Regulation. Petitioners seek review of an order of the Parole and Probation Commission which establishes a new Presumptive Parole Release Date (PPRD) for inmate Sidney Jaffe. Because we view the action of the Commission in this case as departing from the essential requirements of law, we grant the Attorney General’s petition and quash the subject order.

Jaffe was convicted on February 11,1982, of 28 violations of section 498.033, Florida Statutes (1981) (registration of subdivided lands section of the Florida Uniform Land Sales Practices Law), a third degree felony, and one violation of section 843.15, Florida Statutes (1981) (failure of defendant on bail to appear), also a felony of the third degree. Jaffe was sentenced to five years on each count, seven of the counts to be served consecutively, and a $5,000 fine on each count. On October 13, 1982, Respondent Commission set November 24, 1988, as Jaffe’s PPRD. At that time, the Commission considered Jaffe’s proposal to pay restitution in exchange for his release and rejected that proposal by order of October 21, 1982. On November 17, 1982, the Commission reconsidered the same restitution proposal and again rejected it. The Commission order of November 22, 1982, stated that the Commission’s action was based on “new information, attorney represented that money is set aside in the bank to make restitution to 27 victims.” Jaffe again filed for review on January 11, 1983. This request made no mention of the proposed restitution plan already twice considered and rejected, but it correctly pointed out a computation error made in computing Jaffe’s PPRD.

On March 2, 1983, the Commission again considered Jaffe’s case. An agenda of the March 2, 1983, meeting had been prepared as required by section 120.53(l)(d), Florida Statutes (1981), but Jaffe’s name was not on the agenda. At the March 2nd meeting the Commission entered an order correcting the computation error, but it also agreed to hear “new information” concerning the restitution plan. The Commission voted to mitigate Jaffe’s PPRD by sixty (60) months. The resulting order of March 10, 1983, sets Jaffe’s PPRD at “May 24, 1983 (conditional).” The “conditions” are spelled out in the order. First, verification is required that the money necessary to reimburse 27 people who suffered a loss as a result of Jaffe’s offenses is again placed in escrow in a Florida bank. Money had previously been placed in such an escrow account pursuant to Jaffe’s restitution plan but had been withdrawn when the Commission rejected the plan. Second, there is a requirement for verification that each of the 27 people have received an offer to be reimbursed in return for execution of a quitclaim deed to the property involved. Third, there is a requirement that each of the 27 people have either received the reimbursement or declined in writing to accept the offer of reimbursement or have failed to respond. Fourth, the order requires verification of the foregoing conditions before May 1, 1983. The order further provides that should the conditions not be fulfilled, the new PPRD would be vacated, and the PPRD reestablished to be May 24, 1988. Petitioners seek review of the foregoing order of March 10, 1983.

Certiorari is a common law writ which issues in the discretion of the court to an inferior tribunal to review its action and determine whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law in cases where no remedy will lie by appeal. See generally 3 Fla.Jur.2d, Appellate Review § 456 (1978). A threshold question, therefore, is whether the petitioners here could appeal this order of the Commission, for, if so, certiorari would be improper. In Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), this court set out the criteria for seeking review under section 120.68, Florida Statutes. One such criterion is that appellant must be a party to the action which he seeks to appeal. Since petitioners were not parties before the Commission, under Daniels, petitioners do not have standing to directly appeal the subject order. Therefore, certiorari may be proper. A person need not necessarily be a party to a proceeding in order to obtain certiorari review if he has sufficient interest in the subject matter of the order. Deans v. Wilcoxon, 18 Fla. 531 (1882); see Mackenzie v. Hillsborough County, 288 So.2d 200 (Fla. 1973). See generally 14 Am.Jur.2d, Certiorari § 31 (1964); 3 Fla.Jur.2d, Appellate Review § 455 (1978).

Respondents contend that petitioners lack sufficient standing to bring this action. The point argued most strenuously by respondents is that none of the petitioners have suffered the type of injury which would entitle them to the writ. Respondent Commission cites 14 Am.Jur.2d, Certio-rari § 31 (1964) for the proposition that enforcement of the decision reviewed must involve special, immediate, and direct injury to the interests of petitioner. We hold that in the instant case, the Attorney General, representing the people of Florida, has shown such an injury. Jaffe is a convicted felon who has demonstrated a propensity to manufacture injury to the people of this state. If he is paroled improperly, the people of Florida will suffer a direct injury. Further, the public would be injured by Jaffe’s improper release since it would tend to undermine the credibility of the criminal enforcement provisions of the Florida Land Sales Act, an act conceived by the legislature to protect the people of Florida from land fraud. Additionally, we find that the facts of this case show a violation of the public notice requirements of section 120.-53(l)(d), Florida Statutes (1981). We view this violation as analogous to violations of the Government in the Sunshine Law, section 286.011, Florida Statutes (1981), a violation of which constitutes an irreparable public injury. Town of Palm Beach v. Gra-dison, 296 So.2d 473 (Fla.1974).

In cases such as the one at bar, where the injury is to the public, the Attorney General has standing as a representative of the people. The Attorney General, as chief law officer of the State, may appear in and attend to all suits or actions in which the State may be “in anywise interested.” Section 16.01(4), Florida Statutes (1981). State ex rel Shevin v. Kerwin, 279 So.2d 836 (Fla.1973). He is the “people’s attorney” and may properly intervene in a matter to represent the people in the courts. Watson v. Claughton, 160 Fla. 217, 34 So.2d 243 (Fla.1948). As Justice Ervin stated in State ex rel Shevin v. Yarborough, 257 So.2d 891 (Fla.1972) (Ervin, J., specially concurring):

Among the cases above cited are statements to the effect that the Attorney General’s discretion to litigate, or intervene in, legal matters deemed by him to involve the public interest is the exercise of a judicial act, and his standing therein cannot be challenged or adjudicated.

Id. at 895. See also Ervin v. Collins, 85 So.2d 852 (Fla.1956); State ex rel Landis v. S.H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934); State ex rel Davis v. Love, 99 Fla. 333, 126 So. 374 (1930); State ex rel Attorney General v. Gleason, 12 Fla. 190 (1868). We, therefore, hold that in the instant case the Attorney General has standing to represent the interests of the people of Florida. In so holding, we find it unnecessary to decide the standing of Petitioners Boyles and Division of Land Sales and Condominiums, whose arguments are incorporated by reference in the petition of the Attorney General.

The next question is whether the order sought to be reviewed is of the type subject to review by common law certiorari. The Parole and Probation Commission is subject to review by extraordinary remedy. Daniels, supra. Certiorari should be employed in situations where the judgment of an administrative agency represents an exercise of judicial discretion pursuant to a hearing. Solomon v. Sanitarians’ Registra tion Board, 155 So.2d 353 (Fla.1963); DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957). Certiorari, therefore, would appear to be appropriate to review the subject order.

Respondents, however, contend that the order is non-final, and therefore non-reviewable, because it is “conditional.” We note that the order of March 10,1983, by its terms, appears to be final. It unequivocally sets May 24, 1983, as Jaffe’s PPRD, and it requires further action only on the part of Jaffe, not the Commission. Indeed, the order provides that, upon nonfulfillment of the conditions, the new PPRD “shall be vacated and held for naught (mitigation of sixty (60) months removed), and the presumptive parole release date shall be reestablished to be May 24, 1988.” It appears, therefore, that the Commission itself believes this order to be final. It would hardly seem necessary to vacate an order if it were non-final. Thus, we view the order of March 10, 1983, as one for which certiorari review is appropriate.

Jaffe, however, also attacks the propriety of reviewing this order by suggesting that this cause is now moot due to the subsequent action of the Commission taken in two orders rendered May 10, 1983. One order, entitled “Special Commission Action,” finds that the conditions imposed by the March 10, 1983 order have been met, affirms that order and finds that Jaffe’s PPRD remains May 24, 1983. The other order is entitled “Effective Parole Release Date Interview Commission Action.” Because the Commission recognized that this court might not act by May 24, 1983, this order decrees that the Commission does not authorize Jaffe’s Effective Parole Release Date (EPRD) and extends Jaffe’s PPRD to November 24, 1983, due to the litigation pending in this court. It further provides that Jaffe’s case will automatically be brought back before the Commission when this court resolves this litigation.

