author: SCHOONOVER, Judge.

text:
    BEAU MONDE, INC., a Florida corporation, B.F. Aldridge, Jr., William Williams, Max Koenigsberg, Alex Rein, Betty Myers, Robert Stubenfall, Sonia J. Geiger, individually and as the Directors of Beau Monde, Inc., a condominium association, U.S. Home, Inc., a corporation, Port Builders, Inc., a Florida corporation, Bay Management, Inc., a Florida corporation, Appellants, v. Albert H. BRAMSON, Grace Giunta, Margaret E. Lawrence, and Florence Concannon, Appellees.
    No. 83-57.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.
    Rehearing Denied March 2, 1984.

      Peter T. Roman of Dunbar, Dunbar, Roman, Anderson & Schafer, P.A., Dunedin, and William S. Jonassen of William S. Jo-nassen, P.A., Indian Rocks Beach, for appellants.
    Daniel B. Schuh of Schuh & Schuh, St. Petersburg, for appellees.
   SCHOONOVER, Judge.

Appellants, Beau Monde, Inc. (Beau Monde), a condominium association, the Board of Directors of Beau Monde, U.S. ■Homes, Inc., Port Builders, Inc., and Bay Management, Inc., have appealed a summary judgment entered in favor of the appel-lees, Albert H. Bramson, Grace Giunta, Margaret E. Lawrence, and Florence Con-cannon. We affirm.

Beau Monde originally filed a complaint for foreclosure against Mr. Bramson and his now deceased wife for failure to pay certain maintenance fees assessed against their condominium unit. This court affirmed the trial court’s order setting aside a default judgment against the Bramsons in Beau Monde, Inc. v. Bramson, 392 So.2d 75 (Fla. 2d DCA 1980).

While the aforementioned proceedings were taking place, the appellees, all Beau Monde condominium unit owners and members of the corporation, filed a declaratory judgment action against the appellants. They sought to have Beau Monde’s action in purchasing land they had previously leased under a ninety-nine year recreational and garage lease and the termination of the maintenance agreement, declared ultra vires and therefore void. They also sought to have the lien against the Bramsons’ condominium unit removed. The two cases were ultimately consolidated.

After the appellants’ motion for summary judgment was granted and a final summary judgment entered, an appeal was taken to this court. Bramson v. Beau Monde, Inc., 415 So.2d 761 (Fla. 2d DCA 1982). In reversing the trial court, we held that since Beau Monde relied upon article V, section 8 of the by-laws of Beau Monde to sustain their action in purchasing the property and in terminating the maintenance agreement, their actions were ultra vires and void because they did not strictly comply with said by-laws.

Article V, section 8 of the by-laws provided as follows:

Section 8. Waiver and Consent: Whenever the vote of members at a meeting is required or permitted by any provisions of the Statutes or the Certificate of Incorporation or of these ByLaws to be taken in connection with any action of the corporation, the meeting and vote of members may be dispensed with if all of the members who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such action being taken.

Since Beau Monde failed to receive the written consent of all of the record unit owners, who are members of the corporation, and no meeting was held, Beau Monde’s actions were ultra vires and therefore void.

After the issuance of our opinion and mandate, the parties entered into a stipulation agreeing that seventy-five percent of the voting members of Beau Monde, at a regularly called meeting, ratified the transaction between U.S. Homes, Inc., Port Builders, Inc., and Bay Management, Inc., as to the purchase and sale of the fee and improvements underlying the garage and recreational lease areas, and the extin-guishment of the existing maintenance agreement with Bay Management, Inc. The parties further stipulated that subsequent to the entry of the original final judgment, seventy-five percent of the voting members approved the amendments to the condominium documents containing the declaration of condominiums, the by-laws, articles of incorporations, and other related instruments. It was agreed that no attempt was made to amend article II of the articles of incorporation of Beau Monde.

The trial court then entered a declaratory judgment holding that the attempts to amend the condominium documents, the approval of the purchase of the recreational and garage lease, and the extinguishment of the maintenance agreement were void. The trial court held that, in order to purchase the property and to extinguish the maintenance agreement, the unanimous consent of all unit owners was required by the original condominium documents and by section 718.110(4), Florida Statutes (1979). This appeal timely followed.

We agree with the appellees’ contention that the cancellation of the lease and maintenance agreement together with the purchase of the real estate described in the lease would materially alter or modify the existing appurtenances to their condominium units. We, accordingly, hold that Beau Monde’s attempt to do so is governed by section 718.110(4) and by the holding of the Third District Court of Appeal in the case of Tower House Condominium, Inc. v. Millman, 410 So.2d 926 (Fla. 3d DCA 1981).

Section 718.110(4) provides as follows:

(4) Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses and owns the common surplus unless the record owner of the unit and all record owners of liens on it join in the execution of the amendment and unless all the record owners of all other units approve the amendment.

Since the cancellation of the recreational and garage lease, the extinguishment of the maintenance agreement, together with the purchase of the land involved are material alterations or modifications of the appurtenances to the appellees’ unit, Beau Monde’s attempt to take said action is void because all record owners did not join in the execution of the amendments to the original condominium instruments. § 718.-110(4); Tower House; see also, Thiess v. Island House, Assoc., 311 So.2d 142 (Fla. 2d DCA 1975).

The original declaration of condominium submits certain real property with related facilities together with the garage and recreational lease to condominium ownership. The declaration specifically excludes the real estate leased to the association. Paragraph 12 of the declaration explicitly states that no amendment may impair the maintenance agreement with appellant Bay Management, Inc., or with the recreational and garage lease.

Further, article II of the articles of incorporation of Beau Monde, provides that the purpose of the corporation is, among other things, to transact all business necessary and proper in connection with the operation of the designated property. The land involved in the lease is specifically excluded from the object and purposes clause of the articles of incorporation.

Finally, article XI of the articles of incorporation provides, in part, that there shall be no alteration, amendment, modification, or rescission of article II without the unanimous approval of the then members of the corporation.

Therefore since the declaration, including the articles of incorporation, provides that article II cannot be amended without the unanimous approval of the then members of the corporation, the action of Beau Monde cannot be sustained under section 718.111(12), Florida Statutes (1979), as advocated by the appellants. Furthermore, since the action would alter or modify existing appurtenances to the appellees’ iñdi-vidual units without the consent of all record owners as required by section 718.-110(4), the attempted actions are ultra vires and therefore void.

The appellants’ reliance on Waterford Point Condominium Apartments, Inc. v. Fass, 402 So.2d 1327 (Fla. 4th DCA 1981), is misplaced. In that case, the Fourth District Court of Appeal upheld a purchase of a lease and the subsequent assessment of the owners for their proportionate share of the purchase price. However, in Fass, the declaration authorized the execution of a recreational lease which contained an option to purchase. Said lease was attached to the declaration. Therefore, unlike the case sub judice, the acquisition of the recreational lease was specifically contemplated in the original documents and complied with section 718.114, Florida Statutes (1979).

AFFIRMED.

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

      . To the extent that our former opinion in Bramson v. Beau Monde, Inc., can be interpreted to hold that the corporation's actions would have been proper with less than unanimous consent if a meeting would have been properly called, we recede therefrom. Less than unanimous consent to the corporation’s actions would have been required for the general business of such a meeting; however, when a specific statute or a provision in the articles of incorporation requires unanimous consent, that statute or provision controls.


source: Caselaw Access Project

author: HOBSON, Judge.

license: Public Domain

text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, State of Florida, Appellant, v. Manuel GARCIA and Eugene O’Steen, Appellees.
    No. 82-2561.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1984.
    Rehearing Denied March 7, 1984.

      John A. Boggs, Staff Atty., Tallahassee, for appellant.
    Robert H. Carlton, Tampa, for appellees.
   HOBSON, Judge.

The Division of Alcoholic Beverages challenges the provision of the trial court’s nonfinal order authorizing a receiver to operate the Library Lounge under a revoked liquor license pending final disposition of a mortgage foreclosure action. We agree with the Division that this portion of the order appointing receiver violates section 561.65, Florida Statutes (1981), and its 1979 predecessor, and therefore must be reversed.

On October 5, 1982, the Division of Alcoholic Beverages revoked alcoholic beverage license number 39-651, which had been issued to Library Lounge, Inc., operator of the Library Lounge. The license holder appealed the Division’s action to this court, and requested an automatic stay of the revocation under section 120.68(3), Florida Statutes (1981). This court denied the stay on November 9, 1982, and subsequently affirmed the revocation of the license in Library Lounge, Inc. v. Division of Alcoholic Beverages and Tobacco, 436 So.2d 99 (Fla. 2d DCA 1983).

Appellees Garcia and O’Steen held a security interest in all of Library Lounge, Inc.’s, assets, including the liquor license. Shortly after the Division revoked the license, appellees foreclosed their security interest. Fearing that the “wet zoning” of the real property upon which the Lounge was located would be lost if the license were allowed to become inoperative for a period of thirty days, Garcia and O’Steen sought appointment of a receiver to, among other duties, operate the bar under its revoked license pending resolution of the foreclosure action. The portion of the trial court’s order authorizing the receiver to operate the revoked license is the subject of this appeal.

Section 561.65, Florida Statutes (1981), authorizes the holder of a security interest in an alcoholic beverage license to enforce his lien should the license be revoked. This statute allows the lienholder to operate under the revoked license only if he is the purchaser at the foreclosure sale and is otherwise lawfully qualified and authorized by the Division to do so. Section 561.65(2), id. Section 561.65(2), Florida Statutes (1979), provides the same result.

