author: COBB, Judge.

text:
    Dorothy DORAN and Mary Adams, Appellants/Cross-Appellees, v. Carol GAINER, individually and as Personal Representative of the Estate of Holly E. Gainer, Appellee/Cross-Appellant.
    No. 83-498.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1984.

      Ronald W. Sikes of Welbaum, Zook, Jones & Williams, Orlando, for appellants/ cross-appellees.
    John M. Starling of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellee/cross-appellant.
   COBB, Judge.

This appeal concerns the disposition of joint savings accounts in two separate financial institutions, a federal savings and loan and a state bank.

Carol Gainer was appointed personal representative of the estate of her father, Holly Gainer. Carol Gainer’s sisters, appellants Dorothy Doran and Mary Adams, filed an objection to the amended inventory filed by Carol and a petition for determination of ownership of assets. Both motions claimed that certain certificates of deposit, money market funds and savings accounts held in the joint names of the decedent, Holly Gainer, and Carol Gainer, and not included in the inventory, were estate property, intended to be divided equally among the sisters pursuant to the residuary clause of Holly Gainer’s will. The monies in controversy had been placed by Holly Gainer in two separate financial institutions, the Merritt Square Bank (Bank) and the First Federal Savings & Loan Association (Federal), with a total of some $55,000 in the former and some $45,000 in the latter. Doran and Adams sought to have an amended inventory filed in the estate, and asked the court to require that the funds be turned over to the estate for distribution. Carol Gainer filed a response to the motions, claiming that the monies were held jointly with the right of survivorship and, as such, were not required to be part of the inventory or amended inventory.

Following a nonjury trial, the trial judge entered an order determining that although he found the intent of the decedent was to divide the money equally, only those monies in the Bank account were to become estate property, with the proceeds from the Federal accounts to remain with Carol Gainer. The trial judge based this decision on the distinction between the statutory provisions of section 658.56, Florida Statutes (1981), pertaining to banks, and section 665.063(1), Florida Statutes (1981), pertaining to savings and loan associations.

Doran and Adams filed a motion for rehearing, contending that the statutes violated their constitutional rights by denying them due process and equal protection of the law. The trial court denied the motion for rehearing and found that the statutory provisions did not violate any constitutional provision. In a motion for clarification, the appellants sought to clarify the trial court’s order regarding the amount of interest Gainer was required to pay to the estate from the Merritt Square Bank account. The court granted the motion for clarification, and ordered that Gainer pay the total amount of interest actually earned on the account that she had to turn over to the estate. Doran and Adams timely filed a notice of appeal and Carol Gainer filed her notice of cross-appeal.

The appellants, Dorothy Doran and Mary Adams, contend the trial court erred in finding that the monies in the Federal, despite Holly Gainer’s intent to the contrary, were to go solely to Carol Gainer. Two statutes are involved in the issues presented by this appeal — section 665.063(1), Florida Statutes (1981) (previously section 665.-271), which applies to savings and loan associations, and section 658.56, Florida Statutes (1981) (previously section 659.291), which applies to banks. These provisions are as follows:

665.063 Additional accounts.—

(1) ACCOUNTS IN TWO OR MORE NAMES.—
(a) When a savings account, other than a convenience account, is held in any association or federal association in the names of two or more persons, whether minor or adult, in such form that the moneys in the account are payable to either or the survivor or survivors, then, in the absence of fraud or undue influence, such account and all additions thereto shall be the property of such persons as joint tenants. The opening of the account in such form shall, in the absence of fraud or undue influence, be conclusive evidence in any action or proceeding to which either the association or the survivor or survivors is a party of the intention of all of the parties to the account to vest title to such account and the additions thereto in such survivor or survivors. The association shall not be subject to any liability for fraud or undue influence if it complies with the provisions of this paragraph. [Emphasis added.]
* * sk * jH *
658.56 Deposits and accounts in two or more names; presumption as to vesting on death.—
(1) Unless otherwise expressly provided in the signature contract card or other similar instrument delivered to and accepted by a bank in connection with the opening or maintenance of an account, including a certificate of deposit, in the names of two or more persons, whether minor or adult, payable to or on the order of one or more of them or the surviving account holder or holders, all such persons and each person depositing funds in any such account shall be presumed to have intended that upon the death of any such person all rights, title, interest, and claim in, to, and in respect of such deposits and account and the additions threto, and the obligation of the bank created thereby, less all proper set-offs and charges in favor of the bank, shall vest in the surviving account holder or holders.
(2) The presumption herein created may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent. In the absence of such proof, all rights, title, interest, and claims in, to, and in respect of such deposits and account and the additions thereto, and the obligation of the bank created thereby, less all proper setoffs and charges in favor of the bank against any one or more of such persons, shall, upon the death of any such person, vest in the surviving account holder or holders, notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance on the part of any person and notwitstanding that the provisions hereof may constitute or cause a vesting or disposition of property or rights or interests therein, testamentary in nature, which except for the provisions of this section, would or might otherwise be void or voidable.
(3)Nothing herein contained shall abridge, impair, or affect the validity, effectiveness, or operation of any of the provisions of ss.658.55 and 674.405 or the rights of banks to make payments as therein provided. [Emphasis added.]

The trial court in the instant case determined that, while the presumption found in section 658.56 was overcome by the evidence adduced, such a finding was not material to the question of the Federal accounts, since the accounts were clearly held as a joint tenancy with right of surviv-orship, and neither fraud nor undue influence was alleged or proven. Doran and Adams contend on appeal that the statutes apply only to protect the Federal as against liability, with the intent of the settlor remaining the prime consideration. Gainer, on the other hand, argues that the statute clearly provides for survivorship rights and that the signature cards in this case clearly show a provision for survivorship.

Several Florida cases have addressed the issue of the impact of section 665.271, although none has expressly stated that the intent of the deceased is irrelevant. In Teasley v. Blankenberg, 298 So.2d 431 (Fla. 4th DCA 1974), the decedent and the defendant had two savings and loan accounts and a commercial bank checking account. Upon the decedent’s death, the defendant withdrew the balance of the accounts, and the personal representative of the decedent’s estate filed suit to recover. The trial court determined the funds to be the property of the defendant, and the Fourth District affirmed. The court noted that one of the savings and loan accounts was opened as a joint account with right of survivorship, but that the other was a joint account without any evidence that expressly provided for the right of survivorship. The court held that both accounts were governed by section 665.271, Florida Statutes (1971) (the predecessor to the current section 665.063[1]). The court rejected the appellant’s argument that the statute would not apply to the account where there was no evidence as to the right of survivor-ship, by finding that the account was under the savings and loan rules and regulations, thus falling within the statute. The court did not discuss any question of intent or rebuttable presumption in the savings and loan account, but did address that issue in regard to the bank account, finding that there was an absence of clear and convincing evidence to show a contrary intent to that of survivorship.

In Gentzel v. Estate of Buchanan, 419 So.2d 366 (Fla. 1st DCA 1982), review denied, 426 So.2d 26 (Fla.1983), the appellant appealed from a trial court order determining that several savings accounts, including a savings and loan account, which were in her name and that of her father, were probatable assets that should pass under the will rather than to the appellant, the surviving account holder. The trial court-determined that the joint accounts were really the property of the decedent, and that the decedent’s intention was clearly shown by the evidence. The appellant contended that the trial court erred by failing to apply section 665.271 to the savings and loan account, and section 659.291 to the bank account. The First District disagreed and affirmed. The appellate court agreed that the presumption in section 659.291 was overcome by clear and convincing evidence, but concluded that section 665.271 did not apply to the case, since the signature card did not provide for right of survivorship, nor for “joint tenants.” Thus, it was impossible to tell whether the parties intended a joint tenancy with right of survivor-ship, a tenancy in common, or a convenience account. The court distinguished the case from Teasley, since there was no evidence presented in Gentzel to show savings and loan rules and regulations which would automatically cause an account placed in two names to be a survivorship account. See also Fortman v. Freedom Federal Savings & Loan Assn. of Tampa, 403 So.2d 985 (Fla. 2d DCA 1980), review denied, 402 So.2d 609 (Fla.1981), wherein the failure of parties to execute signature cards for a joint account was seen as precluding section 665.271 from applying, since no joint account with right of surviv-orship existed. That court noted, however, that section 665.271 appeared to create a mandatory, irrebutable presumption of the intent of the parties to create a right of survivorship. The court noted the difference in treatment between banks and federal savings and loans, and commented that the reason for the distinction was unclear.

In the instant case, the Federal account was clearly opened as a joint account with survivorship, as evidenced from the language on the signature card. Therefore, the instant case is closely analogous to Teasley in that proof of a survivorship account, aside from the statute, is present. The appellants contend, however, relying on Constance v. Constance, 366 So.2d 804 (Fla. 3d DCA), cert. denied, 376 So.2d 70 (Fla.1979), and Drozinski v. Straub, 383 So.2d 301 (Fla. 2d DCA 1980), that the statute is meant to only protect the banking institution and is not meant to apply to disputes between the parties.

We note that neither Constance nor Dro-zinski involved survivorship rights, but rather dealt with transfers while both tenants of a joint account were still living. The appellants’ statement that these two cases stand for the proposition that the statutes only protect the institutions is misplaced. Both cases hold that section 659.29 (currently 658.55) protects banks, and that is true, since that provision relates solely to the institution, with another provision, section 659.291 (currently 658.56) providing for survivorship rights. The fact that Constance refers additionally to 665.271 probably stems from the fact that this provision is applicable to both the institution and the individual, with no separate provision in the savings and loan provisions as is found in the banking code.

