author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    Lourdes B. ALONSO, Appellant, v. Genaro ALONSO, Appellee.
    No. 83-2342.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied June 5, 1984.
    Edward C. Yining, Jr., Miami, for appellant.
    Richard M. Gale, Miami, for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and M. IGNATIUS LESTER, Associate Judge.
   PER CURIAM.

Affirmed.

SCHWARTZ, Chief Judge

(dissenting).

In the order now before us, the trial court reinstated, without further testimony, the “visitation” provisions of the order this court reversed in its entirety in Alonso v. Alonso, 432 So.2d 174 (Fla. 3d DCA 1983). I believe that the present order constitutes an unauthorized departure from our earlier mandate and should therefore itself be reversed. John Crescent Inc. v. Peterson, 401 So.2d 1150 (Fla. 4th DCA 1981), rev. denied, 412 So.2d 469 (Fla.1982); Robinson v. Gale, 380 So.2d 513 (Fla. 3d DCA 1980); Goodner v. Shapiro, 367 So.2d 1110 (Fla. 3d DCA 1979).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard MOORE, Jr., Petitioner, v. G.M.B. CORP., Waterways Development Corporation, and Kim B. Corporation, a Florida general partnership, d/b/a Gables Waterway Towers, Respondents. G.M.B. CORP., Waterways Development Corporation, and Kim B. Corporation, a Florida general partnership, d/b/a Gables Waterway Towers, Petitioners, v. Richard MOORE, Jr., Respondent.
    Nos. 84-93, 84-111.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied June 4, 1984.
    Dennis G. King, Miami, for petitioner/respondent.
    Richard & Richard and Dennis Richard, Miami, for respondents/petitioners.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

By these petitions for a writ of certiorari, we are asked to review an appellate decision of the circuit court. First, we find no departure from the essential requirements of law in the circuit court’s reversal of the county court judgment herein and therefore deny the petition for a writ of certiora-ri filed by G.M.B. Corporation, et al. We are unpersuaded that the circuit court reweighed the evidence on appeal in reaching its decision to reverse the county court judgment on the ground of insufficient evidence. Compare Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). Second, we find a departure from the essential requirements of law in the circuit court’s decision to deny appellate attorney’s fees to the prevailing party in the appeal, Richard Moore, Jr. Plainly, Richard Moore, Jr., as the prevailing party in the appeal, was entitled to appellate attorney’s fees under the lease agreement between the parties [paragraph 12] and Sections 59.46(1), 83.48, Florida Statutes (1981). We therefore grant Richard Moore Jr.’s petition for a writ of certiorari, quash that portion of the circuit court’s decision filed November 9, 1983, which denies Richard Moore, Jr.’s motion for appellate attorney’s fees, and remand the cause to the circuit court with directions to grant the aforesaid motion.

Certiorari granted in part and denied in part.


author: FERGUSON, Judge.

text:
    Conrad A. KIES and Janet Kies, Appellants, v. Marvin A. HOLLUB, R.A. Davenport, Sr., & James Stoker, d/b/a Architectural Control Committee, and Pine Bay South Association, Inc., Appellees.
    No. 82-2569.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.

      Roger A. Bridges, Coral Gables, for appellants.
    Schultz & Hollander and Howard Hollander and Robert A. Solove, Miami, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.

      . Two members of the three-member committee are builders who have constructed most of the homes in the subdivision. None of them live there.

   ON MOTION FOR REHEARING

FERGUSON, Judge.

Appellants purchased a lot and constructed a $700,000 residence in a subdivision of luxurious custom designed homes. The neighborhood is quiet and secluded with no common recreational facilities. The subdivision is also subject to a Declaration of Restrictions which is recorded in the county’s Official Records. Appellants' plans for construction of the home included a tennis court which was approved by the Architectural Control Committee of the subdivision. The plans did not include the erection of lights for the tennis court. Subsequently, appellants applied for and received from the County Commission a variance for construction of tennis court lights based on a plan indicating four 16-foot high light poles with two lamps each. After obtaining the variance appellants erected eight 20-foot light poles which violated the County Commission’s variance permit, and as appellees contend, violated the Declaration of Restrictions as well.

