text:
    Laura Dinah BERGER, Appellant, v. Irving BERGER, Appellee.
    No. 84-480.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Rehearing Denied March 13, 1985.
    Neale J. Poller, Miami Beach, for appellant.
    Ann Mason Parker and Richard J. Burton, Miami, for appellee.
    Before BARKDULL, HUBBART and FERGUSON, JJ.
   PER CURIAM.

We have considered the four points assigned as error and find that the procedural errors complained of were not material or were not adequately preserved for review. On the issues of alimony and distribution of the marital property no abuse of discretion has been clearly demonstrated. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Matthew Wayne THEISEN, Appellant, v. Mary Danese THEISEN, Appellee.
    No. 84-602.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.

      Adkins & Hardy and Milton Adkins, Coral Gables, for appellant.
    Eleanor Levingston Schoclcett, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

We conclude that the order on the report of the general master, which modified the final judgment of marriage dissolution, should be affirmed in all respects, save one. We agree with the husband, Matthew Wayne Theisen, that the $1,100, which he is required to pay to the wife, Mary Danese Theisen, by the trial court’s order approving the master’s report, must be used by the wife only to pay those medical expenses of the children found to be owing by the husband under the final judgment. The order under review is therefore reversed insofar as it allows the wife discretionary use of any portion of these monies for general child support because such an order is contrary to the final judgment and amounts to modification of a provision of the final judgment which was neither requested by nor the subject of any pleadings of either party. See Avery v. Avery, 314 So.2d 198, 201 (Fla. 1st DCA 1975), modified on other grounds, 327 So.2d 55 (Fla. 1st DCA 1976), and authorities collected.

We agree with the wife, however, that this $1,100 payment in no way satisfies, in whole or in part, the husband’s obligation to set up a $2,500 trust account for the benefit of the children at age eighteen as required by the final judgment. The husband has yet to set up this account and may be required to do so by further order of the court. See Golden v. Golden, 356 So.2d 1274, 1275 (Fla. 3d DCA 1978); Smithwick v. Smithwick, 343 So.2d 945, 947 (Fla. 3d DCA 1977); Feder v. Feder, 291 So.2d 641, 642-43 (Fla. 3d DCA 1974).

In all other respects we are unpersuaded that the trial court in any way abused its discretion in entering the order approving in part the general master’s report. We think there was substantial competent evidence in the record for the trial court’s rulings in this respect on the remaining points complained of on both the main appeal and cross appeal. We further find that no error of law was made in any of these rulings. See Dushoffv. Dushoff, 442 So.2d 361, 362 (Fla. 1st DCA 1983); Groble-ski v. Grobleski, 408 So.2d 693, 694 (Fla. 2d DCA 1982); Diaco v. Diaco, 363 So.2d 183, 185 (Fla. 2d DCA 1978); Simon v. Simon, 155 So.2d 849, 850 (Fla. 3d DCA 1963).

The order under appeal is, therefore, affirmed in all respects, save one, on both the main appeal and the cross appeal. The subject trial court order is reversed insofar as it approves the general master’s report allowing the wife to use the $1,100 payment from the husband for purposes other than to pay for the children’s medical expenses. The cause is remanded to the trial court with directions that the order under review be so modified. This partial affirmance and partial reversal shall be without prejudice to the wife to seek further enforcement of the trust account provisions of the final judgment of marriage dissolution herein.

Affirmed in part; reversed in part.


author: HENDRY, Judge.

text:
    Leona LANGER, Appellant, v. Jerome G. LANGER, Appellee.
    No. 84-641.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Leona Langer, in pro. per.
    Barranco, Kellough & Kircher and David H. Charlip, Miami, for appellee.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   HENDRY, Judge.

The former wife appeals from a final judgment of the trial court granting appellee’s motion to dismiss appellant’s motion for modification of the property settlement agreement or, in the alternative, motion to vacate or set aside the property settlement agreement pursuant to Rule I.540(b)(3), Florida Rules of Civil Procedure. The property settlement agreement was incorporated into the final judgment of dissolution of marriage, entered on June II, 1975. We affirm the judgment of the trial court upon a holding that: 1) property settlement agreements are not subject to modification when the agreements are incorporated into final judgments of dissolution of marriage, Karch v. Karch, 445 So.2d 1077 (Fla. 3d DCA 1984); Farkas v. Farkas, 426 So.2d 1213 (Fla. 4th DCA 1983); Horne v. Horne, 417 So.2d 324 (Fla. 4th DCA 1982), pet. for rev. denied, 429 So.2d 6 (Fla.1983); Covin v. Covin, 403 So.2d 490 (Fla. 3d DCA 1981), and 2) appellant’s allegations in support of her motion to set aside the property settlement agreement (fraud, duress, coercion, and failure to provide full disclosure) form the basis for a claim of intrinsic fraud. Any petition to vacate a judgment on the grounds of intrinsic fraud must be filed within one year after entry of the judgment. De-Claire v. Yohanan, 453 So.2d 375 (Fla. 1984); Daugharty v. Daugharty, 456 So.2d 1271 (Fla. 1st DCA 1984); Rule 1.540(b), Fla.R.Civ.P. Appellant’s motion to set aside or vacate the property settlement agreement was filed over seven years after the entry of the final judgment of dissolution of marriage.

Affirmed.


text:
    Doris KESSLER, Appellant, v. June BRISTOL a/k/a June Kessler, Appellee.
    No. 84-1166.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Rehearing Denied March 12, 1985.
    Horton, Perse & Ginsberg and Mallory Horton, Curry, Shamas & Elias, Miami, for appellant.
    Prunty, Olsen & Israel and John W. Prunty, Miami, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971); In Re Estate of Robertson, 372 So.2d 1138 (Fla. 3d DCA 1979).


text:
    DERF CATTLE COMPANY, a California corporation, d/b/a California Provision Company, Appellant, v. COLPAC INTERNATIONAL, INC., a Florida corporation, Peter Swartz, individually, and Colpac Jamaica, Ltd., a foreign corporation, Appellees.
    No. 84-1452.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    David C. Arnold, Coral Gables, for appellant.
    Michael A. Nuzzo, Miami, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Applying the principle that the fact that one is acting as a corporate representative does not insulate him from individual liability for his tortious acts, we reverse the judgment below which dismissed the complaint for conversion and fraud and mispre-sentation as against the defendant-appellee Swartz. Naranja Lakes Condominium No. One, Inc. v. Rizzo, 422 So.2d 1080 (Fla. 3d DCA 1982); Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981); Adams v. Brickell Townhouse, Inc., 388 So.2d 1279 (Fla. 3d DCA 1980); Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla. 2d DCA 1961).


author: JORGENSON, Judge.

text:
    Eugene JOHNSON, Petitioner, v. The Honorable Richard Yale FEDER, Circuit Judge, Eleventh Judicial Circuit, Dade County, Florida, Respondent.
    No. 84-2272.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen., and Randi Klay-man Lazarus and Carolyn Snurkowski, Asst. Attys. Gen., for respondent.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   JORGENSON, Judge.

Eugene Johnson was charged with several counts of murder and was adjudged not guilty by reason of insanity on April 22, 1981. He was subsequently committed to the Department of Health and Rehabilitative Services for involuntary hospitalization pursuant to section 916.15, Florida Statutes (1981), and Florida Rule of Criminal Procedure 3.217(b). The trial court received periodic reports regarding Mr. Johnson’s status from the hospital, each of which concluded that Johnson met the criteria for continued involuntary hospitalization. The latest of those reports was rendered on April 19, 1984.

Relying on Florida Rule of Criminal Procedure 3.218, Johnson argues that he is entitled to appointment of counsel, psychiatric experts, and the scheduling of an annual hearing before the committing court. Johnson makes this argument notwithstanding the fact that there is utterly no evidence indicating any change in his condition.

Johnson incorrectly seeks relief under Florida Rule of Criminal Procedure 3.218. Contrary to his assertion that the rule requires an annual hearing by the committing court in order to satisfy due process criteria, we perceive the function and purpose of this rule in an entirely different light. We agree with the trial court that the hearing required by the rule is not triggered unless and until the hospital administrator reports to the committing court that an insanity acquittee no longer meets the criteria for involuntary hospitalization. The rule vindicates the committing court’s ability to control the circumstances surrounding the release from custody of an insanity acquittee. See In re Connors, 332 So.2d 336 (Fla.), cert, denied, 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609 (1976); see also Hill v. State, 358 So.2d 190, 197 (Fla. 1st DCA 1978). The rule also serves to protect the public from an inadvertent administrative release of an insanity acquit-tee.

We certify that our decision is in express and direct conflict with McShay v. State, 447 So.2d 444 (Fla. 2d DCA 1984).

Petition for writ of mandamus denied.

      . There is only Johnson’s bare statement that he “has been doing well.”

      . Johnson has other remedies available if he wishes to test the lawfulness of his hospitalization.


author: HURLEY, Judge.

text:
    Eli PLOTCH and Philip Berkley, Appellants, v. August GREGORY, Jr., et al., Appellees.
    No. 82-2107.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.

      Phillip C. Houston of Kocha & Houston, P.A., West Palm Beach, and Paula Gold of Baskin & Sears, P.A., Boca Raton, for appellants.
    B.F. Paty, Jr., of Paty, Downey, Lewis & Fick, Palm Beach, for appellees.
   HURLEY, Judge.

Plotch and Berkley, investors in a deal gone sour, appeal the entry of adverse directed verdicts. We find error and reverse.