We view these May 10th orders as merely supplemental to the final order rendered March 10, 1983, and these orders do not render this cause moot. The EPRD Interview Commission Action simply recognizes that this court’s decision will determine the validity of the order rendered March 10th. The Special Commission Action of May 10th must stand or fall on the foundation of the order it affirms.

We turn now to the merits of petitioner’s argument, i.e., whether petitioners have shown a deviation from the essential requirements of law. We think the errors in this case rise to the level of such deviation. The Commission cannot modify a PPRD on its assertion of “new information” where that information has already been considered and acted upon by the Commission in establishing the PPRD. See Jackson v. Florida Parole and Probation Commission, 424 So.2d 930 (Fla. 1st DCA 1983); Jenrette v. Wainwright, 410 So.2d 575 (Fla. 3d DCA 1982). Absent the presence of statutory criteria, PPRD decisions are binding on the Commission. McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). In the instant case, it is clear that the restitution plan presented on behalf of Jaffe was not new, but had previously been considered and rejected when the Commission established Jaffe’s initial PPRD.

This error of the Commission is compounded by the fact that the agenda for the March 2, 1983 meeting failed to include the name of Jaffe. Section 120.53(l)(d), Florida Statutes (1981) requires that agencies adopt rules for the scheduling of meetings, one of which is to be that an agenda shall be prepared by the agency in time to insure that a copy of the agenda is received at least seven days before the event by any person in the state. The agenda must contain the items to be considered, and change shall be made only for good cause, as determined by the person designated to preside, and stated in the record. The Commission is required to provide the minimum public information required by section 120.53. Florida Institutional Legal Services, Inc. v. Florida Parole and Probation Commission, 391 So.2d 247 (Fla. 1st DCA 1980). In the instant case Jaffe’s name was not on the agenda, and no good cause for changing the agenda appears in the record. The lack of public notice in this case effectively prevented petitioners, and other interested parties, from appearing and having input into the decision of the Commission made at its March 2, 1983 meeting. Interestingly, it is clear from the record that parties interested in obtaining Jaffe’s early release from prison obtained advance notice by telephone of the fact that Jaffe’s case would be considered at the March 2nd meeting. Jaffe’s attorney, his wife, and a representative of the Canadian government all spoke in his behalf, while petitioners and others remained unaware that Jaffe’s case was being considered. As discussed supra, we view this situation as analogous to a violation of Florida’s Government in the Sunshine Law, a violation of which establishes irreparable injury. We hold that the Commission has in the instant case departed from the essential requirements of law.

Accordingly, the petition of Attorney General Jim Smith for writ of certiorari is granted, the Commission’s order of March 10, 1983, is quashed, and this cause is remanded to the Commission for further proceedings not inconsistent with the views expressed in this opinion.

MILLS and BOOTH, JJ., concur.


author: PER CURIAM.

text:
    ZUCKERMAN-VERNON CORPORATION, Appellant, v. Harry M. ROSEN, as Mayor of the City of Miramar, a municipal corporation; Richard Calhoun; Jerome F. Pollock; Emil Morton, as Trustee; Lottie Morton; Lawrence Morton as Trustee; Irma Morton; James Pace; Dixie Williams and City of Miramar, Appellees.
    Nos. 82-421, 82-422.
    District Court of Appeal of Florida, Fourth District.
    June 15, 1983.
    Rehearing Denied Sept. 12, 1983.
    Edgar Miller and James G. Roth of Walters, Costanzo, Miller & Russell, Miami, and Douglas S. Lambeth, Fort Lauderdale, for appellant.
    Marion E. Sibley of Sibley, Giblin, Leven-son & Glaser, Miami Beach, for appellees Morton.
    Thomas C. Heath of Hainline, Billing, Cochran & Heath, P.A., and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellee Pollock.
   PER CURIAM.

We affirm the final summary judgment entered in Case No. 82-421 on the authority of Wise v. Tucker, 399 So.2d 500 (Fla. 4th DCA 1981). The record reflects, without dispute, that the appellant had knowledge of the facts and circumstances allegedly forming the basis of a cause of action for fraud and deceit at a time when appellant was required to plead that cause as an affirmative defense or compulsory counterclaim in prior legal proceedings pending between these same parties.

We also affirm the final summary judgment entered in Case No. 82-422 because we find no evidence to support appellant’s claim of fraud and conspiracy against the city attorney. Although there is considerable evidence of negligence on the part of the attorney, our review of the record reveals no evidence of the elements of fraud. See e.g. Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367 (Fla. 4th DCA 1981).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Nicholis V. KLONIS and Mary E. Klonis, his wife, for the Use and Benefit of CONSOLIDATED AMERICAN INSURANCE CO., Appellants, v. William R. ARMSTRONG, d/b/a Armstrong Insurance Management Co., and Employers Reinsurance Corp., Appellees.
    No. AO-172.
    District Court of Appeal of Florida, First District.
    June 21, 1983.
    Rehearing Denied Aug. 24, 1983.

      Douglass E. Myers, Jr., of Smith & Myers, Jacksonville, for appellant.
    Daniel C. Shaughnessy, of Cowles, Coker, Myers, Schickel & Pierce, P.A., Jacksonville, for appellees.
   ZEHMER, Judge.

After careful review, we affirm the order dismissing with prejudice a four-count complaint filed by appellant Consolidated American Insurance Co. (Consolidated) against appellee William R. Armstrong and his liability insurer.

The essential facts alleged in the complaint are not complicated. On November 12, 1977, the Klonis residence was burglarized and personal property valued at $98,-000 stolen. Nicholas Klonis and Mary Klon-is, his wife (hereafter Klonis), through their insurance agent, Armstrong, had previously obtained a homeowner’s insurance policy from Consolidated covering the loss by theft of unscheduled personal property in the residence to the maximum amount of $40,000. A clause in that policy provided that this coverage “shall apply as excess insurance over any other valid and collectible insurance which would apply in the absence of this policy.” Sometime after the Consolidated policy was issued, but prior to the burglary, Armstrong orally agreed with Klonis to secure a second policy with Lloyd’s of London insuring specifically described articles of personal property in the Klonis residence having a total appraisal value of $128,000. Armstrong obtained the Lloyd’s policy for Klonis, but it was can-celled after the burglary retroactively to the date of inception because Armstrong had made material misrepresentations on the policy application without the knowledge and consent of Klonis. Consolidated paid $40,000 to Klonis on his claim for the theft under the unscheduled personal property coverage and in return secured a release and subrogation receipt from Klonis. Klonis also sued Armstrong for the amount of the uncovered loss, settling with him for the $58,000 difference. Consolidated attempted to join that litigation as a real party in interest to recover from Armstrong the $40,000 it had paid, asserting the following four theories of action in separate counts:

1. Consolidated is contractually subro-gated to the cause of action by Klonis against Armstrong for negligence (Count i);

2. Consolidated is contractually subro-gated to the cause of action by Klonis against Armstrong for breach of an oral contract (Count II);

3. Consolidated is entitled to recover from Armstrong on a theory of equitable subrogation (Count III); and

4. Consolidated has a direct cause of action against Armstrong for negligence in failing to obtain the valid coverage from Lloyd’s (Count IY).

It is not contended by any party that Consolidated’s policy required either Klonis or Armstrong to obtain described articles insurance as primary coverage or that Consolidated had a legal right to insist that either of them maintain such underlying coverage if it was obtained. The Lloyd’s policy, even if obtained, admittedly could have been cancelled by Armstrong with Klonis’s consent for any reason at any time prior to the theft without creating any liability to Consolidated. Consolidated was paid a stated premium for the unscheduled articles coverage that was not to be reduced under any policy provisions in the event its insured obtained the primary scheduled articles insurance referred to in Consolidated’s policy.

Consolidated’s four-count second amended complaint was dismissed, with leave to amend, for failure to state a cause of action. When Consolidated elected to stand on its allegations and not to amend, the action was dismissed with prejudice.

The first point urged by Consolidated is that in accordance with certain policy provisions and the release and subrogation receipt agreement it was contractually sub-rogated to causes of action by Klonis against Armstrong for negligence and for breach of contract arising from Armstrong’s breach of the oral agreement to obtain the Lloyd’s policy. We readily agree that under those provisions Consolidated became contractually subrogated to causes of action held by Klonis against any persons liable “for the loss” paid by Consolidated. Obviously Consolidated, as subrogee, could sue the burglars or persons fencing the stolen goods if it could locate them. But whether Consolidated could also sue the insurance agent, Armstrong, “for the loss” depends upon the nature and scope of any cause of action Klonis had against Armstrong.