Section 665.063(l)(a) clearly holds that the establishment of a joint account with survivorship rights is conclusive evidence of the vesting of title in the survivor. Contrary to appellants’ argument that the legislative intent reflected by section 665.-063(1) was only to protect savings and loan associations in paying accounts to a joint account survivor, the express language of the statute imposes the conclusive presumption in an action wherein a survivor is a party, even though the federal association is not. In the instant case, absent fraud or undue influence (which have neither been shown nor alleged here), title would pass to the surviving joint tenant, Carol Gainer, despite evidence of Holly Gainer’s contrary intent — if the statute is valid in this respect. That is the question.

The appellants contend that section 665.-063(1), Florida Statutes (1981), as applied in this case, violates their constitutional rights to due process and equal protection. Specifically, the appellants contend that, with no rational basis, the statute requires much more of those with accounts in savings and loans than those with accounts in banks governed by section 658.56, and that the unrebuttable presumption of section 665.063(l)(a) denies the ultimate beneficiaries of those accounts the right of due process. The appellee, Carol Gainer, counters that under the statutes, all those with assets in banks are treated alike and all those with assets in savings and loans are treated alike, which was a proper determination reached by the Florida Legislature. The appellee further contends that the appellants had no constitutionally protected property rights in the estate, but only a mere expectancy of inheritance. The trial court, in denying the motion for rehearing, agreed with the appellee and found that the statutes were constitutional, and further found that all of the depositors in savings and loan associations are treated equally, and that likewise, all depositors in banks are treated equally; therefore, the distinctions between the two sections did not violate the appellants’ rights to due process and equal protection of the law.

It is here, as we see it, that the trial court’s analysis is erroneous. The affected classes are not the depositors but, in this case, the testamentary beneficiaries. These beneficiaries receive variable treatment dependent solely upon the location (bank or savings association) of the testator’s assets during his life, a fact irrelevant to the issue of the testator’s intent and the proper disposition of those funds upon his death.

The only reasonable explanation for the distinction created by the statutes is legislative oversight. The provisions appear in different chapters of Florida Statutes and the predecessor statutes were initially adopted during separate legislative sessions — section 659.291 in 1971 and section 665.271 in 1969. Apparently, neither the legislature nor the courts heretofore have been called upon to correct this irrational distinction.

In Wiggins v. City of Jacksonville, 311 So.2d 406 (Fla. 1st DCA 1975), the court was presented with the statutory distinction between individuals holding master plumber’s licenses in metropolitan Jacksonville. The City had adopted an ordinance which grandfathered in holders of the licenses issued by the City of Jacksonville Beach, while excluding those similarly situated in Atlantic Beach. Both beach cities had the same licensing standards. The court found the ordinance created an “unreasonable, arbitrary and capricious classification,” and held it was unenforceable and unconstitutional. The following excerpts from the Wiggins decision are equally applicable here:

... A classification, to be upheld, must “have some just relation to, or reasonable basis in, essential differences of conditions and circumstances in reference to the subject regulated, and should not be merely arbitrary; and all similarly situated ... should be included in one class, at least where there are no practical differences that are sufficient to legally warrant a further or special classification in the interest of the general welfare.” [Citation omitted.] ... [A]n ordinance, although nondiscriminatory on its face, may nevertheless be declared unconstitutional where its effect is to discriminate between persons in the same class. [Citation omitted.]

311 So.2d at 408.

The Florida Supreme Court, in Caldwell v. Mann, 157 Fla. 633, 26 So.2d 788 (1946), applied the equal protection clause of the Fourteenth Amendment of the United States Constitution to a statute regulating the marketing of fish in certain counties. Restating the general rules applicable to the examination of a statute to assure equal protection, the court ruled that the burden imposed by the law upon one person must be imposed equally “upon others in a like situation.” Differing classifications imposing different burdens are allowable only where a “just basis for the classifications or discriminations” exist. No such basis exists here.

Accordingly, we hold that section 665.063(l)(a), Florida Statutes (1981), is unconstitutional under the equal protection clauses of the United States and Florida Constitutions insofar as it purports to provide that the opening of a joint account payable to a survivor or survivors in a savings association is conclusive evidence in an action wherein a survivor is a party against third-party claimants or other survivors. We therefore reverse the trial court’s award to Carol Gainer of all of the monies deposited in the Federal account by her father, Holly Gainer.

In regard to appellee’s cross-appeal, we hold that there was ample evidence to sustain the trial court’s finding that the intent of Holly Gainer was that his monies go equally to his three daughters. We agree with the cross-appellant, however, that the trial court erred by requiring her to pay the total amount of interest actually earned on the state bank account after Holly Gainer’s death, rather than the statutory rate of interest. It is well established that assessment of interest on a debt (since money is fungible) must be made at the statutory rate where no specific rate was agreed upon by the parties. Lawyer’s' Surety Corp. v. Clarke, 413 So.2d 1260 (Fla. 5th DCA 1982).

AFFIRMED in part; REVERSED in part; and REMANDED for entry of judgment consistent with this opinion.

DAUKSCH J., and DIAMANTIS, Associate Judge, concur.

      . Carol Gainer testified at the trial that following Holly’s death the monies were all taken out of the joint accounts and placed in a savings account solely in her name.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie Arthur WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1669.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1984.
    Willie Arthur Watts, in pro. per.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Lazarus v. State, 412 So.2d 54 (Fla. 5th DCA 1982).

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


author: DAUKSCH, Judge.

text:
    MOHICAN VALLEY, INC., Petitioner, v. Alan MacDONALD, etc., et al., Respondents.
    No. 83-1752.
    District Court of Appeal of Florida, Fifth District.
    Jan. 12, 1984.

      Ladd H. Fassett and Rita A. Lowndes, of Smathers, Pleus, Adams, Fassett & Divine, P.A., Orlando, for petitioner.
    Michael C. Sasso, of Dempsey & Slaughter, P.A., Orlando, for respondents.
   DAUKSCH, Judge.

This is before us on a petition for writ of certiorari en banc because the panel determining the issue was preparing to issue an opinion in direct conflict with another opinion of this court. Under Florida Rule of Appellate Procedure 9.331, an appellate court may order a hearing en banc, on its own motion, if “necessary to maintain uniformity in the court’s decisions.” When it became apparent to the panel deciding this case that its decision would be in conflict with the decision in Florida Peach Corp. of America v. Lurie, 411 So.2d 339 (Fla. 5th DCA 1982), all of the judges of this court were summoned and it was unanimously agreed that in order to maintain the uniformity of this court’s decisions we must recede from Florida Peach. Of course, in another case we may have voted to the contrary and agreed to stick with a prior opinion rather than recede from it. Consistency in the decisions of a court of appeal is the desirable result afforded by the en banc rule.

The statement of law in Florida Peach is correct and remains binding precedent but the factual basis upon which it rests does not support the statement of law. That is, under the facts in Florida Peach we reached the wrong result.

The statement of law which is correct is that “[t]he court may control and discharge a notice of lis pendens as it may grant and dissolve injunctions if the initial pleading does not show the action is founded on a duly recorded instrument.... If a lis pendens is based on a duly recorded instrument, the court has no authority for imposing the condition of an indemnity bond in order to maintain the action.”

The error in Florida Peach occurs in the opinion when it says the suit to quiet title in that case was founded upon a duly recorded instrument as contemplated by the statute.

A duly recorded instrument constitutes notice to the public of plaintiffs legal or equitable interest in the subject property and the lis pendens gives further notice that a lawsuit has been filed which may affect the title to the property. A mortgage foreclosure is the most common example of an action which is founded upon a duly recorded instrument — the mortgage. When a lawsuit is based upon a mortgage there is already notice to the public on record which shows the mortgagee’s interest in the property. The lawsuit upon that mortgage may be to foreclose it, cancel it, modify it or otherwise directly affect the grantor’s and grantee’s rights under the mortgage. There is no reason to require the plaintiff in a suit on a mortgage to post a bond for his lis pendens because the instrument upon which he is suing already constitutes notice of the parties’ competing rights in the real property. A suit to quiet title may be founded upon an instrument in writing and usually seeks a declaration of legal rights under competing instruments or separate claims of title.

The lawsuit here, like the lawsuit in Florida Peach, is not founded on a duly recorded instrument. The plaintiff calls it a quiet title suit, but it is not. It is a shareholders derivative suit to cancel a deed fraudulently transferred. That is a lawsuit founded on fraud or other tortious misconduct. It is a suit by an individual as a corporate shareholder, on his behalf and on behalf of the corporation to correct the misdeeds of corporate directors, officers or employees. While it seeks to correct the misconduct which incidentally involves a deed, it is not founded upon the deed itself. A lis pendens is permitted and proper in these cases but the trial judge has the authority and discretion to require a bond to indemnify the defendants in case the lawsuit fails. Like injunctions, which have the potential of irreparable injury to a wrongly sued defendant, a judge should set a reasonable bond when the reasonable exercise of his discretion requires. This is not so in cases directly involving an instrument of record where it is clear no further cloud on the title results by the filing of the lis pendens. See Kent v. Kent, 431 So.2d 279 (Fla. 5th DCA 1983), Cowart, concurring. The test is simple: if the' lis pendens places a cloud on the title that did not exist then a bond should be considered. If the lis pendens does nothing more than give notice of a lawsuit on an instrument of record, which instrument itself is notice of the plaintiff’s interest then no bond is required or permitted.

We recognize the trial court relied upon Florida Peach in his order and was eminently correct under that case law. We grant the writ, reverse ourselves, recede from Florida Peach and order that the lis pendens be stricken from the record unless a bond in the amount previously ordered has been posted.

Writ granted.

ORFINGER, C.J., and COBB, FRANK D. UPCHURCH, Jr., SHARP and CO-WART, JJ., concur.