The Architectural Control Committee ordered appellants to remove the light poles. Appellants refused and instead sought another variance for the 20-foot poles, which was approved by a zoning official but overturned by the Zoning Appeals Bo&rd.

Appellees, members of the Architectural Control Committee, brought this action for injunctive relief seeking to prohibit the “intended lighting facilities” on appellants’ tennis court. Appellees alleged that the facilities were being constructed without their approval after appellants were reminded of the requirement for such approval under the Declaration of Restrictions. After a hearing on the merits, which included testimony of expert witnesses and a video taped view of appellants’ lights and the surrounding area, the trial court entered a final judgment ordering appellants to remove the light poles within thirty days, finding in part that:

III. ... The Plaintiffs have not acted in bad faith and do not appear to have been arbitrary or unreasonable_ The comprehensive nature of the restrictions obviously reflects the desire to see that the subdivision remains a high class residential area, [cites omitted].

We dispense with a preliminary question, 1.e., whether appellants should have first submitted the plan for lighting to the Committee. It was agreed at oral argument that even if appellants had submitted plans for a tennis court which included lighting, the plan would have been rejected forthwith. Furthermore, as appellees contend, the appellants proceeded at their own risk in constructing the lighting facilities without the approval of the Committee.

The principal issue is whether the installation of lights on an approved tennis court is, within a reasonable reading of the Declaration of Restrictions, a structural improvement which required prior approval of the Architectural Control Committee, and even if so, whether the Committee’s refusal to approve of the lighting after learning of appellants’ intent to construct the facilities was arbitrary or unreasonable.

The primary reasons given by the Architectural Control Committee for opposing the appellants’ tennis court lighting were: (1) to protect the community from nuisances; and (2) to maintain the aesthetic quality of the homes.

Appellees called as a witness Professor Ralph Warburton, who is an architect, engineer, city planner and professor. On cross-examination his testimony in pertinent part was:

Q. Let me ask you to assume that there are scattered throughout Gables Estates [another community of luxurious homes] tennis court lots in the backyards of people’s homes which are very similar to these Mr. and Mrs. Kies are installing. Would that in any way change your opinion as to whether in this area of Pine Bay Estates South, which is a well-to-do neighborhood, these tennis court lights should not be permitted?
A. I would have to review the situation to know on its merits. I would have to consider the size of the lots, whether the lots were on an historic highway, what kind of landscaping was provided on the lots to perhaps screen any lighting from the streets or adjacent lots. I would have to consider a number of those kinds of factors before I could reach that decision.
Q. I am asking you to assume that through landscaping or through any other means less than one-third of a foot candle of light would be permitted to spill over from Mr. and Mrs. Kies’ lot to any adjoining lot. I am asking you to assume it. Now, based on that assumption, does that in any way then change your opinion as to whether such tennis court lights should be permitted?
A. Not greatly on two counts. One, it does not handle the problem of daylight, the daylight view of the court.
The second is that we are dealing with the light source itself, the brightness of the light source as compared with the dark sky. And we are not dealing with the illumination of the grass, we are dealing with the appearance of the neighborhood, the brightness of the light source against the sky. And if that could be reduced, say the brightness of the light source against the sky was a ratio of only one to ten, one to three, you know, relatively the same grayness or blackness as the sky, then we would handle the nighttime problem.
Q. You mean above the light or below?
A. No, in the light, looking at the light.
For example, the contrast between the light and the ceiling, in order for it not to affect the neighborhood at night, this would have to be relatively no difference. There would be too much...
Q. How about a one-third foot candle vertical escape at night? Would that be sufficient in your opinion?
A. Again, escape from what?
Q. Escape from the lot, from above the lights. One-third foot candle vertical escape, would that in any way change your opinion?
A. No, I don’t believe so.
Q. Let us talk about these daylight problems that you have. What color would you change these bulbs to to make them aesthetically acceptable?
A. I am not sure they could be made in this environment aesthetically acceptable. I am not sure they could be screened. I am not sure there is a space to do that between the present tennis court and the street.
To effectively do that in terms of colors, you would want them to of course blend as nearly as possible with the background in which they are going to be seen.
Q. Professor, is there any color that Mr. and Mrs. Kies could paint these poles which would satisfy your objection as to the aesthetics of the color of the poles and, if so, please tell me what it is?
A. Probably not. There are colors that would help but no colors that would satisfy.
Q. Is it then your opinion that any tennis court light in any neighborhood could not be made a color which would be acceptable to your aesthetics in terms of your urban planning?
A. No.
Q. In terms of the height, how high should these tennis court lights be to satisfy your aesthetics?
A. You have the question of the size of the lot, you know. If this was a lot that was three times the size and the nice trees around it and it was screened from Old Cutler Road and from the neighbors and there was no visible or essentially no visible protrusion of this facility into the public and adjacent land, then I think maybe it would not matter what color they would be, what shape they were.