When faced with facts similar to those raised in the instant appeal, the first district rejected the lienholder’s contention that it had an independent equitable right to operate under the revoked license and specifically held that the lienholder had no such right “prior to its purchase of the license” and before obtaining “authorization from the Division.” Progressive Investors Association v. Shingles, 405 So.2d 276, 278 (Fla. 1st DCA 1981). We agree with the first district’s reasoning and adopt its conclusion.

By permitting a receiver to operate under a revoked license pending the outcome of the foreclosure action, the trial court improperly substituted its discretion for that of the Division of Alcoholic Beverages, in violation of section 120.68(12), Florida Statutes (1981). See Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978). In addition, the court’s action, in effect, operated to stay the revocation of the license. Under section 120.68(2) and (3), Florida Statutes (1981), the trial court had no jurisdiction to enter such a stay.

WE AFFIRM the order appointing a receiver generally, but REVERSE that portion of the order allowing the receiver to operate the bar under the revoked liquor license prior to the foreclosure sale.

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

      . Appellees’ argument that section 561.65(2), Florida Statutes (1981), is inapplicable to this case by virtue of the last sentence in subsection one is unpersuasive in light of the fact that an identical result would be reached under the statute's 1979 predecessor.


author: SHARP, Judge. COWART, Judge,

text:
    Josephine B. WIGGINS, etc., Appellant/Cross-Appellee, v. Olivia M. PARSON, Appellee, and Lillie H. Dudley and Lecil O. Howell, Appellees/Cross-Appellants.
    Nos. 82-1008, 82-1430.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.
    Rehearing Denied March 6, 1984.

      T. Michael Woods, Orlando, for appellant/ cross-appellee.
    Robert 0. Marks, of Bornstein, Petree, Cooper & Marks, Orlando, for appellee Parson.
    R. Barry Morgan, of Lawrence, Griffin & Landis, Orlando, for appellees/cross:appel-lants.
   SHARP, Judge.

The issue in this case is whether the complete withdrawal of funds from a jointly-owned federal credit union account by one owner, who under the contract with the credit union and under our state’s applicable law, had the right and the power to make withdrawals, terminated or severed the joint tenancy nature of the bank account so as to destroy the right of survivor-ship. The right of survivorship is an essential element of joint tenancy property. We think the better view is that a withdrawal and placement of the funds beyond the control of the other joint tenant in such a manner as to be inconsistent with continued joint possession and ownership severs the right of survivorship. The lower court ruled appellant failed to state a cause of action against appellees in this case because the claimant, Eva Broadhead, did not survive after the withdrawal was made. We reverse.

The pleadings disclose that in 1975 Effie Cooper used her funds to open a joint share account with right of survivorship in her name and her sister’s, Eva Broadhead. In May of 1977 Cooper added the names of her sister, Olivia Parson and her brother, Lecil Howell. In November 1977, Cooper removed her name from the account, leaving as joint owners Parson, Howell, and Broadhead. Soon thereafter Parson withdrew all of the funds in the account and divided them into three equal parts. She kept one third and gave one third to Howell and one third to Lillie Dudley, another sister. There is no allegation Broadhead knew about the withdrawal, or that she agreed to the distribution of the funds to her siblings.

Cooper died in January 1978, and in July 1978, Broadhead died. The probate court administering Cooper’s estate ruled that Cooper made a complete and valid gift to her siblings by opening the joint account and then removing her name from it. Appellant is Broadhead’s personal representative, seeking to recover one third of the funds from Parson, Howell and Dudley. They admit they are currently holding the withdrawn funds.

This is a case of first impression in Florida, and we should look to other jurisdictions in determining how to best resolve it. The law on joint bank accounts is far from uniform, and as one judge described it, “the law relating to it has been in a state of morass, many of the cases which arise being treated very much on an ad hoc basis.”

Some of the confusion in the case law arises from the fact that the key point in the decisions is whether there was a completed inter vivos gift of the joint interest in the bank account at the time the suit arose or before the joint owner died. If it was a “convenience” account, or one where no inter vivos gift was intended, then the depositor-owner may withdraw the whole account and destroy the other joint owner’s survivorship rights. See McGee v. St. Francois County Savings and Loan Association, 559 S.W.2d 184 (Mo.1977); Carroll v. Hahn, 498 S.W.2d 602 (Mo.App.1973). But if no present gift was intended, then the non-owner-depositor may not withdraw the whole of the account; and if he does so without the owner’s consent, he is accountable or liable to the owner for all of the funds withdrawn. See Constance v. Constance, 366 So.2d 804 (Fla. 3d DCA), cert. denied, 376 So.2d 70 (Fla.1979). However, in this case it is clearly established that the owner-depositor of the credit union account, Cooper, made a completed inter vi-vos gift of the funds to her three siblings, Broadhead, Parson and Howell, when she removed her own name from the joint account in 1977.

Where there is a real joint tenancy account, and one joint tenant withdraws the full amount of the account or more than his moiety, and a death occdrs before suit is brought to settle rights to the funds, the view espoused by most of the New York state courts is that the survivor takes all, whether the survivor happens to be the wrongful withdrawer, or the jpint owner who did not withdraw the funds. Other jurisdictions also follow this view. See Gatewood v. Griffin, 549 P.2d 829 (Okl.App.1976); State v. Gralewski’s Estate, 176 Or. 448, 159 P.2d 211 (1945).

The rationale appears to be that one joint owner cannot rightfully withdraw more than his moiety, and if he does so, his act of withdrawal is a nullity, which does not destroy the right of survivorship. Will of Filfiley, 63 Misc.2d 824, 313 N.Y.S.2d 793 (N.Y.Surrogate’s Ct.1970), aff'd, 43 A.D.2d 981, 353 N.Y.S.2d 400 (1974). Strangely, these same jurisdictions hold that a joint owner may withdraw his share and destroy the other’s survivorship rights in it.

This view poses complications and problems. For example, if a joint tenant makes a series of withdrawals limited each time to his fractional interest, will he destroy the right of survivorship in the funds withdrawn? And, if survivorship continues in the funds, how far and how long does it stretch to reach the various funds and properties it may be later exchanged for or invested in? And in this case, will the survivor of the three original siblings, Parson or Howell, be able to claim the share of the account presently in Dudley’s, Howell’s or Parson's possession? It seems anomalous to say Broadhead lost her right to her share because she did not survive Parson and Howell, but Parson and Howell do not also hold their shares subject to the right of survivorship in the other. Finding a logical end to the floating right of survivor-ship is a problem with the New York rule.

A better view is that withdrawal of jointly-owned funds by a joint owner and placement of the funds in other persons’ names, terminates the joint tenancy nature of the property and severs the right of survivorship as to the funds withdrawn. See Wright v. Commercial and Savings Bank, 51 Md.App. 398, 445 A.2d 30 (1982); Rose v. Hooper, 175 Neb. 645, 122 N.W.2d 753 (1963); In Re Estate of Ogier, 175 Neb. 883, 125 N.W.2d 68 (1963); Goc v. Goc, 134 N.J.Eq. 61, 33 A.2d 870 (1943); Hoffman v. Vetter, 117 Ohio App. 233, 24 Ohio Ops.2d, 192 N.E.2d 249 (1961); In Re Estate of Beniger, 449 Pa. 373, 296 A.2d 773 (1972); In Re Estate of Carson, 431 Pa. 311, 245 A.2d 859 (1968); Austin v. Summers, 237 S.C. 613, 118 S.E.2d 684 (1961). The withdrawing joint tenant is liable and accountable to the other joint owner for that person’s share, but the intervening death of either does not alter the outcome. See Goc; In Re Manfredini’s Estate, 13 N.J.Super. 258, 80 A.2d 445 (1951).

The rationale for the view that with- ■ drawal severs the right of survivorship is patterned after the common law rules worked out for joint ownership of real property, although admittedly they are not strictly and fully applicable to intangibles such as a bank account. In the context of real property interests, there is nothing sacrosanct about the right of survivorship in joint tenancy. The act of one joint owner may, without the other’s consent, transform the ownership from joint tenancy to tenancy in common, thereby destroying the survivorship component. 48A C.J.S. Joint Tenancy §§ 16, 17, 18 (1981).

An act which destroys one of the unities of the joint ownership is generally held to transform the ownership to tenancy in common. In the context of joint accounts the withdrawal of all or some funds from the joint account, and the placement of .such funds in an account in different names or in other property the other joint owner has no power or right of control over, destroys the unity of time, title, possession and interest. In Re Estate of Ogier. That is what happened in this case. The withdrawal severed the joint tenancy ownership of the account and transformed it into funds owned as tenants in common. See In Re Estate of Carson; Goc. Thereafter, survivorship was irrelevant in determining Broadhead’s right to her moiety.

Although we have no direct Florida precedent to follow in this ease regarding severance of the joint tenancy nature of a joint account upon withdrawal by one joint owner, the joint tenancy analysis is consistent with the case law in this state. Ownership of joint bank accounts with the right of survivorship is viewed as a kind of joint tenancy property interest. See Spark v. Canny, 88 So.2d 307 (Fla.1956); Crawford v. McGraw, 61 So.2d 484 (Fla.1952); Graham v. Ducote Federal Credit Union, 213 So.2d 603 (Fla. 1st DCA 1968); Maier v. Bean, 189 So.2d 380 (Fla. 2d DCA 1966). Where one joint tenant has the right and power, under the applicable statute and the contract documents which establish the account, to withdraw all or part of the funds, and it is established that there was a true joint ownership, Florida appellate decisions have held that severance and destruction of the right of survivorship occurs.