Consolidated contends that, had the Lloyd’s policy been in effect, the $128,000 coverage would have exceeded the amount of the total loss and, further, that under Consolidated’s excess insurance clause, which Florida courts have held enforceable, Lloyd’s would have been responsible for the whole loss and Consolidated would not have been responsible for any portion thereof. Thus, Consolidated concludes, Armstrong’s failure to secure valid insurance from Lloyd’s caused Armstrong to be liable to Klonis and to Consolidated, as subrogee, for the entire $98,000 loss, without regard to the existence of Consolidated’s $40,000 coverage because that was merely “excess” insurance.

Armstrong, on the other hand, contends that under the facts alleged, the “excess” insurance clause in the Consolidated policy did not create any contractual or legal duty that he or Klonis purchase and maintain any amount of primary scheduled personal property coverage; that he undertook by oral agreement to provide insurance coverage which would fully protect Klonis against theft of all personal property, scheduled and unscheduled, including the $98,000 loss sustained in the burglary; that he had previously procured $40,000 of coverage for Klonis from Consolidated that covered part of the loss and was valid and collectible; that such amount was paid to Klonis; that the only damages Klonis could recover from Armstrong for failure to obtain the specified coverage was the amount of any uninsured loss, i.e., the $58,000 difference between the total $98,000 loss and the $40,000 coverage; and that when Armstrong settled and paid the $58,000 claim to Klonis, there was no further liability on Armstrong’s part to Klonis or, thus, to Consolidated by way of subrogation.

Consolidated, suing as a subrogated party, can enforce only those rights of action that Klonis has against Armstrong. 30 FlaJur., Subrogation, § 21. Both parties assume Klonis has a cause of action against Armstrong, but neither cites any legal authority defining the extent of Armstrong’s liability, although that is the pivotal assumption about which both parties base their respective arguments. Hence, we must first address this issue in order to decide the case.

It is well settled in this state that where an insurance agent or broker undertakes to obtain insurance coverage for another person and fails to do so, he may be held liable for resulting damages to that person for breach of contract or negligence. E.g., First National Ins. Agency v. Leesburg Transfer & Storage, 139 So.2d 476 (Fla. 2d DCA 1962); Cat ’n Fiddle v. Century Ins. Co., 200 So.2d 208 (Fla. 3d DCA 1967), vacated in part on other grounds, 213 So.2d 701 (Fla.1968); Caplan v. LaChance, 219 So.2d 89 (Fla. 3d DCA 1969); deMarlor v. Foley Carter Ins. Co., 386 So.2d 22 (Fla. 2d DCA 1980); Duncanson v. Service First, Inc., 157 So.2d 696 (Fla. 3d DCA 1963); Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1981). The damages recoverable from the agent or broker would ordinarily be reduced to the extent that the latter did effectuate some insurance coverage of the claimed loss. See Durbin Paper Stock Co. v. Watson-David Ins. Co., 167 So.2d 34 (Fla. 3d DCA 1964); Cat 'n Fiddle, Inc. v. Century Ins. Co., supra. Damages to the intended insured would usually be “calculated by simply comparing what he would have recovered had the premises been fully insured, with his actual net recovery.” de Marlor v. Foley Carter Ins. Co., 386 So.2d 22, 24 (Fla. 2d DCA 1980).

In the instant case, the extent of Armstrong’s liability to Klonis was the total loss ($98,000) less the amount of insurance coverage already obtained by Armstrong ($40,000) through Consolidated. Consolidated’s “excess insurance” clause never took effect because there was not available to Klonis “other valid and collectible insurance which would apply in the absence of this policy.” Accordingly, after Klonis received the $40,000 from Consolidated and Armstrong paid Klonis the $58,000 difference, Klonis had no surviving right of action to pass by contractual subrogation to Consolidated. The trial court was correct in dismissing Counts I and II.

As its second point, Consolidated argues that even if not entitled to contractual sub-rogation, it was nevertheless entitled to equitable subrogation against Armstrong. Consolidated cites a number of Florida decisions recognizing the doctrine of equitable subrogation and relies principally upon Rebozo v. Royal Indemnity Co., 369 So.2d 644 (Fla. 3d DCA 1979), cert. den., 379 So.2d 209 (Fla.1979). However, this argument fails for the same reason as the previous one— Klonis had no right of action against Armstrong for the $40,000 insurance proceeds to which Consolidated could become equitably subrogated. In Rebozo, unlike this case, an undisputed cause of action was held by the subrogor to be passed to the subrogee. For this reason, Rebozo and the other equitable subrogation cases cited are inapplicable.

Consolidated also argues that Armstrong became in effect a primary insurance carrier by virtue of his unfulfilled promise to secure the primary insurance coverage and, therefore, became liable to Consolidated based upon equitable subrogation principles, citing Ranger Ins. Co. v. Travelers Indemnity Co., 389 So.2d 272 (Fla. 1st DCA 1980), as directly on point. Ranger held that an excess insurance carrier may sue the primary insurance carrier for equitable subrogation where the primary carrier is guilty of bad faith in refusing to settle a claim on the theory that the primary carrier owes the same duty of care to the excess carrier as it owed to the insured. But this argument is likewise based upon an erroneous premise, i.e., that Armstrong’s legal obligation to Klonis was equivalent to the insurance contract made by a primary insurance carrier. Armstrong’s liability was not coextensive with the Lloyd’s policy originally issued and later cancelled. On the contrary, Armstrong’s liability was for damages resulting from his negligence or breach of contract in failing to obtain insurance coverage. As discussed above, Armstrong was responsible only for any uninsured portion of the loss by theft. The trial court was correct in dismissing Count III.

For its third and final point, Consolidated argues that Count IV states a cause of action by Consolidated directly against Armstrong that is not predicated upon a theory of subrogation but, rather, is seeking recovery in negligence because “Armstrong owed a duty to Consolidated to non-negligently perform his contract with Consolidated’s insured [Klonis] to procure the underlying personal articles property insurance coverage from Lloyd’s.” But Consolidated’s argument, as presented, again assumes the existence of such a legal duty and concentrates on questions and legal authorities concerned with the proposition, stated as its Point III (which we quote):

[Count IV] asserts that the loss to Consolidated was a foreseeable consequence of the insurance agent’s (Armstrong’s) negligence in placing underlying coverage— the agent being charged with knowledge of the terms of an insurance contract (Consolidated’s policy with valid ‘excess’ clause) placed by that same agent; the issue of foreseeability/proximate cause is a fact question for the jury, thus this issue was impermissibly foreclosed on the pleadings.

Appellee counters with various arguments, analogizing this claim to third-party beneficiary principles, and urging lack of privity between Consolidated and Armstrong.

However, we need not address these various arguments because Consolidated again assumes the existence of a legal duty without having alleged ultimate facts essential to establish that a legal duty was owed to Consolidated by Armstrong. Consolidated did not allege that it relied upon Armstrong’s undertaking to obtain the scheduled personal articles insurance. At oral argument, in response to questions from the court, counsel for Consolidated candidly admitted that Consolidated had not relied in any way on Armstrong’s undertaking to obtain the additional insurance, and insisted only that Armstrong is liable because he knew or should have known that procurement of the Lloyd’s policy would benefit Consolidated under its excess insurance clause and it was foreseeable that Armstrong’s negligent failure to obtain such insurance would harm Consolidated. But as to Consolidated, Armstrong’s alleged undertaking was entirely gratuitous, and a legal duty would run to Consolidated only if it had relied upon Armstrong’s gratuitous undertaking. The applicable rule was stated in Sheridan v. Greenberg, 391 So.2d 234, 236 (Fla. 3d DCA 1981):

An insurance agent who voluntarily, without consideration or expectation of remuneration or reward, agrees to procure a policy is liable for damages that result from his failure to do so. Reed Mfg. Co. v. Wurts, 187 Ill.App. 378 (1914). Reliance by the putative insured on the insurance agent’s undertaking, even if that undertaking is gratuitous, is sufficient to trigger a duty upon the agent to exercise the reasonable skill and care to obtain the appropriate coverage. Colonial Savings Association v. Taylor, 544 S.W.2d 116 (Tex.1976); Graddon v. Knight, 138 Cal.App.2d 577, 292 P.2d 632 (1956); Lusk-Harbison-Jones v. Universal Credit Co., 164 Miss. 693, 145 So. 623 (1933); Siegel v. Spear & Co., 234 N.Y. 479, 138 N.E. 414 (1923), Couch on Insurance 2d, § 25.33 (1960). See also Restatement (Second) of Torts, Section 323 (1965) (‘one who undertakes, gratuitously or for consideration, to render service to another which he should recognize as necessary for the protection of the other’s person’ is subject to liability for harm suffered because of the other’s reliance on the undertaking.) (Footnotes omitted)

In the Sheridan case, there was evidence of reliance, which was held to trigger a legal duty. Here, there was no reliance and consequently no legal duty. Count IV was likewise properly dismissed.

