author: GRIMES, Acting Chief Judge.

text:
    CITY OF CLEWISTON, Florida, a municipal corporation existing under the laws of the State of Florida, Appellant, v. B & B CASH GROCERY STORES, INC., a Florida corporation, Appellee.
    No. 83-1028.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1984.
    Rehearing Denied Feb. 29, 1984.

      Paul R. Linder of Gurney & Handley, P.A., Orlando, for appellant.
    Edward C. Adkins of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This appeal involves the applicability of the statute of frauds to an oral contract by the City of Clewiston to provide electricity to one of its customers.

The city operates an electrical distribution system through which it has served a B & B Cash Grocery store for many years. The electricity furnished to B & B is measured through a meter. Based upon meter readings, monthly billings have been rendered to B & B which have been promptly paid. There is no written contract between the parties pertaining to the delivery of electricity.

According to the city, B & B increased its demand for electricity in August of 1974 which required the installation of a new electric meter. In September of 1980, the city discovered that a potentiometer wire inside the meter box had been cut in half, thereby causing the meter to under measure the electric current being supplied to B & B. Upon checking its meter records, the city found that an “obvious” drop in B & B’s meter readings had occurred in late 1974. By comparing readings, the city concluded that B & B had been billed for approximately one half of its electric current usage for the period of January 1975 to September 2, 1980. When B & B refused to pay for the underbilling, the city sued B & B for back charges.

Among other defenses, B & B argued that the oral contract for the purchase and sale of electricity was unenforceable because it was an agreement not to be performed within one year as contemplated by the statute of frauds. § 725.01, Fla.Stat. (1981). As evidence of the parties’ intent for the contract to run for more than one year, B & B pointed to the fact that the city had provided it with electrical service for a much longer period of time. The court entered summary judgment for B & B upon this basis.

B & B relies upon a statement in Yates v. Ball, 132 Fla. 132, 181 So. 341 (1938), that an oral contract is within the statute of frauds if from the object to be accomplished and the surrounding circumstances it clearly appears the parties intended that it should extend for a period longer than a year. Yet, that same case also laid down the principle that an oral contract not defining the time for performance should not be construed to be within the statute of frauds where there is nothing in its terms to show that it could not be performed within a year according to its intent and the understanding of the parties.

Here, the city simply agreed to furnish electricity and B & B agreed to pay for it. According to the city’s practice, the electricity was billed and paid for on a monthly basis. B & B had bought electricity from the city for many years and presumably would continue to do so as long as it continued in business. However, B & B did not agree to purchase electricity at a time more than one year in the future. If B & B is in business more than one year hence, the city may be required to furnish it with electricity by virtue of its obligations as a public utility but not because it has contracted to do so. By the same token, if B & B’s business were to be destroyed before next year, the city could not successfully contend that B & B was contractually obligated to thereafter purchase electricity. At the most, the parties have an oral contract for the purchase and sale of electricity on a monthly basis.

Because we hold that the contract was not within the statute of frauds, there is no need for us to consider the city’s suggestion of part performance. We reverse the summary judgment and remand the case for further proceedings.

SCHEB and LEHAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alba CALDERON, Appellant, v. D’Amaris TORRES, Appellee.
    No. 83-449.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Rehearing Denied March 13, 1984.
    Fletcher & Langer and A. Lester Langer, Homestead, for appellant.
    Arthur H. Lipson, North Miami Beach, for appellee.
    Before HENDRY, HUBBART and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a non-final order entered in an adoption proceeding. The order under review denies a motion to vacate an order previously entered which granted child visitation rights to the natural mother, some seven years after the adoption in this case became final. We have jurisdiction to entertain this appeal. Art. V, Sec. 4(b)(1), Fla. Const.; Fla.R. App.P. 9.130(a)(4).

The facts pertaining to this appeal are as follows. On August 21, 1973, D’Amaris Torres gave birth to a child out of wedlock. In 1977, Alba Calderon, the mother of D’Amaris Torres, legally adopted this child in an adoption proceeding brought in the trial court. On October 13, 1983, some seven years later, the natural mother Torres filed a petition to set aside the 1977 adoption on the ground that her consent to the adoption had been obtained by fraud; she also later filed, in connection with this petition, a motion to allow her to visit the child. The adoptive mother Calderon filed a motion to dismiss the petition; the trial court heard and granted this motion on the basis that the petition was barred by Section 63.182, Florida Statutes (1981). The trial court, however, granted the motion for visitation and denied a motion to vacate an order entered thereon. This appeal follows.

We conclude that the order under review must be reversed for two reasons. First, the trial court by statute lost any authority to vacate or modify the order of adoption, by granting visitation rights to the natural mother or otherwise, after one year had elapsed from the date the adoption became final. § 63.182, Fla.Stat. (1981); see Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623, 627-28 (1950); Walter v. August, 186 Cal.App.2d 395, 8 Cal.Rptr. 778 (Ct.App.1960). As over seven years had elapsed from the date of the adoption in this case, it is plain that the trial court had no authority to vacate or modify the final order of adoption. The trial court quite properly dismissed the petition to vacate on this ground; it also should have dismissed the motion for visitation rights filed in connection with this petition. Second, the trial court had no authority, in any event, to grant visitation rights to the natural mother in this adoption proceeding, as plainly "the natural mother by statute lost all parental right to the child under Section 63.172, Florida Statutes (1981), including visitation rights, when the adoption became final. Roberts v. Davis, 328 So.2d 879 (Fla. 2d DCA 1976); Jones v. Allen, 277 So.2d 599 (Fla. 2d DCA 1973); see also Adoption of K.A.M., 367 So.2d 744 (Fla. 2d DCA 1979).

The order under review is reversed and the cause is remanded to the trial court with directions to vacate the order of child visitation entered herein.

ON REHEARING

The appellee, natural mother, has filed a motion for rehearing in which she attacks the constitutionality of Sections 63.-172, 63.182, Florida Statutes (1981), as applied to the facts of this case. The record reflects that no such contention was ever raised by the appellee in the trial court or in this court until now. We therefore decline to entertain this belated contention as it is untimely raised for the first time on appeal in a motion for rehearing. Sarmiento v. State, 371 So.2d 1047, 1052-53 (Fla. 3d DCA 1979), aff'd, 397 So.2d 643 (Fla.1981), and cases collected. The appel-lee’s motion for rehearing is accordingly

Denied.


author: DAUKSCH, Judge.

text:
    William E. CROOKS, Appellant, v. ATLANTIC NATIONAL BANK OF FLORIDA, Appellee.
    No. 83-268.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 1984.
    Rehearing Denied March 5, 1984.
    John R. Godbee, Jr., of Coble, McKinnon, Rothert, Barkin, Vukelja & Godbee, P.A., Daytona Beach, for appellant.
    W.C. Airth, Jr., of Fowler, Williams & Airth, P.A., Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment in a promissory note case. The facts which un-derly the judgment are unique and we are quite confident they shall remain so. For that reason and because no benefit to anyone would result in the exposure of them, we do not set out the facts.

We affirm the judgment of the court because it is based upon evidentiary factual findings adverse to appellant although we recognize the case could well have been decided by the trial court adverse to appellee. We do not, and cannot, reweigh factual findings of trial courts; we only determine if they are legally sufficient to support the judgment. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Holland v. Gross, 89 So.2d 255 (Fla.1956); Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

The appellant here was not dealt with as he should have been. The actions of the bank officer, Ziegler, acknowledged by the parties hereto as the primary wrongdoer, were certainly not within usual banking practices, as frankly admitted by the bank. The trial judge’s absolution of the bank is legally correct, however, based upon the pleadings and evidence in support of those pleadings. There were no allegations of negligent hiring or negligent supervision against the bank or against the immediate supervisor of the wrongdoer, hence that issue is not before us at this time.

We affirm the judgment.

AFFIRMED.

COBB, J., and DIAMANTIS, G.N., Associate Judge, concur.


author: COBB, Judge.

text:
    The COUNTY OF VOLUSIA, a political subdivision of the State of Florida, Appellant, v. Peter L. NILES, Appellee.
    No. 83-502.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 1984.
    Rehearing Denied Feb. 14, 1984.

      David A. Monaco of Cobb & Cole, P.A., Daytona Beach, for appellant.
    William L. Coalson of Greene & Greene, P.A., Jacksonville, for appellee.
   COBB, Judge.

The trial court granted the appellee, Peter L. Niles, the condemnee below, a new trial on severance damages after a zero jury verdict on that issue. The appellant/condemnor, County of Volusia, contends that the trial court’s order constituted an abuse of discretion, and that it was entitled to judgment pursuant to the jury verdict.

This cause was commenced when the County filed a condemnation action to acquire a large, rectangular piece of land consisting of several city blocks within the City of Daytona Beach for the construction of a civic center. Niles was the owner of a lot within the condemned area, Parcel 119. He contended that the taking of this lot caused severance damage to a business property he owned and operated outside of the area of taking, a private bottle club known as “The Foxy Lady.” The latter was located at 720 Auditorium Boulevard, whereas the auxiliary parking lot which was taken was located between Grandview Avenue and Coates Street, some 350-400 feet distance from “The Foxy Lady.” The parties stipulated at trial that the value for the taking of Parcel 119 was $139,600. Thus, the only remaining jury issue was the claimed severance damage to “The Foxy Lady” property.

After he purchased “The Foxy Lady” property in 1976, Niles complied with the City’s zoning ordinance relating to required parking for his club by leasing various locations for off-site parking, which was required by the zoning ordinance to be within 400 feet of the club. Eventually, he purchased Parcel 119 to satisfy the parking requirement. Niles testified that after the taking of Parcel 119 by the County, he received a letter from the chief building official of the City stating that the applicable zoning ordinance allowed him two years from the date of taking to find replacement parking for “The Foxy Lady.” Niles also testified that the City had modified its position subsequent to this letter, but the trial court refused to allow the County to inquire as to the nature of this modification in its attempt to show that the City subsequently had informed Niles that he could operate indefinitely as a nonconforming use without replacement of the off-site parking.