Atlantic Southern Group, Inc. (“ASG”), engages in the business of syndicating real estate into limited partnerships. It locates desirable pieces of property and then attempts to “lock them up” with an option to purchase or other form of agreement. Next, it prepares and circulates a prospectus aimed at attracting investors. As an example, ASG felt that the Sea Mist Marina in Boynton Beach had investment potential. Therefore, ASG negotiated with the owners, Wendall and Janet Hall, and signed a “letter of intent,” which called for the Halls to contribute their land (approximately ten to twelve acres, valued at $1,450,000 and encumbered by $550,000 in mortgages) and, in return, receive a 42V2% interest in a limited partnership. Then, ASG distributed a prospectus which described the marina proposal. Eli Plotch invested $30,000.00 in this venture; Philip Berkley, acting through a closely-held corporation, did the same.

The marina was experiencing cash-flow problems and therefore, according to Mr. Hall, ASG agreed to advance monies “to be used to keep the ball rolling, so to speak, until [the limited partnership] was formed.” The contract between ASG and the Halls contained the following provision:

As part of signing of this letter of agreement the Atlantic Southern Group, Inc. as Trustee for the investors has contributed $31,500. good faith money. An additional $8,500. will be due and payable within thirty (30) days of the signing of this letter of agreement.
The above stated $40,000. in advance contributions are part of the total cash investment contribution.
Janet and Wendall Hall agree to secure the $40,000. advance contribution or any part thereof by assigning as collateral the existing inventory in the marina store in an amount not to exceed the actual cash advances.

Pursuant to this provision, the Halls received somewhere between $60,000 and $75,000. Nevertheless, they failed to execute a security agreement. An officer of ASG testified that several requests for compliance were made but without success. Mrs. Hall offered this explanation: “We signed a letter of intent stating we would. We were never at any time presented with a piece of paper asking us to do so.” In any event, with the full knowledge and consent of ASG, the Halls used the monies to pay off an outstanding tax lien, to make mortgage payments, to purchase an inventory of outboard motors and other supplies for the marina store, and to construct boat racks at the marina.

For reasons that are not altogether clear, the limited partnership never came into being. ASG responded to Plotch and Berk-ley’s concern about the loss of their investment by providing the following letter:

This letter acknowledges your investment of $30,000.00 in a Limited Partnership to be formed by the name of Sea Mist Associates, Ltd. which at this point has not occurred. Per conversation on May 22nd between Phil Berkley and Gus Gregory, Atlantic Southern Group, Inc. will return the $30,000.00 investment plus interest at the rate of 10%, no later than thirty (30) days from the date of that meeting, i.e. May 22nd, 1979.
Very truly yours, ATLANTIC SOUTHERN GROUP, INC.
s/ Augustus P. Gregory, Jr.
s/ Kenneth R. Sharp
s/ Nicholas A. Solimine, Jr.

When the refund failed to materialize, Plotch and Berkley instituted suit against ASG, its officers, and the Halls. This appeal is limited to the counts involving the personal liability of the corporate officers and the Halls. Plotch and Berkley claim the corporate officers are personally liable for ASG’s debt because they signed the above-quoted letter without designating their corporate status. As for the Halls, appellants contend that they are guilty of conversion and, additionally, appellants assert an entitlement to an equitable lien against the marina store’s inventory and the marina property. As indicated, the trial court directed verdicts in favor of the defendants.

I.

Plotch and Berkley contend that the trial court erred by absolving ASG’s corporate officers of individual liability. They contend that these defendants became personally obligated to repay ASG’s debt when they signed the above-quoted letter without using a preposition such as “by” or “for”, to indicate that they were signing in a representative capacity. In support of this argument, appellants cite section 673.403, Florida Statutes (1984), which provides:

(1) A signature may be made by an agent or other representative, and his. authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(2) An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.

Appellants’ argument is without merit because ASG’s letter is not an “instrument” within the meaning of the Uniform Commercial Code. Section 673.104, Florida Statutes (1984), defines the term “negotiable instrument” as follows:

(1) Any writing to be a negotiable instrument within this chapter must:
(a) Be signed by the maker or drawer; and
(b) Contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this chapter; and
(c) Be payable on demand or at a definite time; and
(d) Be payable to order or to bearer.

Obviously, ASG’s letter is not payable to order or bearer, nor does it indicate that the sum promised is payable on demand or at a definite time. Thus, the letter is not a “negotiable instrument,” and the corporate officers are not personally obligated thereunder pursuant to section 673.403, Florida Statutes (1984). Cf Roy v. Davidson Equipment, Inc., 423 So.2d 496 (Fla. 4th DCA 1982). Moreover, the letter is devoid of any language which would lead a reasonable person to conclude that the corporate officers were providing a personal guarantee for a preexisting corporate debt. Thus, the trial court correctly granted a directed verdict on this count.

II.

Appellants also sought damages against the Halls under section 812.035(7), Florida Statutes (1984), on the theory that the Halls had converted their money by refusing to collateralize the inventory of the marina store after receipt of over $60,000 from ASG. Appellants argue that the trial court erred by directing a verdict in favor of the Halls on this count and, in support of this contention, cite various portions of the record which show that the Halls used the money to improve the marina. The Halls respond that this was the plan from the outset and that the money was spent with the full knowledge and consent of ASG. Thus, they assert there is no evidence of conversion or theft; at best, the evidence indicates a breach of a promise to enter into a security agreement.

A directed verdict for the defendant at the close of evidence is proper only when the evidence, viewed in a light most favorable to the plaintiff, shows that a jury could not reasonably differ as to the existence of any material fact and that the defendant is entitled to judgment., as a matter of law. Forshee v. Peninsular Life Ins. Co., 370 So. 2d'842 (Fla. 3d DCA 1979); see also Stenback v. Racing Associates, Inc., 394 So.2d 1128 (Fla. 4th DCA 1981); Stokes v. Clark, 390 So.2d 489 (Fla. 1st DCA 1980). On appellate review, a directed verdict should be affirmed if, in viewing the evidence in a light most favorable to the non-moving party, it appears that the trier of fact could not have reasonably differed as to the establishment of material facts. McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA 1981); Cohn v. Surf-side Plaza Hotel, 377 So.2d 44 (Fla. 3d DCA 1979); Dent v. Casale, 358 So.2d 1101 (Fla. 3d DCA), cert, denied, 365 So.2d 710 (Fla.1978). It is reversible error to direct a verdict where there is some substantial evidence tending to prove the plaintiffs case. Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977), cert, denied, 354 So.2d 986 (Fla.1978).

There is no evidence in the case at bar to indicate that the Halls were under any obligation to keep the money invested by appellants intact and, therefore, we conclude that the directed verdict on this count should be affirmed. See Belford Trucking Co. v. Zagar, 243 So.2d 646 (Fla. 4th DCA 1970); cf Allen v. Gordon, 429 So.2d 369 (Fla. 1st DCA 1983). “A mere obligation to pay money may not be enforced by conversion action (citations omitted); and an action in tort is inappropriate where the basis of the suit is contract, either express or implied.” Belford at 648.

Although the Halls failed to execute a security agreement in exchange for the cash as contemplated by the letter of intent, the evidence does not show, and appellants do not allege, that the Halls had any obligation to deposit the funds into a special account or otherwise specifically identify the money sought to be recovered. (There is some indication that Plotch and Berkley deposited $30,000 each with other defendants to be held in escrow by ASG, but there is no evidence to show that the Halls had any obligation to hold these funds in escrow. The money was transferred to the Halls by checks drawn on accounts of ASG, and Janet Hall’s unrebutted testimony was that an officer of ASG told her that ASG was not forwarding money from investors.)

Thus, there was a complete lack of evidence to support the conversion count and, accordingly, the trial court was correct in its decision to direct a verdict on this count.

III.

Finally, Plotch and Berkley, claiming to be third-party beneficiaries of the contract between ASG and the Halls, sought to impress an equitable lien on the inventory of the marina store and upon the marina property. The trial court directed a verdict on this count despite the provision in the contract which called for the creation of a lien on the marina store inventory. In our view, this constituted error.

“The equitable lien is a remedial device of considerable flexibility adaptable to a wide variety of circumstances.” Boyer and Katun, The Equitable Lien in Florida, 20 U.Miami L.Rev. 731 (1966). “Such liens may arise from written contracts which show an intention to charge some particular property with a debt or obligation, or they may be declared by a court of equity out of general considerations of right and justice as applied to the relations of the parties and the circumstances of their dealings.” Ross v. Gerung, 69 So.2d 650, 652 (Fla.1954); see generally Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925); Tucker v. Prevatt Builders, Inc., 116 So.2d 437 (Fla. 1st DCA 1959). A circumstance justifying the imposition of an equitable lien exists “when the claimant has furnished funds for the improvement of land with the knowledge and consent of the owner.” Wagner v. Roberts, 320 So.2d 408, 410 (Fla. 2d DCA 1975), cert, denied, 330 So.2d 20 (Fla.1976); see also Union Trust Co. of St. Petersburg v. Wittmann, 145 So.2d 540 (Fla. 2d DCA 1962); Carter v. Suggs, 190 So.2d 784 (Fla. 1st DCA 1966).

The sole purpose for the security provision in the contract between ASG and the Halls was to minimize risk to the investors. Plotch and Berkley, the only investors in the marina project, qualified as third party beneficiaries under this provision and were entitled to seek enforcement of the expressed intent of the parties by subjecting the inventory of the marina store to an equitable lien. See generally, Hialeah Hospital, Inc. v. Raventos, 425 So.2d 1205 (Fla. 3d DCA 1983); 4 Corbin on Contracts, § 779K (1951 ed. with 1984 Supp.); see also, Peters Grazing Association v. Legerski, 544 P.2d 449 (Wyo.1975). Moreover, since they were able to trace the disbursement of their combined sixty thousand dollar investment from ASG’s special account to the Halls and prove that the Halls expended the money to improve the marina, Plotch and Berkley provided ample justification for impressing an equitable lien against the marina property.