The judgment below is AFFIRMED.

BOOTH and LARRY G. SMITH, JJ., concur.

ON MOTION FOR REHEARING

ZEHMER, Judge.

Appellant Consolidated American Insurance Co. [Consolidated] contends in its motion for rehearing and/or clarification of our opinion filed June 21, 1983, that we overlooked the controlling effect of Friedfeld v. Royal Indemnity Co., 167 So.2d 586 (Fla. 3d DCA 1964) on this case. Consolidated urges that Friedfeld supports the proposition that the Lloyd’s of London insurance policy acquired on behalf of appellant Klonis was in effect at the time of the robbery and that, as a result of such valid insurance being in effect, the policy issued by Consolidated did not cover any of Klon-is’s loss because its coverage was merely excess over the “valid and collectible insurance” acquired from Lloyd’s. We do not agree.

In Friedfeld, the insured had obtained two comprehensive personal liability insurance policies, both of which contained a clause stating that the coverage of the policy would be limited on a pro rata basis if the insured had other “valid and collectible insurance” in existence at the time of a loss. A covered claim arose out of an accident on the premises, and the insured failed to furnish timely notice of the claim to one of his insurance companies. As a result of this failure, that insurance policy became uncol-lectible with respect to the loss accruing on the date of the accident. The insured attempted to collect the entire amount of the loss under the other policy, arguing that the pro rata clause of the policy should not be applicable since he no longer had other “valid and collectible” insurance to cover the loss. The court properly held, however, that the determination of whether the insured had other valid and collectible insurance should be made as of the time of the accident; and since both policies were collectible at the time of the accident, the pro rata clause was applicable and the insured could not recover his whole loss from one company.

Consolidated’s argument that Fried-feld controls in this case is incorrect. The underlying facts in Friedfeld are distinguishable from the facts in this case. In Friedfeld, the failure of the insured to notify the company of the accident made the policy “uncollectible” at the time of such failure, i.e., after the loss occurred; the policy was not voided or made uncollectible retroactive to its inception. Except for the insured’s failure to give the required notice after the loss, the policy was valid and collectible as of the time of the accident. In the instant case, coverage was denied Klonis on his Lloyd’s of London policy because the material misrepresentations in the application for insurance were submitted before the loss occurred and operated to void the policy retroactive to its inception. As a consequence, Klonis never had any valid and collectible insurance under the Lloyd’s policy which he could lose by reason of acts occurring after the loss. Our decision in this case is entirely consistent with Friedfeld, as the court in that case expressly acknowledged that “the pro rata clause, in referring to ‘valid and collectible’ insurance is directed to a policy which is legal and valid, as distinguished from one which is invalid, such as for fraud .... ” [Emphasis added.] 167 So.2d at 587.

Consolidated’s remaining contentions are likewise without merit. The motion for rehearing is DENIED.

BOOTH and LARRY G. SMITH, JJ., concur.

      . The policy provision reads in part:
      “Subrogation .... This company may require from the insured an assignment of all rights of recovery against any party for loss to the extent that payment therefor is made by this company.”
      The Subrogation Receipt Agreement signed by the Klonises reads in part:
      “In consideration of and to the extent of said payment the undersigned hereby subrogates said company to all of the rights, claims and interest which the undersigned may have against any party ... liable for the loss mentioned above and authorizes the said company to sue, compromise or settle in the undersigned’s name or otherwise all such claims.”


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

text:
    Carlos RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2195.
    District Court of Appeal of Florida, Third District.
    June 21, 1983.
    Rehearing Denied Sept. 6, 1983.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal from certain criminal convictions which were entered after a jury trial in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant raises three points on appeal, none of which is sufficient to upset these convictions.

First, it is urged that the trial court erred in denying defense motions for judgment of acquittal. It is argued that the sole state witness linking the defendant Carlos Rodriguez to the crimes charged herein was severely impeached at trial to such an extent that the case should not have been sent to the jury. Our review of the record, however, satisfies us that sufficient evidence was presented below upon which a reasonable jury could have found the defendant Carlos Rodriguez guilty as charged. The fact that the state’s chief witness may have been impeached below cannot change this result, as it is the sole responsibility of the jury [not the trial court or the appellate court] to assess the credibility of witnesses. We are precluded by law from re-weighing the evidence on appeal and substituting our judgment for that of the trier of fact. Tibbs v. State, 397 So.2d 1120 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

The fact that before the trial judge sent this case to the jury, he stated on the record that he would have acquitted the defendant had he been sitting as the trier of fact, is of no moment. In ruling on a motion for judgment of acquittal, the test is not whether the trial judge would acquit the defendant had he been the trier of fact. On the contrary, the test in ruling on such a motion is set forth in Lynch v. State, 293 So.2d 44, 45 (Fla.1974), as follows:

“A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.”

The trial judge herein applied the proper test in this case and denied the motions for judgment of acquittal—notwithstanding the judge’s personal views on the credibility of the state’s chief witness which he quite properly set aside in ruling on the instant motions.

Secondly, it is urged that the trial court erred in denying certain motions for a mistrial based on testimony elicited by the state on re-direct examination of the state’s chief witness and based on certain comments made by the prosecuting attorney in final argument. We find the subject testimony and comments insufficient to warrant a mistrial in this case. See e.g., Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977); Hinton v. State, 347 So.2d 1079 (Fla. 3d DCA), cert. denied, 354 So.2d 981 (Fla.1977); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975).

Finally, it is urged that the trial court erred in giving á certain instruction to the jury. The state’s chief witness had testified through a translator at the trial of this cause; without dispute, some difficulties were encountered as to the accuracy of this translation at certain points. When that occurred, the trial court, without objection, allowed the attorneys to repeat their questions so that an accurate translation could take place. The court thereafter, during its charge to the jury, gave the following instruction:

“When a witness does not speak English and must testify through a translator, there is an inherent possibility that the translation may be a misstatement of the witness’ testimony, or that the question propounded by the attorney was not related accurately to the witness.
Therefore, the attorneys in this case have been permitted to repeat their questions in areas where the accuracy of a translation itself may have been at issue.” (T. 254).

The defendant contends that this instruction was improper because it ameliorated the defendant’s impeachment of the state’s chief witness at trial by shifting the blame to the official court translator for the witness’ alleged lack of candor and unresponsiveness.

First, we think the instruction was appropriate to explain the necessity for counsel to repeat at times certain questions asked of the state’s chief witness who testified through a translator when, without dispute, certain translation problems occurred below which necessitated repeat questions. Secondly, no complaint was registered below on the basis now asserted, that the subject instruction improperly shifted the blame to the official court translator for the witness’ alleged lack of candor and unresponsiveness. Indeed, defense counsel agreed to and had a hand in drafting the subject instruction. Only at the last minute did counsel register the following perfunctory objection:

“I object to the instruction. I don’t know of any authority for it.” (T. 202)

We regard this as an overbroad “gotcha” objection as it was in no way explained or elaborated on, and, in context, came as a complete switch in defense counsel’s position. No contention was made at any time that this was a prejudicial instruction or in any way constituted an unfair comment on the evidence. The defendant may not therefore be heard for the first time on appeal to make that complaint. Castor v. State, 365 So.2d 701, 703 (Fla.1978); Courson v. State, 414 So.2d 207 (Fla. 3d DCA 1982).