In Cape Coral Bank v. Kinney, 321 So.2d 597 (Fla. 2d DCA 1975), Mrs. Arro-wood and Mrs. Kinney opened a joint ownership bank account, with right of survivor-ship. Mrs. Arrowood’s guardian sought to withdraw the funds, and the federal savings and loan association tendered the funds into the court registry. Then Mrs. Arrowood died. The court held that the withdrawal severed Mrs. Kinney’s surviv-orship rights. This case was modified by a later opinion which held that a guardian of an incompetent had no right or power to withdraw joint bank account funds unless they are needed to care for the ward. Drozinski v. Straub, 383 So.2d 301 (Fla. 2d DCA 1980). However, Drozinski has no bearing on this case because any of the siblings had the right and power to withdraw the funds from the joint account.

Similarly, in Simpson v. Schoenemann, 263 So.2d 854 (Fla. 1st DCA 1972), one joint owner of several jointly-owned bank accounts withdrew all of the funds and established joint accounts with a third person. The withdrawer then died. The court held that the other joint tenant had no survivor-ship rights to the funds. In the Simpson case the original joint tenants were husband and wife, but the court said it was immaterial whether they held the account as tenants by the entireties or as joint tenants. Some older cases held such husband-wife joint accounts cannot be severed by the act of one of the parties alone during the marriage, analogous to the rules applicable to interests in real property held by spouses as tenants by the entireties. See Lerner v. Lerner, 113 So.2d 212 (Fla. 2d DCA 1959). But in the present case, Lerner would make no difference because the joint owners were siblings, not spouses.

For the reasons stated, we reverse the trial judge’s dismissal of Broadhead’s executor’s suit against Parson, Howell and Dudley for failure to state a cause of action. Broadhead did not have to survive the other joint owners after the withdrawal was complete. She had the right, which her executor may now enforce, to recover her share of the funds to the extent they can be traced. All parties admit that the funds are presently held by Parson, Howell and Dudley. Further, we affirm the ruling of the trial court on the cross appeal, that it obtained personal jurisdiction over Dudley and Howell. See DeVaney v. Rumsch, 228 So.2d 904 (Fla.1969); McCarthy v. Little River Bank and Trust Company, 224 So.2d 338 (Fla. 3d DCA 1969).

REVERSED AND REMANDED.

COBB, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

This case involves the question of whether the withdrawal by one joint tenant of all funds in a joint account held with the right of survivorship without the knowledge or assent of another joint tenant is effective alone to destroy the incident of survivor-ship as to the non-assenting joint tenant.

In 1975 Effie Cooper established, in a federal credit union, a joint share account with right of survivorship in the names of Effie Cooper and her sister, Eva Broad-head. In May of 1977, Cooper added to the account the names of her sister Olivia Parson, and her brother Lecil Howell. In November 1977, Cooper removed her name from the account leaving Parson, Howell and Broadhead as joint tenants with right of survivorship. Soon thereafter Parson withdrew the entire account and she and Howell divided it into three equal shares and distributed one-third share each to Parson, Howell and Lillie Dudley, another sister. In January 1978, Cooper died and in July 1978 Broadhead died. In September 1978 the probate court administering Cooper’s estate held that the joint account constituted a completed gift from Cooper to the joint tenants (Parson, Howell and Broadhead). Thereafter appellant, as personal representative of the Estate of Eva Broadhead brought this action on theories of constructive trust and restitution against Parson, Howell and Dudley to recover one-third of the funds withdrawn from the joint account. From an order dismissing with prejudice appellant’s third amended complaint for failure to state a cause of action this appeal was taken. I would affirm.

As to Broadhead who did not assent to the withdrawal of the funds in the joint account, it was wrongful for Parson to withdraw the entire balance in the gifted joint account and to distribute the proceeds to Parson, Howell and Lillie Dudley. During her lifetime Broadhead had a cause of action against Parson, Howell and Lillie Dudley to have the withdrawn funds followed and to have them restored to their former status as a joint account with right of survivorship between Parson, Howell and herself (Broadhead). The joint tenants collectively also had the right to agree that the funds in the joint account would be withdrawn and disbursed as the parties might have agreed. Also, any tenant had a legal right to petition a court to cause a partition and distribution of the jointly held fund thereby terminating their survivor-ship aspect. Broadhead took no such action during her lifetime and those rights did not survive her. This dissent would hold that Parson’s act in withdrawing the funds from the joint account, in which Howell and Dudley participated without Broadhead’s knowledge or consent, was not legally successful and effective to terminate the joint tenancy. Parson’s withdrawal should be viewed as only changing the form in which the funds were held. It should be held that in equity the recipients (Parson, Howell and Dudley) held the withdrawn funds in trust for the true beneficial owners, Parson, Howell and Broadhead as tenants with right of survivorship. Therefore, when Broadhead died her interest as a joint tenant with right of survivorship terminated and the surviving tenants, Parson and Howell, were entitled to the whole not because of the earlier withdrawal of funds from the joint account was effective to terminate the right of survivorship which was an incident of Cooper’s gift of the joint account, but because Broadhead’s interest terminated by virtue of her death in accordance with the original intent of the donor in establishing a joint tenancy with right of survivorship. The view in this dissent respects the donor’s intent to make a gift in the form of a joint tenancy by protecting the survivorship feature of such a gift, and more importantly, prevents one unhealthy and unscrupulous joint tenant from defeating the donor’s intent by withdrawing the joint funds in order to intentionally and wrongfully terminate the joint tenancy and the survivorship rights of the other donee tenants contrary to the intent of the donor that the other donee-tenants succeed to the funds rather than the estate of the donee-tenant who first dies. The majority view will, in another case, permit a wrongdoer to benefit from his wrong and this case will be logically indistinguishable then. Appellant, as Broadhead’s personal representative, should have no cause of action to recover anything after Broad-head’s death before that of the other do-nee-tenants and the trial court’s order dismissing her third amended complaint should be affirmed.

      . The Joint Share Account Agreement in this case provides:
      The Eglin Federal Credit Union is hereby authorized to recognize any of the signatures subscribed hereto in the payment of funds or the transaction of any business for this account. The joint owners of this account hereby agree with each other and with said Credit Union that all sums now paid in on shares, or heretofore or hereafter paid in on shares by any or all of said joint owners to their credit as such joint owners with all accumulations thereon, are and shall be owned by them jointly, with right of survivorship and be subject to the withdrawal or receipt of any of them, and payment to any of them or .the survivor or survivors shall be valid and discharge said Credit Union from any liability for such payment. ' '
      Any or all of said joint owners may pledge all or any part of the shares in this account as collateral security to a loan or loans.

      . Section 657.035(1), Florida Statutes (1981), provides in part:
      Credit union shares and deposits, or any part thereof ... made in the names of two or more persons, payable to either, or payable to either or the survivor, and shares or deposits máde to an account standing in the names of two or more persons payable to either, or payable to either or the survivor, may be paid to, or pursuant to the order of, either or any of such persons ... and the order for payment of any such person, or the receipt or acquittance of the person so paid, shall be a valid and sufficient release and discharge to the credit union for any payment so made.

      . Kleinburg v. Heller, 38 N.Y.2d 836, 345 N.E.2d 592, 382 N.Y.S.2d 49 (1976) (Fuchsberg, J., concurring).

      . Cf. Chase Fed. Sav. & Loan Ass’n. v. Sullivan, 127 So.2d 112 (Fla.1960).

      . Will of Filfiley, 63 Misc.2d 824, 313 N.Y.S.2d 793 (N.Y.Surrogate's Ct.1970), aff'd, 43 A.D.2d 981, 353 N.Y.S.2d 400 (1974).

      . Manta v. Manta, 56 A.D.2d 624, 391 N.Y.S.2d 680 (1977).

      . See Weise v. Kizer, 435 So.2d 381 (Fla. 5th DCA 1983); In Re Estate of Ogier, 175 Neb. 883, 175 N.W.2d 68 (1963); 48A C.J.S. Joint Tenancy § 16 (1981).

      . Goc v. Goc, 134 N.J.Eq. 61, 33 A.2d 870 (1943); In Re Manfredini’s Estate, 13 N.J.Super. 258, 80 A.2d 445 (1951).

      . The word "wrongful" must be qualified. As to the federal depository credit union the withdrawal was not wrongful because under the depository agreement and statutory authority (see Doran v. Gainer, 443 So.2d 473 (Fla. 5th DCA 1984)) any one joint tenant was authorized to make the withdrawal. Although legally Cooper had made a completed gift of the joint account when she took her name off of the account in November 1977, nevertheless Parson and Howell recognized a moral right in Cooper to direct control of the funds and Parson states she acted at the direction of Cooper in withdrawing the funds from the account and making the disbursement of them. This dissent characterizes the withdrawal wrongful as to Broadhead only because Broadhead was a joint tenant and the withdrawal created a risk of loss of the funds and also jeopardized Broadhead's survivorship rights by setting the stage for the very legal argument, here successfully made by Broadhead’s personal representative, that the unilateral withdrawal by one tenant destroyed the other tenants’ rights of survivorship which was an incident of the credit union joint account from which the withdrawal was made.

      . Cases from other jurisdictions have reached this result. See Austin v. Summers, 237 S.C. 613, 118 S.E.2d 684 (1961); Gatewood v. Griffin, 549 P.2d 829 (Okl.App.1976); In re Manfredini’s Estate, 13 N.J.Super. 258, 80 A.2d 445 (N.J.App.1951). This case does not involve the peculiar rights and relationships between spouses as was involved in Simpson v. Schoenemann, 263 So.2d 854 (Fla. 1st DCA 1972) nor does this case involve the guardian of an incompetent joint tenant withdrawing funds as was involved in Drozinski v. Straub, 383 So.2d 301 (Fla. 2d DCA 1980). However, the conclusion reached by this dissent is very consistent with the rationale of Drozinski. The court in Drozinski correctly stated that statutes that appear to be applicable to this problem are primarily for the protection for the depository institution and do not control as to ownership rights between the joint tenants. In Drozinski, funds were held in a joint account in the name of Nemec and Straub with right of survivorship. Nemec became incompetent and her appointed guardian withdrew all of the funds in the joint account. When Nemec soon thereafter died the other tenant Straub sued Nemec’s estate claiming ownership as surviving joint owner. Drozinski held that the guardian did not have the right to withdraw funds not needed for the care of the ward and that the wrongful withdrawal did not destroy the incident of survivorship as to Straub and that Straub, or surviving tenant, was entitled to the ownership of the withdrawn funds.