Two qualified appraisers, Roy F. Smith, Jr., and Gary E. Bullard, testified for the condemnee. Essentially, it was their opinion that the taking of Parcel 119 would render “The Foxy Lady” property valueless except for its land value at the expiration of the two-year period from the date of the taking. In other words, at that point in time the structure on the property would add nothing to its value. Each allocated a depreciated value to the structure for the interim two-year period. Smith set the severance damage at $161,200, Bullard at $137,300. Each appraiser based his assessment on the assumptions that the off-site parking was legally required within two years’ time and was irreplaceable. The first assumption was untrue, the second unsupported by any evidence at trial. Cf. Hill v. Marion County, 238 So.2d 163 (Fla. 1st DCA 1970).

The County attempted to call the chief building official of the City of Dayto-na Beach, Joseph T. Holland, III, as a witness. His proffered testimony was to the effect that Niles would be able to continue the operation of “The Foxy Lady” without replacement of the lost parking because of a City zoning ordinance (Article V, § 14.4, Ordinance 78-400) relating to nonconforming lots caused by eminent domain proceedings. The applicable ordinance, as set forth in footnote 1, also was proffered. The trial court rejected this proffered evidence as inadmissible, although it contradicted a basic legal premise that Smith and Bullard utilized in their appraisals. Cf. State Dept. of Transportation v. Byrd, 254 So.2d 836 (Fla. 1st DCA 1971); Anderson v. State Road Dept., 204 So.2d 899 (Fla. 1st DCA 1967). The stated reason for the trial judge’s exclusion of this evidence from Holland was that “the activities of the Zoning Department for the City of Day-tona Beach construing that ordinance one way or the other is (sic) totally irrelevant.” Since it was the City’s interpretation, as evidenced by a letter to Niles from Holland, that was the basis for the projected two-year limitation used by Niles’s appraisers, this ruling by the trial judge clearly was erroneous, but the error ultimately was harmless. Cf., Krispy Kreme Doughnut Co. v. Cornett, 312 So.2d 771 (Fla. 1st DCA 1975), cert. denied, 330 So.2d 16 (Fla.1976). Thereafter, the County called its appraiser, Hamilton, who testified that no severance damages were suffered because of the lack of common control and usage of the two properties, apparently relying on the DiVirgilio v. State Road Dept., 205 So.2d 317 (Fla. 4th DCA 1967), cert. dismissed, 211 So.2d 556 (Fla.1968). The trial court struck this testimony on motion by the condemnee. Motions by the County to strike the appraisals of Smith and Bullard were denied.

The trial judge, following presentation of the evidence, gave an instruction to the jury requested by the condemnee, and objected to by the condemnor, as follows:

If you find from the evidence that the taking of Parcel 119 from Mr. Niles constitutes a taking of required parking for the building known as 720 Auditorium Boulevard and the two properties were unified in their use; that is to say, they were being used in a common enterprise or effort, you may award the owners of such property such severance damages from the lost parking as you may deem appropriate.

In addition, the trial court gave a contradictory instruction, requested by the con-demnee, again over objection by the County, which essentially directed a verdict of liability against the County for severance damages, as follows:

The Court has determined and now instructs you, as a matter of law, that the defendant, PETER L. NILES, is entitled to recover from the plaintiff, VOLU-SIA COUNTY, severance damages as have been shown by the greater weight of the evidence. The Court does not presume to instruct you as to the amount of such damages but only to the extent that VOLUSIA COUNTY is liable for severance damages for the taking of the offstreet parking which served 720 Auditorium Boulevard, Daytona Beach, Florida, owned by the defendant, PETER L. NILES.

After final arguments, the jury returned a verdict awarding Niles the stipulated amount for Parcel 119 and zero severance damages for “The Foxy Lady” property. Thereafter, a new trial was ordered. The order granting the new trial, which is the subject of the instant appeal, states as its justification:

* * * * * *
During the course of the jury trial on the issue of severance damages only, a number of motions were made by defendant’s attorney to strike the testimony of plaintiff's witnesses, all of which motions were granted by this Court. Accordingly, little, if any, evidence favorable to plaintiff’s position on the issue of severance damages went to the jury.
At trial, the Court granted defendant’s motion for a directed verdict as to liability for severance damages against plaintiff and so instructed the jury in the Court’s instructions to the jury. Notwithstanding the lack of evidence favorable to plaintiff on the issue of severance damages and the Court’s direction of a verdict in favor of defendant as to plaintiff’s liability for such damages, the jury returned a zero verdict for defendant.
The verdict was certainly contrary to the evidence for there was no evidence before the jury that could support a zero verdict on severance damages for it had all been stricken by the Court. Further, the verdict is contrary to the law of this case as the Court had instructed or directed the jury that, as a matter of law, defendant was entitled to some severance damages to his building as the result of the taking of the parking therefor.
It was this Court’s responsibility to charge upon the law of the case and it was the duty of the jury, in its verdict, to conform to such charges. Therein they failed and it is now the duty of this Court to grant a new trial on the issue of severance damages only.
Sfc * SÜ Sfc * *

A new trial is appropriate only if the jury verdict is against the manifest weight of the evidence or was influenced by considerations outside the record. See St. Regis Paper Co. v. Watson, 428 So.2d 243 (Fla.1983); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). It is clear from the order that the lower court made no finding that the jury was influenced by considerations outside the record, and that the order is based on the proposition that the verdict was contrary to the manifest weight of the evidence.

Based on the order granting the new trial, it would appear there was a directed verdict on severance damages. However, contrary to the assertion in the above order, no such motion was made by the con-demnee. On the other hand, as previously noted, one of the instructions given by the trial court indicated that the condemnee was entitled to recover such severance damages “as have been shown by the greater weight of the evidence.”

Under section 73.071(3)(b), Florida Statutes (1981), an owner may be compensated for severance damages to the remainder of his land where less than the entire property is appropriated. Lee County v. Exchange Nat’l Bank, 417 So.2d 268 (Fla. 2d DCA 1982), review denied, 426 So.2d 25 (Fla.1983). Where the taken parcel is not physically contiguous to the remaining parcel, the determination as to what may be considered adjoining property within the meaning of section 73.071 involves consideration. of three factors: unity of ownership, unity of use and physical proximity. Where there is a physical separation of tracts, they are prima facie distinct but may be treated as one parcel upon proof of proximity and an integration of use so substantial that they in effect are one. DiVirgilio v. State Road Dept., 205 So.2d 317 (Fla. 4th DCA 1967).

For purposes of this appeal, we will assume, as contended by appellee, that the two parcels herein concerned were properly treated as a single parcel by the trial court as a matter of law, based on the evidence presented below and the DiVirgilio criteria. Given that assumption, the trial court correctly struck Hamilton’s testimony because it was based on the conclusion that there was not a unity of use. Some severance damage, therefore, seemingly would result from the taking of a portion of the parking for the entire business property. State Dept. of Transportation v. Byrd, 254 So.2d 836 (Fla. 1st DCA 1971). Nevertheless, it must be remembered that in this trial, which involved only a claim for severance damages and not the value of taking, the burden of proof was on the condemnee, not the condemnor. City of Ft. Lauderdale v. Casino Realty, Inc., 313 So.2d 649 (Fla.1975). It was the province of the jury, as the finder of fact, to determine the weight and credibility of the testimony of expert witnesses. Clearly, the jury rejected the damage appraisals of Smith and Bullard. Therefore, it was authorized to bring in a verdict of less than the valuations offered by those appraisers, even without rebutting testimony. State Dept. of Transportation v. Decker, 408 So.2d 1056 (Fla. 2d DCA 1981), review denied, 415 So.2d 1361 (Fla.1982); Bryant v. State Dept. of Transportation, 355 So.2d 841 (Fla. 1st DCA 1978). That lesser amount arguably should have been for nominal damages, rather than zero damages. Indeed, it is stated in the condemnee’s brief on appeal: “Had the jury returned only nominal damages, the motion for new trial would never have been filed for such a verdict would, have been within the jury’s province.”

Timely objection is as much a predicate for the grant of a new trial by the lower court as it is a predicate for reversal on appeal, unless the error can be said to be so fundamental as to extinguish a party’s right to a fair trial. Hence, as was recently pointed out in the case of Sears, Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983):

We know of no reason why a trial court should be given any greater power than an appellate court to grant a new trial -based on a claimed but unpreserved error. The discretion which is said to be vested in a trial judge to grant a new trial and to which we give deference stems from his unique ability to determine, upon further reflection, whether, for example, he was correct in overruling or sustaining some objection, denying a mistrial, or giving or refusing to give a requested instruction, and whether, if incorrect, his ruling may have affected the fairness of the trial. This discretion, however, is to be exercised only with respect to preserved errors. Thus, if a trial judge, from his superior vantage point, grants a new trial in respect to a preserved error, we will reverse his order only upon a finding that he abused his discretion, even though had we reviewed that same preserved error on appeal, we, from our vantage point, might have decided that the error was not worthy of reversal and new trial. See Baptist Memorial Hosp., Inc. v. Bell, 384 So.2d 145 (Fla.1980). But where the trial judge grants a new trial on the ground of an unpreserved error, he is not operating within the area of his discretion, and his ruling will be upheld only if the error is, as a matter of law, fundamental.

Id. at 1322-23.

Applying the above language to the facts of the instant case, we would equate an induced error, as in the instant case, with an unpreserved error as alluded to in Sears. The jury’s verdict of zero below was induced, at least in part, by the con-demnee’s failure to move for a directed verdict on the issue of liability and by his submission of the contradictory jury instructions. As a result, the jury was not instructed in regard to the distinction between nominal and actual damages. Indeed, after the charges were settled at the instruction conference, the issue of liability was argued, without objection, during closing argument.