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

When “there is an inherent possibility that the translation may be a misstatement of the witness’ testimony, or that the question propounded by the attorney was not related accurately to the witness,” it is time to declare a mistrial, get rid of the translator, and start all over with a qualified translator. Instead, the trial court gave the jury the above-quoted instruction, in effect imparting to the jury that what they were told that the witness answered may not really have been what the witness answered, and what they heard the attorney ask may not really have been the question put to the witness. Because the instruction authorized the jury to speculate as to the witness’s testimony and, moreover, insulated the witness from having her credibility judged by any well-accepted test, I cannot agree that the instruction would be appropriate in any case, much less a case such as here, where the witness’s testimony (assuming, for the moment, that the translation was accurate) was evasive and inconsistent, and where the prosecution’s entire case rested upon the jury believing this witness.

However, I must agree with the majority that the error of this instruction was not preserved for review by proper objection and, indeed, except for defense counsel’s perfunctory words, “I don’t know of any authority for it,” the giving of the instruction was agreed to by defense counsel.


text:
    Richard W. PRATT, Walter H. Wyar, Jr., James E. Boyette, Burdette R. Parent, Jr., Keith M. Silver, Jerry D. Marlar and Robert L. Wiedemann, d/b/a Valdes, McLain, Pratt & Co., a Florida partnership, Appellants, v. Harold WHITCOMB, an individual, and Harold Whitcomb and Robert Christopher, d/b/a Whitcomb & Christopher, a Florida partnership; Lauren Ritchie and Sentinel Star Company; and Lindsay Newspapers, Inc., publisher of the Sarasota Herald Tribune, and John Hamner, Appellees.
    No. 82-2505.
    District Court of Appeal of Florida, Second District.
    June 22, 1983.
    Richard A. Gilbert of de la Parte & Gilbert, P.A., Tampa, for appellants.
    William E. Partridge of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees, Whitcomb and Christopher.
    Frank J. Holroyd, Jr., Sarasota, for appel-lees, Lindsay Newspapers, Inc. and John Hamner.
    Steven Carta and David Evans of Smith, Carta, Ringsmuth & Kluttz, Fort Myers, for amicus curiae, News-Press Publishing Co., on behalf of appellees, Lauren Ritchie, Sentinel Star Company, Lindsay Newspapers, Inc., and John Hamner.
   PER CURIAM.

Affirmed.

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


author: ZEHMER, Judge.

text:
    Eddie W. HIGGINS, Appellant, v. TRIGIL REPAIR, INC., and Risk Management Services, Inc., Appellees.
    No. AP-45.
    District Court of Appeal of Florida, First District.
    June 27, 1983.
    Rehearing Denied Aug. 31, 1983.
    Paul F. Hartsfield, Jr., Tallahassee, for appellant.
    William E. Bond, Jr., of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for appellees.
   ZEHMER, Judge.

This appeal by the claimant questions when a misrepresentation on the claimant’s employment application will preclude his recovery of worker’s compensation benefits.

On February 8, 1982, the claimant suffered a back injury during the course of his present employment. He had been employed on the job about ten months. When initially seeking that employment, the claimant completed an application in which the following two questions were asked:

1. Have you had a major illness in the past five years?
2. Have you received compensation for injuries?

Claimant answered “no” to both questions although he had suffered a back injury in January 1980 while working for a previous employer and had received worker’s compensation benefits for such injury. After the accident in 1980, claimant had been released by his physician for return to work, with no residual physical disability as a result of that injury. Claimant had no further problems with his back until the present injury.

As a result of the present injury, claimant filed for worker’s compensation benefits. His claim was denied by the deputy commissioner upon a finding that claimant’s misrepresentations on his employment application precluded any award of benefits. Claimant appeals this final order.

Claimant’s primary argument revolves around an interpretation of the Supreme Court’s opinion in Martin Company v. Carpenter, 132 So.2d 400 (Fla.1961). In Carpenter, the Supreme Court set forth the following rule to be applied in cases involving misrepresentations on employment applications:

[A] false representation as to physical condition or health made by an employee in procuring employment will preclude the benefits of the Workmen’s Compensation Act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation and (3) such reliance resulted in consequent injury to the employer.
132 So.2d at 406.

Claimant asserts that under the Carpenter rule an employee should be denied worker’s compensation benefits only when his misrepresented physical condition from a prior injury relates to his present injury. Since the deputy commissioner made a specific finding that there was no medical relationship between claimant’s present injury and the prior undisclosed injury, claimant asserts that the necessary causal relationship between the present injury and the misrepresentation is not present.

The employer/carrier’s primary argument, and the position apparently accepted by the deputy commissioner, is that the Carpenter rule does not require a causal relationship between the first and second injuries but, rather, a causal relationship between the act of misrepresentation and the current injury. The employer/carrier argues, and the deputy commissioner found, that the causal relationship requirement is satisfied in this case because there is evidence that claimant would not have been hired if the previous back injury had been revealed on the employment application. As a result, the employer/carrier argues, the employer “will be injured because benefits must be paid.”

Although the Carpenter opinion is somewhat ambiguous as to the meaning of “causal relationship,” as we read the opinion taken as a whole, the Court was referring to a medical relationship between the claimant’s present injury and his misrepresented physical condition at the time of employment resulting from an undisclosed prior injury. Other decisions reinforce this conclusion.

In the recent case of Sasso v. Ram Property Management, 431 So.2d 204 (Fla. 1st DCA 1983), the claimant materially misrepresented his age. This Court construed Carpenter to require a causal relationship between the misrepresented physical or health-related condition, the industrial accident, and the subsequent claim for worker’s compensation benefits. It affirmed the award of benefits because the employer/ carrier failed to show how the claimant’s misrepresented age related to his injury. See also Montgomery Ward & Co. v. Provenzano, 394 So.2d 1081 (Fla. 1st DCA 1981); Benton & Co., Inc. v. Evins, 9 FCR 315 (1975); Georgetown Manor Furniture Co. v. Smith, 281 So.2d 18 (Fla.1973).

The only evidence before the deputy commissioner in this case regarding any relationship between claimant’s first and second injuries was testimony from claimant’s physician that the two injuries were totally unrelated. The deputy commissioner, in his final order, specifically adopted the testimony of claimant’s physician and found no medical relationship between the two injuries. Therefore, the defense of misrepresentation is inapplicable for lack of any causal relationship between claimant’s physical condition from the first back injury and his second back injury.

Reversed and remanded.

ROBERT P. SMITH, Jr., C.J., and WENTWORTH, J., concur.

      . The employer did not contend that the misrepresentations by the claimant were sufficient to vitiate the entire employment contract. Therefore, we consider the legal rights of the parties in the posture of a subsisting employer-employee relationship. Martin Company v. Carpenter, 132 So.2d 400, 404-05 (Fla.1961).


author: HENDRY, Judge.

text:
    O.K. HOUSTOUN, Jr., and Gail B. Baldwin, Appellants, v. Gordon M. ALBURY, Jr., et al., Appellees.
    Nos. 81-1694, 81-1711.
    District Court of Appeal of Florida, Third District.
    June 28, 1983.
    Rehearing Denied Sept. 6, 1983.

      Robert M. Brake, Coral Gables, Don R. Livingstone, South Miami, for appellants.
    Flaxman & Flaxman and Neil Flaxman, Coral Gables, for appellees.
    Before HENDRY, BARKDULL and BASKIN, JJ.
   HENDRY, Judge.

Appellants bring these consolidated appeals from the final judgment of accounting dissolving the partnership of Houstoun, Albury and Baldwin. In a prior appeal this court affirmed the trial court’s determination that three partnerships had existed and remanded the cause for a full and final accounting. The trial ¡court, on remand, found that the June 30, 1968 accounting statement, as amended by the court’s own findings, constituted an accurate statement of the affairs of the partnership. The court further found that the accounting statement credited the condominium office building, retained by Hous-toun, to Houstoun’s account at its book value as of June 30,1968. Additionally, the court determined that after the remaining assets were liquidated, the partnership owed Houstoun the sum of $41,275.29, Al-bury owed the partnership the sum of $7,181.48 and Baldwin owed the partnership the sum of $31,836.09.