      . Under the rule adopted by the majority opinion, if Parson’s wrongful withdrawal was effective to terminate the survivorship aspect of the joint account and Broadhead did not have the right during her lifetime to trace the withdrawn funds and to have them declared to be held in constructive trust with right of survivorship then Parson's wrongful withdrawal could be considered only to constitute a tortious conversion of Broadhead’s then share for which Broadhead would have a cause of action that survived Broadhead’s death and constituted a viable cause of action in Broadhead’s personal representative. This view has a certain appeal here because Parson and Howell withdrew joint funds without Broadhead’s knowledge, assent or agreement and to find a cause of action in Broadhead's estate gives the appearance of giving a remedy for the apparently wrongful withdrawal of the joint funds. However, on broader principles the view of this dissent is the better view. First, in this case, Broadhead’s estate fails to obtain a share of the joint account not because of Parson and Howell’s wrongful withdrawal but because the incident of survivorship that was attached to the gift of the joint account caused any tenant's interest to terminate at his or her death before the death of the others and Broadhead died first. Second, if Broadhead had the option to treat the wrongful withdrawal and disbursement as either a successful but tor-tious conversion and sue at law for damages or as ineffectual to accomplish a conversion and to have a court of equity trace the funds and impress a constructive trust on them or to have the funds restored to a joint account with right of survivorship Broadhead should be required to make that election of remedies before the death of one tenant (even herself) gave a controlling advantage to the right to make this election of remedies. Third, the principle of law established by the majority opinion — that the wrongful act of one tenant in withdrawing joint funds is effective to terminate an incident of survivor-ship then a wrongdoer can successfully accomplish a wrong, as where a tenant, having reason to believe or know that he will die before his cotenants, wrongfully withdraws joint funds so that when the wrongdoer does die before his joint tenants his estate can successfully retain a share of the funds on the theory that decedent’s wrongful withdrawal terminated the survivor-ship aspect of the account thereby defeating the other tenants’ rights as survivors. Fourth, Effie Cooper is presumed to have wanted the gifted funds to be held by the donees with the incident of survivorship which ultimately deprived Broadhead’s estate of an interest; otherwise she could have placed one-third of the funds in each of three separate accounts in the names of Parson, Howell and Broadhead and could thereby have easily accomplished any intent to avoid the result of the incident of survivorship.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Vinton Gail HUBBELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-1604.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.
    Rehearing Denied March 7, 1984.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Vinton Hubbell appeals from a judgment and sentence for attempted burglary and possession of burglary tools.

The facts in this case are relatively simple. On May 29, 1982, at about 2:00 a.m., two officers were dispatched to an auto glass store in response to a burglar alarm. They discovered a broken window and some fresh wood chips which appeared to come from the rear door. Outside, about six feet from the door was some fencing material with a person behind it. After their requests to come out were ignored, the officers pulled down the fencing and found Hubbell. At his feet was a piece of pipe.

As his first point on appeal, Hubbell contends that the evidence was insufficient to sustain a conviction for attempted burglary. We disagree and affirm. See Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967).

Hubbell’s second point on appeal concerns the sufficiency of the evidence to sustain the conviction for possession of burglary tools. Hubbell was not observed breaking the door or prying open the door. No fingerprints were found on the pipe. There was no direct evidence to show that the pipe was used in the burglary. The most incriminating thing that can be said about the pipe is that it was in the immediate vicinity of Hubbell at the time of his apprehension.

Hubbell contends that his motion for judgment of acquittal should have been granted because the state produced no evidence that he ever possessed the pipe, that the pipe was a burglary tool, or that it was ever used by him as such. In support of his position, Hubbell cites three cases: Foster v. State, 286 So.2d 549 (Fla.1973); overruled on other grounds, Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); Preston v. State, 373 So.2d 451 (Fla. 2d DCA 1979) and Crosby v. State, 352 So.2d 1247 (Fla. 2d DCA 1977). In Foster, the supreme court held that since the burglary tool statute had the potential to render any number of common household tools illegal, the statute must be construed to require that the tool be used as a burglary tool, thus becoming a facet of the breaking and entering transaction. In that case, a screwdriver fell out of the defendant's clothes after he was seen entering a room. The screwdriver had blue paint from the room doors still on it. The conviction for possession of burglary tools was upheld although the sentence imposed was vacated on double jeopardy grounds.

In Preston, the defendant was spotted crouching behind a bush in the early morning hours by law enforcement officers. When officers approached, the defendant fled. During the ensuing chase, he dropped a sock containing two ice picks, a knife, a screwdriver, and a flashlight. On appeal, the Second District vacated the judgment and sentence for possession of burglary tools since there was no evidence that the defendant intended to use the household tools to commit a burglary or that the items were actually used as such.

In Crosby, the defendant was convicted of burglary and possession of burglary tools. At trial, the prosecution presented evidence to the effect that defendant and his co-defendant had stolen a purse from a locked car. When the police captured the defendant shortly after the burglary, they found two coathangers in the car in which he was riding. The prosecution did not present any evidence to show that these coathangers had been used in the burglary or that they had been altered for such a purpose. The officer who found the cbath-angers only testified that he had in the past used similar hangers to get into locked cars.

While affirming the conviction for burglary, the Second District reversed the conviction for possession of burglary tools on the basis that there was no evidence that the coathangers were used to break into the car. Rather, the court pointed out that the officer’s testimony only established that they could have been used for such a purpose and not that they were used for that purpose.

The state contends that these cases are distinguishable because they involved common household items as opposed to the pipe which the state claims is not a common household item. The state also cites State v. Thomas, 362 So.2d 1348 (Fla.1978), wherein the supreme court stated as follows:

[B]urglary tools are not contraband per se, and it is only the actual possession of burglary tools along with a criminal intent or usage that constitutes a punishable offense. Possession of otherwise ‘innocent’ items, coupled with a use or intended use of such tools in a burglary, is unlawful. No crime is committed until the items are in the actual or constructive possession of a person who is using or attempting to use the objects as burglary tools.

Id. at 1350.

We conclude that the piece of pipe here was an “otherwise innocent” item and hence the rules set out in Thomas apply; namely, that it must be shown that Hubbell had actual or constructive possession of the pipe with the intent to commit the burglary. Here the state only showed that the pipe was in close proximity to Hubbell. We therefore conclude the evidence was insufficient and reverse.

AFFIRMED in part and REVERSED in part.

ORFINGER, C.J., and SHARP, J., concur.


author: COBB, Judge.

text:
    Thomas L. LEMON and Bettye Lemon, et al., Appellants/Cross Appellees, v. ASPEN EMERALD LAKES ASSOCIATES, LTD., Appellee/Cross Appellant.
    No. 83-312.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 1984.
    Rehearing Denied March 2, 1984.

      Dennis L. Horton and Richard H. Langley, Clermont, for appellants/cross appel-lees.
    Fred A. Morrison of McLin, Burnsed, Marable & Morrison, Leesburg, for ap-pellee/ cross appellant.
    John T. Allen, Jr., St. Petersburg, for Amicus Curiae Federation of Mobile Home Owners of Florida, Inc.
   COBB, Judge.

This is a contract dispute arising from a class action instituted by the tenants of a mobile home park against the owner, Aspen Emerald Lakes Associates, Ltd. (Aspen), the purchaser of the park from Cler-mont Emerald Lakes, Inc. Clermont had originally negotiated the rental agreements with the tenants. Aspen then purchased the park from Clermont, financing most of the $2,000,000 purchase price.

The tenants are under several types of leases which, for purposes of this action, are of three classifications: (1) those leases having a paragraph 6 tying any increase in rent to an increase in variable costs, such as utilities, park maintenance, taxes or governmental regulations, with a ten percent cap each year; (2) those leases with a paragraph 6 tying any increase in rent to an increase in variable costs but with no ten percent cap; and (3) those leases having no provisions tying rental increase to an increase in variable costs. All the leases are automatically extended for one year upon the end of each annual term, unless the tenant notifies the landlord of his intention to vacate.

The plaintiffs brought the action after Aspen notified them of a ten percent increase in rent, and a unilateral change in park rules providing a transfer to the tenants of the responsibility for obtaining and paying for water, sewer and garbage services within the City of Clermont. By amended complaint, plaintiffs alleged they understood from oral and written communications with the previous owner, Clermont, that under the leases the landlord was to provide and pay for water, sewer and garbage . services. Plaintiffs requested that the court, among other things, permanently enjoin Aspen from installing water meters on the lots and from imposing on tenants the responsibility for water, sewer and garbage services.

Plaintiffs also alleged that under paragraph 6 of the leases, Aspen could only increase rent when its variable costs, such as utilities, park maintenance, government regulations and taxes, increased, and those leases containing a 10% cap were referring to the initial rental amount. Plaintiffs further asserted that the park's previous owner represented to the tenants that the term “existing rules” in the leases meant that the tenants would not be subject to amendments to those rules made after they signed the leases, and any rule changes required tenant approval. Finally, plaintiffs alleged that Aspen trespassed on their lots when it came on them to install water meters.