      . § 48.23(3), Fla.Stat. (1981) provides:
      When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.


author: BOARDMAN, Judge.

text:
    M.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 83-334.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

We reverse the circuit court’s order adjudging M.P., a seventeen-year-old female, in contempt of court for failing to pay restitution to the victim of her delinquent act. Our decision is based upon the trial court’s failure to include in its order of contempt either of the affirmative findings mandated under the supreme court’s holding in Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

We remand this cause to the circuit court for entry of an appropriate finding consistent with the holding of Faircloth. If, however, the trial court is unable under the facts presented in the record to make a finding as set forth in Faircloth, then appellant cannot be held in contempt for noncompliance with the court’s previous restitution order. Payments received by appellant under the Aid to Families with Dependent Children Program for the care of her infant should not be considered by the court in assessing M.P.’s present financial ability to comply with the court’s restitution order. Diversion of such public-assistance payments to satisfy appellant’s pre-ex-isting restitution obligation would, of course, frustrate the legislative intent and purpose underlying the need for such financial assistance. See §§ 409.235, .185, Florida Statutes (1981).

REVERSED and REMANDED for proceedings consistent with this opinion.

OTT, C.J., and LEHAN, J., concur.


author: CAMPBELL, Judge.

text:
    James REDDICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-522.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.

      Peter D. Ringsmuth of Smith, Carta & Ringsmuth, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, James Reddick, appeals his conviction for second degree murder and his sentence of ten years in prison. Appellant raises numerous grounds on appeal. However, we find merit only in his contention that the trial court erred in excluding the corroborative evidence of three witnesses which weighed directly on appellant’s claim of self-defense. We agree and reverse for a new trial.

On the day of the homicide, the evidence shows that appellant drove to a trailer park where Harry Yarble, the deceased, was having a conversation with Hazel Smith. During their conversation, appellant approached Varble. There was testimony that Varble lunged toward appellant, and appellant struck him with a three to four foot long wooden stick. Appellant testified that earlier on the morning of the confrontation, Varble had broken into his house and threatened to kill him. Appellant admitted that he purposely took the wooden stick with him when he went to see Varble. However, he stated that he merely intended to defend himself against Varble, and not to seriously harm him.

At trial, appellant attempted to introduce the testimony of Joyce Nowling, Linda Gomes and Brenda Browski to show that the apprehension he felt toward Varble was reasonable. Joyce Nowling and Brenda Browski would each have testified to having been previously and separately threatened by Varble, and that appellant had knowledge of the incidents. Linda Gomes, appellant’s girlfriend with whom he was living, would have corroborated appellant’s testimony that the evening before the homicide, Varble had broken into their home and threatened appellant with a knife. The trial judge excluded this testimony on the mistaken premise that third party witnesses can only testify as to general reputation, and not to specific acts of violence.

At the time the judge excluded this testimony as to the specific acts of violence, the testimony was proper since it related to appellant’s knowledge and alleged resulting apprehension of the deceased’s previous acts of violence. Appellant’s obvious purpose in attempting to admit this testimony was to corroborate his later testimony that the incidents did in fact take place, and that he had knowledge of them and, therefore, was legitimately concerned for his own safety.

In Williams v. State, 252 So.2d 243, 247 (Fla. 4th DCA 1971), our sister court held:

[Wjhere a proper predicate is laid by the showing of some overt act by the deceased at or about the time of the slaying that reasonably indicated a need for action by the defendant in self-defense, evidence of prior specific acts of violence by the deceased known to the defendant at the time of the slaying may be admitted for the limited purpose of proving the reasonableness of the defendant’s apprehension at the time of the slaying. (Footnotes omitted.)

Appellant testified that at the moment of confrontation, Varble lunged toward him and he struck Varble because he did not feel he could safely retreat. Therefore, the testimony that these events actually took place, and that appellant knew of them, became important to the issue of appellant’s credibility, and to the reasonableness of appellant’s claimed apprehension of Varble. Campos v. State, 366 So.2d 782 (Fla. 3d DCA 1978). Accordingly, we reverse and remand for a new trial.

OTT, C.J., and GRIMES, J., concur.


author: DANAHY, Judge.

text:
    Buford SPRINGFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 83-663.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

We affirm the trial court’s order revoking appellant’s probation. Appellant first argues that the evidence was insufficient to support a finding that he had committed a robbery, a violation of condition 5 requiring that he live and remain at liberty without violating any law. That argument is unpersuasive. The state furnished a witness who said that appellant did participate in the robbery, while appellant denied it. The court chose to believe the state’s witness. In the context of the relaxed legal standards applicable to probation revocation proceedings, we find that the conscience of the court was satisfied and that the trial court committed no reversible error. Cuciak v. State, 410 So.2d 916 (Fla. 1982); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Ivey v. State, 308 So.2d 565 (Fla. 2d DCA 1975).

Appellant next argues that the trial court erred in retaining jurisdiction over the first half of the concurrent sentences imposed upon revocation of his probation. He contends that the amendment to section 947.-16, Florida Statutes (Supp.1982), under which the trial judge retained jurisdiction over his sentences, is an unconstitutional ex post facto law, both on its face and as applied to him. Appellant’s contention that the statute is facially unconstitutional has been previously addressed and rejected. Borden v. State, 402 So.2d 1176 (Fla.1981); Sellers v. State, 421 So.2d 782 (Fla. 2d DCA 1982); Arnett v. State, 397 So.2d 330 (Fla. 1st DCA 1981), cert. denied, 408 So.2d 1092 (Fla.1981).

His further contention that the statute is unconstitutional as applied to himself is correct. Williams v. State, 414 So.2d 509 (Fla.1982); State v. Williams, 397 So.2d 663 (Fla.1981). However, we cannot address that argument because the record before us affirmatively shows that he did not raise this issue before the trial judge. Thus, he finds himself in a different position than, for example, the appellants in Williams v. State, 414 So.2d 509 (Fla.1982), and Reid v. State, 440 So.2d 651 (Fla. 2d DCA 1983), who did initially and properly bring the error to the attention of the trial court for its timely consideration and correction. Ex post facto application of the retention statute is not fundamental error and objection must be made in the trial court to preserve that issue for review by direct appeal. Trushin v. State, 425 So.2d 1126 (Fla.1982); Williams v. State, 414 So.2d 509 (Fla.1982); Fredricks v. State, 440 So.2d 433 (Fla. 1st DCA 1983); Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983); Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982).

AFFIRMED.

OTT, C.J., and SCHEB, J., concur.

      . Our holding is without prejudice to appellant seeking relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.


author: LEHAN, Judge.

text:
    Samuel HAMILTON, Appellant, v. MILLNUL ASSOCIATES, a Partnership under the laws of the State of New Jersey, and Henry D. Mayer, individually, Appellees.
    No. 83-1029.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Stephen J. Powell of Arky, Freed, Stearns, Watson & Greer, P.A., Tampa, for appellant.
    Elvin W. Phillips of Lawson, McWhirter & Grandoff, Tampa, for appellees.
   LEHAN, Judge.

We affirm the lower court’s order of dismissal without prejudice and hold that a voluntary dismissal followed by a dismissal for lack of prosecution is without prejudice to refiling the suit.

Recently this court found there was no authority for a dismissal with prejudice when the dismissal is based solely on the failure to prosecute. McDaniel v. Onkey, 422 So.2d 70 (Fla. 2d DCA 1982). The parties agree that a dismissal under Florida Rule of Civil Procedure 1.420(e) for failure to prosecute does not constitute an adjudication on the merits.

The parties also agree that when a party has voluntarily dismissed an action under Florida Rule of Civil Procedure 1.420(a)(1), a second dismissal under that subsection operates as an adjudication on the merits and bars the claim. But the two-dismissal provision in rule 1.420(a)(1) is in derogation of the common law and should be strictly construed. Crump v. Gold House Restaurant, 96 So.2d 215, 219 (Fla.1957).

Appellant contends that when a plaintiff takes a voluntary dismissal under rule 1.420(a)(1) and then suffers a dismissal for failure to prosecute under rule 1.420(e), the consequence should be dismissal with prejudice. We disagree. Those two types of dismissals do not result in a dismissal with prejudice under rule 1.420(a)(1) construed by any method, much less strictly construed as required by Crump. There is no proper basis to combine the language of rules 1.420(a)(1) and 1.420(e) by construing a dismissal for failure to prosecute as a second, voluntary dismissal which, in the final analysis, appears to be appellant’s contention.

We should note that two voluntary dismissals do not necessarily entail dismissal with prejudice. One dismissal could be under rule 1.420(a)(1) and the second under rule 1.420(a)(2), which allows the court discretion to dismiss with or without prejudice.

AFFIRMED.

OTT, C.J., and HOBSON, J., concur.


text:
    Larry D. CLARKE, Appellant, v. Cheryl A. CLARKE, Appellee.
    No. 83-1074.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.

      William P. Levens of Barrs, Williamson & Levens, Tampa, for appellant.
    Louis W. Putney, Tampa, for appellee.
   LEHAN, Judge.

In this dissolution of marriage proceeding, the husband argues that the trial court erred in its attempt to equitably distribute the parties’ property. The husband contends that the court should not have given the husband’s one-half interest in the marital home to the wife as lump-sum alimony and that the trial court should not have considered the husband’s pension plan to be among assets of the husband for the purpose of determining equitable distribution. The trial court took into account the evidence of the plan’s estimated future value and reduced that by fifty percent. We disagree with the husband’s contentions and affirm the final order of dissolution.

The husband’s first contention is that the lump sum award of the husband’s interest in the home was not justified on the basis of needs of the wife. However, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), does not restrict lump sum alimony awards to circumstances in which the recipient’s need therefor exists if equitable distribution is accomplished under circumstances showing justification and financial ability of the other spouse.