The partnerships were formed for the purpose of performing architectural services. During the first Houstoun-Albury partnership, in 1964, the partnership received 1,000 shares of Lum’s stock in lieu of payment for such services. Houstoun owned two-thirds and Albury one-third of the stock. In 1967, the Lum’s stock was pledged as security for a bank loan in the amount of $26,000. The note evidencing the debt was signed by Houstoun, and the monies were deposited into the Houstoun-Albury-Baldwin partnership account. Proceeds from the loan were used for partnership purposes and to acquire stock in a corporation known as “Happy Six”. The Happy Six stock was titled only to Baldwin. As of June 30, 1968, when the partnership was dissolved, Houstoun had sold his shares of the Lum’s stock to reduce the bank debt, and Albury had demanded the return of his shares. The stock had split 3 to 1 and 1,000 shares were still held by the bank as security. In October, 1968 the parties signed a tentative dissolution agreement listing all the remaining assets.

On March 26,1969 Houstoun renewed the loan and borrowed an additional $13,500. The old note had been marked “paid by renewal”. The bank retained the Lum’s stock as security for this new loan. Albury was not aware that the stock was being held by the bank as security for this new loan. The value of the stock on March 26, 1969 was $77,250. Subsequently, when the loan was not paid, the bank sold the stock for $22,297.79, its value as of October, 1970. The trial court determined that the old note had been paid as of March 26, 1969 and ordered that Albury should recover the sum of $77,250 minus his debt to the partnership of $7,181.48, or a total of $70,068.52, from Houstoun. In addition, the court ordered that Houstoun should recover the sum of $31,836.09 from Baldwin.

On appeal, Houstoun complains that the trial court erred in its interpretation of the loan agreement itself and in its valuation of the Lum’s stock. He contends that the loan was a renewal of the original partnership loan and was not paid as of March 26,1969, and the bank would not have released the Lum’s stock at that time. Houstoun urges that the loan was paid in October, 1970 when the Lum’s stock was sold.

Whether a renewal note discharges the original obligation is dependent upon the intentions of the parties. There is a presumption that a renewal note discharges the original obligation in the absence of facts manifesting a contrary intent. Commercial National Bank of San Antonio v. Poulos, 8 S.W.2d 222 (Tex.Civ.App.1928); see Card v. Commercial Bank at Daytona Beach, 119 So.2d 404 (Fla. 1st DCA 1960). The intention of the parties is a question of fact requiring an examination of the circumstances surrounding the transaction. 11 Am.Jur.2d, Bills and Notes, § 916 at 961; Annot. 43 A.L.R.3d 246 (1972); Annot. 52 A.L.R. 1416 (1928). Such findings of fact by the trial court carry a presumption of correctness absent a showing of an abuse of discretion. Cohen v. Lansburgh, 366 So.2d 154 (Fla. 3d DCA 1979); Martin v. Flanigan, 188 So.2d 5 (Fla. 3d DCA 1966).

Sub judice, even though a bank officer testified that the obligation to the partnership was not discharged until 1971 when the entire debt was repaid, and that the March 1969 note was just a renewal of the original 1967 loan, we are not convinced that the loan had been so extended and was not a novation of the original debt. The 1969 loan, evidenced by the note, demanded a greater interest rate, and added $13,500 to the indebtedness. The loan was made to the partnership’s account, but required only ■ Houstoun to sign the obligation. More importantly, the partnership was dissolved as of June 30, 1968. A partner not affiliated with the firm is not responsible for its obligations made after his departure. See Commercial National Bank of San Antonio v. Poulos, supra; section 620.735, Florida Statutes (Supp. 1972).

The dissolution of a partnership liquidates all assets into cash; pays off the debts of the partnership, first to third persons, second to advances made by the partners, third to repayment of capital; and then divides the profits. Wiese v. Wiese, 107 So.2d 208 (Fla. 2d DCA 1958). Distribution in kind can be made to a partner after the value of the asset is taken into account in the final accounting, pursuant to the above procedure. Ellison v. Goldstein, 154 So.2d 202 (Fla. 3d DCA 1963); Obel v. Henshaw, 130 So.2d 892 (Fla. 3d DCA 1961); Wiese v. Wiese, supra; 68 C.J.S., Partnership, § 384; see section 620.755, Florida Statutes (Supp.1972).

In this case the partnership debts were substantial, but appellant Houstoun failed to wind up the partnership and separate its accounting from the continuation of his own business. The date the loan became due, March 26, 1969, the Lum’s stock was worth $77,250, an amount far greater than the $26,000 outstanding loan. If there had been a true winding up of the partnership, this asset and debt should have been finally settled at this point in time.

In our view, once the trial court undertook this equitable accounting, the court properly balanced the equities, adjusted the accounts of the parties and rendered complete justice between them. See and compare: Martin v. Flanigan, 188 So.2d 5 (Fla. 3d DCA 1966); FA. Chastain Construction, Inc. v. Pratt, 146 So.2d 910 (Fla. 3d DCA 1962). There being sufficient evidence in the record to justify the trial court’s findings, and no material or substantial error having been demonstrated, the decree of accounting will not be disturbed. Empire Drug Co. v. Smith, 78 Fla. 594, 83 So. 458 (1919); Johns v. Seeley, 94 Fla. 851, 114 So. 452 (1927); City of Miami v. Carter, 105 So.2d 5 (Fla.1958); Ellison v. Goldstein, supra.

We have considered the additional points raised on appeal and cross-appeal and after a careful review of the record,, briefs, and applicable law, find them to have no merit. Accordingly, the final judgment of accounting is affirmed.

Affirmed.

      . Houstoun v. Albury, 339 So.2d 220 (Fla. 3d DCA 1976).

      . From September, 1962 to January 1, 1965 between Houstoun (⅜) and Albury (Via); from January 1, 1965 to June 30, 1968 between Al-bury (28%), Houstoun (51%) and Baldwin (21%); from July 1, 1968 to September, 1968 between Houstoun and Albury. Id.


text:
    Shirley E. CHARLES and Maureen Perry a/k/a Maureen H. Gedrich, Appellants, v. Lawrance P. LAURA, Hazel J. Laura, his wife, H.R.M. Claybury of America, Inc., and First Service Corp., d/b/a First Service Mortgage Company, Appellees.
    No. 83-70.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1983.
    Rehearing Denied Sept. 14, 1983.
    Harvey N. Gedrich, Fort Lauderdale, for appellants.
    Jerome R. Schechter, Fort Lauderdale, for appellees — Laura.
   PER CURIAM.

We adopt the reasoning of Judge Schwartz’s dissent in Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980) and affirm.

AFFIRMED.

DOWNEY, HERSEY and DELL, JJ, concur.


author: LEHAN, Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, Appellant/Cross-Appellee, v. Robert R. CARRÉ, Appellee/Cross-Appellant.
    No. 82-567.
    District Court of Appeal of Florida, Second District.
    July 1, 1983.
    Rehearing Denied Aug.'2, 1983.

      Albritton, Sessums & McCall, and Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant/cross-appellee.
    Kenneth E. Apgar of Butler & Apgar, P.A., Tampa, for appellee/cross-appellant.
   LEHAN, Judge.

The Federal Deposit Insurance Corporation (substituted for Metropolitan Bank & Trust Company) appeals a final judgment entered on a jury verdict finding Metropolitan negligent in allowing certain articles to be removed from Robert Carré’s safe deposit box at the bank. We reverse.

In 1978 Mr. Carré leased a safe deposit box from Metropolitan Bank. He signed the bank’s “Safe Deposit Agreement” which, in addition to serving as a signature card, contained the provisions of the leasing contract. Paragraph 7 of the agreement contained the following language:

Bank shall not be liable for the loss or disappearance of the contents of any safe deposit box or any part thereof, unless such loss or disappearance occurs by reason of gross negligence, fraud or bad faith on its part.

According to Mr. Carré’s testimony, on the same day that he rented the box, he placed a number of valuable objects in the box, such as gold coins, diamonds, and other jewelry.

Several months later, Mr. Carré’s wife went to the bank and tried to get access to the box. A bank employee told Mrs. Carré that, although she had a key to the box, she would not be allowed access because her signature was not on the signature card. The employee then gave Mrs. Carré a blank signature card and told her to sign it and have her signature notarized and to have Mr. Carré also sign it. According to the bank’s rules, a blank signature card should have been given only to the boxholder, in this instance Mr. Carré, who should have been required to sign the card before he left the bank.