After a pre-trial conference, at which many issues were disposed of, the lower court conducted a non-jury trial. Following the trial, the court rendered a final judgment which dissolved the temporary injunction and, in summary, held: (1) Aspen could increase the rent based on an increase in variable costs other than utilities, taxes, government regulations and park maintenance; (2) the 10% cap on rental increase pertains to the immediately preceding year’s rent and not the initial year’s rent; (3) the leases do not require a correlation between variable costs increases and rent increases; (4) Aspen could change existing park rules and tenants would be subject to those changes; (5) Aspen could not give tenants the responsibility for water, sewer and garbage services by rule change, but could do so only by first reducing their rent accordingly; and (6) Aspen did not trespass by entering the lots to install water meters.

Appealing from the judgment, plaintiffs raise twelve issues. On cross-appeal, Aspen challenges the court’s ruling that it could not, by rule change, pass on the responsibility of water, sewer and garbage services. By permission of this court, the Federation of Mobile Homeowners of Florida, Inc., filed an amicus curiae brief in this action.

Appellants’ first issue is whether the trial court correctly interpreted paragraph 6 of the leases and thereby properly excluded parol evidence to explain its meaning. The plaintiffs below sought to offer parol evidence to interpret the term “variable costs” in paragraph 6 contained in most plaintiffs’ leases, and to show that rental increases were intended to correlate with “variable costs” increases. Paragraph 6 of a majority of the leases provides:

The Landlord, in the event of increases in variable costs, such as Utilities, Park Maintenance, Taxes, or Governmental Regulations, may raise the amount of rent, but not to exceed a maximum of Ten Percent (10%) annually by giving the TENANT notice not less than Sixty (60) days prior to the expiration of the current lease term. The increased rental rate shall automatically become a part of the extended Lease unless the TENANT shall advise the LANDLORD in writing Thirty days (30) prior to the expiration of the current term of TENANT’S intention to vacate the premises and not enter into a new term.

The lower court ruled paragraph 6 was unambiguous so as to make parol evidence thereon inadmissible, and denied a proffer as a matter of law. Pertinent to this issue are the following portions of the final judgment:

Issues previously decided at pre-trial conference:
1. No parol evidence was admitted at trial herein as to the meaning of the term “variable costs” as used in the leases between plaintiffs and defendant, that portion of the leases being clear on its face and lacking the ambiguity necessary for admission of parol evidence.
5. The “variable costs” which may be considered by the defendant in formulating rent increases for those residents whose leases contain the requirement that rent increases be tied to variable costs, are not limited to taxes, utilities, park maintenance and governmental regulations, the categories specifically mentioned in those leases, and a listing of such categories in the leases was not for the purpose of limitation but rather the clear intent of the language of the leases is that these four categories be considered as representative examples of the kind of costs which may vary.
Issues decided at trial:
3. Variable costs as that term is used in plaintiffs’ leases, increased in the park during the period from May 1, 1981 through April 30, 1982, over that of the previous year of May 1, 1980 to April 30, 1981, and therefore defendant was justified in imposing a 10% rent increase over rental rates of May 1, 1980 to May 30, 1981 on all tenants by its letter of February 11, 1982 to tenants, a copy of which was admitted into evidence as Exhibit J. The Court denies plaintiffs’ request for a ruling on what specific cost categories (i.e., interest, depreciation, utilities, etc.) are included under the language of paragraph 6 of the leases for justifying a rent increase.

It is a well-established legal principle that if a written contract is ambiguous so that the intent of the parties cannot be understood from an inspection of the instrument, extrinsic or parol evidence of the subject matter of the contract, of the relation of the parties, and of the circumstances surrounding them when they entered into the contract may be received in order to properly interpret the instrument. Equally well settled is the proposition that parol evidence is inadmissible to contradict, vary, defeat or modify a complete and unambiguous instrument, or to change, add to or subtract from such instrument, or affect its construction. J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484 (Fla.1957); Jacobs v. Parodi, 50 Fla. 541, 39 So. 833 (1905).

Plaintiffs argued at trial that the purpose of paragraph 6 is to limit rental increases. This contention has merit in view of the public policy concerns which the Florida Supreme Court articulated in Stewart v. Green, 300 So.2d 889 (Fla.1974), and Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974). Aspen, on the other hand, contended that such an interpretation would make owning a mobile home park an undesirable business proposition. It emphasized that it financed the purchase of the park by taking out a mortgage in a greater amount than that of the previous owner, that its interest rates were higher and that accounting and legal fees incurred in operating the park had also increased. Aspen maintained these expenses constituted “variable costs” and could be passed on to the tenants through rent increases.

The lower court, while determining the term “variable costs” was unambiguous, refused to determine what specific costs fell under that term. Apparently, however, the lower court interpreted the term “variable costs” as any costs which fluctuate. Under the doctrine of ejusdem generis, we do not believe that costs incurred by Aspen in the purchase of the park (interest, attorney fees, etc.) can be equated with costs to operate the park. As we construe the term, it is not ambiguous, although our construction is at variance with that of the trial court. Since the court’s determination in regard to the rental increase was based upon its erroneous construction of the term, reversal and remand for reconsideration without regard to purchase costs is necessary.

Next, the plaintiffs contend the lower court erred by not interpreting paragraph 6 as requiring a dollar-for-dollar correlation between variable cost increases and rental increases or, in the alternative, by not allowing parol evidence on the matter. The final judgment provides, in pertinent part:

6(f). Exhibits A, B, C, D and H require, as a prerequisite to any rent increase, that variable costs increase during the prior year. However, none of these leases require a correlation between the amount of such cost increases and the amount of a resulting rent increase. Instead, any increase in variable costs will allow a rent increase up to the full 10% allowed under Exhibits C, D, E and H and an increase in rent under Exhibits A and B of any amount, so long as such increases do not violate the standards of good faith and unconscionability imposed by Chapter 83, Florida Statutes, under the particular facts of such increases ....
8. As to the issues of correlation between cost increases and rent increases addressed in paragraph 6(f) above, and the application of the 10% rent cap in Exhibits C, D, E and H also addressed in paragraph 6(f), the leases are clear and unambiguous, and no parol evidence will be admitted on this point.
Paragraph 6, in relevant part, reads: The Landlord in the event of increases in variable costs, such as Utilities, Park Maintenance, Taxes or Government Regulations may raise the amount of rent but not to exceed a maximum of Ten Percent (10%) annually....

Even accepting the plaintiffs’ assertion that the purpose of paragraph 6 is to limit rent increases, a dollar-for-dollar correlation between cost increases and rent increases is not a necessary interpretation in view of section 83.754, Florida Statutes (1981), which gives tenants a remedy for unconscionable lease agreements. Moreover, to construe paragraph 6 of the contract as requiring a dollar-for-dollar correlation between cost increases and rent increases in' effect would rewrite the contract. It also would be logically inconsistent with the 10% cap. Therefore, we hold that the trial court was correct on this point.

The plaintiffs’ final point under paragraph 6 of the lease is whether the lower court erred by interpreting the provision to mean that the 10% cap was based on the prior year’s rent, rather than on the initial rent when the parties executed the leases. (The court held that only variable cost increases occurring during the immediately preceding lease term could be considered in formulating rent for the next renewal period.) The final judgment provides in relevant part: “... [N]o annual rent increase shall exceed 10% of the prior year’s rent....”

The leases are for a one-year term with the right to renew thereafter for an additional year. Under paragraph 6, the rent increase automatically becomes a part of the extended lease. Nothing indicates the initial rent is to be the reference for the 10% cap and the parties’ intention to limit rental increases is satisfied by that 10% cap. Thus, the lower court was justified in determining without the use of parol evidence that the 10% cap was to bé based on the preceding year’s rent, and not the rent charged when the leases were initially executed.

The second issue on appeal, which is also the subject of the cross appeal, is whether the trial court erred in holding that Aspen could not pass on water, sewer and garbage charges to the tenants by rule change but could do so only by reducing the tenants’ rent by the minimum charge imposed by the City of Clermont for the services.

In the final judgment, the lower court decided the matter as follows:

2. Defendant cannot pass on the charges for water, sewer and garbage services, and require each resident to contract directly with the city for these services, by mobile home park rule change as defendant attempted, since no provision for direct payment of those charges by residents to the city is made in plaintiffs’ leases and section 83.760(3) requires all financial obligations of tenants to be contained in the lease.
3. Although defendant may not pass on the costs of water, sewer and garbage services by rule change as attempted, defendant may shift the cost of these services and the responsibility for contracting for them to plaintiffs if the adjustments in rent set forth hereinafter are made, so as to compensate plaintiffs for removal of these services from the rent they pay under their leases.

Relevant to this issue are the following statutory provisions:

Section 83.760(3), Florida Statutes (1981): Only such park rules or regulations as are reasonable under the circumstances and specifically incorporated by reference in the written leases shall be enforceable. The lease shall contain a provision that Part III of chapter 83 governs mobile home park tenancies. The lease shall contain the amount of the rent, any security deposit, installation charges, fees, assessments, and any other financial obligations of the mobile home owner. However, this provision shall not be construed to prevent any mobile home park owner from passing on to the mobile home owner any costs, including increased costs - for utilities, which are incurred due to the actions of any state or local government. (Emphasis added.)
Section 83.764(3)(a), Florida Statutes (1981): A mobile home park owner or operator shall be required to disclose fully in writing all fees, charges, assessments, and rules and regulations prior to a mobile home dweller’s assuming occupancy in the park. No fees, charges or assessments so disclosed may be increased, or rules and regulations changed, by the park owner or operator without specifying the date of implementation of said fees, charges, assessments, or rules and regulations which date shall be no less than thirty days after written notice to all mobile home owners.
Section 83.764(4), Florida Statutes (1981): Failure on the part of the mobile home park owner or operator to disclose fully all fees, charges, or assessments shall prevent the park owner or operator from collecting said fees, charges, or assessments, and refusal by the dweller to pay any undisclosed charges shall not be used by the park owner or operator as a cause for eviction in any court of law.