Appellants called three expert witnesses at trial. Chris Fergis, architect for the appellants, testified that in his opinion, the poles and lights as built were not aesthetically objectionable. Paul Powell, an engineer and licensed contractor, testified that the fixtures installed at appellants’ home were known in the trade as a cut-off fixture developed to avoid light spillage onto adjacent property; that in his testing he found that light spillage onto the closest adjoining lot line was only 2/ioth of a foot candle, which is even less than what is acceptable by county standards. Gene Gracer, a licensed real estate appraiser with over thirty years experience, testified that other even more expensive residential neighborhoods in Dade County have lighted tennis courts, and that the proper place for lighted tennis courts is affluent neighborhoods. It was his opinion that-tennis court lights have no detrimental effect upon the value and desirability of other lots in the subdivision and “might even add a touch of prestigiousness to the neighborhood.”

We are guided by two sometimes competing standards in reviewing the subject final judgment which grants permanent injunctive relief: (1) the granting of a mandatory injunction is within the sound discretion of the trial court and an appellate court will not intervene absent a showing that discretion has been abused, State Road Department v. Newhall Drainage District, 54 So.2d 48 (Fla.1951); Turk v. Hysan Products Company, 149 So.2d 584 (Fla. 3d DCA 1963), and (2) covenants imposed by a general plan, restraining the free use of real property, although generally valid and enforceable, are not favored in the law and will not be honored by the courts unless the restraint is within reasonable bounds. Soranaka v. Cook, 343 So.2d 51 (Fla. 2d DCA 1977); Hagan v. Sabal Palms, Inc., 186 So.2d 302 (Fla. 2d DCA), cert. denied, 192 So.2d 489 (Fla.1966). As to the first standard it is the appellants’ burden to make a clear showing that discretion was abused, see Gould v. National Bank of Florida, 421 So.2d 798 (Fla. 3d DCA 1982), such as where there is no record evidence-supportive of the court’s factual findings. See Russo v. Clark, 147 So.2d 1 (Fla.1962). As to the second standard, appellants again, as the party attacking an injunction to enforce a restrictive covenant, must demonstrate that the covenant, as interpreted and applied, is an unreasonable, arbitrary and capricious restriction on the free and enjoyable use of their real property.

It is an established rule of law, and not disputed here, that restrictive covenants incorporated into a deed, by which the grant- or reserves the right to approve plans for improvement to the land, are valid and enforceable against the grantee absent a showing that the reserved right is unreasonable' or arbitrary, or is being exercised in an unreasonable or arbitrary manner. Engvalson v. Webster, 14 So.2d 113 (Fla.1954).

Appellants have successfully carried their burden of showing that the reserved right is being exercised in an unreasonable or arbitrary manner. Other than a naked allegation, there is no showing whatever that appellants’ tennis court lights constitute a nuisance. Unless a thing complained of is a nuisance per se, i.e. unlawful, facts showing that it is a nuisance must be stated and proved. See Baum v. Coronado Condominium Association, Inc., 376 So.2d 914 (Fla. 3d DCA 1979).