The trial court has discretion to award the husband’s share of the marital home to the wife as lump sum alimony to accomplish an equitable distribution of the marital property. Canakaris at 1201. It appears that the court divided the parties’ assets roughly equally by, among other things, giving the marital home entirely to the wife and considering the husband’s pension plan to be a part of the husband’s property. We do not find that the trial court abused its discretion.

The husband’s second contention is that his vested pension plan should not have been considered by the trial court in making the equitable distribution. We disagree. See Aylward v. Aylward, 420 So.2d 660 (Fla. 2d DCA 1982); Hurtado v. Hurtado, 407 So.2d 627 (Fla. 4th DCA 1981); Hartley v. Hartley, 399 So.2d 1126 (Fla. 4th DCA 1981). We recognize that this case apparently differs from those cases in that here the parties agree that the husband can receive no money from the pension plan until he attains age sixty-five, approximately twenty-one years in the future. However, in viewing the value of the pension plan as security for the future for a husband who has good income-producing ability and other assets in reserve, we cannot say that the trial court abused its discretion. Under that view, the pension plan, the right to the great bulk of which was built up during the nineteen-year marriage, is similar in nature to other assets held for the future. We also note that the husband’s rights to the pension plan in this case are vested, in contrast to Aylward.

The only evidence of the pension plan’s value presented in the lower court was the wife’s testimony giving its present value as one half of its estimated future value. As the trial court implies, the weight of that testimony was not great because the wife was not shown to be qualified as an expert in the subject. But, under the standards of appellate review established by Canakaris and its directive that the trial court should be guided by “all relevant circumstances,” 382 So.2d at 1201, we cannot find in this dissolution case that the wife’s testimony was entitled to no weight. We cannot say that reasonable men could not differ as to the propriety of the trial court’s actions. The husband presented no evidence of the plan’s value; his basic contention appears to be that the pension plan should have no value for equitable distribution purposes.

AFFIRMED.

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


text:
    Dude EMSHWILLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1116.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

For the following reasons we disagree with all three of appellant’s contentions.

A BB gun is a deadly weapon within the meaning of section 784.045, Florida Statutes (1981). See Depasquale v. State, 438 So.2d 159 (Fla. 2d DCA 1983).

Under the particular facts shown by the record in this case, there was no error in the trial court’s denial of defendant’s motion for mistrial based upon a witness’s general reference to other charges against defendant, about which the witness knew nothing. See Pait v. State, 112 So.2d 380, 385-86 (Fla.1959). The testimony was in direct response to defense counsel’s questions on cross-examination.

The question of whether the trial court properly retained jurisdiction for portions of the concurrent sentences was not raised below. See Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983).

AFFIRMED.

OTT, C.J., and BOARDMAN, J., concur.


author: GRIMES, Judge.

text:
    SEASCAPE OF HICKORY POINT CONDOMINIUM ASSOCIATION, INC., PHASE III, Appellant, v. ASSOCIATED INSURANCE SERVICES, INC., Charles J. Engelman and John Underhill a/k/a Jack Underhill, Appellees.
    No. 83-1211.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.

      Thomas C. Chase of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P.A., Fort Myers, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appel-lees.
   GRIMES, Judge.

This appeal involves the liability of insurance brokers for negligent failure to correctly advise of the existence and availability of insurance.

According to the amended complaint, ap-pellees Underhill and Engelman are agents of appellee Associated Insurance Services, Inc., which holds itself out to the public as “providing professional insurance planning to all Lee County.” For the past four years, appellant, a condominium association, has purchased all of its insurance through Associated and has relied on the corporation and its agents to provide insurance planning advice. On three occasions in 1981 and 1982, appellant contacted one or the other of the agents seeking to purchase insurance to cover its seawall in the event of storm damage. On each occasion, appellant was advised that seawall insurance was not available and could not be acquired. Two weeks after appellant’s last inquiry, the seawall was destroyed by a storm. Appellant further alleges that contrary to appellees’ advice, seawall insurance was available and its availability was widely known among insurance professionals. Appellant seeks damages from appel-lees for negligently breaching a duty to provide competent insurance planning services by repeatedly advising appellant that seawall insurance was not available. Upon the appellees’ motion, the court dismissed the amended complaint with prejudice.

There is a paucity of law to guide us in passing upon the legal sufficiency of the amended complaint. Clearly, the appellees could not be liable for a negligent failure to procure insurance because there was no agreement to acquire seawall insurance. See Neida’s Boutique, Inc. v. Gabor & Co., 348 So.2d 1196 (Fla. 3d DCA 1977), cert. denied, 366 So.2d 883 (Fla.1978). There remains the question of whether appellees owed appellant any duty whatsoever concerning the accuracy of their advice.

Our sister court in Woodham v. Moore, 428 So.2d 280 (Fla. 4th DCA 1983), reversed a summary judgment exonerating an insurance agent for failing to advise certain policyholders of the availability and desirability of obtaining higher limits of liability insurance. His clients had once had higher limits but were forced to obtain assigned risk coverage at lower limits because of a record of accidents. Later, they became eligible for coverage with higher limits outside the assigned risk plan. Though acknowledging that he had a policy of periodically reviewing his clients’ files, the agent did not notify them of the availability of the higher coverage. The court deemed these circumstances sufficient to create issues of fact with respect to the agent’s obligation to advise the insureds of their right to change over from the assigned risk plan.

In Bates v. Gambino, 72 N.J. 219, 370 A.2d 10 (1977), the plaintiffs sued an insurance broker for negligence in processing an application for fire insurance on their home. Between the time of the application and the date the insurance was approved, the plaintiffs’ home was destroyed by firé. The plaintiffs contended that the broker negligently failed to know of the existence of immediate coverage which was available through the issuance of a temporary binder prior to the fire and to inform the plaintiffs of this fact. The trial judge found for the broker on the premise that there was “no breach of duty or contract.” The appellate division reversed and remanded for assessment of damages in favor of the plaintiffs. In affirming the judgment for the plaintiffs, the New Jersey Supreme Court relied upon an earlier decision in which it had ruled that one who holds himself out to the public as an insurance broker must possess reasonable knowledge of the types of policies, their different terms, and the coverage available in the area in which his principal seeks to be protected. The court concluded that in the absence of evidence that the regulation permitting the issuance of the binder was so new or insignificant that the broker could not have been reasonably expected to know about it, he was liable for the damages suffered by the plaintiffs as a result of the fire.

The court in Hardt v. Brink, 192 P.Supp. 879 (M.D.Wash.1961), relied heavily upon the relationship between the parties to hold an insurance broker liable for failure to recommend to his customer appropriate insurance to cover property under lease. On the question of duty, the court stated:

Whether defendant intended to act as a consultant and counselor as well as a solicitor of insurance is not clear. But it is clear that through the designations on his letterheads and the stickers he attached to policies issued by his office defendant held himself out to be an insurance expert. Under the evidence I am convinced that by his conduct and business practices defendant permitted a reasonable inference to be drawn by his customers, such as plaintiff, that he was a person highly skilled as an insurance advisor and that plaintiff relied upon him as such. Under these circumstances defendant assumed a duty to advise plaintiff as to his insurance needs in connection with his business, particularly where such needs have been brought to defendant’s attention.

192 F.Supp. at 881. Cf. Nowell v. Dawn-Leavitt Agency, Inc., 127 Ariz. 48, 617 P.2d 1164 (Ct.App.1980), suggesting that in the absence of separate consideration apart from the premium, the rationale of Hardt v. Brink should be limited to cases involving “a long-established relationship of en-trustment between insurance counselor or agent and client from which it clearly appears that the insurance counselor appreciated that there was a duty to take the initiative in giving comprehensive advice to his client on insurance matters.” 127 Ariz. at 52, 617 P.2d at 1168. See also 16A J. Appleman, Insurance Law and Practice § 8845 (1981).

Each of the cases discussed above recognized that there can be circumstances under which an insurance broker has a duty to volunteer advice to his client. If this be so, would not a broker under equivalent circumstances have a greater duty to render correct advice when it was given? Ap-pellees seem to argue that they cannot be liable for faulty advice because they received no consideration in exchange for the advice. Admittedly, appellant did not pay for the advice it now asserts was negligently given. The appellees only would have obtained consideration for their efforts by receiving a portion of the premium on the insurance if it had been written. Yet, this is the customary way for insurance brokers to make their living. If they hold themselves out as experts on the subject of insurance, they ought to be held responsible for negligently giving the wrong advice.

The relationship between the parties in this case was not materially different from that which exists when an injured person seeks advice from a lawyer with respect to whether he has a cause of action for damages. In Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn.1980), Mrs. Togstad consulted a law firm concerning the possibility of pursuing a malpractice claim. No fee arrangements were discussed, no medical authorizations were requested, and Mrs. Togstad was not billed for the interview. The lawyers erroneously told her that she did not have a case. Relying upon this advice, she did not talk to another lawyer until a year later, at which time the statute of limitations had already expired. In affirming a judgment for damages against the lawyers, the court concluded that an attorney-client relationship existed between the parties under which the lawyers could be liable for damages suffered by Mrs. Togstad in reliance upon their negligent advice.

We hold that the second amended complaint sufficiently alleges a relationship between the parties from which it could be said that the appellees owed a duty to appellant to exercise reasonable care in rendering advice on insurance matters. The appellees held themselves out as professional insurance planners. They had served appellant’s insurance needs for several years. The appellant came to them for specific advice. A statement that no seawall insurance is available is manifestly different from one which says that appel-lees cannot obtain seawall insurance. If appellees reasonably should have known their advice to be incorrect and appellant relied upon such advice to its detriment, appellant has a valid claim for damages. We reverse the order dismissing the amended complaint and remand the case for further proceedings.

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


text:
    Larry E. CARTER, Appellant, v. Gerard A. COLEMAN, Sheriff of Pinellas County, Appellee.
    No. 83-1254.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.