Mrs. Carré returned to the bank on another day with the signature card containing what purported to be the signatures of Mr. and Mrs. Carré and a notary acknowl-edgement. Apparently, however, Mr. Carré’s signature had been forged. But the bank employee compared Mr. Carré’s signature on the new card with his signature on the previous card and did not detect any difference. Mrs. Carré was then allowed access to the safe deposit box.

Mr. Carré later filed suit for negligence and breach of contract against Metropolitan (and also against Mrs. Carré and the notary public, who are not parties to this appeal), alleging that each was responsible for the loss of certain valuables from his safe deposit box. He claimed that Mrs. Carré had removed the property from the box and that Metropolitan had breached the duties owed to him concerning the lease of the box.

The bank’s answer denied liability and raised a defense that its liability was contractually limited, under the paragraph of the lease agreement quoted above, to situations in which the bank’s acts constituted either gross negligence, fraud or bad faith. The trial court struck this defense. The jury was instructed that any negligence by the bank in allowing unauthorized access to the safe deposit would also be a breach of the safe deposit agreement. The jury found that Metropolitan had been negligent, and the trial court entered judgment against the bank for $480,000. This appeal followed.

Appellant’s first point on appeal is that the trial court erred in striking the bank’s foregoing defense and in not limiting Mr. Carré to allegations and proof of a breach of the limited duties specified in the safe deposit agreement. Mr. Carré argues that the trial court ruled correctly because exculpatory clauses such as the one in this case are invalid, citing Sniffen v. Century National Bank of Broward, 375 So.2d 892 (Fla. 4th DCA 1979). Appellant replies that the Sniffen case is distinguishable because the agreement there, unlike the one in the instant case, contained a full exculpatory clause. We agree with appellant.

In Sniffen the safe deposit box contract provided that the bank “shall not be liable for loss or damage to the contents of said box, caused by burglary, fire or any cause whatsoever, but that the entire risk of such loss or damage is assumed by the lessee.” Id. at 893. The court held that to give effect to such an exculpatory clause would make the agreement between the parties nugatory because the reason for renting a safe deposit box is to prevent access to the box by unauthorized persons and unless the customer can enforce the bank’s undertaking to preclude such access, the customer will have received no consideration for the fee paid.

The Sniffen ease is not only distinguishable from the instant case, but also principles referred to therein support a finding of an enforceable contract in the case before us. For example, 10 Am.Jur.2d Banks § 478 (1963), cited in Sniffen, contains general support for the proposition that a bank may limit its liability by such a contractual provision so long as the provision does not exempt the bank from liability and thereby permit the bank to abdicate any responsibility. Although the foregoing lease provision in this case limited Metropolitan’s obligations, it did not purport, as in Sniffen, to totally abdicate any obligations. Aside from its obligation under the contract to provide the box for one year and make it available to its customer, Metropolitan had obligations for loss due to gross negligence, fraud or bad faith.

Whether or not a customer is wise to enter into an agreement such as the one in this case, we cannot find that the agreement was against public policy. While it is true that this court in John’s Pass Seafood Co. v. Weber, 369 So.2d 616 (Fla. 2d DCA 1979), held invalid a clause in a boat slip lease which exculpated the lessor from negligence, the negligence in that case was a violation of a city fire safety ordinance, and the clause was found to be against public policy. In this case, no violation of an ordinance or statute is alleged. Chapter 661, Florida Statutes (1981), which regulates safe deposit boxes, contains no prohibition against a partial exculpatory clause such as the contractual provision here. We recognize the principles that exculpatory clauses relieving a party of his own negligence are not favored and that they are unenforceable unless they are clear and unequivocal. Orkin Exterminating Co., Inc. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978). But we cannot find that the safe deposit agreement was not clear and unequivocal. The agreement is in very fine print. However, the print is readable, and the language is not unclear, equivocal and confusing as was the language in Orkin.

As its second point, appellant contends that the trial court erred in refusing to admit into evidence testimony that Mr. Carré had not attended Loyola University after Mr. Carré testified that he had. Appellant contends that this evidence was relevant to issues in the case and should properly have been admitted to impeach Mr. Carré pursuant to section 90.608(l)(e), Florida Statutes (1981). Mr. Carré argues that, whether or not the evidence had impeachment value, it was not relevant. We find that the evidence should have been admitted, and failure to do so was error. The credibility of Mr. Carré was extremely important because he was the only witness to identify the amount of property in the box, and his testimony in this regard was disputed by Mrs. Carré’s testimony. Also, the evidence was relevant, however tangentially, in that Mr. Carré’s level of education had some bearing on the amount of salary he could be expected to have been earning at the time he said he purchased the diamonds and other valuables and thus on the issue of whether he did in fact own such valuables.

We find without merit appellant’s final contention that the trial court erred in excluding evidence that Mr. Carré had not obtained a contempt order in the divorce proceedings between him and Mrs. Carré requiring Mrs. Carré to return the property that she had allegedly taken from the safe deposit box. The final judgment in the divorce proceeding indicates that the matter of the return of the property was dealt with to the extent that Mrs. Carré was ordered to return the property to Mr. Carré if it ever came back into her possession. The court in the divorce proceeding otherwise deferred the matter of damages for the loss of the property to the instant case.

Finally, Mr. Carré cross-appeals the trial court’s denial of his motion to assess prejudgment interest. Although under our disposition of this case, this point on cross-appeal becomes moot, we will address it. We would affirm the trial court and would adhere to the principle that prejudgment interest is not allowable on unliqui-dated damages; damages are unliquidated “when the amount of damages cannot be computed except on conflicting evidence, inferences and interpretations.” Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719, 723 (Fla. 2d DCA 1978). See also Broward County v. Settler, 400 So.2d 1031 (Fla. 4th DCA 1981); Alarm Systems of Florida v. Singer, 380 So.2d 1162 (Fla. 3d DCA 1980). But see Bergen Brunswig Corp. v. Florida Department of Health & Rehabilitative Services, 415 So.2d 765 (Fla. 1st DCA 1982), which espouses a test which defines liquidated damages as those fixed by a verdict as of a prior date. Although there are thought-provoking arguments for the Bergen test, on balance we favor adhering to the settled test of Longboat Key.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


text:
    Lorenzo GRANT, Appellant, v. The STATE of Florida, Appellee.
    No. 82-505.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Sept. 6, 1983.
    Bennett H. Brummer, Public Defender, and Sheryl Joyce Lowenthal, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Castor v. State, 365 So.2d 701, 703 (Fla.1978); Buckrem v. State, 355 So.2d 111, 112 (Fla.1978); Jenkins v. State, 317 So.2d 90, 91 (Fla. 1st DCA 1975).


text:
    Diego MELLA, Appellant, v. Theodore MOSKOWITZ, et al., Appellees.
    No. 82-1640.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Sept. 6, 1983.
    Grover, Ciment, Weinstein & Stauber and Marvin Weinstein, Miami Beach, for appellant.
    Batchelor, Brodnax, Guthrie & Freyer and Robert A. Freyer, Miami, for appellees.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon a holding that the trial court committed no reversible error in failing to enforce at trial a witness subpoena against a witness [Dr. Scott Piper] by issuing a writ of body attachment against the said witness. because: (a) the plaintiff never requested the trial court, either directly or impliedly, to issue such a writ but only requested that “the Court call him [Dr. Piper] on the phone and ask him to come [to trial]” [T. 10], which request the trial court granted [T. 11]; (b) Dr. Piper was not under subpoena at the time the above request was made [having been properly excused from same by the defendants who had previously subpoenaed said witness], so that a writ of body attachment would not have been permissible at that time in any event. We do not overlook, indeed, we agree with, the plaintiffs contention that, subsequent to this request, Dr. Piper was properly subpoenaed for trial by the plaintiff. See Haney v. Olin Corp., 245 So.2d 671 (Fla. 4th DCA 1971). The plaintiff, however, at no time requested the trial court, either directly or impliedly, to enforce that subpoena after the witness failed to appear [T. 67-78]; the plaintiff, therefore, cannot now complain for the first time on appeal that the trial court failed to enforce this subpoena. Paul v. Kanter, 155 So.2d 402, 403 (Fla. 3d DCA 1963).