The record is also devoid of an objective showing that appellants’ lights are aesthetically disharmonious with the character of, or that they detract from, the quality of the neighborhood. Although Professor War-burton described the shape, height and col- or of the light poles as out of keeping with what could be considered “best practice in a community of this sort”, he offered no view as to what shape, height or color of light poles would be acceptable. His conclusion, consistent with the view of the Architectural Control Committee, was that the tennis court lighting on appellants’ lot was aesthetically detrimental given the size, location, and landscaping of the lot— an opinion which evaporates in substance when considered in light of the other expert evidence that tennis court lighting is common in affluent neighborhoods having similar characteristics, and that lighting even enhances property values. The testimony of Warburton and Hollub, while clear expressions of personal aesthetic preference, did not address the pertinent question as correctly perceived by the trial court— whether the presence of tennis court lights, for aesthetic reasons, detracted measurably from the character of the subdivision as “a high class residential area.”

We find that (1) the erection of lighting on the approved tennis court was not expressly prohibited by the restrictive covenants and an intent to prohibit such lighting cannot reasonably be read into the covenants, (2) the tennis court lighting in this case was not shown to be a nuisance, (3) the allegation that the lighting was aesthetically detrimental is not supported by competent and substantial evidence, from all of which we must conclude that the Architectural Control Committee’s disapproval was indeed arbitrary. The trial court abused its discretion in entering a mandatory injunction requiring appellants to remove their tennis court lights.

Reversed.

      . Four paragraphs in the Declaration of Restrictions are relevant to this appeal:
      6. NUISANCES: No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood.
      18. ARCHITECTURAL CONTROL: No building, wall, fence or other structure or improvement of any nature shall be erected, placed or altered on any lot until the constructiori plans and a plan showing the location of the structure have been approved in writing by the Architectural Control Committee. Each building, wall, or other structure or improvement of any nature shall be erected, placed or altered upon the premises only in accordance with the plans and plot plan so approved. Refusal of approval of plans, plot plan, or any of them, may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the said Architectural Control Committee shall seem sufficient. Any change in the exterior appearance of any building, wall, fence or other structure or improvement shall be deemed an alteration requiring approval. The Architectural Control Committee shall have the power to promulgate such rules and regulations as it deems necessary to carry out the provisions and intent of this paragraph. The Architectural Control Committee is composed of Marvin A. Hollub, R.A. Davenport, Sr. and James R. Stoker_
      19. TERM: These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty (30) years from the date these covenants are recorded, after which said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then owners of a majority of the lots (excluding the publicly dedicated tracts) in the said property has been recorded, agreeing to change said covenants in whole or in part.
      20. ENFORCEMENT: Enforcement shall be by proceeding at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violation or to recover damages.

      . Tennis court lights are not specifically identified as a prohibited improvement.

      . A foot candle is the illumination given off by a standard candle on a one square foot surface.

      . Although by terms of the covenant the Architectural Control Committee is empowered, in its "sole and uncontrolled discretion," to refuse approval of a planned improvement on any ground (see note 1), that language does not affect the validity of the agreement. A requirement for commercial reasonableness will be read into any contract where possible, language to the contrary notwithstanding. See Fernandez v. Vazquez, 397 So.2d 1171 (Fla. 3d DCA 1981) (where lessee is entitled to sublet, but has agreed to limit that right by first acquiring the consent of the landlord, consent cannot be unreasonably withheld).

      . Appellants represented at oral argument, and it was not disputed, that the eight 20-foot high lamps have been replaced with four 16-foot high lamps which comply with the zoning variance. We approve only that lighting which was originally authorized by the County Commission.


author: LEHAN, Judge.

text:
    Vicki Rae HANEY, Appellant, v. Harry L. HANEY, Appellee.
    No. 83-1531.
    District Court of Appeal of Florida, Second District.
    April 18, 1984.
    Rehearings Denied May 25, 1984.

      Robert L. Hoskins, III of Robert L. Hos-kins, III, P.A., Palm Harbor, for appellant.
    Loyd C. Mosley of Mosley & Evans, P.A., Clearwater, for appellee.
   LEHAN, Judge.