The condemnee now says that if the instructions were conflicting, then a new trial was proper. This proposition, however, ignores the doctrine of invited' error. Niles requested both instructions, and both were given over the objections of the County. Under the doctrine of invited error, a party cannot successfully complain of error for which he is himself responsible, or of rulings that he has invited the trial court to make. Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Hawkins v. Perry, 146 Fla. 766, 1 So.2d 620 (1941); Hunter v. Employers Mutual Liability Ins. Co., 427 So.2d 199 (Fla. 2d DCA 1982), review denied, 434 So.2d 887 (Fla.1983); Keller Industries, Inc. v. Morgart, 412 So.2d 950 (Fla. 5th DCA 1982). Thus, a litigant may not urge error with respect to instructions given at his own request. See, e.g., Glabvo Dredging Contractors v. Brown, 374 So.2d 607 (Fla. 3d DCA 1979); Young v. Taylor, 212 So.2d 25 (Fla. 2d DCA 1968); North Shore Hospital, Inc. v. Luzi, 194 So.2d 63 (Fla. 3d DCA 1967); Park v. Belford Trucking Co., 165 So.2d 819 (Fla. 3d DCA 1964), cert. dismissed, 174 So.2d 398 (Fla.1965). By inviting the jury to pass on the issue of liability in one instruction, the con-demnee is estopped to complain that the jury erred by finding against him on that issue without finding nominal damages in response to a contradictory instruction.

In the recent case of H & U Foods, Inc., d/b/a McDonald’s Restaurant v. Ellison, 439 So.2d 923 (Fla. 4th DCA 1983), the grant of a new trial was reversed as an abuse of discretion by the trial court, a discretion which is broad but not without bounds. After pointing out that there was a sufficient factual basis from the evidence to support the conclusion of the jury, the appellate court said:

The primary reason for granting a new trial, as set out in the court’s order, was the jury’s failure to award at least some damages even if nominal. We reject this reason. Compensatory damages include both actual and nominal damages. In closing argument, plaintiff’s counsel sought only actual damages for the multiple sclerosis condition. Further, the jury was not instructed on nominal damages, and the trial court’s order faulting the jury for failing to award such damages was legally incorrect and an abuse of discretion.

We find a parallel situation in the instant case, where the jury was not instructed on nominal damages. Therefore, we find that the trial court abused its discretion in ordering a new trial. A trial judge cannot grant a new trial simply because he disagrees with the jury. Fusco v. Heymann, 139 So.2d 688 (Fla.1962).

Accordingly, we reverse and remand for entry of a judgment in accordance with the jury verdict.

REVERSED and REMANDED WITH INSTRUCTIONS.

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

      . Daytona Beach, Fla. Article V, § 14.4, Ordinance 78-400, provides: Non-conforming or substandard lots created by eminent domain proceedings. Any lot or parcel which shall be made nonconforming or substandard as a result of eminent domain proceedings instituted by the City of Daytona Beach or other governmental agency, or through a voluntary conveyance by such lot or parcel owner in lieu of formal eminent domain proceedings, which lot or parcel except for such eminent domain or voluntary conveyance, would be an otherwise conforming lot or parcel, shall be deemed to be a conforming lot or parcel for all purposes under this Ordinance. However, all yard requirements of this Ordinance shall control any new construction or building addition.


author: CAMPBELL, Judge.

text:
    Jimmy R. VELEZ, Appellant, v. CRITERION INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 83-972.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.
    Rehearing Denied Feb. 28, 1984.
    Daniel C. Kasaris of Yanchuck, Thompson & Young, P.A., St. Petersburg, for appellant.
    Mark E. Hungate of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee.
   CAMPBELL, Judge.

Appellant, Jimmy R. Velez, seeks reversal of the final summary judgment entered for appellee. That judgment denied appellant personal injury protection (PIP) benefits under his motor vehicle insurance policy issued by appellee. We affirm.

At the time of the accident on April 28, 1982, appellant was riding his moped, a two-wheeled vehicle with a maximum rating of 1.5 brake horsepower. The automobile, which was his insured vehicle under his policy with appellee, was not involved in the accident.

After appellant filed his complaint seeking PIP benefits from appellee, appellee answered and both parties filed motions for summary judgment. The sole issue for consideration by the trial court, and for us here, is whether an insurer must pay PIP benefits to its insured under a motor vehicle insurance policy who suffers accidental bodily injury while riding a moped. The answer to that question is governed by the Florida Reparations Reform Act, and specifically by the interpretation of section 627.736(4)(d)l, Florida Statutes (1981).

The precise question presented to us here has been addressed in State Farm Mutual Automobile Insurance Company v. Link, 416 So.2d 875 (Fla. 5th DCA 1982). Section 627.736(4)(d)l requires the insurer of an owner of a motor vehicle to pay PIP benefits to such an insured for accidental injuries received “while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.” In order for appellant to receive PIP benefits, it must be determined that the moped he was riding was not “a self-propelled vehicle.” The court in Link made such a determination, reading into section 627.-736(4)(d)l, following the phrase “while not an occupant of a self-propelled vehicle,” the exception that was contained in section 627.732(1), Florida Statutes (1981), “except mopeds, as defined in section 316.003(2).” That phrase was specifically included in the definition of “motor vehicle” in section 627.732(1). It is not in section 627.-736(4)(d)l. It is to us a strained statutory construction to read language into a statute that is specifically included in another section, but is omitted from the section sought to be construed. The Link court cites State Farm Mutual Automobile Insurance Company v. O’Kelley, 349 So.2d 717 (Fla. 1st DCA 1977) to support the construction of the statute it approves. The O’Kelley court concluded mopeds were covered by the statute as it then existed, by holding that a moped was “not a motorcycle.” That method of interpretation, to exclude from a specified category, is far less strained than reading into section 627.-736(4)(d)l as it existed at the time of the accident here, the phrase extracted from section 627.732, “except mopeds, as defined in section 316.003(2).” As noted, even section 627.732 has now been amended by chapter 82-243, Laws of Florida (1982), so that the definition of “motor vehicles” no longer contains the phrase “except mopeds, as defined in section 316.003(2).” We could cite numerous cases on both sides of the question as to what a subsequent amendment to a statute means to the construction to be applied to the statute prior to the amendment. We could also cite cases to the effect that no effect should be given to the subsequent amendment. It is difficult to arrive at a proper construction of section 627.736(4)(d)l, Florida Statutes (1981), because no one construction is easily determined or particularly satisfactory when concluded. Neither do we feel that we are in any better position to determine the proper construction than our good colleagues who rendered the Link decision. However, we do conclude the better construction is not to read into the statute language that is not clearly implied. That construction happens to coincide with what we feel is now the clear legislative intent since the 1982 amendment. As a matter of fact, it seems that each time the courts have interpreted section 627.736(4)(d)l so as to provide PIP coverage when the insured was riding a moped, the legislature has enacted an amendment seeking, apparently, to exclude such coverage.

We therefore affirm.

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

      . That phrase was deleted by chapter 82-243, Laws of Florida (1982).

      . Section 627.736(4)(d)l originally provided that an insured was entitled to PIP benefits if he were "not an occupant of a motor vehicle or motorcycle....” However, this was amended to its present language by chapter 77-268, Laws of Florida (1977).


text:
    Clifford Talmadge SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AS-384.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    As Corrected on Rehearing March 8, 1984.

      Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Kathryn L. Sands, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The defendant was tried on a charge of second degree murder and convicted of the lesser offense of manslaughter. At sentencing, the trial judge, over defense objections, announced that he found that the defendant used a firearm during the commission of the offense, reclassified the offense to a first degree felony under Section 775.087(1), Florida Statutes (1981), and sentenced the defendant to a term of twenty-five years imprisonment.

The defendant asserts on appeal that the trial court erred because: (1) reclassification under Section 775.087(1) is applicable only with respect to the crime expressly charged in the information or indictment and not to lesser included offenses; and (2) there must be a finding by the jury that the defendant used the firearm in order for reclassification to occur under Section 775.-087(1).

As to the defendant’s first contention, this court has already determined the question adversely to the state in Carroll v. State, 412 So.2d 972 (Fla. 1st DCA 1982). We recognize that the Fourth District has reached the opposite conclusion in Miller v. State, 438 So.2d 83 (Fla. 4th DCA 1983), and that our decisions on this point in Carroll and in this case are in direct conflict with Miller. Although we reverse on this point, we certify such conflict pursuant to Fla.App.R. 9.030(a)(2)(A)(vi). We also certify to the Florida Supreme Court the following as a question of great public importance pursuant to Fla.App.R. 9.030(a)(2)(A)(v):

DO THE RECLASSIFICATION PROVISIONS OF SECTION 775.087(1), FLORIDA STATUTES, APPLY WHERE THE DEFENDANT IS NOT CONVICTED OF THE OFFENSE EXPRESSLY CHARGED IN THE INFORMATION OR INDICTMENT BUT, INSTEAD, IS CONVICTED OF A LESSER INCLUDED OFFENSE?

On the second point, the defendant asserts that the trial judge was not at liberty to reclassify the offense absent the jury’s express finding that the defendant used a firearm, the verdict reflecting no such finding. We agree with the defendant’s position and adopt the reasoning of the court in Streeter v. State, 416 So.2d 1203 (Fla. 3rd DCA 1982). Accord Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983). We, therefore, reverse on this point as well.

The judgment reflecting conviction of a first degree felony and the sentence are vacated and this cause is remanded for the entry of a new judgment and sentence consistent with this opinion.

Reversed and Remanded.