Affirmed.


text:
    Richard Wayne SHEPHERD, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2113.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Sept. 7, 1983.
    Bennett H. Brummer, Public Defender, and Gelber, Glass, Durant, Canal & Darby, John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Pursuant to jury verdict, the defendant was adjudged guilty of the crimes of sexual battery, burglary, and attempted second degree murder. He appeals the adjudication of guilt and attendant sentences contending that the prosecution improperly commented during closing argument as follows:

We’ve heard a lot of allegations with respect to a defense and I must confess to you, when I sat down to prepare my closing remarks, I had a lot of difficulty in trying to figure out exactly what the defense was going to be, because, frankly, for my purpose, I haven’t heard any.

This comment met with an immediate objection and a motion for mistrial, which motion was denied.

We reverse because the prosecutor’s comment was clearly susceptible of being interpreted by the jury as referring to the defendant’s failure to testify. David v. State, 369 So.2d 943 (Fla.1979); Fernandez v. State, 427 So.2d 265 (Fla. 2d DCA 1983); Cunningham v. State, 404 So.2d 759 (Fla. 3d DCA 1981).

Reversed and remanded for a new trial.


author: NESBITT, Judge.

text:
    WILLIAMS, SALOMON, KANNER, DAMIAN, WEISSLER & BROOKS, Appellant, v. HARBOUR CLUB VILLAS CONDOMINIUM ASSOCIATION, INC., and Quayside Associates, Ltd., Appellees.
    No. 82-1253.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Sept. 6, 1983.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellant.
    Haddad, Josephs & Jack and Gilbert A. Haddad, Coral Gables, Lapidus & Stettin and Richard L. Lapidus, Miami, for appel-lees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The appellant is a law firm that agreed to represent the appellee, Harbour Club Villas Condominium Association, Inc. (Harbour Club), in a zoning dispute with the developer of a neighboring condominium, Quayside Associates, Ltd. (Quayside). Quayside had sought and procured from the Dade County Commission a zoning variance to erect a high-rise condominium near Harbour Club. Harbour Club retained the law firm at a fixed fee of $3,500 to pursue appeals in the Dade County Circuit Court and the Third District Court of Appeal. The circuit court appeal resulted in an affirmance of the county commission. After oral argument in this court, but before any decision was handed down, the parties settled. Under the terms of the settlement, Quayside, obviously anticipating a reversal, agreed to pay Harbour Club the sum of $3,000,000. The law firm subsequently sued Harbour Club for rescission of the representation agreement, for quantum meruit damages and for imposition of an attorneys’ charging lien. The trial court entered summary final judgment in favor of Harbour Club and the law firm brought this appeal.

The gravamen of the law firm’s claims was that the fee agreement should be rescinded because the parties did not envision a monetary settlement when the agreement was struck. On appeal, this attack upon the agreement translates into four basic alternative arguments: (1) there was no valid contract between the parties because their minds did not meet upon definite, essential terms; (2) a coexistent implied contract was created providing for additional compensation in the event of a settlement; (3) the fee agreement should be rescinded due to frustration of purpose; and (4) the fee agreement should be rescinded due to either unilateral or mutual mistake.

We reject the law firm’s contention that there was no valid contract between the parties. The terms of the fee agreement were memorialized in two letters from the law firm to Harbour Club. Harbour Club was to pay the law firm $3,500 for the performance of specified and defined legal services, the prosecution of two appeals. The services were performed and the $3,500 was in fact paid to and accepted by the law firm. Consequently, while it may have been that at the outset the parties did not intend a monetary settlement to be the end result of their contractual relationship, their minds clearly met upon the terms of that relationship. “The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.” Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957) (quoting Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 464 (1897). A valid fee contract was formed between the law firm and Harbour Club.

With respect to the implied contract theory, it being undisputed that the law firm took no part in actual negotiation of the $3,000,000 settlement, the law firm is confined to arguing that were it not for its legal efforts exerted in the two appeals, Quayside and Harbour Club would not have been placed in their respective positions as offeror and offeree of a large monetary settlement. The general rule in this regard has been stated as follows: “Recovery for the value of services which have inured to another’s benefit is not generally allowed unless they were received with reason to know that compensation was expected for them.” 13 S. Williston, A Treatise on the Law of Contracts § 1575 (3d ed. 1970). Since Harbour Club received only the services it knew it was already paying $3,500 for, it could not be expected to have known any additional compensation was due. Compare Freedman v. Horton, Schwartz & Perse, 383 So.2d 659 (Fla. 3d DCA 1980) (where contingency fee contract between client and trial counsel contained no provision for payment of appellate fees, but where client knew or should have known that an appellate law firm was representing her in appellate courts of state with respect to complicated estate proceedings and yet did not inform the law firm that she did not intend to pay for its services, she was liable to that firm for reasonable attorneys’ fees). As a result, none is owed the law firm just because a significant benefit inured to its client.

The remaining contentions of the law firm center on the theories of frustration of purpose and mistake. The law firm alleged that a settlement for money was never discussed before the representation agreement was entered into and that the sole purpose of its handling the case, as conveyed by representatives of Harbour Club, was to stop the Quayside development from being built as planned. Even accepting this as true, which we must in this appellate posture, we cannot agree that the purpose of the agreement was frustrated. The purpose of the parties’ agreement was to establish an arrangement for the provision of legal services at a fixed fee. The results to be obtained or in fact obtained had no bearing whatsoever on the agreement. If the case had proceeded to a decision in this court and if a reversal had been won by the law firm, it certainly would not have been able to claim a higher fee than the $3,500 it had agreed to. Just as surely, if the law firm had lost the appeal in this court, Harbour Club could not be heard to complain that the $3,500 should not be paid. Thus, although it was obviously the law firm’s duty to use its best efforts to obtain a favorable outcome for Harbour Club in the Quayside litigation, it cannot be said that the purpose of the parties’ agreement was frustrated because the actual outcome was one not originally anticipated.

That the result achieved was not an essential element of the parties’ agreement cuts into the heart of the law firm’s argument concerning mistake. A mistake, whether unilateral or mutual, must go to a material, substantial element of a contract in order to justify rescission. Moore v. Wesley E. Garrison, Inc., 148 Fla. 653, 5 So.2d 259, 262 (1941); Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769, 772 (1927); Ferguson v. Cotler, 382 So.2d 1315, 1316 (Fla. 5th DCA 1980); 13 S. Williston, A Treatise on the Law of Contracts § 1544 (3d Ed.1970). A mistake as to a mere inducement or incident to a contract does not provide such justification. Grymes v. Sanders, 93 U.S. 55, 23 L.Ed. 798 (1876); Langley v. Irons Land & Development Co., supra; Williston, supra, § 1544. The mistake asserted by the law firm falls into the latter category.

Moreover, cases from other jurisdictions demonstrate that the type of mistake warranting rescission does not include one which the party seeking rescission had in mind as a possibility and as to the existence of which he took the risk. Beecher v. Able, 575 F.2d 1010 (2d Cir.1978); Glendale Federal Savings and Loan Assn. v. Marina View Heights Development, Inc., 66 Cal. App.3d 101, 135 Cal.Rptr. 802 (1977); Harvey v. Robey, 211 Va. 234, 176 S.E.2d 673 (1970). Certainly every attorney knows that settlement is a distinct possibility in a zoning case and while we recognize that there was no express assumption of the risk of settlement here, an attorney accepting employment by lay persons is clearly the party in the best position to foresee this risk and to provide for it. Cf. Jones v. Hearn, 230 So.2d 50, 52 (Fla. 1st DCA 1970) (“Lawyers are charged with a high degree of care in establishing with their clients the amount of their fees.”) No matter what impressions he receives from his client, an attorney cannot simply ignore the possibility of a monetary settlement and when such a settlement is reached, complain that the failure to provide for one entitles him to rescission of his fixed fee agreement. The law firm’s expertise bars it as a matter of law from raising the mistake of an allegedly uncontemplated monetary settlement.

For the foregoing reasons, the final summary judgment in favor of Harbour Club is affirmed.

Affirmed.

      . Quayside intervened in the suit below and is an appellee here due to the as yet undetermined factual issue of whether Quayside is liable for indemnification of Harbour Club for the claims of the appellant law firm, see Quayside Associates, Ltd. v. Harbour Club Villas Condominium Association, Inc., 419 So.2d 678 (Fla. 3d DCA 1982), an issue rendered moot by our disposition of this appeal.