The wife appeals the property distribution, alimony, and child support awarded to her in the final judgment of dissolution of marriage. We affirm the alimony and child support awards but reverse the property distribution because we find that the wife was entitled to a special equity in the husband's business.

At the time of the dissolution the parties had been married thirteen years and had a twelve-year-old son. The husband owned a plumbing business, the assets of which included two boats, an automobile, a piece of vacant real property valued at $25,000, and $42,000 in accounts receivable. The corporation paid the husband a salary of $26,500 per year, plus a bonus of $1,000 or $2,000 per year. The corporation also paid the husband’s insurance premiums and doctors’ bills in addition to paying for the upkeep of the boats and some personal expenses of both the husband and the wife.

During the marriage the wife worked until 1980 as a registered nurse. She also worked for seven years for the husband’s plumbing business handling the inventory, insurance, telephones, and books and records of the business. The wife received no pay while working for the plumbing business until the last two years. Her salary for those two years went into the parties’ joint account for household expenses. Prior to the dissolution, the wife became employed as a registered nurse, earning $330 per week.

The final judgment awarded custody of the son to the wife. The judgment requires the husband to pay $75.00 per week child support for one year and $100.00 per week child support after that year. The judgment awarded the wife $100.00 per week rehabilitative alimony for one year. The parties became tenants-in-common of the marital home and a vacant lot next door, with the wife being given exclusive possession of the marital home until, among other things, the child reaches his majority or the wife remarries. The husband was ordered to pay one-half of the mortgage payments. The trial court found that the wife had failed to prove a claim of a special equity in the husband’s plumbing business.

Initially we note that, if it were not for Conner v. Conner, 439 So.2d 887 (Fla.1983), we would be seriously inclined to find that the wife in this case was entitled to some type of equitable distribution of the proceeds of the marriage greater than that which she was awarded. Because of her ability to earn an adequate living as a registered nurse, we cannot say that she has fallen from prosperity to misfortune. However, it appears that the wife has been “shortchanged.” See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). But, in Conner, the Florida Supreme Court pointed out that the determination that a party has been shortchanged is an issue of fact, not law, indicating that the determination thereof is not for a district court of appeal. We feel considerably less than certain whether or not Conner necessarily and in all cases removes that type of issue from our appellate review. See Judge Letts’ concurring opinion in Marshall v. Marshall, 445 So.2d 706 (Fla. 4th DCA 1984), and his dissenting opinion in Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984). But the language of Conner does not permit us to deal with the matter of equitable distribution in this case under a view that the wife was shortchanged. Nonetheless, Conner permits reversal on the issue of whether a spouse is entitled to a special equity, and for the following reasons we reverse and remand on that issue.

A special equity is a vested interest which one spouse acquires because of contributions of funds, property or services made over and above the performance of normal marital duties. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). When the wife takes an active part in the family business, “Duncan requires that her direct contribution to the commercial enterprise be recognized as a special equity — a proprietary interest — in that business when marital assets are being allocated upon dissolution of the marriage partnership.” Neff v. Neff, 386 So.2d 318, 319 (Fla. 2d DCA 1980). In this case, not only did the wife tend the home and raise a child and for much of the marriage work full time as a registered nurse, for seven years she provided what the record shows were significant services for the plumbing business. The husband argues that the wife was fully compensated for her work at the plumbing business. However, the evidence shows that she was paid a salary for only the last two years of her work there, the money from which was placed into the family’s housekeeping account. The wife is entitled to a special equity for her contributions to the plumbing business. We remand for a determination by the trial court of the extent of that special equity.

As to the issues raised by the wife regarding child support and alimony, we do not find that the trial court abused its discretion in this regard.

Under the circumstances of this case we do not believe the supreme court’s opinion in Conner forecloses the further consideration on remand of other financial aspects of the final judgment. Therefore, on remand the trial court is authorized to consider those aspects.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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

      . The Marcoux opinion certified the question of whether Conner limits the scope of appellate review enunciated in Canakaris.