Accordingly, we reverse the trial court’s decision to grant a directed verdict on this count and remand the cause for a new trial.

AFFIRMED IN PART AND REVERSED IN PART.

GLICKSTEIN and DELL, JJ., concur.

      . The basis of equitable liens may be estoppel or unjust enrichment. Blumitt v. Ellis, 186 So.2d 286 (Fla. 2d DCA 1966). However, in order to prevail on an estoppel theory, there must be evidence of fraud, misrepresentation, or other affirmative deception. Rinker Materials Corp. v. Palmer First National Bank & Trust Co. of Sarasota, 361 So.2d 156 (Fla.1978); Diversified Commercial Developers, Inc. v. Formrite, Inc., 450 So.2d 533 (Fla. 4th DCA 1984).


author: BARKETT, Judge.

text:
    OCEAN DUNES OF HUTCHINSON ISLAND DEVELOPMENT CORPORATION, Appellant, v. Albert COLANGELO and Helen Colangelo, his wife, and Lorraine Woodward, Appellees.
    No. 84-560.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Rehearing and Clarification Denied Feb. 28, 1985.

      John L. Avery, Jr., Jupiter, for appellant.
    Charles J. Dorfman, Port St. Lucie, for appellees-Colangelo.
    Patricia J. Brown of Koebe & Brown, P.A., Jensen Beach, for appellee-Wood-ward.
   BARKETT, Judge.

We affirm the trial court’s final judgment, although one issue raised in this appeal merits discussion.

Appellant is a developer, and two of the appellees, the Golangelos, are buyers of a condominium unit. The developer contends that the trial court erred in granting the buyers specific performance of a contract by ordering the developer to convey a condominium unit to the buyers. The developer argues that the contract between the parties provided only one remedy to the buyers in the event of a breach by the developer, to wit, a return of the buyers’ deposit. The lower court correctly granted specific performance.

There is no issue here of the developer’s ability to perform. The building in question is completed, and requiring the developer to convey the unit to appellees works no hardship. See Con-Dev of Vero Beach, Inc. v. Casano, 272 So.2d 203 (Fla. 4th DCA 1973).

Absent any specific contractual restriction, a trial court has the authority, under certain circumstances, to order specific performance of a contract as requested by the victim of a breach. See Strong v. Chisolm, 422 So.2d 974 (Fla. 4th DCA 1982); Home America, Inc. v. Atkinson, 392 So.2d 268 (Fla. 2d DCA 1980); Black v. Clifton, 284 So.2d 465 (Fla. 4th DCA 1973); Northwestern National Insurance Company v. Greenspun, 330 So.2d 561 (Fla. 3d DCA 1976); Black v. Frank, 176 So.2d 113 (Fla. 1st DCA 1965). The issue, then, is whether the language of the contract in this case, which purports to limit the buyers to the “liquidated damages” of a return of their deposit, acts as a bar to the remedy of specific performance for a breach by the developer.

The pertinent provisions of the “Purchase Agreement” between the parties relative to the breach of that agreement are:

10. Default by Developer:

If Developer shall default in the performance of its obligations pursuant to this Agreement, Purchaser’s only remedy shall be to terminate this Agreement, whereupon the Deposit shall be refunded to Purchaser and all rights and obligations hereunder shall thereupon become null and void; provided, however, that if the title to the premises shall not be in accordance with Paragraph 5 [] hereof because said title is affected by any encumbrance, outstanding interest or question of title which may according to reasonable expectations be removed within sixty (60) days after the scheduled closing date, then notwithstanding any other provisions of this Agreement to the contrary, Developer shall have the privilege but not the obligation, to remove or satisfy the same, and for this purpose Developer shall be entitled to adjourn the closing for a period not exceeding sixty (60) days by giving notice to Purchaser describing the defect and the steps to be taken to remove the same, and designating a new closing date. Developer shall not be required to bring any action or proceeding or otherwise incur any expense to render the title to the premises in accordance with Paragraph 5 hereof. Purchaser may, nevertheless, accept such title as Developer shall be able to convey without reduction of the purchase price or a credit against the same because title is not as required by Paragraph 5 hereof and without liability on the part of the Developer therefor, [emphasis added]

11. Default by Purchaser:

If Purchaser shall fail to complete closing in accordance with the terms of this Agreement or otherwise default in Purchaser’s obligations hereunder, then at the election of Developer:

(a) Developer shall be entitled to retain the Deposit as liquidated and agreed upon damages for the losses and injuries which Developer shall have sustained and suffered as a result of Purchaser’s default, and thereupon the parties hereto will be released and relieved from all obligations under this Agreement. It is agreed that the provisions of this Paragraph 11A for liquidated and agreed upon damages are a bona fide provision for such and are not a penalty, the parties understanding that by reason of the withdrawal of the premises from sale to the general public at a time when other parties would be interested in purchasing the unit, the Developer will have sustained damages if Purchaser defaults, which damages will be substantial but will not be capable of determination with mathematical precision and therefore, as aforesaid, this provision for liquidated and agreed upon damages has been incorporated as part of this Agreement as a provision beneficial to both parties. Purchaser agrees that if he defaults in any of his obligations under this Agreement, he will not file any action against Developer seeking the return of any portion of the deposit or seeking any reduction in the amount of liquidated and agreed upon damages; or
(b) Developer may resort to any other legal or equitable remedy to which Developer may be entitled. In the event Developer does obtain judicial enforcement of one or more of its rights under this Agreement, Purchaser hereby agrees to pay all court costs and reasonable attorney’s fees incurred by Developer, [emphasis added]

There is no question that parties to a contract may agree to limit their respective remedies and that those remedies need not be the same. Jay Vee Realty Corp. v. Jaymar Acres, Inc., 436 So.2d 1053 (Fla. 4th DCA 1983); Wright & Sea-ton v. Prescott, 420 So.2d 623 (Fla. 4th DCA 1982). Such contractual provisions, however, must be reasonable to be enforced. As the court said in Black v. Frank, 176 So.2d 113 (Fla. 1st DCA 1965):

Parties may stipulate by contract what the consequences of a breach shall be and such stipulation, if reasonable, is controlling and excludes other consequences. [emphasis added]

The court in Greenstein v. Greenbrook, Ltd., 413 So.2d 842 (Fla. 3d DCA 1982), reiterated this concept:

It seems clear fom the cases that the courts of this state will uphold any limitation of remedy provision in a contract, which limitation is mutual, unequivocal and reasonable. See, e.g., Black v. Frank, 176 So.2d 113 (Fla. 1st DCA 1965). [emphasis added]

Id. at 844.

There is nothing reasonable about the foregoing default provisions. In this contract, the seller’s obligations are wholly illusory, while the buyers’ are quite real. The developer can opt to sell the unit to any new buyer willing to pay a higher price than the existing contract price, or even fail to show title to be vested in the developer as required by paragraph 5 of the Agreement, with absolutely no harmful consequences; the developer must only return the buyer’s own money. A return of one’s own money hardly constitutes damages in any meaningful sense. It is especially unconscionable in this case in light of the buyers’ deprivation of the use of their money for several years.

The developer, on the other hand, in the event of a breach by the buyers, is able to choose between retaining the buyers’ deposit or resorting “to any other legal or equitable remedy to which Developer may be entitled.”

This issue was raised in the case of Sper-ling v. Davie, 41 So.2d 318 (Fla.1949). The case was decided on other grounds but the court expressed in passing the view which we now espouse:

The appellants have posed four questions. The first of these challenges the court’s decree that the original contract be enforced because, it is urged, the liability which should attach in the event of a breach of contract by either party was stated in the instrument itself, where it was provided in effect that if the purchaser failed to comply with its terms by a certain date the down payment of $500 should be retained by the sellers, while if the sellers should fail to comply, this amount should be returned. As we understand the appellants’ argument in support of this position, it simply means that for the remedy of specific performance, which might otherwise be available to the buyer in the event of a breach of contract by the sellers, there would be substituted the remedy of recovering that which he had paid. This seems to us to come perilously close to arguing that the sellers, after entering into a solemn agreement, could glibly dishonor it and restrict the buyer to regaining what was in practical effect already his, inasmuch as the transaction was not consummated and the sellers were therefore not entitled to the money.

Id. at 320 (emphasis in original).

To use the colloquialism of the trial judge, “Sauce for the goose is sauce for the gander.” The parties can stipulate to different kinds of “sauces,” but both parties must have genuine, not illusory, obligations. The relative “remedies” provided in this contract to the buyer vis-a-vis the developer are neither mutual nor reasonable. The contract between the parties constituted an agreement on the part of the developer/owner to convey, and on the part of the purchasers to pay for the subject condominium unit. This was an enforceable and binding contract, supported by valid consideration. See, e.g., Vance v. Roberts, 96 Fla. 379, 118 So. 205 (1928). Because the contract provides no reasonable remedy for its breach, the equitable remedy of specific performance fashioned by the trial court was correct.

AFFIRMED.

HERSEY and DELL, JJ., concur.

      . Paragraph 5 states:
      5. Title Insurance:

      Developer shall deliver to Purchaser, at closing, an owner’s Title Insurance Policy from a title insurer licensed to transact business in the State of Florida covering the unit described in this Agreement, showing title to the unit to be vested in Developer.


author: HERSEY, Judge.

text:
    BROWARD BANK, Appellant, v. SOUTHEASTERN X-RAY CORP., a Florida corporation, Ormont Drug & Chemical Company, Inc., a foreign corporation, Harold Grayson, Harold Nash and Roddy G. Richman, Individually and as Director and Trustee of Southeastern X-Ray Corp., Appellees.
    No. 84-650.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.

      Robert S. Miller of Grand, Miller & Krause, Hollywood, for appellant.
    Herbert J. Marcus of the Law Offices of Herbert J. Marcus, P.A., Miami, for appel-lee — Harold Grayson.
   HERSEY, Judge.