Pursuant to the rules and regulations under which the park has operated from 1975 the landlord is to supply water, sewer and garbage services to the tenants. The rules and regulations also provide that the landlord can, subject only to tenant notice, amend the rules and regulations.

The plaintiffs argue that the water, sewer and garbage charges were not disclosed in their leases as required by section 83.-760(3), Florida Statutes (1981) and, therefore, under section 83.764(4), Florida Statutes (1981), Aspen cannot impose these expenses on them. Aspen agrees with plaintiffs that the lower court erred by holding it could pass on these costs without rule change if it decreased the rent accordingly. However, Aspen maintains that it can, by park rule change, pass on to plaintiffs the responsibility for and cost of obtaining water, sewer and garbage services without a rent adjustment.

The plaintiffs’ leases incorporate by reference the park rules and regulations. Therefore, Aspen argues, the rules and regulations are part of the leases, and the tenants should have been aware when they signed the leases that the landlord could change the rules and regulations, which meant that the landlord could also change the rule pertaining to responsibility for water, sewer and garbage services. Aspen maintains it satisfied section 83.760(3)’s requirement of disclosure. The plaintiffs counter that the effect of Aspen’s action is to unilaterally modify the lease.

We hold that section 83.760(3), Florida Statutes (1981), prohibits Aspen from passing on these charges to the tenants even with a rent reduction. To allow this to be done by rule change would constitute a unilateral amendment to a bilateral lease. Any increase in the costs of these utilities, as clearly shown by paragraph 6 of the leases, may be considered and computed by Aspen in regard to its right to increase rents in a subsequent year. But the amount of rent must be contained in the lease; it is a factor separate and apart from park rules and regulations.

In their third point on appeal, the appellants argue that, since the trial court declined to define what the term “variable costs” included, it could not properly determine that they had increased. Appellants also argue, and we agree, that the trial court should not have considered such items as mortgage interest, depreciation, amortization, legal fees, and closing costs in this computation. We therefore hold that the trial court ruled on an apparently improper basis that there was an increase in the owner’s costs during the period from May 1, 1981 through April 30, 1982, and that the trial court improperly considered certain purchase costs in regard to the meaning of the term “variable costs.”

We have considered points four through twelve raised by the appellants and find them to be either without merit or moot by reason of the preceding opinion.

AFFIRMED IN PART, REVERSED IN PART and REMANDED for reconsideration consistent with this opinion.

DAUKSCH- and COWART, JJ., concur.

      . The Federation of Mobile Home Owners of Florida, Inc., is a statewide organization, representing Florida mobile home owners.

      . This court is mindful of the relationship between a mobile home park owner and a mobile home owner under Florida law. In 1981, the Florida Legislature enacted the Florida Mobile Home Landlord and Tenant Act, Part III of Chapter 83, which in some respects is a mobile home park tenant’s bill of rights. Prior to this act, similar legislation existed to a limited extent. Two Florida Supreme Court cases discuss the legal relationship between tenants and owners of mobile home parks: Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974), and Stewart v. Green, 300 So.2d 889 (Fla.1974).
      In Palm Beach Mobile Homes, the plaintiff purchased a trailer from Dolan Corp. and then rented a lot from Dolan, paying $600 for one year’s rent. Thereafter, the legislature enacted a statute which provided grounds for eviction from mobile home parks. The next year, the plaintiff tendered a $600 check but Dolan declined to accept it and refused to renew her lease. The plaintiff sued and Dolan argued that the statute was unconstitutional as it interfered with property and contract rights. The lower court held the statute was constitutional. Affirming, the Supreme Court acknowledged Do-lan’s property rights but determined the legislature was justified in imposing reasonable regulations on mobile home parks in light of the peculiar nature of and problems presented by mobile homes. The court stated:
      Mobile homes come to rest in established parks, the wheels are generally removed, they are anchored to the ground, because of forces of the wind, connections with electricity, water and sewerage are made, awnings are frequently attached, and to a large degree they lose their mobility except, unless, and until the wheels are restored, disruption of electrical, water and sewer connections is had and a certain amount of dismantling and crating is had, all at a substantial expense of the owner of the mobile home who had bought such home with the expectation of being able to remain in the park for a not unreasonable time so long as he abides by all the reasonable regulations established by the park owner. The removal from one park to another becomes more than a mere hitching to a truck or tractor and pulling it away. To a large degree, mobile homes are occupied by people in the lower income brackets who cannot spend several hundred dollars at the mere whim of a lessor park.

        Id. at 886.
      In Stewart v. Green, the court affirmatively answered a certified question of whether the statute setting out the grounds for mobile home park eviction was constitutional. The court stated:
      If mobile home park owners are allowed unregulated and uncontrolled power to evict mobile home tenants, a form of economic servitude ensues rendering tenants subject to oppressive treatment in their relations with park owners and the latters’ overriding economic advantage over tenants.
      Regulatory laws that apply to the old tin-can tourists and their easily movable trailers and even those applicable nowadays to rental apartments are inadequate for the regulation of mobile homes under conditions prevailing today. The Legislature finally recognized ... that a hybrid type of property relationship exists between the mobile home owner and the park owner and that the relationship is not simply one of landowner and tenant. Each has basic property rights which must reciprocally accommodate and harmonize. Separate and distinct mobile home laws are necessary to define the relationships and protect the interests of the persons involved.

        Id. at 892.

      . Section 83.754, Florida Statutes (1981), states:
      Unconscionable lot rental agreements.—
      (1) If the court as a matter of law finds a mobile home lot rental agreement, or any provision of the rental agreement, to have been unconscionable at the time it was made, the court may:
      (a) Refuse to enforce the rental agreement.
      (b) Enforce the remainder of the rental agreement without the unconscionable provision.
      íe) So limit the application of any unconscionable provision as to avoid any unconscionable result.
      (2) When it is claimed or appears to the court that the rental agreement, or any provision thereof, may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to meaning, relationship of the parties, purpose, and other relevant factors to aid the court in making the determination.

      . Section 83.764(3)(a), Florida Statutes (1981), allows for unilateral modification of the rules and regulations. In fact, a bill proposed during the 1974 Florida Legislative Session sought to require majority tenant approval before an amendment to park rules could become effective. However, the tenants' approval language was deleted from the final version of the bill which became law. Note, Mobile Home Park Practices: The Legal Relationship Between Mobile Home Park Owners and Tenants Who Own Mobile Homes, 3 Fla.State Law Rev. 103, 119 (1975).


author: PER CURIAM.

text:
    James WIGGINS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 83-705.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1984.
    Rehearing Denied March 8, 1984.
    Nathaniel W. Tindall, II, and Ronald H. Trybus of Tindall, Trybus & Odom, Tampa, for appellant.
    Joseph S. Silver of Miller, McKendree & Somers, Tampa, for appellee.
   PER CURIAM.

Appellant appeals a final judgment dismissing his amended complaint for failure to state a cause of action and a nonfinal order granting appellee’s motion to dismiss the amended complaint.

The sole question on this appeal is whether the amended complaint states a cause of action.

While appellant’s amended complaint for personal injury protection benefits pursuant to the Florida Automobile Reparations Reform Act may not be artfully drafted, we nevertheless conclude that the allegations contained in Count I are sufficient to inform appellee of the nature of the cause against it. See Fla.R.Civ.P. 1.110(b); Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974); and Talcott v. Central Bank & Trust Co., 220 So.2d 411 (Fla. 3d DCA 1969).

For the reasons stated, we reverse and remand with directions to reinstate Count I of the amended complaint.

OTT, C.J., and BOARDMAN and DAN-AHY, JJ., concur.


author: BASKIN, Judge.

text:
    Irving WALTMAN and Albert Cohen, individually and on behalf of Prime-Florida, Inc., and W.C. Associates, Ltd., Appellants, v. PRIME MOTOR INNS, INC., Prime Management Company, Inc., Prime-Florida, Inc., Appellees.
    No. 83-915.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 27, 1984.

      Lapidus & Stettin and Richard Lapidus, Miami, for appellants.
    Arky, Freed, Stearns, Watson & Greer and Eugene Stearns, Richard M. Dunn, Mi-, ami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Appellants dispute the trial court’s order granting judgment in accordance with motion for directed verdict on one claim and granting a new trial on damages on appellants’ second claim following the jury’s return of verdicts in appellants’ favor. The litigation concerned the sale of jointly owned interests in motor inns. Appellants sought damages alleging they were deprived of their rightful share of the sale proceeds by their associates in the joint ventures. Appellants assert that reversal is required because appellees failed to move for a directed verdict at the close of all the evidence; appellees’ motion for directed verdict was made during the charge conference held while trial was still in progress. Finding that appellants’ position is supported by law, 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958), we reverse the judgment in accordance with directed verdict and reinstate the jury verdict of $200,000 for the first claim.

Turning to the second claim, we reiterate the rule that a trial court order granting a new trial on the ground that the verdict is excessive and against the manifest weight of the evidence must state reasons supporting the court’s conclusions. The purpose of the rule is to enable this court to proceed with appellate review. White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978). The test to be applied by the trial court before granting a new trial as to damages is whether a jury of reasonable persons could have returned the verdict. Griffis v. Hill, 230 So.2d 143 (Fla.1969). We are unable to discern reasons justifying the trial court’s decision to grant a new trial. On the contrary, we find sufficient evidence to sustain the jury award of $500,-000 on appellants’ second claim, noting particularly a form filed with the Securities Exchange Commission; we therefore hold that the trial court erred in granting a new trial on the issue of damages. See White. We reverse the order granting a new trial and reinstate the jury verdict of $500,000 as to the second claim.