      Joe D. Lovelace of Penrose, Mouser & Harris, Pinellas Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

By petition for writ of habeas corpus, appellant sought his release from custody of the Sheriff of Pinellas County. We conclude that appellant is not entitled to such relief. Therefore, we affirm the trial court’s order which denied the petition.

Appellant was arrested on a fugitive warrant issued by the trial court pursuant to extradition proceedings in Wisconsin. § 941.13, Fla.Stat. (1981). He was admitted to bail for the allowable thirty-day period to enable his arrest to be made under a warrant of the Governor of Florida. §§ 941.15, 941.16, Fla.Stat. (1981). Because no Governor’s warrant was issued during this thirty-day period, the trial court again admitted appellant to bail for the maximum sixty-day extension period. § 941.17, Fla.Stat. (1981).

After this extension period expired, appellant filed a petition for writ of habeas corpus which requested that the trial judge dismiss the action and discharge him. The trial judge “dismissed” the proceedings against appellant on the grounds that the Governor’s warrant had not been forthcoming within the maximum statutory ninety-day time period.

Two and one-half months later appellant was rearrested pursuant to a Florida Governor’s warrant issued for the purpose of extraditing him. Appellant filed another petition for writ of habeas corpus. The evidence offered in support of the petition showed that the Governor’s warrant had been issued upon the original demand for extradition rather than upon a new request for extradition after the “dismissal” of the original proceeding by the trial court. The petition for writ of habeas corpus was denied and this timely appeal followed.

Appellant argues that a second requisition from Wisconsin is necessary before he can be rearrested on a Florida Governor’s warrant of extradition. We do not agree. It is not logical to assume that in considering appellant’s initial habeas corpus petition, the trial court dismissed the entire extradition proceeding when it ordered in pertinent part: “[Tjhese proceedings against Defendant be and are hereby dismissed and the Warrant For Extradition discharged....”

First, dismissal of the entire proceeding would be improper since the authority to honor or reject an extradition demand lies solely with the Governor of Florida. §§ 941.02, 941.03, 941.04, 941.07, Fla.Stat. (1981); see also Orton v. State, 431 So.2d 236 (Fla. 1st DCA 1983). Second, the authority of the trial court is limited to issuance of a fugitive warrant for the accused who is then either committed to county jail or admitted to bail for a maximum period of ninety days to await the requisition and enable his expeditious arrest under a Governor’s warrant. §§ 941.-13, 941.15, 941.16, 941.17, Fla.Stat. (1981); see also Treadway v. Heidtman, 284 So.2d 473 (Fla. 4th DCA 1973).

For these reasons, we construe the language in the trial court’s order to mean that the trial court, in compliance with section 941.17, Florida Statutes (1981), intended only to dismiss its own court proceedings and to discharge the fugitive warrant and bail bond which it had issued therein. Such a discharge from bond or custody does not mean dismissal of all extradition proceedings. Thus, appellant’s rearrest on a valid Governor’s warrant issued after such discharge is not barred. Orton; Moore v. State, 407 So.2d 991 (Fla. 3d DCA 1981).

Therefore, we conclude that in the circumstances of this case the trial court was correct in denying appellant’s petition for writ of habeas corpus.

AFFIRMED.

OTT, C.J., and SCHEB, J., concur.


text:
    In the Interest of W.D.N., II, C.N. and C.N., Minor Children.
    Nos. 83-1426 to 83-1428.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.

      Robert B. Bennett, Jr., Sarasota, for appellant.
    R. John Cole, II, of Stevs, Busch & Cole, Sarasota, for appellee.
   LEHAN, Judge.

This is an appeal by a mother from a final order terminating her parental rights and permanently committing her three children, W.D.N., II, C.N., a male, and C.N., a female, to the Department of Health and Rehabilitative Services (HRS) for adoption. We affirm.

Although “the right to the integrity of the family is among the most fundamental rights,” Carlson v. State, Department of Rehabilitative Services, 378 So.2d 868, 869 (Fla. 2d DCA 1979), a parent’s rights are “subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail.” In the Interest of J.L.P., 416 So.2d 1250, 1252 (Fla. 4th DCA 1982). In this case we agree with the trial court that the best interests of the children required the foregoing order.

Significant events surrounding this case include the following:

(1) The mother, Delores Neal, gave birth to five children, the eldest of whom had died in a fire in Quincy, Florida, prior to the events directly involved in this case. The father has abandoned the family.
(2) In November 1980 the second child, S.N., was adjudged dependent on a finding of child abuse and was permanently committed to HRS for adoption. The child abuse determination involved the six-month-old child having had at least ten bone fractures.
(3) In May 1981 another child of Ms. Neal, W.D.N., II, was adjudged dependent because he suffered from physical problems requiring medical treatment which the mother was unable to provide and because of the past abusive behavior of the mother toward S.N. W.D.N., II, had been born with tubercular meningitis.
(4) In May 1982 Ms. Neal gave birth to the twins, C.N., a male, and C.N., a female.
(5) In December 1982 the twins were adjudged dependent and committed to HRS upon a finding of child abuse toward C.N., the male, and the past abusive behavior toward S.N. The child abuse determination as to C.N. involved the four-month-old child having had three rib fractures.
(6) In October 1982 a psychiatric examination of the mother reaffirmed an earlier doctor’s report that (a) the mother was a poor candidate for individual therapy to teach her parenting skills because she had a limited intellectual capacity, and (b) the mother was “only capable of marginal care for herself and has few resources left over to provide nuturance [sic] and care for a young child.”
(7) In February and March, 1983 petitions for permanent commitment of W.D.N., II, C.N. the male, and C.N., the female, were filed by HRS.
(8) In May 1983 following a hearing the trial court awarded permanent custody of W.D.N., II and the twins to HRS.

The statute governing permanent commitment of children to HRS is section 39.-41(1), Florida Statutes (1981), which includes the following provisions:

(1) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to:
sfc * sfc * * *
(f)l. Permanently commit the child to the department or a licensed child-placing agency willing to receive the child for subsequent adoption if the court finds that it is manifestly in the best interests of the child to do so, and: (a) If the court finds that the parent has abandoned, abused, or neglected the child; ....

A finding of child abuse in support of a dependency determination and temporary commitment satisfies the statutory element of abuse in a subsequent proceeding for permanent commitment and severance of parental rights. See In the Interest of C.M.H., 413 So.2d 418, 423-24 (Fla. 1st DCA 1982). Therefore, for purposes of the May 1983 permanent commitment hearing, the abuses of C.N., the male, and S.N. were established at the dependency determinations of December 1982 and November 1980, respectively. Those prior dependency findings of child abuse were applicable at the permanent commitment hearing even though the standard of proof required for permanent commitment — clear and convincing evidence — is greater than that for temporary commitment — a preponderance of the evidence. Id. at 424-5. Since the child, upon an initial dependency finding and temporary commitment, is removed from the home, there could be no further child abuse between the time of the initial dependency hearing and the permanent commitment hearing.

The mother does not argue whether or not findings of child abuse against some of her children may be grounds for permanent commitment of her other children. Nonetheless, it should be noted that, having in mind the foregoing overriding principle, under the facts of this case we believe a parent’s abuse of some of her children may constitute grounds for the permanent commitment of her other children who also live with the parent. Section 39.01(2), Florida Statutes (1981), defines “abuse” as “any willful act that results in any physical, mental or sexual injury that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” To continue to expose children to abuse by a parent simply because findings of prior abuse by the parent only concerned others of the parent’s children would constitute an unacceptable risk to the children where, as here, the mother’s propensities in that regard were shown to be beyond reasonable hope of modification. The trial court specifically found that each of the three children who were permanently committed in the proceedings now on appeal “is, or potentially is, an abused child.” As stated above, prior findings of child abuse concerned C.N., the male, and another child, S.N., who had previously been permanently committed.

Accordingly, the determination to be made at the permanent commitment hearing, which followed prior, separate temporary commitment proceedings where child abuse was found, was whether permanent commitment, by clear and convincing evidence, was shown to be manifestly in the best interests of the children. C.M.H. at 425. The trial court so found, and we agree that the requisite standard of proof was met. The trial court’s determination was made with the benefit of an extensive exposition of relevant factors. It is clear from the record that the mother’s interests were well represented.

The testimony and evidence established that the mother had been counseled by HRS for parenting problems, that she had not benefited from that counseling, and that there were no more programs in the state which could help the mother. She had been administered all of the potentially helpful programs which were available through the time of the December commitments. The testimony established that the mother did not admit that she had a problem. There was substantial testimony that the mother’s low intellectual capacity in all likelihood prevented her from benefiting from counseling. There was expert testimony as to a high risk of additional child abuse if the children returned home. Therefore, the evidence supported a conclusion that the only way to ensure that the mother would not harm her children henceforth was to commit the children permanently to HRS.

We recognize that the testimony also showed that during the mother’s visits with the children she exhibited love, care, con-cera and affection for the children. She requested more visits with the children and was angry when this was denied.

The mother argues that since an in-home investigation had not been conducted regarding her most current living situation and ability to provide a proper and fit home, the order of permanent commitment should be reversed. In Carlson, supra, this court reversed the termination of parental rights when HRS had not evaluated the living conditions of the parents from the time of the initiation of temporary custody by HRS over the children until HRS petitioned to sever parental rights (a period of approximately ten months). Id. at 870.

Carlson is markedly different in several respects from the case now before us. First, the mother in Carlson voluntarily committed her children because she was financially unable to care for them. In the instant case, the children were taken from the mother because of her physical abuse. Second, the home living situation in general, and the financial plight of the family in particular, were the issues in Carlson. Those factors were not the issues here. Finally, in Carlson there was a definite change of circumstances which the mother was attempting to prove in order to show her ability to be a fit parent. Therefore, a recent evaluation was critical to her position. In the instant case, the mother does not argue that there has been any change which would affect her propensities regarding child abuse. She therefore does not indicate prejudice from the failure of HRS to make a recent home investigation.