SMITH, WIGGINTON and NIMMONS, JJ., concur.


author: GRIMES, Judge.

text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF WINTER HAVEN, a corporation, Appellant, v. Hugh James QUIGLEY, Appellee.
    No. 83-1203.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Roy C. Summerlin and Debra L. Cline of Summerlin, Connor & Braisted, Winter Haven, for appellant.
    Hugh James Quigley, pro se.
   GRIMES, Judge.

Once again we consider the effectiveness of a due-on-sale clause contained in a federal savings and loan association mortgage.

On July 23, 1976, Jack and Lillian Cobb gave First Federal Savings and Loan Association of Winter Haven (First Federal) a mortgage on their home. The mortgage contained the following paragraphs:

7. No conveyance of said property, or any part thereof, shall be made by Mortgagor without the written consent of Mortgagee and without assumption by the grantee in the form prescribed by Mortgagee of the obligation to Mortgagee hereunder. In any event Mortgagee may, upon such conveyance by Mortgagor, deal directly with Mortgagor’s grantee without any notice to Mortgagor in all respects pertaining to this mortgage, and may forbear to sue or may extend times for payment of the debt secured hereby without discharging or in any way affecting the liability of Mortgagor hereunder.
23. If said note, or the interest thereon, or any of the sums of money herein referred to or secured hereby are not fully paid within thirty days after the same, or any of them, become due and payable, or if each covenant, agreement, condition and stipulation of said note and this mortgage, or all of them, are not duly performed, complied with and abid-ed by for a period of thirty days, Mortgagee shall have the option to accelerate the payment of the entire principal sum, with interest, as immediately due and payable without notice.

On April 25, 1982, Hugh J. Quigley (Quigley) contracted to buy the Cobbs’ home. The purchase contract contained the following provision:

Purchaser shall make application to FIRST FEDERAL SAVINGS & LOAN OF W.H. for the purpose of qualifying for the assumption of the existing first mortgage held by said bank, in the approximate balance of $43,500.00, and which has approximately 15 years to run, provided, however, that said first mortgage does not escalate above 8½% per annum in its interest rate. The balance of the principal price in the form of a purchase money second mortgage which the Seller agrees to take back, for a period of fifteen (15) years, amortized on equal monthly installments, including principal and interest at the rate of 10% per annum. In the event either of the above-mentioned mortgages are not forthcoming, Buyer shall have the right to cancel this contract and receive immediate return of all deposit monies....

Quigley applied to First Federal for approval of assumption of the mortgage. First Federal agreed to approve Quigley for assumption subject to the following options:

1. Service Charge 5 Point Fee, No Interest Rate adjustment, 1 year Balloon Payment
OR
2. Service Charge 2 Point Fee, Interest Rate adjusted to 12¾% fixed rate

First Federal also advised Quigley that should he consummate the sale without its approval, the mortgage would be accelerated. Rather than going forward with the purchase, Quigley brought a declaratory judgment action against First Federal.

While the suit was pending, the United States Supreme Court in Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), rendered a sweeping decision determining that a Federal Home Loan Bank Board regulation which permitted federal savings and loan associations to use due-on-sale clauses in their mortgages preempted California law. Notwithstanding, the trial court entered summary judgment for Quigley, holding that First Federal’s due-on-sale clause could not be accelerated by virtue of the sale of the property and that First Federal could not condition its approval upon an increase in interest rates or the payment of mortgage loan points. First Federal appeals this ruling.

The court below distinguished de la Cuesta on three grounds:

I. Mortgage executed before effective date of regulation.

The Cobbs’ mortgage was executed and delivered on July 23, 1976. The court determined that the federal regulation authorizing due-on-sale clauses did not become effective until July 31, 1976. Two of the mortgages in de la Cuesta also predated the regulation, but at the time the regulation was enacted California had always permitted the unfettered acceleration of due-on-sale clauses upon the sale of mortgaged property. It was only after the regulation was passed that the California Supreme Court first adopted a rule that due-on-sale clauses could not be enforced unless the security of the mortgage was jeopardized by the sale. Hence, the Supreme Court found it unnecessary to consider whether the regulation had retroactive effect. In the instant case, the trial court declined to give the regulation retroactive effect and concluded that, unlike California, pre-existing Florida law prohibited the use of due-on-sale clauses absent a showing of impairment of security.

Actually, the regulation became effective before the mortgage was executed. When the de la Cuesta opinion first appeared in advance sheets, the Supreme Court noted that the effective date of the regulation was July 31, 1976. When the case finally appeared in the bound volumes, the reference to July 31 was dropped, and the opinion reflects only that the regulation was enacted in 1976. In fact, the board’s specific authorization for the enforcement of due-on-sale clauses is contained in 12 CFR § 545.8-3(f) (1982), which became effective on June 8, 1976. 41 Fed.Reg. 18287 (1976). The confusion resulted because subsection (g) of the regulation which contains certain limitations on due-on-sale clauses in mortgages executed after July 31, 1976, was enacted to become effective on July 31, 1976.

II. Language of the mortgage does not constitute an enforceable due-on-sale clause.

The court also held that First Federal’s due-on-sale clause could not be enforced because it did not contain the limitations required by subsection (g) of the regulation. Yet, subsection (g) did not become effective until July 31, 1976. The Cobb mortgage was executed during that short period of time in which due-on-sale clauses were specifically authorized without any limitations. However, Quigley cannot complain because even if subsection (g) had been in effect, none of its limitations would have been applicable to this transaction.

The due-on-sale clause most often used in loan instruments is paragraph 17 of the uniform mortgage instrument developed by the Federal Home Loan Mortgage Corporation and the Federal National Mortgage Association, which is quoted in the de la Cuesta opinion. Quigley’s argument that the language of First Federal’s mortgage fatally departed from the customary wording of due-on-sale clauses cannot be sustained because de la Cuesta defined a due-on-sale clause as “a contractual provision that permits the lender to declare the entire balance of a loan immediately due and payable if the property securing the loan is sold or otherwise transferred.” 458 U.S. at 145, 102 S.Ct. at 3018, 73 L.Ed.2d at 670. Paragraph 7 of the Quigley mortgage provided that the mortgaged property should not be conveyed without the written consent of the mortgagee, and paragraph 23 specified that upon the failure to comply with any condition of the mortgage, the mortgagee had the option to accelerate payment of the entire unpaid balance. Regardless of the form of the language, when read together, these provisions constitute a due-on-sale clause.

III. State courts’ equity jurisdiction not subject to preemption.

Finally, the trial court reasoned that one who seeks to foreclose a mortgage in a state court must accept the equitable doctrines recognized by that court. Our court had originally adopted this analysis in First Federal Savings & Loan Association v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980), when we held that a state trial court could deny a federal savings and loan association the right to enforce a due-on-sale clause absent an impairment of security. However, our view on preemption was clearly overruled in de la Cuesta when the Supreme Court held that the California courts could not apply state law to prevent the enforcement of due-on-sale clauses in federal savings and loan association mortgages. Thus, we recently reversed the refusal to enforce a due-on-sale clause contained in such a mortgage. First Home Federal Savings & Loan Association v. Nance, 436 So.2d 163 (Fla. 2d DCA 1983). See Washington Savings & Loan Association v. Concepcion del Portillo, 419 So.2d 805 (Fla. 3d DCA 1982), in which our sister court interpreted the de la Cuesta decision in a similar manner.

The summary judgment for Quigley is reversed. We also reverse the court’s determination, attacked on cross-appeal, that First Federal is entitled to charge a nominal transfer fee to cover the cost of changing its records to reflect a new ownership. This point was never an issue between the parties, and there was no evidence introduced to support the court’s conclusion that it was a routine and customary practice of savings and loan associations to charge a nominal transfer fee.

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

      . The court’s determination that Quigley had the requisite standing to sue has not been challenged on this appfeal.

      .12 CFR § 545.8 — 3(f) (1982) provides:
      (f) Due-on-sale clauses. An association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association's security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as provided in paragraph (g) of this section with respect to loans made after July 31, 1976, on the security of a home occupied or to be occupied by the borrower, exercise by the association of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.

      . References to paragraphs (d) and (e) of the regulation suggest the reason for the differences in dates. Paragraph (d) pertaining to late charges was made effective on June 8, 1976, but an explanatory note in 41 Fed.Reg. 18287 (1976) points out that the effective date of paragraph (e) relating to limitations on late charges was delayed until July 31, 1976, to allow for an orderly transition and alteration of mortgage forms. Presumably, the same rationale prompted the delay in the effective date of paragraph (g) concerning limitations in the due-on-sale clauses.

      . Evidently, the Federal Home Loan Bank Board was not troubled over the creation of a hiatus period because of its view that due-on-sale clauses were already permitted under prior regulations. See de la Cuesta, 458 U.S. at 147, 102 S.Ct. at 3019, 73 L.Ed.2d at 671.


author: BASKIN, Judge.

text:
    Edward SEINFELD, Eva Seinfeld, individually and as trustee of Barry Seinfeld, M.D., P.A., Barry Seinfeld, individually, Irving Shapiro, Barry Seinfeld, M.D., P.A., and Barry Seinfeld, M.D., P.A., Employees’ Pension Trust, Appellants, v. COMMERCIAL BANK & TRUST COMPANY, Appellee.
    No. 83-1172.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 14, 1984.
    Guren, Merritt, Udell, Sogg & Sohen and Howard J. Berlin, Miami, Michael Gable, Fort Lauderdale, for appellants.
    Blank, Rome, Comisky & McCauley and Elizabeth M. Bohn-Garbett, West Palm Beach, for appellee.

      Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Treating appellants’ challenge to the trial court’s Order denying a motion to dissolve notice of lis pendens or to set bond as a petition for writ of certiorari, Florida Rule of Appellate Procedure 9.040(c), we deny the writ. We hold that the supplementary proceedings alleging fraudulent conveyance of property were predicated upon a recorded judgment and duly recorded deeds and that the failure to establish the necessity for bond under Section 48.23(3), Florida Statutes (1981), or that lis pendens was inappropriate, precludes relief.

Petition for certiorari denied.


text:
    I.M.I. ENTERPRISES, INC., Appellant, v. SALLY B. RENARD, INC., a Florida corporation, Appellee.
    No. 83-1193.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 19, 1984.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Rosenberg, Reisman & Glass and Stephen Reisman, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See Keyes Co. v. Dade County Bar Association, 46 So.2d 605 (Fla. 1950); Sol Walker & Co. v. Seaboard Coast Line Railroad, 362 So.2d 45 (Fla. 2d DCA 1978); § 475.01(3), Fla.Stat. (1981).


text:
    Dennis BOHLER, Jr., Appellant, v. Roy H. BROOKS, Jr., Appellee.
    No. 83-1369.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 14, 1984.
    Heyward A. Bradman, Miami, for appellant.
    Roy H. Brooks, Jr., Coral Gables and James H. Earnest, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

In view of appellee’s appointment as guardian pursuant to Chapter 293, Florida Statutes (1979), the Uniform Veterans’ Guardianship Law, and the limited nature of the obligations imposed by its provisions, we affirm the Final Order Denying Petition for the Removal of Guardian and the Appointment of a Successor Guardian.

Affirmed.


author: HENDRY, Judge.

text:
    UNION AIR CONDITIONING, INC., and the Ohio Casualty Insurance Company, Appellants, v. Toni TROXTELL and John Troxtell, her husband, Appellees.
    No. 83-1726.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1984.
    Rehearing Denied March 14, 1984.
    Anthony Reinert and Debra Kornbluh, Miami, for appellants.
    Carl Di Bernardo, Miami, and Walter D. Hanford, Coral Gables, for appellees.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   HENDRY, Judge.

Appellant Union Air Conditioning, Inc. appeals from an order granting appellees’ motion for summary judgment on the issue of liability. We have jurisdiction, Rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, and affirm.

The instant lawsuit arises out of an automobile accident in which appellee Toni Troxtell was seriously injured. Appellant’s employee was driving a company truck at the time of the accident. This person had been given permission to drive the truck that day by a second employee who had permission to drive the truck to and from work and to keep the truck at his residence during non-working hours.

We find that the dangerous instrumentality doctrine controls our decision. This doctrine holds that

[t]he principles of the common law do not permit the owner of an instrumentality that is ... peculiarly dangerous in its operation, to authorize another to use such instrumentality on the public highways without imposing upon such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle ... properly operated when it is by his authority on the public highway.

Susco Car Rental System of Florida v. Leonard, 112 So.2d 832, 836 (Fla.1959) (citations omitted); Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla.1972); Commercial Carrier Corp. v. S.J.G. Corp., 409 So.2d 50 (Fla. 2d DCA 1981), rev. denied, 417 So.2d 328 (Fla.1982); State Farm Mutual Automobile Insurance Co. v. Day Car, Inc., 395 So.2d 179 (Fla. 3d DCA 1980), rev. denied sub nom American Hardware Mut. Ins. Co. v. Contreras, 402 So.2d 607 (Fla.1981); Langston v. Personal Service Insurance Co., 377 So.2d 993 (Fla. 2d DCA 1979). This doctrine applies even if the lessee/permittee violates explicit instructions by the owner, P & H Vehicle Rental & Leasing Corp. v. Garner, 416 So.2d 503 (Fla. 5th DCA 1982) (lessee intoxicated, violation of rental agreement); Alford v. Parker’s Mechanical Constructors, Inc., 241 So.2d 759 (Fla. 1st DCA 1970) (employee violated employer’s express instructions not to use company vehicle for personal use), or if the lessee/permittee allows a third party to drive the owner’s vehicle without the owner’s permission, State Farm Mutual Automobile Insurance Co. v. Day Car, Inc., supra; Ray v. Earl, 277 So.2d 73 (Fla. 2d DCA), cert. denied, 280 So.2d 685 (Fla.1973); Ivey v. National Fisheries, Inc., 215 So.2d 74 (Fla. 3d DCA 1968), as in the case at bar. The only two exceptions to the doctrine are when the use of the owner’s vehicle amounts to a conversion or theft, Commercial Carrier Corp. v. S.J.G. Corp., supra, or when the vehicle is left with another for repairs or servicing and the owner cannot exercise control over the operation of the vehicle while it is there. Castillo v. Bickley, 363 So.2d 792 (Fla.1978). Neither exception applies in the instant case. While we appreciate that the dangerous instrumentality doctrine may require what appears to be a harsh result, public policy favors holding the owner liable for damages caused by his vehicle. This is because the owner has the capacity to protect the safety of the public by not relinquishing control of the vehicle to another. Rabideau v. State, 409 So.2d 1045 (Fla.1982) (Boyd, J. dissenting).

Affirmed.


text:
    Ethel M. PHILLIPS, et ux., Appellants, v. MEASE HOSPITAL AND CLINIC, et al., Appellees.
    Nos. 83-411, 83-834 and 83-969.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 1984.
    Rehearings Denied March 2, 1984.

      Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellants.
    John P. Frazer of Frazer & Hubbard, P.A., Dunedin, for appellee Mease Hosp. and Clinic.
    Paula M. Walsh of Woodworth, Carlson, Meissner & Webb, St. Petersburg, for ap-pellee Emerson.
    Rodney W. Morgan of Shear, Newman & Hahn, P.A., Tampa, for appellee Fla. Patients Compensation Fund.
   CAMPBELL, Judge.

This is an appeal of the trial court’s dismissal of a medical malpractice action against appellees Mease Hospital and Clinic (Mease), James David Emerson, M.D. (Emerson), and the Florida Patients Compensation Fund, pursuant to section 95.11(4)(b), Florida Statutes (1981). The summary judgment in favor of Florida Patients Compensation Fund is also appealed. We reverse the decision of the lower court.

Appellants, Ethel M. Phillips and Clyde Phillips, her husband, filed their complaint on September 16, 1982, and alleged that appellees Mease and Emerson treated Mrs. Phillips for an undisclosed condition for which she was discharged from appellee Mease on December 7, 1976. Appellants further allege that appellees Mease and Emerson negligently administered a variety of drugs to Mrs. Phillips which caused her to suffer eighth cranial nerve damage, hearing loss, loss of balance, kidney damage, and other costs and damages. Appellants allege that Mrs. Phillips was suffering from these injuries when she was discharged from Mease, and that she was readmitted for those conditions on December 9, 1976. Appellants, in an obvious attempt to extend the statute of limitations from two years to seven years, allege that appellees fraudulently and intentionally concealed from appellants the fact that Mrs. Phillips’ problems were caused by the administration of antibiotics by appellees Mease and Emerson. Appellants then allege they first became aware of the alleged negligence and fraud in May 1982, when they read of another medical malpractice action based on the negligent administration of the same drugs Mrs. Phillips received.

Appellees filed a motion to dismiss the complaint on the ground that the action was barred on the face of the complaint by the two year statute of limitations in section 95.11(4)(b). The trial court granted the motion to dismiss and stated:

[Pjlaintiffs allege not that the injury was concealed but that the alleged causation and/or negligence was concealed and it appearing to the Court that the exception to the normal four year Statute of Limitations is based on concealment of the injury and not lack of knowledge of causation and/or negligence and it further appearing, based on the Plaintiffs’ Complaint that the knowledge of this injury was observable in December 1976....

Thus, the trial court dismissed the action on the basis that the limitations period began to run when Mrs. Phillips discovered her physical injuries. Subsequently, a summary judgment was entered in favor of the Florida Patients Compensation Fund, based on the dismissal of the action against the other appellees.

We find that the trial judge’s order, as it pertained to appellants’ original complaint, was right for the wrong reason. In appellants’ attempt to extend the limitation period in their original complaint, they allege that they had knowledge of Mrs. Phillips’ condition on her discharge from Mease on December 7, 1976, and her readmission on December 9, 1976. They do not allege how long she was hospitalized or treated after the readmission. They also do not allege how, when or for how long appellees Mease and Emerson fraudulently and intentionally concealed the alleged true cause of Mrs. Phillips’ condition, except that it is implied that it occurred on the readmission on December 9, 1976. Therefore, on the face of the original complaint, there was nothing except an implication to extend the limitations period beyond four years from December 9, 1976; there is no allegation as to how long appellants continued to rely upon the implied representations of appel-lees on December 9, 1976.

Although appellants’ original complaint was defective, we find that appellants’ proffered amended complaint should survive either a motion to dismiss or summary judgment at this time. The trial judge’s order directed to the motion to dismiss of appellees Mease and Emerson contained a somewhat unusual provision. While the order specifically granted the motion to dismiss with prejudice, it also provided that:

[Tjhe Court will consider a Motion for Rehearing with an attached Amended Complaint that is not inconsistent with the factual pleadings already enunciated by the Plaintiffs in their initial Complaint. Upon receipt of the Motion for Rehearing with the attached Amended Complaint the Court, on its own Motion, will make a ruling as to whether or not the facts alleged in the Amended Complaint avoid the Statute of Limitations requirement set forth in Florida Statute 95.11(4)(b).

Appellants filed a timely motion for rehearing, accompanied by an amended complaint. The trial court denied the motion for rehearing and entered a final judgment of dismissal. We find this to have been error.

The first portion (part one) of section 95.11(4)(b), provides that a medical malpractice action must be brought within two years from the occurrence of the “incident” giving rise to the action, or within two years from discovery of the “incident,” or ' when the “incident” should have been discovered, but in no event, more than four years from the “date of the incident or occurrence out of which the cause of action accrued.” In the last portion (part two) of section 95.11(4)(b), the four year maximum limitations of part one is extended where,

[I]t can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred. (Emphasis supplied.)