The Bank appeals from an adverse final judgment in favor of the guarantor of a corporate promissory note.

On November 5, 1979, Southeastern X-Ray Corp., by its President, Harold Gray-son, executed a promissory note in the amount of $50,000 to Broward Bank. The loan was unsecured, but Grayson (among others) executed a guarantee of the loan on the same date. Renewal notes dated January 4,1980, April 3,1980, and September 2, 1980, were subsequently executed by Southeastern X-Ray. The renewal notes extended the time for payment of the original obligation, but no additional funds were advanced by the bank.

On May 9, 1980, Grayson wrote to the bank advising that he had resigned as President of Southeastern X-Ray and requesting that his name be removed as a guarantor of Southeastern’s loans. The bank’s reply of May 12, 1980, advised that Gray-son’s liability for the existing loan to Southeastern would continue until the loan was paid, but future loans would be considered without his guaranty.

On January 30, 1981, the bank wrote to Grayson stating that Southeastern X-Ray was in default on its loan and demanding payment in full of the amount still owing, which was approximately $18,000. The bank subsequently filed suit against Southeastern X-Ray, also naming Grayson and other guarantors as defendants. Broward Bank and Grayson went to trial on stipulated facts, resulting in a final judgment for Grayson.

The unconditional, continuing guarantee executed by appellee Grayson provides in pertinent part:

This guarantee ... shall secure all liabilities which the Customer may incur or come under up to and inclusive of the expiration of one month after notice of revocation hereof shall have been given to the Bank in writing, signed by the undersigned.... Provided always that the undersigned ... may in manner aforesaid determine his ... future liability under this guarantee by notice in writing to be given to the Bank....

The issue is whether the renewal notes were mere extensions of the time for payment of the original November 1979 loan, or whether each renewal should be construed as evidencing payment in full of each prior loan and the making of a new loan. If the former, Grayson’s letter to the bank of May 9, 1980, could not relieve him of his obligation as guarantor of the November 1979 loan, as that liability accrued to Southeastern prior to Grayson’s notice of revocation. However, if each renewal was in actuality the making of a new loan by the bank and the satisfaction of the prior loan, Grayson would not be liable as guarantor, since the last “renewal” took place subsequent to his May 1980 revocation letter. Under the terms of the guarantee, his May 9, 1980, letter relieved him of any future .liability for Southeastern’s loans, and an obligation which arose in September 1980 would thus not be covered by the guarantee.

We find the authorities relied upon by the parties in their briefs, as the parties candidly concede, not to be determinative. Whether one agrees with the majority opinion or the dissent in Fewox v. Tallahassee Bank & Trust Co., 249 So.2d 55 (Fla. 1st DCA 1971), that case is clearly not applicable here even by analogy to secondary considerations. The distinguishing feature is that the guarantors in Fewox never agreed that extensions of time for repayment of a loan could be granted by the bank without affecting their liability. The Grayson guarantee expressly contemplates extensions of time (renewal notes). Fidelity National Bank of So. Miami v. Melo, 366 So.2d 1218 (Fla. 3d DCA 1979), is even more clearly distinguishable. In that case, the guarantor never gave the bank notice of termination of his relationship with the principal debtor nor in any other manner sought to avoid continuing his liability on the guarantee agreement. In a case more nearly on point, but again not dispositive, Miami National Bank v. First Int’l Realty Investment Cory., 364 So.2d 873 (Fla. 3d DCA 1978), the bank made a $50,000 loan to First International Realty, which was guaranteed by the defendant and others. The loan commitment provided for a review of the financial condition of the borrower and guarantors every ninety days and for a renewal of the note at the end of each ninety-day period. Prior to the last renewal, the defendant revoked his guarantee, and the bank removed his name from its list of guarantors. The court affirmed a summary judgment for the guarantor. Two factors distinguish this case from ours.

First, in Miami National Bank the bank completely reviewed and reassessed the borrower’s and guarantors’ financial position prior to granting each renewal. As this is the same procedure a bank would use in making a new loan, the renewals are analogous to new loans. In the instant case, however, there is no evidence that the bank reviewed the parties’ financial condition other than at the time of the original . loan in November 1979. There was no redetermination of the parties’ creditworthiness which could be analogized to the making of a new loan.

Second, in Miami National Bank, the bank removed the defendant’s name from its list of guarantors, while in the instant case the bank specifically advised Mr. Grayson that he was not relieved of liability for Southeastern’s existing loans.

Lacking definitive authority in Florida precedent, we look elsewhere for guidance.

The Utah case of Marking Systems, Inc. v. Interwest Film Cory., 567 P.2d 176 (Utah 1977), is on all fours with the instant case. In Marking Systems, the bank loaned money to Interwest and obtained a general continuing guaranty from the individual defendants. The guaranty provided that notice of revocation would not relieve the guarantors from liability “contracted prior to the receipt of the notice of revocation.” Id. at 177. The loan was renewed three times, but no further sums were advanced subsequent to the notice of revocation.

In holding the guarantors liable on the original note, the court adopted the rule that:

When a new bill or note is given in renewal of another bill or note, and the original is retained, the new bill or note operates only as a suspension of the debt evidenced by the original, and is not a satisfaction of it until paid. Such, at least, is the weight of authority.

Id. at 178. Thus, the renewal notes did not constitute new contracts where “there was no further advancement of money or any new loans at the time of such renewals.” Id.

We adopt this majority view. The liability of Grayson as guarantor of a promissory note in existence on the date of his notice to the payee of termination of his contract of guarantee is not affected by that termination because of the clear and unambiguous terms of the guarantee agreement. Extensions of time for repayment given the payor by the payee, also expressly contemplated by the agreement, are similarly ineffectual to absolve the guarantors of liability. Finally, utilizing the device of a renewal promissory note simply to evidence such an extension of time does not change the result.

The final judgment reflecting a contrary view is reversed and this cause is remanded to the trial court for entry of judgment for the bank.

REVERSED and REMANDED.

GLICKSTEIN and BARKETT, JJ., concur.


author: WALDEN, Judge.

text:
    Fred EDER, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 84-686.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Rehearing Denied March 7, 1985.
    Thomas E. Buser of Krupnick & Campbell, and Cathy Jackson Burris of Holl-mann & Burris, Fort Lauderdale, for appellant.
    Bradley P. Goodman, Fort Lauderdale, for appellee.
   WALDEN, Judge.

We recite with approval the comprehensive Final Summary Judgment entered by the Honorable H. Mark Purdy:

THIS CAUSE came on for hearing upon the Motion for Final Summary Judgment of Defendant, State of Florida Department of Highway Safety and Motor Vehicles. Based upon the pleadings, facts, affidavits, evidence and law presented, the court predicates its ruling upon the following findings of fact and law:
The undisputed material facts established that on April 29, 1979 there were heavy rains and storms throughout South Florida resulting in large electric power failures throughout significant portions of Broward County. The traffic light at the intersection of Powerline Road and Atlantic Boulevard as well as numerous other traffic lights were not functioning as a result of said power failure.
An automobile accident occurred at approximately 9:21 at the intersection of Powerline Road and Atlantic Boulevard. Trooper R. Hylton of the Florida Highway Patrol went to the scene to investigate said accident which had resulted in injuries.
After approximately one hour, Trooper Hylton had moved his vehicle to a service station located on the northeast corner of said intersection and was completing his accident report. .A second trooper, Trooper Chafey, arrived at the accident scene. Both Trooper Chafey and Trooper Hylton were on the property of the service station and their vehicles did not have their blue lights flashing.
Trooper Chafey observed that several motorists were driving through the intersection with the non-functioning traffic signal without slowing or stopping their vehicles. He feared that there might be a second collision. Trooper Chafey recalled that Florida Statute 316.1235 requires motorists to treat a non-functioning traffic signal as a stop signal and he decided to issue citations for violation of said traffic control statute. While he was in the process of filling out in blank several citations, a second accident occurred at said intersection.
The second accident occurred when plaintiff herein was travelling south on Powerline Road through the intersection and another driver was travelling west on Atlantic Boulevard through the intersection. Neither driver slowed nor stopped nor apparently observed the other resulting in the collision at mid-intersection. Plaintiff received significant and substantial injuries in said accident.
Plaintiff brought suit against the driver of the vehicle which had been proceeding west on Atlantic Boulevard. Through discovery, plaintiff learned of the actions or inactions of Trooper Chaf-ey and, after settlement of his suit against the adverse driver, brought suit against the State of Florida Department of Highway Safety and Motor Vehicles alleging negligence.
This court finds that Trooper Chafey was faced with several distinct choices in the moments before the instant accident. These included but were not limited to: Travelling to another busier intersection in the area to attempt to direct traffic; direction of traffic at this intersection; placement of his Florida Highway Patrol vehicle in the center of this intersection; going about routine patrol; or, issuing citations for failure to stop at non-functioning traffic signal.
I specifically find that pursuant to Florida Statute 768.28 and the recent Supreme Court and District Court interpretations thereof, the trooper’s decision of what action to take under the circumstances is not subject to judicial scrutiny and is sovereign immune.
Consideration has been given to the four-prong [sic] test of Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440 (1965) as adopted by the Florida Supreme Court in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). It seems clear that each of the four requisite portions of the test must be answered in the affirmative under the facts of this case.
The court finds that there is great similarity with the issues of the instant case and those raised in the recent decision of the Second District in Everton v. Willard, 426 So.2d 996 (2nd DCA 1983). In Everton, the police officer was faced with the decision whether or not to arrest. Here, I find that Trooper Chafey was faced with a similar decision concerning whether or not to direct traffic. Had Trooper Chafey decided to direct traffic and done so in a negligent fashion, then an action for negligence would seem appropriate. Here, however, the trooper was faced with numerous discretionary choices in the field incidental to his position of law enforcement officer. This court feels that such discretionary decisions are exactly the type envisioned to be sovereign immune under Florida Statute 768.28 and those cases interpreting said statute.
WHEREFORE, pursuant to this court’s order of summary judgment of February 24, 1984, it is thereupon ORDERED AND ADJUDGED that Plaintiff, Fred Eder, shall take nothing of this action and Defendant, State of Florida Department of Highway Safety and Motor Vehicles shall go hence without day and shall recover their taxable costs upon later motion and hearing.
DONE AND ORDERED in Chambers at Ft. Lauderdale, Broward County, Florida this 6 day of March, 1984.