The facts here are somewhat analogous to those of In re Interest of J.L.P., supra. In that case, HRS received permanent custody of the mother’s son on findings, inter alia, that the mother had no means of support, questionable housing, and a past history of alleged child abuse. The mother was of extremely limited intellectual capacity, was classified as “trainably retarded,” and was unable to think in terms of the child’s welfare. J.L.P. at 1251-52. The Fourth District Court of Appeal affirmed the trial court’s decision, saying that in section 39.001(3), Florida Statutes (1979), it was the legislature’s intent that

the Florida Juvenile Justice Act be liberally construed so as to effectuate its purpose. Section 39.001(2), Florida Statutes (1979), states that one of those purposes is “to assure to all children brought to the attention of the court ..., the care, guidance, and control ... which will best serve the moral, emotional, mental, and physical welfare of the child.

Id. at 1252.

Judge Glickstein’s comments in J.L.P. reflect our feelings here:

Our sympathy for the mother cannot blind us to the overriding concern for the welfare of the child. We can not help the one and shall not harm the other.

Id. at 1253.

AFFIRMED.

OTT, C.J., and BOARDMAN, J., concur.


text:
    Joseph L. HEATH, Appellant, v. STATE of Florida, Appellee.
    No. 83-2055.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
   LEHAN, Judge.

Appellant seeks review of the trial court’s order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised three points in his motion. The allegation that appellant was on medication at the time of pleading nolo contendere and thus was unable to understand the proceedings, if true, might entitle appellant to post-conviction relief. The trial court, however, failed to conduct an evidentiary hearing or to attach portions of the record which would conclusively refute appellant’s allegations.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand. The trial court may either summarily deny the motion, attaching a copy of the record which conclusively shows that appellant is not entitled to relief, or hold an evidentiary hearing and rule on the merits of the motion. See Fla.R.Crim.P. 3.580. See also Halpin v. State, 428 So.2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981).

REVERSED AND REMANDED.

OTT, C.J., and BOARDMAN, J., concur.


author: WENTWORTH, Judge.

text:
    W. Benjamin KYLE, Appellant, v. Willie James McFADDEN, as Personal Representative of the survivors of Willie James Boggs, Deceased, Appellee.
    No. AP-403.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1984.

      Henry E. Davis, Jacksonville, for appellant.
    David R. Lewis, of Lewis, Paul, Issaac & Castillo, Jacksonville, for appellee.
   WENTWORTH, Judge.

This is an appeal from a directed verdict against appellant, the defendant in a legal malpractice action. Because we find no error on the grounds asserted by appellant, we affirm.

On June 19, 1981, appellee filed suit against appellant for legal malpractice alleging negligence in the failure to pursue an appeal in a suit which had been brought against the City of Jacksonville. On February 11, 1982, appellee sent appellant a request for admissions pursuant to Florida Rule of Civil Procedure 1.370. Appellant was requested to admit that he had filed a notice of appearance after an adverse final judgment in the previous suit, that a notice of appeal had already been filed and that an order was entered to permit appellant to perfect the appeal, that appellant failed to pursue the appeal so that it was ultimately dismissed, and that as a direct result of the dismissal appellee was damaged “in the maximum amount of monetary damages permitted by Chapter 768 F.S. ...” On March 19, 1982, appellee sent an additional request for admissions consisting of one question which read:

1. That the maximum amount of monetary damages permitted by Chapter 768 F.S. in an action for wrongful death against a state agency or subdivision as it applies to the claims which were the basis of Duval County Circuit Court Case No. 77-13813-CA is $100,000.00, with a maximum of $50,000.00 for any one survivor or the estate of Willie James Boggs, deceased.

Appellant never answered the first request for admissions and his answer to the additional request was untimely. A jury trial was commenced on September 16, 1982. Relying on the language in Rule 1.370 which provides that a matter is deemed admitted unless denied or objected to within thirty days, appellee presented his case by putting in evidence the unanswered and untimely answered requests for admissions. Appellant defended in part by presenting evidence that he had never received the first request for admissions. However, during closing arguments appellant’s attorney pulled the request for admissions from his file and showed it to the jury. At the end of his argument, appel-lee’s attorney requested the court to excuse the jury and pointed out that the document in opposing counsel’s possession bore appellant’s date stamp indicating that he had received the request for admissions one day after they were mailed. The judge then placed appellant and his attorney under oath, examined them both and found that appellant had received the request as indicated by the date stamp. She then directed a verdict in favor of appellee on the grounds that the matters contained in the requests for admissions were deemed admitted.

Appellant raises two points on appeal, as follows:

I. The trial court judge erred in directing a verdict against the Appellant on the basis of Appellee’s Request for Admissions and Additional Request for Admissions because the matters deemed admitted did not establish a prima facie case of legal malpractice.
II. The trial court erred in directing a verdict in favor of Appellee based on Appellant’s failure to answer the Request for Admissions because the appellant’s failure to file answers was inadvertent and Appellee would not have been prejudiced by being required to maintain his action on the merits.

We find no error on the grounds asserted. If the matters in the requests are deemed admitted they show that: (1) appellant was employed by appellee; (2) he neglected a duty of that employment, and (3) his neglect resulted in appellee’s loss. A prima facie case of malpractice was therefore shown. Drawdy v. Sapp, 365 So.2d 461 (Fla. 1st DCA 1978). As to appellant’s second point, we find no abuse of discretion in the trial court’s determination. As the court noted, this was not a case involving an inadvertent typographical error or a brief delay in the response. See e.g. Davison v. First Federal Savings and Loan Assoc., 413 So.2d 1258 (Fla. 3d DCA 1982); Love v. Allis-Chalmers Corp., 362 So.2d 1037 (Fla. 4th DCA 1978). Because the record clearly supports a conclusion that appellant’s failure to answer was not inadvertent, we find no significance in the contention that appellee would not have been prejudiced by being required to prosecute his action on the merits.

Under the circumstances presented we conclude the directed verdict is not reversible on the grounds urged by appellants.

Affirmed.

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

      . The attorney who represented the Appellant on this appeal was not the Appellant's attorney in the trial court.


author: WIGGINTON, Judge.

text:
    Nellie HARRISON, Appellant, v. Lawrence GRIFFIN and Elizabeth Griffin, husband and wife, and Connie H. Waites, Appellees.
    No. AS-58.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1984.
    W. Paul Thompson, DeFuniak Springs, for appellant.
    No appearance for appellees.
   WIGGINTON, Judge.

Appellant seeks our relief from a lower court’s order dismissing this cause of action with prejudice, for her failure to prosecute the case as minimally required by rule 1.420(e) of the Florida Rules of Civil Procedure.

There is no contest as to the propriety of granting the dismissal but only as to it being “with prejudice.” Appellant’s concern, according to this record, may be of little practical significance but her position is legally indisputable. However, this appellate review may well have been avoided had appellant not failed to appear at the hearing wherein the trial court disposed of this and her motion for continuance.

As our learned brethren stated in Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA 1973):

An involuntary dismissal of a cause of action by order of court under Rule 1.420(b), 30 F.S.A., Rules of Civil Procedure, for failure of a plaintiff to comply with a mandatory order of the court operates as an adjudication on the merits of the action and is a bar to any subsequent suit brought on the same cause of action. It has been repeatedly held, however, that this principle of law is not applicable in instances where a cause of action is dismissed pursuant to Rule 1.420(e), Rules of Civil Procedure for failure to prosecute the action within the time required.

At 890. This not-so-novel conclusion of law stems from a long line of eases and has been consistently followed and recently affirmed as in Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980) wherein Judge Hersey emphatically pointed out “that such a dismissal (of a complaint for failure to prosecute), under rule 1.420(e), Florida Rules of Civil Procedure, is to be without prejudice.” We agree, and, while approving the dismissal of the complaint for lack of prosecution, strike from paragraph 3 of the order the final two words, “with prejudice.”

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


text:
    Jessie W. HENDERSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AT-195.
    District Court of Appeal of Florida, First District.
    Jan. 17, 1984.
    Anthony E. Gilíes, Pensacola, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., for appellee.
   WIGGINTON, Judge.

Appellant appeals his conviction, after trial by jury, of grand theft, raising six points for review. We affirm.

Appellant challenges the trial judge’s reading to the jury of Florida Standard Jury Instruction, Criminal Cases, 2.07, concerning appellant’s unexplained possession of recently stolen property. Appellant contends that Instruction 2.07 violates his Fifth Amendment right to remain silent. This issue has been raised and resolved contrary to appellant’s position in Smith v. State, 394 So.2d 407 (Fla.1981) and State v. Young, 217 So.2d 567 (Fla.1968).

We have considered appellant's remaining points and also find them to be without merit.

AFFIRMED.

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


author: BASKIN, Judge.

text:
    BUREAU OF CRIMES COMPENSATION, FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Appellant, v. George REYNOLDS, Appellee.
    No. 82-1623.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Sonja P. Mathews, Miami, for appellant.
    Whitman, Wolfe, Gross & Salmon and John W. Salmon, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and BASKIN, JJ.
   BASKIN, Judge.

In enacting the Florida Crimes Compensation Act, Chapter 960, Florida Statutes, the legislature implemented its desire to provide governmental financial assistance to financially disabled victims of crime by enabling victims to meet loss of earnings, support, or out-of-pocket medical expenses. The issue in this appeal by the Department of Labor Bureau of Crimes Compensation is whether a crime victim’s receipt of his annual leave and sick leave benefits accumulated during his employment constitutes a source of income precluding him from showing serious financial hardship and actual need. Holding that serious financial hardship and actual need may be established despite the availability to the victim of annual leave and sick leave benefits, we affirm.