We find that the trial court mistakenly restricted the word “injury” in part two of the statute to physical injury. A cause of action in a medical malpractice case necessarily includes a negligent act, omission, or breach of contract, and a resulting injury. Section 95.11(4)(b) defines an “action for medical malpractice” as a claim in tort or in contract for death, injury or monetary loss “arising out of ... diagnosis, treatment, or care.” The extension in part two of the statute is for an “injury” not discovered “within the 4-year period” provided in part one of the statute. “Injury” in part two, therefore, must refer also to the “incident” in part one. Reading the statute as a whole therefore requires, in our opinion, that both “incident” (or act) and “injury” must be known and that fraud, concealment or intentional misrepresentation of fact that conceals either will extend the limitations period as provided in section 95.11(4)(b).

Here, appellants saved their cause of action by their amended complaint, and the motion for rehearing should have been granted, the amended complaint allowed, and the motion to dismiss denied. The saving allegations of the amended complaint are that after Mrs. Phillips was discharged from Mease on December 7, 1976, suffering from symptoms indicating “serious injury,” she was readmitted on December 9, 1976. Appellants then allege that appellees concealed the cause of Mrs. Phillips’ problems and “continued to treat the Plaintiff ... and to intentionally misrepresent to her ... that her problems were ... normal ... and not due to negligent care.” Appellants then allege they first became aware of the alleged negligence and fraud on May 17, 1982. These allegations were sufficient to invoke part two of section 95.11(4)(b) so that appellants’ cause of action was no longer, on the face of the complaint, barred by the limitations of part one of section 95.11(4)(b). The final judgment of dismissal was in error, as was the resulting summary judgment, as to appel-lee Florida Patients Compensation Fund.

The issue then becomes a question of fact as to whether appellants discovered, or should have discovered, the alleged negligence of appellees prior to May 1982. Walker v. Dunne, 368 So.2d 640 (Fla. 2d DCA 1979); Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981). Assuming there are no new additional undisputed facts, the issue is for a jury and not the proper subject for summary judgment.

Reversed and remanded.

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


author: LARRY G. SMITH, Judge.

text:
    UNIVERSITY OF NORTH FLORIDA, Appellant, v. The UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. AR-37.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1984.
    Cindy L. Anderson of Corbin & Dickinson, Jacksonville, for appellant.
    Louisa E. Hargrett, Unemployment Appeals Com'n, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

This is an appeal from an order of the Unemployment Appeals Commission affirming, without opinion, the appeals referee’s decision that appellee was discharged, but not for misconduct connected with his work, see Section 443.036(24)(b), Florida Statutes (1981), and thus entitled to unemployment benefits. As grounds for reversal, appellant contends that the decision is based upon an erroneous application of the public records exception to the hearsay rule, Section 90.803(8), Florida Statutes (1981), and that there is substantial competent evidence demonstrating misconduct on appellee’s part in the performance of his duties. We affirm.

The ostensible reason for appellee’s discharge was that he allegedly made certain false statements and falsified records. Of course, he denied doing so. The University, for its part, presented no witness with firsthand knowledge of appellee’s involvement or participation in the alleged “misconduct.” It, however, did attempt to introduce through the testimony of the University’s custodian of appellee’s personnel file various documents relating to the firing under the public records exception to the hearsay rule, Section 90.803(8).

For this rule to apply, the document must either set forth the activities of an office or agency or must relate to “matters observed pursuant to [a] duty imposed by law as to matters which there was a duty to report,” Sikes v. Seaboard Coast Line Railroad Company, 429 So.2d 1216, 1221 (Fla. 1st DCA 1983), and certain of these documents, such as the accounting records, may arguably fall within the former exception relating to the activities of an office or agency. However, as to the remaining documents we can find no duty imposed by statute or administrative rule that they be made or maintained. See Sikes, supra. Moreover, no predicate had been laid that the disputed memoranda were entered or made in the regular course of the University’s business or that such materials were regularly completed and maintained. Compare CF Chemicals, Inc. v. Florida Department of Labor and Employment Security, 400 So.2d 846, 848 (Fla. 2nd DCA 1981).

Even assuming, however, that such documents were admissible, they still do not prove the misconduct required for a denial of unemployment benefits. The circumstances under which the initial two reprimands were issued do not appear in the record and are dissimilar to the incident for which appellee was discharged. Indeed, the charge upon which the memoranda concluding that appellee had falsified documents were based establishes only that two different persons allocated mail by two different methods, not that appellee actually engaged in falsification of those records. As such, the proof offered for appellee’s alleged misconduct does not meet the high standard of showing “deliberate violations or disregard of standards of behavior,” or “carelessness or negligence of such a degree or recurrence as to manifest culpability.” Section 443.036(24)(a) and (b), Florida Statutes (1981).

AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.


text:
    Norman GAYLIS and Natalie Gaylis, Appellants, v. Steven J. CAMINIS, Appellee.
    No. 83-377.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Rehearing Denied March 23, 1984.

      Stanley Jay Bartel, Miami, for appellants.
    Steel, Hector & Davis and Donald M. Middlebrooks, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

Dr. and Mrs. Gaylis, sellers of the property giving rise to the instant lawsuit, appeal from a final judgment finding that the buyer, Mr. Caminis, had a right to repudiate the contract for the purchase of appellants’ townhouse and that he is entitled to a refund of his deposit. Because we find that the ruling was clearly erroneous as a matter of law, we reverse.

Very briefly, the facts are as follows: The sales contract was signed on March 5, 1981. On May 13, 1981, appellee buyer notified appellants of two alleged title defects. One defect, a party wall encroachment, was admittedly material and affected the marketability of the title. That problem was resolved by a quitclaim deed and an adjustment of the mortgage. The second alleged defect concerned a common roadway which did not match the boundaries on the recorded plat. The townhouse association was attempting to resolve that problem by means of quitclaim deeds. The sole impediment to the swift resolution of the wayward roadway issue was the developer, who was being asked to pay for the cost of preparing and recording the quitclaim deeds. It was admitted that the roadway did not encroach upon or affect the property involved in this case. Even so, appellants drafted indemnity and escrow agreements protecting appellee from eventualities caused by the roadway problem and agreeing to pay for any legal expenses incurred if the townhouse association became involved in litigation against the developer. A further provision assured appellee that as soon as the roadway problem was resolved, an endorsement would be added to the title insurance policy removing the roadway issue as an exception. This solution was agreeable to the lender, who also agreed to extend its commitment to finance the mortgage at I4V2 percent interest, another condition of the contract between the parties. Closing was set for June 14, 1981. Asserting, however, that the indemnity agreement did not adequately protect his interests, appellee refused to close and declared the contract null and void. On July 6, 1981, appellee again stated that the transaction was cancelled and he demanded the return of his deposit.

While both parties argue whether the alleged roadway defect was of such materiality as to render the title unmarketable and/or uninsurable, we find that we do not have to reach that issue. We focus our attention instead on the actions of the parties. The portion of the sales contract most relevant for our consideration states as follows:

Buyer shall have 15 days from the date of receiving the abstract to examine same and if title is found to be defective, Buyer shall notify Seller in writing specifying the defects within that 15 day period. If said defects render the title unmarketable, Seller shall have 120 days from receipt of such notice to cure the defects, and if after said period Seller shall not have cured the defects, Buyer shall have the option of either (1) accepting the title as it is then, or (2) demanding a refund of all monies paid hereunder .... (emphasis supplied)

Thus, it is clear that appellee’s actions in this case constituted an anticipatory breach of the contract. As stated in Mori v. Matsushita Electric Corp., 380 So.2d 461, 463 (Fla. 3d DCA), cert. denied, 389 So.2d 1112 (Fla.1980):

A prospective breach of the contract occurs when there is absolute repudiation by one of the parties prior to the time when his performance is due under the terms of the contract. Such a repudiation may be evidenced by words or voluntary acts but the refusal must be distinct, unequivocal, and absolute.

Appellee’s absolute act took place on June 11, 1981, when he notified both the lender and the appellants that the contract was declared null and void. This was less than 30 days after appellants first learned of the title defects. Under the terms of the sales contract, the appellants had 120 days to cure the.defects. Even if appellee was correct in refusing to accept the indemnity and escrow agreements, he was still under an affirmative obligation to wait out the 120 day period. If, at the end of that time, the title defects had not been cured or if it was no longer possible to obtain financing at 14½ percent, then appellee had a right to rescind the contract and receive a refund of the monies paid. But, given the facts that one title defect was cured at this point, one was in the process of being cured, and the lender had already extended the 14V2 percent mortgage commitment once, appellee had no right to repudiate the contract based upon a “business judgment” that the terms of the contract could not be met within the 120 day period.

The law is clear that a repudiation relieves the nonbreaching party of its duty to tender performance and gives rise to a claim for damages. Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181, 182 (Fla.1982); Poinsetta Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936); Southern Crane Rentals, Inc. v. City of Gainesville, 429 So.2d 771 (Fla. 1st DCA 1983). The sales contract provides that upon default by the buyer, the seller may elect to retain the deposit paid by the buyer or he may proceed at law or in equity to enforce his legal rights under the contract. We leave that issue for further disposition by the trial court. We also direct the trial court to enter an appropriate award of attorney’s fees and costs to appellants as provided by the sales contract.

Reversed and remanded with directions.

      . It should be noted, however, that appellee’s May 13, 1981 letter, which first notified appellants of the title defects, also stated that because of the title defects he wished to cancel the contract.