We distinguish the case of Huhn v. Dixie Insurance Company, 453 So.2d 70 (Fla. 5th DCA 1984), relied upon by appellant. In Huhn, an officer stopped a car and found a drunken driver in an unfit condition. The court held that no immunity could be asserted because under those circumstances the officer had no discretion or choice but to arrest the driver rather than to ignore the situation and turn the drunken driver back on the streets. However, in the instant case, the officer had several viable choices of action which he might have undertaken. Whether the officer made the wisest or best choice, viewed by hindsight, is not subject to judicial scrutiny. Commercial Carrier v. Indian River County, 371 So.2d 1010 (Fla.1979). Moreover, other courts have differed from Huhn. See Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983); City of Cape Coral v. Duval, 436 So.2d 136 (Fla. 2d DCA 1983).

Affirmed.

HURLEY and DELL, JJ., concur.


text:
    Andrew BENDER, Petitioner, v. FIRST FIDELITY SAVINGS AND LOAN ASSOCIATION OF WINTER PARK f/k/a First Federal Savings and Loan Association of Martin County, etc., Respondent.
    No. 84-2646.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.

      John W. Case, Lauderdale By The Sea, for petitioner.
    Robert L. Lord, Jr. of Papy, Poole, Weis-senborn & Papy, Coral Gables, for respondent.
   PER CURIAM.

Petitioner seeks relief by petition for writ of prohibition from an order which granted First Fidelity Savings and Loan Association’s motion to amend its notice of voluntary dismissal from “with” prejudice to “without” prejudice. Petitioner has not sought the proper remedy. The “purpose [of prohibition] is to prevent the doing of something, not to compel the undoing of something already done. It cannot be used to revoke an order already entered.” English v. McCrary, 348 So.2d 293, 297 (Fla. 1977). However, Florida Rule of Appellate Procedure 9.040(c) provides:

If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.

We elect to treat this petition as a non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(5), and we affirm the order of the trial court on the authority of Skampaine Industries v. South Bro-ward Hospital, 411 So.2d 364, (Fla. 4th DCA 1982).

AFFIRMED.

DELL, WALDEN and BARKETT, JJ„ concur.


text:
    In re The ESTATE OF Harold HAYWARD, Deceased.
    No. 84-1884.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Edward J. Marko and Robert Paul Vigno-la of Marko, Stephany & Lyons, Fort Laud-erdale, for appellant Annie Cottle as Personal Representative of the Estate of Harold Hayward.

      John W. Steadman, Fort Lauderdale, for appellee Edith J. Blake.
   PER CURIAM.

The personal representative for the estate of Harold Hayward brings this non-final appeal which challenges an order of the probate court denying a motion to suppress the deposition of Elnor Hayward. This matter does not come within the categories authorized by Florida Rule of Appellate Procedure 9.130(a) to be treated as a non-final appeal. We elect to treat this non-final appeal as a petition for writ of certiorari pursuant to Florida Rule of Appellate Procedure 9.040(c).

Certiorari will only be granted when a party demonstrates both a departure from the essential requirements of law and the lack of an adequate remedy by appeal. See USF & G v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981); Lindsey v. Sherman, 402 So.2d 1349 (Fla. 4th DCA 1981). The personal representative has an adequate remedy by appeal. Accordingly, the writ of certiorari is denied.

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


author: DELL, Judge.

text:
    Deborah HERR, Appellant, v. Larry HERR, Appellee.
    No. 84-2119.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Howard S. Miller of Howard S. Miller, P.A., Hollywood, for appellant.
    Eleanor Levingston Schockett and Jennifer Armstrong West of Eleanor Levingston Schockett, P.A., Miami, for appellee.
   DELL, Judge.

In this dissolution of marriage suit, the general master recommended that the wife receive $2,000 temporary support for herself and the parties’ two children. The trial court granted the husband’s exceptions to the general master’s report, and the wife appeals.

The general master’s report made findings of fact as to the amount of income each party earned. It made no finding of fact as to the needs of the wife and children. It also said

That the Court can compute the lifestyle of the parties pursuant to Vickers vs. Vickers, [413 So.2d 788 (Fla. 3d DCA 1983)] but the Husband is living elsewhere and has present income problems such that an award of support may be more than the Husband can afford but less than the Wife needs.

The meaning of this paragraph is not entirely clear. If it constitutes a finding that the husband does not have the ability to pay, then the master erred by recommending an award which his findings of fact do not support. If it is a conclusion that Vick-ers authorizes awards of temporary support in excess of a party’s ability to pay, then the conclusion is legally incorrect. Either reason could have provided a legally sufficient ground to grant the husband’s exceptions. However, the trial court granted the exceptions for a different reason: because it found the master’s award to be “over generous,” citing Vickers.

In Vickers, the district court specifically disapproved the keep-everybody-alive-until-final-hearing approach to temporary support.

The correct standard by which these amounts are to be assessed is instead the familiar one which balances needs as fixed by the parties’ standard of living, on the one hand, and ability to pay, on the other.

Id. at 789.

Measured against this standard, both the master’s recommendation and the judge’s order are deficient. Therefore we reverse and remand the cause to the trial court with instructions to conduct such further hearings as may be necessary to determine the needs of the wife and children as well as the husband’s ability to pay, and to enter an order based upon those factual determinations.

ANSTEAD, C.J., and HERSEY, J., concur.


author: PER CURIAM. HURLEY, Judge,

text:
    Vincent P. MIRAGLIA, Petitioner, v. The Honorable Dwight L. GEIGER, Circuit Judge of the Nineteenth Judicial Circuit, Respondent.
    No. 84-2460.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Rehearing Denied March 5, 1985.
    James J. Butler and Martha C. Warner, Stuart, for petitioner.

      Joan Fowler Rossin, Dept, of Legal Affairs, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks to prohibit the trial court from proceeding to consider the wife’s motion to award her attorney’s fees in a post-judgment domestic relations case. The petitioner contends the trial court had no jurisdiction to consider the motion because the order determining the various issues of custody, possession of property, visitation, etc., had become final and the order contained no reservation of jurisdiction to determine the question of attorney’s fees. Under these circumstances the cases are clear that the trial court loses jurisdiction to consider an application for an allowance of attorney’s fees. Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); Jackson v. Jackson, 390 So.2d 787 (Fla. 1st DCA 1980); McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978); Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976).

The trial court denied petitioner’s motion to strike respondent’s motion for allowance of attorney’s fees, thus indicating its intention to proceed in excess of its jurisdiction, which justifies our issuance of a writ of prohibition. See Haft-Gaines Company v. Reddick, 350 So.2d 818 (Fla. 4th DCA 1977).

Accordingly, Writ of Prohibition is issued and the trial court is prohibited from proceeding further in this cause on the motion for allowance of attorney’s fee for the wife.

DOWNEY and GLICKSTEIN, JJ., concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting:

I would deny the petition for writ of prohibition for procedural reasons. In my view, the petitioner has an appropriate and adequate legal remedy through plenary appeal and, thus, prohibition is inappropriate. See English v. McCrary, 348 So.2d 293 (Fla.1977).


text:
    John HEATHCOAT, Appellant, v. STATE of Florida, Appellee.
    No. 84-114.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    James Marion Moorman, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgments and sentences entered in this case are affirmed. Because there appears to be some misapprehension on the subject, we wish to point out that appellant’s sentences which were imposed on January 3, 1984, were not under the sen-' tencing guidelines because his crimes were committed prior to October 1, 1983, and he did not “affirmatively select” to be sentenced under the guidelines.

GRIMES, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Ramon CARRILLO, Appellant, v. STATE of Florida, Appellee.
    No. 84-198.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    James Marion Moorman, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Ramon Carrillo, appeals from a judgment and sentence entered pursuant to a jury verdict finding him guilty of being an accessory after the fact to the crime of second degree murder. We reverse.

Appellant was originally charged with the crime of second degree murder, a violation of section 782.04(2), Florida Statutes (1983). Immediately prior to trial, the ap-pellee, State of Florida, filed an amended information which added a second count charging appellant with being an accessory after the fact. Pertinent parts of count II of the amended information alleged that the appellant, in violation of section 777.03, Florida Statutes (1983), gave or offered aid to Richard Campos knowing that he had committed a felony, to wit: murder in the second degree, with the intent that Campos avoid or escape detention, arrest, trial, or punishment.

During appellant’s trial, the state presented evidence that appellant was Campos’ brother-in-law. At the conclusion of the state’s case, appellant moved for a judgment of acquittal. The motion was denied. Appellant then renewed his motion for a judgment of acquittal at the conclusion of all of the evidence.

The jury returned a verdict finding the defendant not guilty of the second degree murder charge and guilty of the charge of accessory after the fact. After the trial court imposed judgment and sentence, the appellant filed a timely notice of appeal.

Appellant contends that the state failed to establish one of the material elements of the crime of accessory after the fact under section 777.03. The elements of the crime are: (1) knowledge of the defendant that a felony has been committed, (2) absence of the statutory familial relationship between the defendant and the felon, and (3) aid to the felon with the intent that he escape arrest or' punishment for the crime that he has committed. Ruiz v. State, 388 So.2d 610 (Fla. 3d DCA 1980). Appellant claims that the state did not establish the second of these elements.