George Reynolds had worked for Dade County for twenty-four years when he was shot just before departing for work one February morning. As a result of the incident, Reynolds lost two fingers and was unable to work from February 21, 1980 to June 3, 1980. Reynolds applied for assistance under the Crimes Compensation Act. Recognizing that Reynolds had been the victim of a violent crime, the Bureau of Crimes Compensation awarded funds for the payment of Reynolds’ medical expenses as well as payments to offset his wage losses for the period between March and June of 1980. Because Reynolds received his accumulated sick leave and annual leave benefits during the period between February and March, 1980, and that amount equaled his full salary for that period, he received no award for lost wages under the Crimes Compensation Act for February or March, 1980. After exhausting his sick leave and annual leave funds, Reynolds was forced to borrow $1300 in order to make ends meet. He requested a hearing to obtain reimbursement for the depletion of his sick leave and annual leave benefits under the Crimes Compensation Act. Upon consideration of the testimony and evidence presented at the hearing the commissioner determined that Reynolds “exhibited actual need and financial hardship by the fact that he had to borrow $1,300.00 during the period subsequent to his injury of February 23 [sic], 1980.” The commissioner ordered that Reynolds be compensated “66⅜ per cent of his average weekly wage, not to exceed the maximum compensation rate for lost wages between February 21,1980 and March 31,1980.... ” This appeal ensued.

The Bureau’s appeal is predicated upon its contention that Reynolds’ sick leave and annual leave benefits constituted a financial resource prohibiting the commissioner from granting an award during the period the benefits were available. In addition, the Bureau argues that a claimant is obligated to use the annual leave and sick leave benefits he has earned and that depletion of those benefits may not create an “actual need” within the meaning of section 960.13(2), Florida Statutes (1979). Thus, the Bureau contends, the commissioner was unjustified in ordering a “wage loss” award under section 960.13(7). We disagree.

The Crimes Compensation Act is based upon the legislature’s express policy, contained in section 960.02, Florida Statutes (1979), determining:

[Tjhat there is a need for government financial assistance for ... victims of crime .... [and that] it is the intent of the Legislature that aid, care, and support be provided by the state, as a matter of moral responsibility, for such victims of crime.

Sections 960.13(2) and 960.13(7) , Florida Statutes (1979), provide:

(2) Any award shall be granted on an “actual need” basis and shall be provided subsequent to all benefits provided by primary insurance carriers, including, but not limited to, health and accident insurers, workers’ compensation, and automobile accident coverage.
(7) If the commission or commission member, as the case may be, finds that the claimant, if not granted assistance pursuant to this chapter to meet the loss of earnings, support, or out-of-pocket loss, will not suffer serious financial hardship as a result of the loss of earnings or support and the out-of-pocket loss incurred as a result of the injury, the commission or commission member shall deny the award. In determining serious financial hardship, the commission or commission member shall consider all the financial resources of the claimant. Unless a total dependency is established, members of a family are considered to be partially dependent upon a homemaker with whom they reside, without regard to actual earnings.

The Act clearly authorizes assistance in the event of serious financial hardship incurred as a result of the injury. In determining serious financial hardship, the commissioner need only consider the financial resources of the claimant; it is not required to ascertain that the victim is entirely destitute.

Examining the record in light of the foregoing principles, we find substantial, competent evidence to support the commissioner’s factual determination that Reynolds suffered actual need and serious financial hardship. Not only did Reynolds exhaust the sick leave and annual leave benefits he had accumulated, he was also forced to borrow simply to subsist. Reynolds is the sole provider of his household and possesses no substantial assets. His ability to provide was interrupted by the crime leading to his incapacitation.

It is well-settled that construction of a statute by the administrative agency charged with its interpretation is accorded great weight and persuasive force. Daniel v. Florida State Turnpike Authority, 213 So.2d 585 (Fla.1968); Florida Dairy Farmers Federation v. Borden Company, 155 So.2d 699 (Fla. 1st DCA 1963). Courts are generally reluctant to disagree with the agency’s interpretation unless it is clearly erroneous, Daniel; Radio Tel. Communications, Inc. v. Southeastern Tel. Co., 170 So.2d 577 (Fla.1964), or contrary to the constitution or the plain intent of the act, Radio Tel. Communications; State ex rel. Fronton Exhibition Co. v. Stein, 144 Fla. 387, 198 So. 82 (1940).

We find that based upon the substantial, competent evidence presented at the administrative hearing, the commissioner correctly applied the statutory criteria contained in sections 960.13(2) and 960.13(7) to the facts of this case. See City of Lake Wales v. Public Employees Relations Commission, 402 So.2d 1224 (Fla. 2d DCA 1981). We therefore hold that the commissioner properly exercised his discretion in awarding Reynolds lost wages under the Crimes Compensation Act for the first month of his incapacity.

Affirmed.

      . Section 960.13(7), as amended by Chapter 80-146, section 11, Laws of Florida, presently provides:
      (7) If the division finds that the claimant, if not granted assistance pursuant to this chapter to meet the loss of earnings or support or out-of-pocket loss, will not suffer serious financial hardship as a result of the loss of earnings or support and the out-of-pocket loss incurred as a result of the injury, the division shall deny the award. In determining serious financial hardship, the division shall consider all the financial resources of the claimant. Unless a total dependency is established, members of a family are considered to be partially dependent upon a homemaker with whom they reside, without regard to actual earnings.

      . Testimony at the hearing reflects:
      Q. (By Mr. Turnbull) Does your wife work?
      A. Huh?
      Q. Does your wife work?
      A. No. My wife have nerve trouble.
      Q. Pardon?
      A. My wife have nerve trouble. Nerves. She can’t work.
      Q. Do you own your own home?

        A. Huh?
      Q. Do you own your own home?
      A. No.
      Q. You rent?
      A. Yeah.
      Q. Do you have any money in the bank?
      A. No.
      Q. Do you have a bank account?
      A. No.
      Q. Do you own any property?
      A. No.
      Q. Do you own an automobile?
      A. Yeah.
      Q. What kind of car?
      A. I own a '78 Ford and I own a ’79 Ford pick-up.
      DEPUTY COMMISSIONER: A 78 — that’s two vehicles or one vehicle?
      THE WITNESS: I got two.
      DEPUTY COMMISSIONER: Okay. A 78 Ford and what kidn [sic] of pickup?
      THE WITNESS: 79.
      DEPUTY COMMISSIONER: Okay.
      Q. (By Mr. Turnbull) Did you own these cars at the time you were shot?
      A. I owned a car, but I didn’t own the truck.
      Q. At the time you were shot, was the car paid for?
      A. No. It ain’t paid for yet.
      MR. TURNBULL: That’s all I have.


text:
    Stanford KNIGHT, a/k/a Mark Eugene Knight, Petitioner, v. The STATE of Florida, Respondent.
    No. 83-2589.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Stanford Knight, in pro. per.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for respondent.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

While it appears to the court that defendant Knight is entitled to receive credit for time served in Case No. 78-1277, habeas corpus is not the correct procedural route for obtaining relief. We therefore deny the petition and, pursuant to Florida Rule of Appellate Procedure 9.040(b), (c), transfer the cause to the trial court for correction of sentence pursuant to Florida Rule of Criminal Procedure 3.850.

Petition denied.


text:
    John A. WOOD and Rosalee J. Wood, Appellant, v. B.N. WILLIS, Trustee, Appellee.
    No. 81-1644.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.
    R. Edward Campbell of Levy, Shapiro, Kneen & Kingcade, Palm Beach, for appellants.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We acknowledge jurisdiction over this appeal because we find that the trial court’s order granting summary judgment as to count IV of the counterclaim adjudicated “a distinct and severable cause of action.” See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 100 (Fla.1974). On the merits, we affirm the order granting summary judgment since the record reveals without contradiction that any interest which the appellants had in the trust was extinguished by virtue of a federal marshal’s sale.

ANSTEAD, C.J., HURLEY, J., and SHA-HOOD, GEORGE, Associate Judge, concur.


text:
    LOU’S COUNTRY KITCHEN, INC., Appellant, v. Ronald SMITH, John Brown, Robert A. Marchetti and Donald Uhls d/b/a Sherwood Commercial Brokers, etc., Appellees.
    No. 82-1708.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.

      Zwickel, Gross & Kessler, Lake Worth, and Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Robert M.W. Shalhoub, Lake Worth, and Glenn H. Mitchell of Mitchell, Hanser & Schwartz, West Palm Beach, for appellees, Ronald Smith and John Brown.
   PER CURIAM.

This case arose as the result of a failed real estate transaction. The seller appeals alleging that the trial court abused its discretion when it entered a “stipulated” judgment, entertained a rehearing, withdrew the “stipulated” judgment, and entered a new final judgment diametrically opposed to the initial judgment. We reverse for a new trial.

From her comments during the trial, it is obvious the judge was disgusted with how this case was pled and tried. Prior to the conclusion of the evidence, the judge gave the parties two options: (1) accept the court’s view of a fair “settlement” of the case, or (2) recommence the entire proceedings from the pleading stage and retry it. The court then entered a final judgment effecting her view of a fair “settlement” of the matter: In doing so, the judge expressly conditioned the entry of the judgment on the absence of an objection from any party. The judge announced that if either party sought rehearing she would withdraw the judgment and make everyone start the case over from the initial pleading stage. The appellant was dissatisfied with the court’s “fair settlement” but upon consideration of a request for rehearing, the court chose not to recommence the case. Rather, she entered a new final judgment with factual and legal findings diametrically opposed to her first judgment and totally against the party seeking rehearing. In light of the judge’s previous directions, we hold such action to be an abuse of discretion. In an effort to accomplish practical justice, the judge disregarded traditional and established rules of law and procedure and struck out on her own. In doing so, the judge had to at least follow her own brand of justice — traditional notions of fair play required it. On remand, the parties should be required to replead the case. We are not saying that trial judges should not experiment with new and innovative legal procedures which will speed up the administration of justice. However, advance warning to the parties as to what these procedures are should be a requirement.