We find no merit in appellants’ claim for punitive damages, Southern Bell Tel. & Tel. Co. v. Hanft, 436 So.2d 40 (Fla.1983), and, similarly, we reject appel-lees’ plain error argument. See Pickard v. Maritime Holding Corp., 161 So.2d 239 (Fla. 3d DCA 1964).

Reversed with directions to reinstate the jury verdicts.


text:
    Anthony MANIGLIA, M.D., and Jorge Macedo, M.D., Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, Board of Medical Examiners, Appellee.
    Nos. 83-1624, 83-1625.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 21, 1984.

      Robert H. Schwartz, Fort Lauderdale, for appellants.
    Joseph H. Lawrence, II, Tallahassee, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

Appellants were charged by appellee in administrative complaints with violations of Chapter 458, Florida Statutes, (relating to the regulation of medical practice).

It was alleged, inter alia, that appellants swore and subscribed to certain information in affidavits submitted to the Florida State Board of Medical Examiners concerning one Maury Braga, an applicant for medical licensure in the State of Florida, i.e., appellants did swear and affirm by their personal knowledge that Maury Bra-ga attended and graduated from the Facul-dade de Ciencias Medicas de Santos, in Brazil, and did lawfully practice the profession of medicine in Brazil during the years 1967 through 1972.

It was further alleged that these statements were false and that appellants had no personal knowledge of the truth and veracity of these statements to which they swore as licensed medical doctors.

Appellants denied the allegations of the complaints and elected to have a formal hearing, pursuant to section 120.57(1), Florida Statutes, before a hearing officer. Following the hearing, the Hearing Officer found that appellants had violated section 458.1201(1)©, Florida Statutes (1977), as charged, and recommended that appellants be disciplined by a one-year period of probation with terms and conditions as set by the Board.

The Board of Medical Examiners, after full argument on the issues, voted to accept and adopt the Hearing Officer’s findings and conclusions. The Board ordered that appellants be-reprimanded and placed on probation for one year subject to the condition that each of the appellants address foreign medical graduates and the medical community regarding the importance and significance of affidavits executed by Florida-licensed physicians to be submitted to the Board for licensing foreign graduates. Petitions for reconsideration were denied by the Board after lengthy presentations by appellants’ counsel. This appeal is from the Board’s final order.

Appellant’s point on appeal is whether the Board of Medical Examiners erred in finding that the record supported a violation of section 458.1201(1)©, Florida Statutes (1977).

We have carefully examined the record and considered the briefs and have concluded that the record on appeal contains competent substantial evidence to support the findings and conclusions of the Hearing Officer and the Board of Medical Examiners and that the penalties imposed were within the purview of the statute.

No reversible error having been demonstrated, the orders appealed are affirmed.

Affirmed.

      . Former section 458.1201(l)(j), Florida Statutes (1977), is now codified at section 458.331(l)(g), Florida Statutes (1981). This statute provides, in pertinent part, as follows:
      (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

      (g) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board.


text:
    The STATE of Florida, Appellant, v. James Russell PARHAM, Appellee.
    No. 83-892.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Rehearing Denied March 26, 1984.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and John H. Lipinski and Arthur W. Carter, Sp. Asst. Public Defenders, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The state appeals an order granting defendant’s oral motion for discharge pursuant to the speedy trial rule.

At the time of trial on the afternoon of July 26, 1982, the state moved for a continuance of the case; the motion was denied. The assistant state attorney then announced a nolle prosequi. Defendant’s counsel responded immediately, in the presence of the assistant state attorney and on the record, that he was filing a demand for speedy trial on a “piece of paper.” The record reflects that a demand was filed on a sheet of yellow paper that same day. There is no evidence "that the state was served with a copy of the notice. On January 27, 1983, more than five months later, defendant’s counsel moved orally for discharge pursuant to the speedy trial rule, Florida Rules of Criminal Procedure 3.191(a)(2), which motion was granted. This appeal followed.

The state contends on appeal that (1) the demand for speedy trial was ineffective because a copy was not served on the state as required by the rule, and (2) it was error to grant the motion for discharge because it was not presented in writing and because no hearing was conducted.

On the first point, which is dispositive, we hold that the demand was ineffective to commence the running of the speedy trial period. The oral demand was clearly insufficient under McCauley v. State ex rel. Fouraker, 273 So.2d 756 (Fla.1973), which held that an oral demand for speedy trial, even one made in open court and in the presence of the prosecuting attorney, does not satisfy the requirements of the speedy trial rule regarding a written demand. Id. at 758; see Fla.R.Crim.P. 3.191(a)(2). Further, the written demand failed to satisfy the provision of this same rule requiring service of a copy of such demand upon the prosecuting attorney. 273 So.2d at 758. Cox v. State, 389 So.2d 1028 (Fla. 5th DCA 1980) is distinguishable in this latter regard. In that case, although the defendant also failed to serve a copy of the demand on the prosecuting attorney, he had sent the demand to the clerk of the court, who then forwarded a copy to the prosecutor, The Cox court emphasized that the copy did in fact reach the hands of the prosecutor, thus the substantive requirements of the rule were met. In the present case, the record does not reflect that the assistant state attorney ever received a copy of the written demand.

As the McCauley court noted, an “important consideration is the need for careful compliance with the requirements of the speedy trial rule if the rule’s integrity is to be preserved.” 273 So.2d at 758-59. We are bound by that determination. Therefore, the order of discharge must be REVERSED and the cause remanded for further proceedings.


text:
    TAHITI RESORTS, INC., Appellant, v. Richard O. DOWLING, Appellee.
    No. 83-1813.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    As Amended on Denial of Rehearing March 26, 1984.
    James Thomas Lynch and James S. Matt-son, Key Largo, Karl Beckmeyer, Tavernier, for appellant.
    Hugh F. Quinn, Coral Gables, for appel-lee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant Tahiti Resorts, Inc. challenges the trial court’s non-final order denying Tahiti’s motion to set aside default and final judgment. The record discloses that Tahiti Resorts has failed to make the required showing of both excusable neglect and a meritorious defense necessary for vacating a default. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Dade County v. Lambert, 334 So.2d 844 (Fla. 3d DCA 1976). Furthermore, we have been presented with no authority to support appellant’s position that the automatic stay provisions of the Bankruptcy Act operate to void service of process. We therefore find the trial court did not abuse its discretion in denying Tahiti’s motion to set aside default and final judgment.

Affirmed.


author: HURLEY, Judge. DOWNEY, Judge,

text:
    The CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant, v. Lionel BLACKMAN, M.D., the Committee For the Protection of Patients’ Rights, and Laraine Shape, Appellees.
    No. 81-473.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied March 26, 1984.
    Terry L. DeMeo of DeMeo & Sherman, P.A., Coral Gables, Sanford M. Katz and Charlene M. Weinstein of Katz & Wein-stein, P.A., and Joel B. Rudin and Richard Ware Levitt of Rudin & Levitt, New York City, for appellant.
    Cone, Wagner, Nugent, Johnson, Ha-zouri & Roth and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appel-lee-Lionel Blackman, M.D.
   HURLEY, Judge.

This appeal arises from a defamation action. It presents a host of issues, but we conclude that appellant’s threshold contention is both meritorious and dispositive: the plaintiff below failed to prove that one defendant-corporation dominated another so as to justify piercing the latter’s corporate veil. Therefore, the judgment entered against the Church of Scientology of California, Inc., must be reversed.

The plaintiff, Dr. Lionel Blackman, is a psychiatrist who uses electro-convulsive therapy (ECT or shock treatment). He is affiliated with the Banyan Psychiatric Institute in Lake Worth, Florida. One of the defendants, Laraine Shape, is an ordained minister, assistant guardian and president of the Church of Scientology of Florida, Inc., (The Florida Church). Additionally, she is a member of an entity known as the Committee for the Protection of Patients’ Rights (CPPR) which was also named as a party-defendant. CPPR functioned for a period of time as a voluntary association and was incorporated on May 5, 1978. It opposes the use of electro-convulsive therapy for the treatment of mental illness. The third defendant, the Church of Scientology of California, Inc. (the California Church), is an incorporated branch of the Church of Scientology. Despite the California reference in its title, it maintains administrative offices in Clearwater, Florida.

The trial below involved two related occurrences. The jury, however, determined that defamatory statements were made on only one occasion: May 8, 1978, the day on which CPPR staged a demonstration at the Banyan Psychiatric Institute. On that day, approximately thirteen people picketed outside the hospital for about an hour. They carried placards, distributed leaflets and engaged in chanting — all condemnatory of Dr. Blackman’s use of electro-convulsive therapy. As a result of this incident, Dr. Blackman instituted suit against Laraine Shape, CPPR and the Church of Scientology of California, Inc. His theory was that Laraine Shape made or assisted others in making defamatory statements, that she was an agent of CPPR and that CPPR, in turn, was an instrumentality or alter ego of the California Church. The jury accepted this theory and returned an interrogatory in which it expressly found that Laraine Shape was an agent or employee of the California Church at the time of the demonstration. Based on this finding, the jury returned verdicts against Shape, CPPR and the California Church. The trial court denied repeated motions for a directed verdict and various post-trial motions and, therefore, the California Church instituted this appeal.