Because of the peculiar wording of section 777.03, the lack of familial relationship between the principal and the party charged as an accessory after the fact is a material element of the crime. To establish a prima facie case, the material elements of the crime must be set forth in the information and must be proven by the state. Brooks v. State, 168 So.2d 785 (Fla. 3d DCA 1964); State v. Taylor, 283 So.2d 882 (Fla. 4th DCA 1973).

In the case sub judice, the state failed to allege the absence of the statutory familial relationship between appellant and the offender. Appellant waived this de-feet, however, by failing to file a motion to dismiss the information. See Taylor. The state’s failure to allege one ingredient of the offense did not render the information void as wholly failing to charge a crime. See Taylor.

In spite of appellant’s waiver, it was still incumbent upon the state to establish the lack of familial relationship between the appellant and the person who allegedly committed the murder. By proving that the appellant was the brother-in-law of Richard Campos, a relationship that is included within the statute’s protection, State v. C.H., 421 So.2d 62 (Fla. 4th DCA 1982), the state negated its ability to prove a material element of the charge. The court therefore erred in denying appellant’s motion for a judgment of acquittal.

We, accordingly, reverse and remand with instructions to discharge the defendant on this charge.

Reversed and remanded.

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

      . In their briefs, the parties stated that the appellant’s motion for a judgment of acquittal was not renewed. A review of the record indicates, however, that the motion was renewed with the court’s permission and without objection immediately after the jury was instructed. Since the court recessed without opportunity for interruption after the conclusion of all of the evidence, and then began to instruct the jury immediately upon resumption of trial, this was the appellant’s first opportunity to make the motion without disrupting the proceedings.


text:
    Richard D. CESARINI, and School Board of Pinellas County, Appellants, v. AMERICAN DRUGGIST INSURANCE COMPANY, Appellee.
    No. 84-452.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.

      J. Richard Rahter of Kieffer, Georges & Rahter, St. Petersburg, for appellant Ces-arini.
    Dennis M. Janssen of C. Wade Yeakle, III, P.A., St. Petersburg, for appellant School Bd. of Pinellas County.
    Mark E. Hungate and Jeffrey P. Wink-ler, Fowler, White, Gillen, Boggs,. Villareal & Banker, P.A., St. Petersburg, for appel-lee.
   PER CURIAM.

We affirm the final summary judgment which determined that there was no general liability insurance coverage for a personal injury from an accident caused by a school bus which struck plaintiff while driven by a school board mechanic en route to the maintenance garage. The parties agree that the policy excluded from coverage “bodily injury ... arising out of the ... maintenance, operation, [or] use” of the bus.

Appellant, plaintiff below, argues that there was a showing that the Board negligently hired and supervised the driver who was unfit to drive and that the Board’s negligence in that respect was the independent, originating act in a chain of events culminating in the driver’s negligence in striking plaintiff. Appellant argues that the exclusion is ambiguous because it does not address this type of circumstance in which joint acts of negligence (those of the Board and the driver) combined to cause injury. We disagree. The terms of the exclusion, in our view and that of the trial court, clearly applied to injury arising from the use or maintenance of the vehicle. The use to which the vehicle was being put at the time of the injury governs the applicability of the exclusion. See Gargano v. Liberty Mutual Insurance Co., 384 So.2d 220 (Fla. 3d DCA 1980); Atkins v. Belle-fonte Insurance Co., 342 So.2d 837 (Fla. 3d DCA 1977).

Affirmed.

RYDER, C.J., LEHAN, J., and BOARD-MAN, EDWARD F., (Ret.) J., concur.


text:
    Sime DIJAN and Yveline Dijan, his wife, and Larry Buffington and Linda Buffington, his wife, Appellants, v. Robert A. LEVITT and Lois Ann Levitt, a/k/a Allison Levitt, his wife, Appellees.
    No. 84-585.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.

      Joseph R. Park of Park, Smith & Ma-guire, P.A., Clearwater, for appellants.
    Myers, Kenin, Levinson, Frank & Richards, P.A., Miami, for appellee Robert A. Levitt.
    John E. Swisher of Dillinger & Swisher, St. Petersburg, for appellee Lois Ann Levitt.
   PER CURIAM.

In this suit upon promissory notes we do not find reversible error under the facts of this case from the trial court having allowed separate voir dire, questioning of witnesses, and arguments by separate counsel for divorced plaintiffs who were, as husband and wife, co-payees on the notes.

Also, we find no reversible error from the trial court’s exclusion from the evidence of certain corporate checks which were described in testimony and which were, in contrast to other checks admitted into evidence, not to be credited against the notes sued upon.

Further, there was no reversible error in the trial court’s exercise of its discretion to allow plaintiffs, immediately preceding the trial, to amend the pretrial order to list additional documentary evidence when the trial court granted defendants a continuance of the trial to allow them to take a deposition concerning that evidence.

Affirmed.

RYDER, C.J., and LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


author: OTT, Acting Chief Judge.

text:
    COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 3172, Appellant, v. CITY OF LARGO, Florida, Appellee.
    No. 84-730.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    Rodney W. Smith of Smith, Saier & Bryant, P.A., Alachua, for appellant.
    Thomas M. Gonzalez of Thompson, Size-more & Gonzalez, P.A., Tampa, for appel-lee.
   OTT, Acting Chief Judge.

The trial court rendered a final judgment vacating a portion of an arbitration award on the grounds that the arbitrator exceeded his authority under the terms of a collective bargaining agreement. The court determined that the agreement precluded the arbitrator from modifying the conclusion of the employer to discharge the employee after receiving three complaints about the employee’s actions. We disagree and reverse.

The city and union entered into a collective bargaining agreement wherein management, in article III, section 1(c), retained the right to “take disciplinary action including discharge, for just cause....” The agreement further provided in article XXI, section 3(i), that:

[i]n the event of the arbitration of a grievance arising out of the discharge of an employee, the arbitrator is empowered to either sustain the discharge, or if he does not, he is empowered to reinstate the employee with or without back pay....

Guidelines setting forth progressive disciplinary measures were incorporated by reference into the agreement. The guidelines applicable to the instant case pertain to incidents involving an employee’s threats, intimidations, coercion, or interference with fellow employees and supervisors, and recommend the following graduated penalties:

First occurrence: written reprimand
Second occurrence: five days’ suspension
Third occurrence: dismissal.

The agreement charged the arbitrator with interpreting the agreement upon the movement of a dispute to arbitration.

The arbitrator made the following findings of fact in the arbitration award. An employee of the city received a written reprimand listing eleven incidents involving other city employees which had occurred over the past three months of her four-month employment. The reprimand indicated that counselling sessions had transpired between the employee and her immediate supervisor regarding those incidents and warned that should other confrontations occur or should her attitude fail to improve, a five-day suspension would follow.

On two separate occasions following the first reprimand, the employee was evaluated by her immediate supervisor. The appraisals reflected an overall satisfaction with her job performance, however, the supervisor noted on both evaluations that the employee’s attitude was not satisfactory and needed improvement. Approximately two weeks after the last evaluation, the city imposed a five-day disciplinary suspension without pay on the employee. The suspension cited more confrontations between the employee and fellow employees and concluded that absent any improvement employment would be terminated.

The city instigated its third disciplinary action against the employee after a particular confrontation arose between the employee and two other employees over the cleaning of a copying machine. A fellow employee asked her to clean the machine for another employee. She refused and began yelling when the fellow employee cleaned the machine. This incident was reported to the employee’s immediate supervisor just before the supervisor overheard the loud noises emanating from the copying room. The supervisor intervened and questioned the employee about the machine. The employee responded that she had no idea why the fellow employee was cleaning it. The employee continued her shouting and accused the supervisor of picking on her when she never did anything wrong.

The city suspended the employee for five days without pay during which time the employee could appeal the action or be discharged at the end of the suspension. The employee filed a grievance, charging the city with violating the collective bargaining agreement by invoking disciplinary action against the employee for “unjust and unlawful reason.” The city subsequently discharged the employee and the matter proceeded to arbitration.

The arbitrator considered the employee’s failure to challenge the city’s first two disciplinary actions as admissions of the alleged unsatisfactory conduct. Concerning the third and final disciplinary action taken by the city, the arbitrator noted that although the city adhered to its progressive disciplinary program, management was not vested with the absolute authority for discharge without sufficient just cause for such discharge. The arbitrator determined that the seemingly favorable evaluations together with the singular incident provoking the third disciplinary action warranted some discipline, but was not adequate just cause for discharge. Thus, the arbitrator reinstated the employee without back pay.

The city sought relief in the circuit court from the arbitrator’s award reinstating the employee. The court found that the arbitrator exceeded his authority to the extent he reinstated the employee after finding that just cause existed for disciplinary action, but not for discharge. The court vacated the portion of the arbitration award ordering the reinstatement of the employee without back pay.

The trial court did not have the benefit of Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit Authority, 450 So.2d 590 (Fla. 2d DCA 1984), in rendering its judgment. The city’s argument in this case parallels that of the appellee’s in Amalgamated. The city contends that article III, section 1(c), vests the exclusive authority for discharge in the city and, therefore, bars the arbitrator from determining the severity of punishment commensurate with an employee’s conduct. This court declined to accept this argument in Amalgamated where, as in the instant case, the collective bargaining agreement charges the arbitrator with interpretation of the agreement and lends itself to differing and plausible interpretations.