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

text:
    Charles C. GILES, et al., Appellants, v. SUN BANK, N.A., etc., et al., Appellees.
    No. 82-1479.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.
    Rehearing Denied May 22, 1984.

      James W. McCann of Graham, Phillips, McCann & Edwards, Orlando, for appellants.
    David C. Beers of Malone & Beers, Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants Charles C. Giles and Gator Grassing, Inc., third party claimants below in this garnishment action, appeal from a judgment in favor of appellee, Sun Bank N.A.

In October, 1981, Sun Bank obtained a judgment for $10,790.08 against Orange Valley Farms, Inc., defendant below, for breach of a promissory note. In an effort to satisfy this judgment, Sun Bank, in December, 1981, moved for a writ of garnishment against McCormick-Conduit-Buckley, a joint venture engaged in construction at Disney’s Epcot Center. Sun Bank sought to garnish funds which McCormick allegedly owed to Orange Valley arising out of a contract (“primary subcontract”) executed by McCormick and Orange Valley in 1979. By this “primary subcontract,” Orange Valley was to complete the sodding of a portion of the Epcot Center being developed by McCormick.

McCormick answered the writ of garnishment and alleged that it was not currently indebted to Orange Valley because the latter had assigned to Gator Grassing, Inc., its right to payments under the “primary subcontract.” Giles, president of Gator Grassing, subsequently filed an affidavit in support of third-party claim, averring that McCormick had in its possession $46,544.47 to which Gator Grassing and not Orange Valley was entitled based on an assignment which was in the form of a document labeled “employment agreement.” This “employment agreement” was executed by Giles and Orange Valley in January, 1981, and provided that Giles would take charge of Orange Valley’s Disney operations and carry out the contract between Orange Valley and McCormick. Paragraph three of the agreement provided:

Employee [Giles] shall, from time to time, arrange for all additional capital necessary for the conducting of the business of the Company as hereinabove described and receive for deposit all monies earned pertaining to said contract to use for the benefit of the Walt Disney World operations.

The record reveals that in February, 1981, McCormick approved of the “employment agreement” and that Giles subsequently executed an assignment of his rights to Gator Grassing. Gator Grassing completed the sodding between February and December, 1981, and during the performance of the work, McCormick made payments to Gator Grassing. It was just before the final draw was to be paid by McCormick ($46,544.47) that Sun Bank filed its writ of garnishment.

The parties agreed below that the issue was whether a valid assignment had occurred and they further agreed that if it did, it would be superior to Sun Bank’s garnishment since McCormick had notice of the alleged assignment in February, 1981, and Sun Bank did not serve its writ of garnishment on McCormick until December 15, 1981. See Boulevard Nat. Bank of Miami v. Air Metal Ind., 176 So.2d 94 (Fla.1965); Oper v. Air Control Products, Inc., 174 So.2d 561 (Fla. 3d DCA 1965). The trial court ruled that the “employment agreement” did not constitute a valid assignment of the “primary subcontract” and concluded that the funds possessed by McCormick constituted a debt due to Orange Valley and hence were subject to garnishment. We believe the “employment agreement” did amount to a valid assignment and reverse.

Sun Bank claims that since the document in question was labeled as an “employment agreement,” it was obvious that the parties did not intend an assignment. However, we believe that the agreement here constitutes an equitable assignment for which no particular words of art are necessary. See Asphalt Paving, Inc. v. Ulery, 149 So.2d 370 (Fla. 1st DCA 1963). Under this theory, courts of equity can recognize certain kinds of instruments as valid equitable assignments, where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be unjust. See Morrow v. Commonwealth Life Ins. Co., 118 Fla. 371, 159 So. 525 (1935). No particular words or form of instrument is necessary to effect an equitable assignment and any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment. Asphalt Paving, 149 So.2d at 375. See also McClure v. Century Estates, 96 Fla. 568, 120 So. 4 (1928). As stated in McClure, the true test of an equitable assignment is whether the debtor would be justified in paying the debt to the person claiming as assignee. 120 So. at 10.