The evidence at trial established that La-raine Shape is an officer of the Florida Church. The plaintiff, however, adduced no proof to suggest that the Florida Church is dominated or controlled by the California Church. Consequently, the jury’s finding that Ms. Shape was an agent or employee of the California Church can be sustained only if the evidence establishes an adequate legal relationship between Ms. Shape and CPPR and, then, between CPPR and the California Church. In other words, the California Church’s liability in this case is predicated exclusively on Ms. Shape’s activity with CPPR and upon the premise that CPPR is an instrumentality or alter ego of the California Church. The record contains abundant evidence to support a finding that Ms. Shape acted as an agent of CPPR but, as detailed hereafter, there is no evidence to link CPPR to the California Church.

Viewing the testimony, as we must, in the light most favorable to the plaintiff, McDaniel v. Great Atlantic & Pacific Tea Co., 327 So.2d 893 (Fla. 3d DCA 1976), we find that Dr. Blackman established the following: (1) CPPR's incorporators are members of the Scientologist faith and attend the Tampa Mission in Tampa, Florida. (The record fails to disclose whether the Tampa Mission is affiliated with the California or the Florida Church or whether it has a separate corporate existence.) (2) When CPPR was formed, the California Church offered instruction on how to do public relations. (3) The California Church is listed as a sponsor on some CPPR material. (4) At one time, CPPR used a1 mailing address in a hotel owned by the California Church. (5) The California Church and CPPR are in “general agreement” in their opposition to electro-convulsive therapy. The question on appeal is whether the foregoing catalogue of evidence is legally sufficient to sustain the jury’s implied finding that CPPR is an instrumentality or alter ego of the California Church so as to justify piercing CPPR’s corporate veil.

Dr. Blackman resisted the Church’s motion for a directed verdict by citing our decision in International Union of Operating Engineers, Local 675 v. Lassitter, 295 So.2d 634 (Fla. 4th DCA 1974), quashed on other grounds, 314 So.2d 761 (Fla.1975). Lassitter upheld a jury’s finding that an international union was responsible for the acts of its local union. In essence, the jury found that the local union was an instrumentality of the international. Our affirmance was partially predicated on the fact that the international’s constitution specifically provided for its complete domination over the local. Without becoming enmeshed in the nuances of labor law and, in particular, those instances in which an international will be held accountable for the acts of its local, see generally Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979), we believe that Dr. Blackman was correct in suggesting to the trial court that the concept of domination is critical to the resolution of this case.

Total domination, if established by competent evidence, will justify piercing a corporate veil. Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982). In Dania Jai-Alai Palace, Inc. v. Sykes, 425 So.2d 594, 598 (Fla. 4th DCA 1982), we held that “when one corporation controls and dominates another corporation to the extent that the second corporation becomes the ‘mere instrumentality’ of the first, the dominant corporation is liable for the torts of the subservient corporation.” More recently, in Sisk v. General Builders Corp., 438 So.2d 65 (Fla. 4th DCA 1983), we stated that “[t]wo ostensibly separate corporations will be treated as one when it is established that one of the corporations totally dominates the other ‘to the extent that the subservient corporation manifests no separate corporate interest of its own and functions solely to achieve the purposes of the dominant corporation.’ ” (citation omitted). Thus, appellee is correct; domination is the central issue in this case.

Normally, the question of whether a corporation is an instrumentality or an alter ego of another corporation is an issue of fact for the jury. Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247 (1941); Dania Jai-Alai Palace, Inc. v. Sykes, supra. However, “it is elemental that at the trial the burden of proof rests on the plaintiff to establish by competent evidence each material fact essential to recovery and that upon failure to do so it is the duty of the trial court upon appropriate motion to take the case from the jury and direct a verdict for the defendant.” Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519, 521 (Fla. 1st DCA 1961). Applying these rules to the case at bar, we hold that Dr. Blackman failed to adduce competent evidence from which a jury could reasonably conclude that the California Church dominated CPPR. Indeed, the record is replete with uncontra-dicted evidence which suggests a contrary conclusion. Several witnesses testified that although the California Church agrees with the goals of CPPR, it does not exercise any actual control over CPPR. Furthermore, they testified that the California Church does not provide any financial support to CPPR and that CPPR has members who are not scientologists.

Viewing this evidence in the light most favorable to the plaintiff, we hold that there was a complete failure of proof on the all-important issue of domination. In fact, not one of the criteria listed in Dania Jai-Alai was satisfied. Thus, the trial court erred in not granting the church’s motions for a directed verdict. Accordingly, we reverse and remand with instructions to enter a final judgment in favor of the Church of Scientology of California, Inc.

REVERSED and REMANDED.

WALDEN, J., concurs.

DOWNEY, J., concurs specially with opinion.

DOWNEY, Judge,

concurring specially:

I concur with both the result and reasoning of the majority opinion, but would also hold that a directed verdict should have been granted in favor of the California Church because appellee, a public figure, failed to adduce sufficient evidence of actual malice on the part of Loraine Shape regarding the allegedly defamatory statements. Thus, the California Church would not be liable to plaintiff even if Shape was an agent of CPPR and CPPR was an instrumentality or alter ego of the California Church. Under the prevailing view in many jurisdictions, a public figure plaintiff is required to meet the actual malice standard dictated by New York Times Co. v. Sullivan, 376 U.S. 254, 276-77, 84 S.Ct. 710, 723-24, 11 L.Ed.2d 686 (1964) irrespective of whether the publisher of the defamatory statement may be described as a media or non-media defendant. As the court stated in Rodriguez v. Nishiki, 653 P.2d 1145, 1149 (Hawaii 1982), wherein local entertainment personalities sued a candidate for public office:

Although at one time there was some dispute about whether the actual malice standard of liability would only be applicable to media defendants, it is now generally recognized, at least with regard to defamation actions involving public officials and public figures, that the New York Times standard of actual malice is applicable to both media and nonmedia defendants.

To like effect are: Avins v. White, 627 F.2d 637 (3d Cir.), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980) (former law school dean suing member of accreditation team which investigated the school); Woy v. Turner, 533 F.Supp. 102 (N.D.Ga.1981) (agent of ball player suing team owner); Antwerp Diamond Exch. v. Better Bus. Bur., 130 Ariz. 523, 637 P.2d 733 (1981) (corporate seller of precious stones and its president suing Better Business Bureau and others for statements concerning plaintiffs operations); Anderson v. Low Rent Housing Comm’n, 304 N.W.2d 239 (Iowa 1981), cert. denied, 454 U.S. 1086, 102 S.Ct. 645, 70 L.Ed.2d 621 (1981) (former city housing official suing city commission and city officials); Williams v. Pasma, Mont. 656 P.2d 212 (1982), cert. denied, — U.S. -, 103 S.Ct. 2122, 77 L.Ed.2d 1302 (1983) (former senate candidate suing state democratic committee member); Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979) (professional horse trainer suing neophyte racehorse owners); Wollman v. Graff, 287 N.W.2d 104 (S.D.1980) (police officer suing candidate for town council); but see Denny v. Mertz, 106 Wis.2d 636, 318 N.W.2d 141, 152-53 (1982). Moreover, requiring a public figure plaintiff to show actual malice as against a non-media defendant is not inconsistent with Florida law. See Gibson v. Maloney, 263 So.2d 632 (Fla. 1st DCA 1972).

      .The placards were varied. One stated: "Stop Unethical Psychiatry!”; another read: "Shock Treatment is Dangerous to Your Health!” A witness for the plaintiff testified that he saw Dr. Blackman’s picture on one sign and that another said “Fire Dr. Blackman.” The same witness testified that the marchers chanted: "Blackman, murderer, Blackman murderer,” something about shock treatments being inhumane and that Dr. Blackman should be fired. The printed one-page leaflet was captioned: "What Goes on Behind the Closed Doors at Banyan Psychiatric Institute???????” It contained a drawing of a person receiving shock treatment. The following five statements appeared on single lines under the drawing: "Coercive Shock Treatment;” "Murder Reported as Suicide;” "Excessive Drugging;” "Locked 'Quiet Rooms';” "Violation of Patient Rights.” Next, the leaflet contained a picture of Dr. Blackman with this caption: '"It would be unreasonable to think that you could pass 170 volts of electricity through the brain without some damage ... ’ Dr. Lionel Blackman, Consulting psychiatrist Banyan Psychiatric Inst.”

      . The second amended complaint named four defendants, but only three are relevant to this appeal. The fourth defendant was Larry Slat-koff, an employee of the Church of Scientology of California, Inc. and a member of CPPR. It is fair to say that Mr. Slatkoff was the central figure in the trial below. He appeared on a radio program and discussed electro-convulsive therapy. Dr. Blackman claimed that Mr. Slat-koff defamed him during the broadcast. The jury, however, found that Mr. Slatkoff's statements were not defamatory.

      . The Church of Scientology of California, Inc. is the only appellant before the court. Ms. Shape and CPPR also appealed, but both appeals were dismissed for lack of jurisdiction ■ because they had been untimely filed.

      . Dania Jai-Alai Palace, Inc. v. Sykes, supra at 599, quotes Fish v. East, 114 F.2d 177, 191 (10th Cir.1940), and lists some of the criteria which may be considered in determining whether a subsidiary is a mere instrumentality or alter ego of a parent corporation:
      (1) The parent corporation owns all or majority of the capital stock of the subsidiary. (2) The parent and subsidiary corporations have common directors or officers. (3) The parent corporation finances the subsidiary. (4) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation. (5) The subsidiary has grossly inadequate capital. (6) The parent corporation pays the salaries or expenses or losses of the subsidiary. (7) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation. (8) In the papers of the parent corporation, and in the statements of its officers, "the subsidiary” is referred to as such or as a department or division. (9) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation. (10) The formal legal requirements of the subsidiary as a separate and independent corporation are not observed.