The city interpreted the agreement in this case as reserving the exclusive right in the city to determine just cause for discipline as well as the particular discipline. The arbitrator reached another plausible interpretation by reading article III, section 1(c), and Article XXI, section 3(i), together. Article XXI empowers him with the authority to uphold the discharge or reinstate the employee and thereby vests the arbitrator with the authority to reduce the disciplinary action ordered by the city. At first glance, article III, section 1(c), purports to vest the sole authority for determining just cause for discharge in the city. Article XXI, section 3(i), however, provides a check on that power once the matter is submitted to arbitration.

The city further contends that the guidelines, as part of the agreement, provided specific penalties for particular misconduct which precluded the arbitrator’s deviation from the listed penalties thereby reducing the designated punishment. The arbitrator did not interpret the guidelines as a limitation on his power to alter the particular disciplinary action ordered by the city but as graduated disciplinary measures culminating in discharge, dependent on a determination of just cause which the contract empowers him to review. Cf. Mistletoe Express Service v. Motor Expressmen’s Union, 566 F.2d 692 (10th Cir.1977) (collective bargaining provision specifying certain conduct as “just cause” for discharge denotes that the parties to the contract did not intend any penalty other than discharge when the employee committed such conduct, whereas provision providing for graduated disciplinary measures culminating in discharge implies that “just cause” may exist for discipline but not for discharge). Such an interpretation is certainly plausible under the agreement.

The arbitration award should be disturbed only upon a clear showing that the arbitrator exceeded his authority. Bro-ward Paraprofessional Association v. McComb, 394 So.2d 471 (Fla. 4th DCA 1981). The agreement in this case and in Amalgamated charged the arbitrator with interpretation of the agreement. Accordingly, the arbitrator’s interpretation of the collective bargaining agreement as allowing him to reduce the employee’s punishment where he concludes from the evidence that just cause for discipline short of discharge exists constituted one plausible interpretation of the contract. The arbitrator did not exceed his authority in interpreting the agreement or in determining that the facts before him did not support discharge.

REVERSED with instructions to reinstate the arbitrator’s award.

LEHAN, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


author: FRANK, Judge.

text:
    Beverly Lewis GOOD, Appellant, v. Nancy GOOD, Appellee.
    No. 84-1127.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.

      Eugene A. Lojewski of Eugene A. Lojew-ski, P.A., Naples, for appellant.
    No appearance for appellee.
   FRANK, Judge.

The instant matter is before this Court upon the husband’s claim that the lower court was in error in its order of commitment for contempt arising from the husband’s failure to comply with an order requiring the payment of child support. The wife did not file a brief with the Court or otherwise respond to the appellate proceeding. The events below are summarized as follows: the wife moved the lower court for the entry of an order requiring the husband to show cause why he should not be held in contempt for failing to maintain child support payments. Such order was entered, the husband filed an answer and a hearing was conducted which resulted in an “Order of Commitment For Contempt” embodying a finding that the husband’s child support payments, as of the date of that order, were delinquent in the amount of $16,750.00. Based upon such finding, the decretal portion of the order provides that the husband spend—

179 days in the Collier County Jail, of which 8 consecutive weekends are to be served from 7:00 PM Friday to 7:00 AM Monday, beginning April 29, 1984. The remainder of the 179 days shall be suspended upon the Respondent resuming regular payments of $600.00 per month plus the previously ordered $50.00 per month on the current arrearage, plus the $2.00 Clerk fee, for a total of $662.00 due the 10th of each month.

The husband asserts that the order from which he appeals is ambiguous for the reason that it fails to characterize the contempt as civil or criminal. Thus, he urges that if the order is deemed remedial of a civil contempt, it is void because the lower court did not express a finding with respect to his financial ability to make the payments — a finding required by Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

Moreover, the husband contends that if the order is intended to remedy an indirect criminal contempt, there was a failure on the part of the lower court to comply with Rule 3.840 of the Florida Rules of Criminal Procedure. We agree.

In Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977), the supreme court made plain that to sustain an order associated with an indirect criminal contempt, such order must be entered in accordance with the requirements of Rule 3.840.

Notwithstanding that the lower court’s order enmeshes elements of both civil and criminal contumacy, we view the fixed term of 179 days as the imposition of a criminal sanction without according the husband-contemnor the benefit of Rule 3.840’s procedural safeguards. See In Re S.L.T., 180 So.2d 374, 378-380 (Fla. 2d DCA 1965). The terms of the order leave no doubt that incarceration for a determinate period was intended to occur regardless of whether the husband satisfied the prescribed payments. Finally, that aspect of the challenged order which appears civil in nature, i.e., allowing the husband to achieve suspension of the major portion of the jail sentence upon compliance with the payment requirement, cannot be sustained because of the lower court’s failure to find that the husband possessed the ability to pay. Faircloth; see Robbins v. Robbins, 429 So.2d 424, 430-431 (Fla. 3d DCA 1983).

Accordingly, we reverse and remand to the lower court for the conduct of a proceeding consistent with this opinion.

OTT, A.C.J., and BOARDMAN, EDWARD F., (Ret.) J., concur.


author: OTT, Judge.

text:
    Freeman FRAZIER, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-1134, 84-1135.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    James Marion Moorman, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Defendant appeals from his sentence outside the recommended scoresheet range. We vacate the sentence imposed and remand for resentencing not inconsistent with this opinion.

While defendant was serving three concurrent probationary terms, two seven-year terms for aggravated battery, and one five-year term for delivery of cannabis, his probation was revoked. He was subsequently sentenced to 4½ years’ imprisonment instead of some term within the recommended guidelines range of thirty months to 3½ years.

The trial court departed from the guidelines by increasing defendant’s sentence one year, apparently relying on amended rule 3.701, Florida Rules of Criminal Procedure. Under amended rule 3.701, a sentence imposed after revocation of probation may be raised to the next higher cell without requiring a reason for departure. Defendant was sentenced on May 11, 1984, before the amended rule became effective on July 1, 1984. See Tackett v. State, 458 So.2d 368 (Fla. 2d DCA 1984). The amended rule may not be retroactively applied. Carter v. State, 452 So.2d 953, 954, n. 3 (Fla. 5th DCA 1984).

Notwithstanding amended rule 3.701, a violation of a substantive condition of probation may constitute a valid reason for sentencing beyond the presumptive sentence. Carter. However, the trial court must provide written reasons for departure or articulated reasons in the transcript of the hearing. Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984). The transcript reveals that the court’s sole reason for departure was misplaced reliance on amended rule 3.701. Thus, the trial court failed to articulate any valid reason for sentencing outside the guidelines. This cause is remanded for resentencing under the guidelines in effect at the time of defendant’s sentencing from which he appealed.

Sentence VACATED and case REMANDED.

SCHEB, A.C.J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.


text:
    WINN-DIXIE STORES, INC., Appellant, v. Beverly A. VOTE, Appellee.
    No. 84-1168.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.

      Joseph W. Bradham, Jr. of Bradham, Bennett & Holton, St. Petersburg, for appellant.
    Bonnie L. Earley Freeman of Chambers & Salzman, P.A., St. Petersburg, for appel-lee.
   FRANK, Judge.

The instant appeal stems from a tort action in which it was claimed that the defendant/appellant (Winn-Dixie) was negligent in the maintenance of its premises at the moment the plaintiff/appellee (Vote) slipped and fell, allegedly as a result of a discarded cigarette butt being permitted to remain on the floor. Following a jury trial, a verdict was rendered for Winn-Dixie. Thereafter, Winn-Dixie moved the lower court, with a supporting affidavit, for the entry of an order granting the costs it incurred in connection with the defense. Following a hearing the lower court entered a judgment for costs awarding Winn-Dixie the sum of $277.50 representing the court reporter’s fee for appearing at the trial. The lower court disallowed $3,492.28, the balance of the costs sought by Winn-Dixie which, for the most part, were expenses generated by the taking of depositions, the procuring of medical records, witness fees, the subpoenae costs associated with discovery, and the cost of a photographer’s services. Thus the sole issue is whether the lower court abused its discretion in limiting Winn-Dixie’s cost recovery to the one court reporter’s fee. We conclude that it did.

The record discloses that with the exception of some items appearing on the supporting affidavit, reflecting a total expenditure of $200.50, every other item for which Winn-Dixie sought recovery was directly related to the trial and the development of the defense. Hence, by our computation, Winn-Dixie is entitled to recover costs in the amount of $3,291.78 from Vote.

Eight depositions, the cost of which was rejected by the lower court as compen-sable, were read to the jury without objection from Vote’s counsel. It is now urged by Vote, however, that the eight depositions were “cumulative” and “unnecessary.” Our rejection of that contention does not require reference to authority. In the context of this proceeding, we further reject Vote’s reliance upon Travis v. Blackmon, 155 So.2d 698, 699 (Fla. 1st DCA 1963), as support for the notion that the “less expensive method of affidavits and interrogatories” could have substituted for the deposition evidence. The comment in Travis arose from the disallowed cost of depositions in a summary judgment proceeding under circumstances where only the parties were deposed, the depositions were intended only for discovery purposes, and the factual setting was “simple and noncontroversial.” Travis is inapposite.

In reaching our end-point, we do not attempt to gainsay that a trial court is endowed with discretion in the exercise of its equitable power to award costs. Department of Revenue v. Amrep Corp., 358 So.2d 1343 (Fla.1978). But the exercise of that discretion is reviewable. State Farm Mutual Automobile Insurance Company v. Sampaio, 374 So.2d 617 (Fla. 4th DCA 1979); Miller Yacht Sales, Inc. v. Scott, 311 So.2d 762 (Fla. 4th DCA 1975). It is well settled in this and at least one other District that the cost of depositions may be taxed against the non-prevailing party if such depositions “serve a useful purpose, even though not introduced into evidence.” Fatolitis v. Fatolitis, 271 So.2d 227, 229 (Fla. 2d DCA 1973); Shumacher v. Well-man, 415 So.2d 120, 122 (Fla. 4th DCA 1982). See Lindh v. City of Venice, 411 So.2d 351 (Fla. 2d DCA 1981). In the present proceeding, it is undisputed that eight depositions were used by counsel for Winn-Dixie upon the trial either de bene esse or for impeachment purposes.