REVERSED AND REMANDED FOR A NEW TRIAL.

LETTS, BERANEK, and HERSEY, JJ., concur.


text:
    Valerie MARTIN, Appellant, v. INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, a Florida corporation, and Alexander A. Homer, Appellees.
    No. 83-905.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.

      J. David Lynch of Andrews & Lubbers, P.A., Fort Lauderdale, Florida, for appellant.
    Marilyn A. Martin of Fazio, Dawson & DeSalvo, Fort Lauderdale, Florida, for ap-pellees.
   PER CURIAM.

AFFIRMED. See Carter v. Cross, 373 So.2d 81 (Fla. 3d DCA 1979).

GLICKSTEIN, HURLEY and DELL, JJ., concur.


author: LETTS, Judge.

text:
    FRITILLARY HOLDINGS, INC., Appellant, v. PAT AND MAE’S DANCELAND CLUB, INC., et al., Appellees.
    No. 83-943.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.
    Norman I. Segal, North Miami Beach, for appellant.
    Richard L. Polin, Lauderhill, for appellee, Pat and Mae’s Danceland Club, Inc.
   LETTS, Judge.

The only question raised on appeal, which we deem to have merit, is whether attorney’s fees can be awarded under Section 57.105, Florida Statutes (1981), solely because a defendant fails to answer. We hold the statute inapplicable and reverse.

The First District has held the- statute to apply when the prevailing party is impelled by the loser to waste time, money and judicial resources to halt a course of conduct engaged in by his opponent. Castaway Lounge of Bay County, Inc. v. Reid, 411 So.2d 282 (Fla. 1st DCA 1982). However, the Third District in Sachs v. Hoglund, 397 So.2d 447 (Fla.3d DCA 1981), held to the contrary. It is true that the Castaway decision seeks to distinguish Sachs, but we are not persuaded and align ourselves with Sachs.

As the Third District noted in Sachs, Section 57.105 does not require a defendant to either contest every suit or suffer attorney’s fees as a consequence. It is not the failure to raise frivolous issues that activates the statute. On the contrary, the legislative target is the affirmative act of raising them. Many defendants do not defend themselves because they have plumb run out of money to pay their lawyers. Indeed, the defendant’s attorney here withdrew for failure to pay his fees. If a defendant fails to defend himself because he cannot afford to, there is unconscionable irony in having to pay his opponent’s lawyer as further punishment for being unable to afford his own. We must admit it looks like the plaintiff was correct and should not have had to go to court to prove her cause. However, surely any plaintiff thinks likewise. Accurate assessment of a successful outcome does not in and of itself trigger the statute.

Accordingly, that portion of the final judgment awarding attorneys fees is reversed and remanded for amendment thereto. In all other respects, the lower court’s decision is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

BERANEK and HERSEY, JJ., concur.


text:
    Alphonso BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 83-979.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Harmon v. State, 438 So.2d 369 (Fla.1983).

GLICKSTEIN, HURLEY and DELL, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Carl P. HENSON, Respondent.
    No. 83-1871.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 1984.
    Michael J. Satz, State Atty. and Teresa Beazley Widmer, Asst. State Atty., Fort Lauderdale, for petitioner.
    H. Dohn Williams, Jr., of Varón, Bogen-schutz, Williams & Gulkin, P.A., Hollywood, for respondent.
   PER CURIAM.

The circuit court, acting in its appellate capacity, ruled that the state must charge violations of Sections 316.193(l)(a) and (b), Florida Statutes (1982) in separate counts of an information rather than combining allegations as to (a) and (b), as alternative theories of prosecution in a single count. We find no error in that ruling. Cf United States v. Starks, 515 F.2d 112 (3d Cir. 1975) and United States v. Goodman, 285 F.2d 378 (5th Cir.1960), cert. denied, 366 U.S. 930, 81 S.Ct. 1651, 6 L.Ed.2d 389 (1961). Accordingly, we deny the state’s petition for writ of certiorari.

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


author: SHIVERS, Judge.

text:
    NORTHWESTERN, INC., a Florida corporation, and United States Fidelity and Guaranty Company, a corporation, Appellants, v. GULF ASPHALT, a Florida corporation, Appellee.
    No. AQ-464.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1984.
    Barne J. Morain, Pensacola, for appellants.
    L. Charles Hilton, Jr., and Dianne Cleav-inger, Panama City, for appellee.
   SHIVERS, Judge.

In this contract action, Northwestern, Inc. (Northwestern) and United States Fidelity and Guaranty Company (USF & G) appeal the order of the trial court granting Gulf Asphalt Corporation’s (Gulf) motion for summary judgment. We reverse and remand.

Northwestern served as general contractor for a sewer facility project for Bay County, Florida. USF & G provided a payment and performance bond on this project in accordance with section 255.05, Florida Statutes (1981). Northwestern’s contract with Bay County provided that, inter alia, Northwestern was to repair several streets with three quarters (¾) inch of sand asphalt and one half (Vá) inch of wearing surface.

In December of 1981, Northwestern verbally agreed with Gulf that the latter would act as subcontractor on this project by providing and laying sufficient asphalt to complete the necessary repairs. On December 31, 1981, the parties executed a written agreement failing, however, to make mention of the asphalt depth specifications. Gulf admits that it repaired the streets according to the specifications set forth in the contract between Northwestern and Bay County, but denies that it had the responsibility for determining the correct amount of asphalt to be poured. According to the December 31,1981, contract, Gulf would “sweep, tack and overlay streets” with asphalt at a unit price of $25 per ton.

The amount of asphalt used in the Bay County project is not in dispute. Simply, it is alleged that Gulf used more asphalt than was required to complete the project. Gulf contends that the written instrument embodied the full understanding of the parties. As such, the writing evidenced a simple “requirements” contract whereby the responsibility for determining the amount of asphalt laid rested with Northwestern. The trial court agreed with this contention and granted Gulfs motion for summary judgment, awarding Gulf damages for all the asphalt received by Northwestern, plus interest at a rate called for in the contract, together with attorney’s fees and costs.

In Smith Engineering & Construction Co. v. United States Fidelity & Guaranty Co., 199 So.2d 302, 303 (Fla. 1st DCA 1967), this court stated that, in accordance with Rule 1.510 of the Florida Rules of Civil Procedure, a motion for summary judgment shall be entered if:

the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In Arias v. State Farm Fire & Casualty Co., 426 So.2d 1136, 1138 (Fla. 1st DCA 1983), we stated that:

The rule is well settled that the burden of proof on the party moving for summary judgment is to show the absence of any genuine issue of material fact, and all doubts and inferences must be resolved against the movant.

See also Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Morgan v. Growers Marketing Service, Inc., 370 So.2d 74. (Fla. 2d DCA 1979).

The trial court held that, as a matter of law, it was Northwestern’s responsibility to determine the quantity of asphalt required to complete the project. We disagree and hold that there was a genuine issue of material fact.

According to the terms of the contract, Gulf’s promise to “sweep, tack, and overlay streets” with asphalt suggests that Gulf and Northwestern shared the responsibility for complying with the asphalt depth specifications. As subcontractor, Gulf’s grade crew was in charge of the spreader that poured the asphalt. Gulf controlled the spreader setting as to the quantity of asphalt released. There is no evidence that Northwestern controlled these functions. Indeed, Gulf’s hiring as subcontractor stemmed from its special position of skill and knowledge in these matters. The whole purpose of subcontracting the work to Gulf was to receive not only asphalt, but also Gulf’s expertise in measuring and incorporating the asphalt into the streets. We find that the inferences drawn from the pleadings, depositions and affidavits, taken in the light most favorable to Northwestern, show a genuine issue of material fact on the question of responsibility. Thus, we hold that the issue of responsibility was not properly determinable on a motion for summary judgment.

The contract provided that payment was due ten days after receipt of the invoice. Failure to make such payment resulted in a one and one half percent per month interest charge on the amount in default. The first invoice received by appellant incorrectly stated the amount due and it was subsequently replaced by a corrected invoice. In its order, the trial court awarded interest based on the date of the incorrect invoice.

In view of our reversal and remand, we find it unnecessary to determine the issues of interest charges and attorney’s fees at this time. We note, however, our disapproval of the trial court’s method of computing interest charges based on the erroneous invoice. If appellee should ultimately prevail, any computation of interest should reflect the date of the corrected invoice.

REVERSED and REMANDED.

MILLS and ZEHMER, JJ., concur.

      . It appears that the payment and performance bond executed by appellant, United States Fidelity and Guaranty Co., was conditioned on the incorporation of the thickness specifications set forth in the Bay County contract.

      . The contract contains no integration clause.

      . The Parol Evidence Rule does not preclude consideration of the thickness specifications.
      A finding that the parties entered into a "requirements” contract, under these circumstances, creates ambiguity as to what the requirements actually were. See Comwel Development v. City of Deerfield Beach, 382 So.2d 716 (Fla. 4th DCA 1980), reh’g denied, 382 So.2d 719 (Fla. 2nd DCA 1980), where the appellate court found ambiguity in a contract and ordered a new trial to permit the parties to introduce parol evidence as to the meaning of the ambiguous term.

      . It may well be determined during the course of a plenary trial that appellee substantially complied with the thickness specifications, in which case the issue of responsibility would be moot.