      . The testimony of appellee’s former counsel reflects that the roadway problem was resolved in late summer or early fall, 1981, apparently without resort to litigation.


author: BASKIN, Judge. JORGENSON, Judge,

text:
    KOPPLOW & FLYNN, P.A., Appellant, v. David P. TRUDELL, Appellee.
    No. 83-1544.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    As Modified on Denial of Rehearing March 19, 1984.

      Joe N. Unger, Highsmith, Strauss & Glatzer, Miami, for appellant.
    Ellis Rubin, Naples, and S. Richard Ka-plan, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

David Trudell was severely injured when the motorcycle he was driving was involved in an accident with a truck belonging to Florida Power & Light Company [FP & L]. He retained the law firm of Kopplow & Flynn, P.A. [Kopplow] under a standard 40% contingent fee agreement to represent him in his claim against FP & L. Kopplow provided Trudell, who appeared emotionally unstable, with financial assistance to enable him to live near' Jackson Memorial Hospital during the period of his rehabilitation. Kopplow also provided emotional support. Trudell was eventually evicted from his lodgings and neither Kopplow nor Trudell’s family was able to locate him; nevertheless, Kopplow continued settlement negotiations with FP & L, obtaining an offer of $2,000 a month, $340,000 in periodic payments, and $350,000 up-front money.

Subsequently, Kopplow was informed by Trudell that Trudell had retained the law firm of Ellis Rubin, P.A., and was living in a rooming house adjacent to Ellis Rubin’s law office. Neither Trudell’s family nor Kopplow was able to see Trudell alone. Kopplow spoke to Trudell in Rubin’s presence and advised him of FP & L’s offer, recommending that the offer be rejected because Kopplow believed he could obtain a better settlement. When Kopplow declined to work with Rubin, Rubin became counsel of record, eventually obtaining an offer in the same form as the offer obtained by Kopplow but approximately 10% or $230,-000 larger. After discharging Kopplow, Trudell proposed that Rubin receive 25% of the legal fee and Kopplow receive 75% of the legal fee. Kopplow declined and filed suit to obtain the entire contingent fee. Following the trial court’s determination that the appropriate measure of recovery was in quantum meruit, and that Kop-plow was entitled to the sum of $160,000, Kopplow filed this appeal. We affirm.

Kopplow contends that because he had completed all the work necessary to produce the contingent fee to which Trudell had originally agreed, he was entitled to the entire legal fee, or 40% of the recovery.

The issue presented by this appeal was decided by the Supreme Court of Florida in Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982). In that case the court addressed the question of the fee to which a discharged attorney is entitled when he was engaged by the client under a contingent fee arrangement. The court held that because clients must be free to discharge their attorneys without incurring excessive fee obligations, the proper rule to be applied in determining the fee is the quantum meruit rule limited by the contract price. Thus, appellant, who obtained a settlement offer which was rejected by the client on its advice, may not demand as a fee the full percentage to which it would have been entitled under the contingent fee contract even though the successor attorney negotiated a settlement similar in format, but approximately 10% greater in amount. See Milton Kelner, P.A. v. 610 Lincoln Road, 328 So.2d 193 (Fla.1976).

The trial court found, as a matter of fact, that the contingency had not occurred before Kopplow was discharged. Because that finding is supported by competent substantial evidence, it may not be disturbed on appeal. See Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA), review denied, 407 So.2d 1103 (Fla.1981).

We find no merit in appellant’s contention that the trial court was required to grant its motion for recusal on the ground that a partner in the law firm of one of the expert witnesses provided the judge with legal services in an unrelated case. See In re Estate of Carlton, 378 So.2d 1212 (Fla. 1979); The Florida Judges Manual, § 3.19, (Office of the State Courts Administrator) (1981); Opinion of Committee on Standards of Conduct Governing Judges # 79-2.

Affirmed.

JORGENSON, Judge,

specially concurring.

I agree, for the reasons advanced in Judge Baskin’s opinion, that an affirmance in this case is the appropriate result. I write separately only to point out that our affirmance should not be read as an approval of the conduct of either of the lawyers involved in this litigation. Fee disputes are always distasteful and under the circumstances of this case are repugnant.

Although it is appropriate for a lawyer to advance certain monies for the cost of litigation, it is never appropriate for a lawyer to advance financial assistance to a client in the manner outlined in the majority opinion. See The Florida Bar v. Rogowski, 399 So.2d 1390 (Fla.1981); The Florida Bar v. Dawson, 318 So.2d 385 (Fla.), cert. denied mem., 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975); The Florida Bar v. Rhubottom, 132 So.2d 395 (Fla.1961); The Florida Bar v. Dawson, 111 So.2d 427 (Fla.1959); Fla. Bar Code Prof. Resp. EC 5-7, 5-8, DR 5-103(B); see also Fla. Bar Professional Ethics Comm., Op. 65-39 (1965) (a lawyer may not ethically lend or advance living expenses to clients during the pendency of personal injury actions even though the client is injured and cannot work). This may be the case that Justice Overton had in mind when, in authoring Rosenberg v. Levin, 409 So.2d 1016 (Fla.1982), he suggested that “[tjhere should, of course, be a presumption of regularity and competence in the performance of the services by a successor attorney,” id. at 1022.

HENDRY and BASKIN, JJ., join in the special concurrence.


author: JORGENSON, Judge.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF HIGHWAY PATROL, and James A. Carr, Petitioners, v. Susan Ann KROPFF, Respondent.
    No. 83-2479.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Rehearing Denied March 21, 1984.
    Charles F. Mills and William A. Meadows, Jr., South Miami, for petitioners.
    Rossman & Baumberger and Robert D. Peltz, Miami, for respondent.
    Gabriel Mazzeo, Tallahassee, for Bill Gunter, Insurance Commissioner and Treasurer, as amicus curiae.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

The genesis of this petition for a writ of certiorari was a negligence action filed by Kropff against the Department of Highway Safety & Motor Vehicles, Division of Highway Patrol, and Trooper James A. Carr. For the reasons which follow we grant the petition, vacate the order entered by the trial court and remand for further proceedings.

During the course of discovery the plaintiff filed a notice of taking deposition pursuant to Florida Rule of Civil Procedure 1.310. As authorized by Florida Rule of Civil Procedure 1.310(b)(5) the plaintiff also filed a notice to produce directing the highway patrol’s designated agent, see Fla.R. Civ.P. 1.310(b)(6), to bring to the deposition for inspection or copying

[a]ll statements, investigation reports, investigation memoranda, written notices, correspondence and documents of any nature relating to the FLORIDA HIGHWAY PATROL’S investigation of the accident involving SUSAN ANN KROPFF on December 29, 1978 and the claims in lawsuit [sic] filed as a result of said accident by SUSAN ANN KROPFF, compiled, prepared, drafted or received at any time up until the present.

The notice also stated that “[t]his request is made pursuant to the provisions of Florida Statutes Section 119 et seq. [sic],” the Public Records Act. Following a motion for a protective order, a motion to compel discovery and a hearing on the parties’ respective motions, the trial court denied the former motion, granted the latter and entered an order requiring the production of

[a]ll statements, investigation reports, investigation memoranda, written notes, correspondence and documents of any nature relating to the Florida Highway Patrol’s investigation of the accident involving Susan Ann Kropff on December 29,1978 and the claims and lawsuits filed as a result of said accident by Susan Ann Kropff, compiled, prepared, drafted or received at any time up until the present time by either the State of Florida, the Department of Highway Safety and Motor Vehicles, the Division of Highway Patrol or the Division of Risk Management, whether done through their employees, agents or attorneys (either in house or private counsel).

The trial court’s order does not satisfy the procedural requirements established by this court in Donner v. Edelstein, 415 So.2d 830 (Fla. 3d DCA), motion for order in accordance with mandate granted, 423 So.2d 367 (Fla. 3d DCA 1982), and Miami Herald Publishing Co. v. City of North Miami, 420 So.2d 653 (Fla. 3d DCA 1982). We therefore vacate the order below and remand with directions to examine in camera the documents which are being withheld from disclosure and determine which, if any, are exempt from the purview of the Public Records Act, §§ 119.01-12, Fla.Stat. (1981 & Supp.1982). We further direct that the trial court retain as sealed exhibits copies of all the records so that either of the parties may thereafter seek review of the trial court’s ruling.

We note that the relief granted by the trial court requires the production of claim files maintained by the Division of Risk Management. Section 119.07(3)(a), Florida Statutes (Supp.1982), provides that “[a]ll public records which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from [the inspection requirements of the Public Records Act]” (emphasis added). See also Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979) (only public records provided by statute to be confidential or which are expressly exempted by general or special law from disclosure are exempt). Section 284.-40(2), Florida Statutes (1981), provides that “[t]he claim files maintained by the Division of Risk Management shall be considered privileged and confidential and shall be only for the usage by the Department of Insurance in fulfilling its duties and responsibilities under this part” (emphasis added). The claim files of the Division of Risk Management are, therefore, exempt from the disclosure requirements of the Public Records Act, at least within the limits prescribed by Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982), review denied mem., 426 So.2d 27 (Fla.1983).

The petitioner’s argument that certain of these documents are privileged under section 90.502, Florida Statutes (1981), has been addressed and disposed of by this court in Miami Herald Publishing Co. v. City of North Miami, Case No. 83-688 (Fla. 3d DCA Feb. 14, 1984).

Certiorari granted, order vacated and remanded with directions.