Accordingly, we reverse and remand this matter to the lower court for the purpose of taxing costs consistent with this opinion,

OTT, A.C.J., and CAMPBELL, J., concur,


author: GRIMES, Acting Chief Judge.

text:
    The SARASOTA COUNTY CHAMBER OF COMMERCE, Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF UNEMPLOYMENT COMPENSATION, Appellee.
    No. 84-1179.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    Michael R. Miller of Kunkel & Miller, Sarasota, for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for appellee.
   GRIMES, Acting Chief Judge.

The Sarasota County Chamber of Commerce seeks review of a final agency order determining that its salespersons are “employees” under section 443.036(17), Florida Statutes (1983).

The Division of Unemployment Compensation adopted the findings of fact of the special deputy which are set forth below:

The Petitioner is the oldest corporation in Sarasota County. It was organized to represent that county’s businesses and professions, establishing policies on important issues, initiating action in governmental and community programs and operating programs of economic and community development. In order to accomplish these goals, the Petitioner requires as many members as possible from the professional and business community. To this end, the Petitioner contracts with approximately four individuals who prospect and solicit new and renewed memberships from that community and attempt to retain those members. They also solicit special projects for the Petitioner.
The Petitioner recruits salespersons by placing ads in the local newspaper and selecting from applicants, those with successful sales records. A written contract is consummated between the parties. The new salesperson is then given a thorough explanation of the function of the Chamber. He is provided with several examples of presentations which may be utilized in selling to prospects, if he so desires. There is no direct supervision of these salespersons and there is no monitoring of the presentation used by them. The Petitioner provides office space and telephones for use by the salespersons, however, their actual selling efforts take place by personal contact with the prospect. The salespersons set their own schedules and contact prospects throughout Sarasota County and any Sarasota businesses in Manatee County. They furnish their own transportation and pay any related expenses incurred. They dress in whatever fashion they desire, as they do contact all types of businesses and they contact whomever they wish. In their contacts, the salespersons present themselves as marketing representatives for the Petitioner. Occasionally, a salesperson may be given a lead by the Petitioner regarding a possible prospect. They may also hire assistants if they wish and may contract with others in the same manner. Meetings are conducted every Friday to present any new projects of the Chamber and to give a “pep talk” to the salespersons, but it is not mandatory for the salespersons to attend.
There is a standard rate for memberships set by the Petitioner. As the salespersons secure membership applications and payment checks from prospects, they present the paperwork and checks to the Director of Marketing at whatever intervals they wish. These applications are then submitted to the Board of Directors for consideration and approval. If approved, the salespersons receive varying commissions on the memberships they secure. The percentage of commission for each salesperson may be negotiated but normally is not, as a bonus system also exists whereby salespersons receive increasing bonuses for consecutive weeks in which five or more sales are made. No withholding or social security tax is deducted from the commissions paid to the salespersons. In order to receive renewal commissions, a salesperson must sell $5,000 yearly in memberships. If a salesperson fails to sell $1,500 in new memberships for two consecutive months, he will be placed on a thirty day probationary period and his contract will be subject to cancellation. Upon contracting with the Petitioner, each salesperson signs a statement declaring himself to be an independent contractor. The contract allows cancellation by either party without cause or liability. Generally, termination of that contract occurs when a salesperson simply “disappears” and is no longer heard from. However, the Petitioner has terminated at least two salespersons in the past. On one occasion, the Petitioner received multiple complaints that a particular salesperson had been abusive to prospects. On a second occasion, a salesperson was not selling and was becoming a nuisance in the office.

The Chamber does not contest the findings of fact. Rather, it argues that under existing law these facts demonstrate that the salespersons were independent contractors. We agree.

The principal consideration in determining whether one is working as an independent contractor or as an employee is 'the right of control over his mode of doing the work. If a person is subject to the control or direction of another as to his results only, he is an independent contractor. Collins v. Federated Mutual Implement & Hardware Insurance Co., 247 So.2d 461 (Fla. 4th DCA), cert. denied, 249 So.2d 689 (Fla.1971). Here, there is no meaningful supervision over the salespersons’ work. They set their own schedules and contact such prospects as they please. While the Chamber offers some examples of presentations which may be utilized, the salespersons are free to solicit prospects in whatever manner they deem to be effective. There is no monitoring of the presentations actually used. The salespersons furnish and pay for their own transportation. They dress in whatever fashion they desire. They are also free to hire others at their own expense. Their compensation comes from commissions on the new and renewed memberships which they obtain. Though not mentioned by the special deputy, some of the salespersons also work for other organizations. It is evident that the performance of the salespersons is measured only by the results they accomplish.

The Division relies heavily upon the Chamber’s response to one of twenty-nine questions in a questionnaire which was submitted to the Chamber prior to the commencement of these proceedings. The question asked was, “Who supervises workers’ work,” and the answer given was “membership director.” The Division then refers to a dictionary definition of “supervisor” as meaning to “coordinate, direct and inspect continuously and at first hand the accomplishment of: oversee with the power of direction and decision the implementation of one’s own and another’s intentions.” This is a tenuous basis upon which to impose liability for unemployment compensation premiums. In the first place, the question is leading in that it.presupposes supervision by someone. An entirely negative response would be required in order to rebut the inference of the question. Moreover, the Chamber’s representative who filled out the questionnaire testified that in answering the question he interpreted supervision to mean only the activities of the membership director in selecting the salespersons, conducting the sales meetings and receiving the membership applications. The evidence in the record belies any supervision of the kind normally associated with an employer-employee relationship.

Though different work was involved, this case involves many of the same considerations which prompted us to reverse the Division in D.O. Creasman Electronics, Inc. v. State, Department of Labor & Employment Security, 458 So.2d 894 (Fla. 2d DCA 1984). We find it apropos to quote a passage from that decision:

Our holding is consistent with other Florida unemployment compensation cases involving the issue of whether certain persons were independent contractors. VIP Tours of Orlando, Inc. v. State, Department of Labor & Employment Security, 449 So.2d 1307 (Fla. 5th DCA 1984) (tour company not deemed employer of tour guides using company vehicles who worked on a per job basis); A Nu Transfer, Inc. v. Department of Labor & Employment Security, 427 So.2d 305 (Fla. 3d DCA 1983) (owner-operators who drove their trucks on their own time and at their own expense under contracts terminable at will with an inland carrier for the shipment of freight held to be independent contractors); United States Telephone Co. v. State, Department of Labor & Employment Security, 410 So.2d 1002 (Fla. 3d DCA 1982) (commission salesman who worked without supervision held to be independent contractor even though telephone company furnished office space and clerical assistance without charge); Cosmo Personnel Agency of Fort Lauderdale, Inc. v. State, Department of Labor & Employment Security, 407 So.2d 249 (Fla. 4th DCA 1981) (employment counsellors deemed not to be employees of employment agency despite the furnishing of secretarial help, office space, and phone service, the use of the employment agency’s trade name, and the fact that either party could cancel the contract without cause); Florida Gulf Coast Symphony, Inc. v. Department of Labor & Employment Security, 386 So.2d 259 (Fla. 2d DCA), petition for review denied, 389 So.2d 1108 (Fla.1980) (musicians engaged under seasonal contracts to play concerts for symphony company at specified times and places under the direction of a company conductor deemed independent contractors because of their skill, the furnishing of their own instruments, and their ability to work for others at the same time); Jean M. Light Interviewing Services, Inc. v. State, Department of Commerce, 254 So.2d 411 (Fla. 3d DCA 1971) (interviewers who contracted for each job and conducted the interviews without supervision held to be independent contractors even though interviewing was the principal business of the party asserted to be the employer). Significantly, in each of the cases cited above, the court reversed the finding of an employer-employee relationship.

458 So.2d at 898-899. We hold that the salespersons are not the Chamber’s employees for purposes of the Unemployment Compensation Law.

Reversed.

SCHEB and SCHOONOVER, JJ., concur.


author: BOARDMAN, EDWARD F., (Ret.) Judge.

text:
    Sylvester SHULER, Appellant, v. STATE of Florida, Appellee.
    No. 84-1365.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1985.
    James Marion Moorman, Public Defender, and Douglas P. Chanco, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, EDWARD F., (Ret.) Judge.

Sylvester Shuler challenges his conviction and sentence for dealing in stolen property, contending that the trial court erred in proceeding with a bench trial without first establishing that Shuler validly had waived his right to a jury trial. We agree with Shuler’s contention and reverse.

It is clear that a defendant’s knowing, voluntary, and intelligent waiver of jury trial must affirmatively appear in the record. Johnson v. State, 411 So.2d 1023 (Fla. 2d DCA 1982). It is also clear that a defendant is entitled to reversal of his non-jury trial conviction when the record contains no written waiver of jury trial, as required under Florida Rule of Criminal Procedure 3.260, and the trial court has failed to inquire of the defendant personally, in open court, to ascertain that he has knowingly, intelligently, and voluntarily waived his right to trial by jury. Winchel v. State, 456 So.2d 1277 (Fla. 2d DCA 1984); Hurd v. State, 440 So.2d 691 (Fla. 1st DCA 1983); Cirio v. State, 440 So.2d 650 (Fla. 2d DCA 1983); Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978).

In the instant case, the record contains neither Shuler’s written waiver of jury trial nor evidence that the trial court conducted the personal inquiry described above before proceeding with a nonjury trial. Accordingly, we reverse Shuler's judgment and sentence and remand for a new trial.

SCHEB, A.C.J., and SCHOONOVER, J., concur.