      . We note but decline to address at length the procedure used by Kropff in mingling the provisions of the Public Records Act with discovery rules. Kropff’s notice to produce was filed pursuant to Florida Rule of Civil Procedure 1.310(b)(5), which requires that production of documents be controlled by the procedures of Florida Rule of Civil Procedure 1.350. Rule 1.350 in turn limits the scope of such a request to documents constituting or containing matters within the scope of Florida Rule of Civil Procedure 1.280(b). Rule 1.280(b) delineates in some detail the scope of discovery. Although the Rules of Civil Procedure and the Public Records Act may .overlap in certain areas, they are not coextensive in scope. Just as the supreme court did not in Wait, "we do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure ...,” id. at 425. Compare, e.g., Fla.R.Civ.P. 1.280(b)(2) (work product discoverable only upon showing of need and inability without undue hardship to obtain the substantial equivalent of the materials elsewhere) with Tober (work product not exempt from the Public Records Act). Additionally, the Public Records Act provides its own procedures for making a public records request,
        see § 119.07, Fla.Stat. (Supp.1982), and the department has provided procedures for such requests, see Fla.Admin.Code Rule 15-1.07. Neither the Rules of Civil Procedure nor the Public Records Act contemplates the highly unusual hybrid procedure used by Kropff. We do not see the need to decide the issue, however, while this case is in its present posture.


author: DOWNEY, Judge.

text:
    Carol Ann FRIES, Appellant, v. Rodney Lewis FRIES, Appellee.
    No. 83-367.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied March 19, 1984.
    Elizabeth Athanasakos, Fort Lauderdale, for appellant.
    Martin F. Avery, Jr., of Berryhill, Avery, Williams, Sasadu, P.A., Fort Lauderdale, and Barbara Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellee.
   DOWNEY, Judge.

The wife in this dissolution of marriage proceeding appeals the final judgment and poses five points for consideration. We have seriously addressed all of said points but find error presented in only two of them.

The wife, age 57, and the husband, age 55, were married for thirty-six years. All of their children are adults, but one is handicapped. The wife worked a good portion of her married life, but because of a slight stroke and other physical ailments she was required to give up her position as a computer operator with a bank. At the time of the dissolution of marriage she was working part time as a “Kelly girl” at $3.25 per hour. The husband had held a responsible position with a boat company and, although he was no longer employed there, he has the capacity for quite remunerative employment. The husband inherited an interest in a substantial farm in Wisconsin. Among his assets are an undivided one-half interest in the marital domicile and the interest in the Wisconsin farm.

The wife contends she should have been awarded permanent instead of rehabilitative alimony and we agree. The length of the marriage, her age, and the condition of her health convince us that rehabilitative alimony is not appropriate here.

The only other point that we find has merit is the wife’s argument that the final judgment should not, have provided that the court will order a sale of the marital home upon petition of either party, because the right to partition was not pleaded.

Accordingly, the final judgment is affirmed in all respects except that on remand the trial court is directed to modify the final judgment by making the alimony award permanent periodic alimony and eliminating that part of ¶ 3 providing for sale of the marital home.

AFFIRMED AS MODIFIED AND REMANDED, with directions.

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


text:
    RIVERSIDE 1000 CORPORATION, Appellant, v. Nancy S. GOLDBERG, Appellee.
    No. 83-1895.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 1984.
    Rehearing Denied March 20, 1984.
    Robert H. Anderson, II, Fort Lauderdale, for appellant.
    Gary R. Gromet, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Atlas v. City of Pembroke Pines, 441 So.2d 652 (Fla. 4th DCA 1983).

GLICKSTEIN, DELL and WALDEN, JJ., concur.


author: OTT, Chief Judge.

text:
    SEMINOLE-ON-THE-GREEN, Cavalier Building One Association, Inc., a nonprofit Florida corporation, Seminole-On-the-Green, Villas Unit No. Two South Association, Inc., a nonprofit Florida corporation, Seminole-On-the-Green, Villas Unit No. Four South Association, Inc., a nonprofit Florida corporation, Seminole-On-the-Green, Villas Unit No. Two North Association, Inc., a nonprofit Florida corporation, and Seminole-On-the-Green, Villas Unit No. Three South Association, Inc., a nonprofit Florida corporation, Appellants, v. Jack KELLY, individually, and as Trustee of Seminole-On-the-Green Management, Inc., a dissolved Florida corporation, Appellee.
    No. 82-2194.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1984.
    Rehearing Denied March 5, 1984.

      Hugh E. Reams of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, P.A., St. Pe-tersburg, for appellants.
    John T. Blakely of Johnson, Blakely, Pope, Bokor, Ruppel & Tew, P.A., Clear-water, for appellee.
   OTT, Chief Judge.

The main issue presented in this appeal is whether a certain rent escalation clause, tied to the consumer price index, contained in condominium recreational facilities leases is unconscionable and therefore unenforceable under Florida contracts law. We affirm the order of the trial court finding that the lease provisions were not unconscionable.

Appellants’ second amended complaint alleged that recreational facilities leases between the parties were unconscionable because (1) they contain escalation clauses tied to the consumer price index; (2) unit owners pay all insurance, maintenance, repairs, taxes, and utilities for the facilities; (3) the lessor has the right to impose a lien on individual condominium units for failure to pay rent; (4) the escalation clause formula gives an excessive rate of return; (5) the leases were executed by the developer as both lessor and lessee. Appellee counterclaimed to collect past due escalated rent because unit owners had failed and refused to pay escalated rent.

Each side moved for summary judgment, asserting that there were no disputed issues of material fact. Appellants’ motion was denied; the lower court granted the motion of appellee and computed the amounts owed by each condominium association.

Appellants have not argued on appeal that section 718.401, Florida Statutes (1981), is applicable.

The recreational facilities leases in question require each unit owner to pay $10.00 per month base rent. The rent is adjusted every five years according to changes in the consumer price index. The following formula, taken from the Villas Unit No. Four South lease, is used to compute rent adjustments in all of the leases:

For purposes of calculating additional rent due hereunder, if any, reference is made to the index number of retail commodity prices designated “Consumer Price Index — All Items” (1956 — 59 equals 100) prepared by Bureau of Labor Statistics of the United States Department of Labor.
On the dates herein prescribed at which the adjustment in rent is to be determined, the additional rent per an-num shall be computed as being the difference between the products derived by (a) multiplying the Index as of December 31, 1973, representing the average index of retail commodity prices for the month of December, 1973, by the minimum rental of $1,680.00 specified herein; and (b) multiplying the index as of December 31, of the year prior to the date on which the adjustment is to be made hereunder, representing the average of retail commodity prices for the month of December of said last prior year, by the amount of minimum rental of $1,680.00 specified herein. The difference between said products, if the result of multiplication derived at by Item (b) above exceeds that of Item (a) above, shall represent the additional rent per annum to be paid to Lessor in addition to the minimum rent of $1,680.00 which additional rent shall be divided into twelve (12) equal monthly installments to be payable hereunder until the next period of adjustment, in the same manner as is the minimum rent payable hereunder during each lease year.
Notwithstanding the foregoing provisions, it is specifically agreed that the minimum rent specified hereunder of $1,680.00 per annum, for full calendar years, shall never be reduced by reason of any adjustment made as specified in this Paragraph 29, and adjustment in minimum rent due hereunder shall only be made if the same constitutes an increase. However, if the determination made at the end of one period requires an increase in minimum rent, and the same determination made at the end of another period would require a decrease, the decrease in said additional rent would be applicable so long as the minimum rent is never reduced to a sum which is less than $1,680.00 per annum for any full calendar year during the term hereof.

Appellants argue that most lease formulas are based on percentage changes in the consumer price index rather than point changes. Appellee’s expert testified at deposition that the point rise formula was commercially acceptable. Appellants did not refute this testimony. We are unpersuaded by appellants’ argument that the formula is unworkable and unconscionable.

Appellants’ main contention on appeal is that the factors present in this case are virtually identical to those present in Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d DCA 1982), wherein our sister court held that a rent escalation clause was unenforceable. We find Steinhardt to be factually distinguishable. There, the rental was subject to a double escalation clause, one based on the consumer price index and one on devaluation of the dollar. Salespeople urged individual unit purchasers not to engage an attorney to represent them in their purchases. Unit purchasers were led to believe they were represented by an individual who in reality represented the developer. Finally, the base rent per unit owner in the instant case is only $10.00 per month.

As stated by the court in Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865 (Fla. 4th DCA 1981),

There is nothing intrinsically unfair or unreasonable in a lease of recreational facilities to adjacent property owners as tenants which lease may contain an escalation of rent clause based upon some appropriate measure of increases in the cost of living.

The decision of the trial court is AFFIRMED.

BOARDMAN and LEHAN, JJ., concur.

      . Section 718.401 declares void for public policy reasons the inclusion or enforcement of escalation clauses in condominium recreational facilities leases. This statute, effective June 4, 1975, has no application to pre-existing contracts. Fleeman v. Case, 342 So.2d 815 (Fla.1976).

      . The total base rent in Steinhardt was $51,-480.00. This was to be paid pro rata by 119 condominium unit owners, or $36.00 each. Admittedly, neither the record in our case nor the Steinhardt opinion refers to the facilities or benefits enjoyed under the leases.


text:
    Gerald L. THOMAS, Jr., Appellant, v. PERSONAL REPRESENTATIVE OF the ESTATE OF Leo Z. DELOACH, Sr., Deceased; Leo Z. Deloach, Jr., as Heir at Law of Leo Z. Deloach, Sr., Deceased; and General Accident Fire and Life Assurance Corporation, Ltd., Appellees.
    No. AT-418.
    District Court of Appeal of Florida, First District.
    Feb. 21, 1984.
    Rehearing Denied March 19, 1984.
    G. Frank Godfrey of Wood, Godfrey & Atter, Jacksonville, for appellant.

      Robert C. Gobelman and Jack W. Shaw, Jr., of Mathews, Osborne, McNatt, Gobel-man & Cobb, Jacksonville, for appellees.
   PER CURIAM.

Appellant has failed to comply with the appropriate statutes of limitation and has therefore lost his right to proceed against the estate and the insurance company. Accordingly, we affirm the grant of summary judgment in favor of appellee.

BOOTH, WIGGINTON and ZEHMER, JJ., concur.