Here it is obvious from the “employment agreement” that Orange Valley intended to assign its rights and duties under the “primary subcontract” to Giles and Giles intended to receive such an assignment. Under the agreement, Giles was to take over and complete the “primary subcontract,” providing all capital needed and receiving all monies due. Orange Valley was to have no further interest in performance of the' contract except to share in any profits upon completion. Hence this case is unlike Health Application Systems v. Hartford Life, 381 So.2d 294 (Fla. 1st DCA 1980), which involved a mere agreement to pay a debt out of a designated fund, which does not operate as a legal or equitable assignment since the assignor retains control over the subject matter. All parties involved here treated the arrangement as an assignment as McCormick subsequently made all payments due directly to Giles and Gator Grassing. Indeed, McCormick had made payments to Giles and Gator Grassing and it was only the final draw that remained due which Sun Bank sought to garnish.

We conclude that the trial court was misled by form when the substance of the agreement, as. interpreted and performed by the parties, reflected an assignment.

REVERSED and REMANDED for entry of judgment for appellants.

DAUKSCH, J., concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

While I agree with the result reached by the majority, I disagree with the analysis and basis employed. No mention is made of the possible impact of the Uniform Commercial Code, which Florida adopted in 1966 and extensively amended in 1972. The code should provide the framework for all decisions in the area of commercial law.

This case involves a priority conflict between an assignee of a contract and a subsequent garnishor of the assignor’s interest in the proceeds of that contract. If the assignment in this case had been an assignment for security or for financing purposes, the bank clearly would be the winner. Neither Gator Grassing, Inc. nor Giles filed a financing statement, as required by section 679.302(1), Florida Statutes (1983), and the employment document was possibly insufficient to constitute a security agreement under section 679.203, Florida Statutes (1983). In such a case, the bank would have obtained a lien on the proceeds as of the date it served the writ of garnishment; and it would have had priority over Gator as holder of an unperfected security interest. Section 679.301(3), Florida Statutes (1983), provides:

A “lien creditor” means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of the appointment.

The assignee’s giving notice to the obligor (McCormick) under the contract is really irrelevant in a contest with a lien creditor.

But, as the majority points out, this assignment to Giles and subsequently to Gator Grassing was not for security. It was a transfer of all the rights of the assignor to receive all of the funds, and in addition, the assignee had the responsibility for completing all of the work left to be done under the contract, and had to pay all of the costs and expenses. At the time of the assignment, the obligor (McCormick) owed nothing to Orange Valley. At the time of this lawsuit, Gator Grassing or Giles had performed the balance of the contract and had earned and been paid in excess of $300,000.00. Only a retainage of $46,544.47 remained, which was earned during the course of this litigation by Gator Grassing. Gator Grassing actually lost money performing this contract, since it had unpaid expenses of $54,943.64, but only was due to be paid $46,544.47.

Although the documentation of this contract transfer was unclear, piercing through to the substance, it is obvious Orange Valley assigned this service contract completely to Gator Grassing, and the obli-gor, McCormick, accepted and agreed to the assignment and performance by the assignee. Under these circumstances, the assignment was excluded from Article 9 by section 679.104(6), Florida Statutes (1983):

This chapter does not apply ... to a transfer of a right to payment under a contract to an assignee who is also to do the performance under the contract... .

This transfer was not a sale or an assignment covered by the code, and therefore the filing and the priority provisions do not apply. See American East India Corporation v. Ideal Shoe Company, 400 F.Supp. 141 (E.D.Pa.1975), aff'd, 568 F.2d 768 (3d Cir.1978).

By the assignment to and performance of the contract by Gator Grassing, the funds earned under it belonged to Gator Grassing rather than to Orange Valley. In a garnishment action, the garnishor steps into the shoes of the debtor, and if no funds are then held by the garnishee for the account of the debtor, the garnishment must fail.' The funds here belong to Gator Grassing. This is why Gator Grassing wins in this case.

      . Actually, Orange Valley and Giles had initially executed a document labeled "subcontract agreement” which was similar to the "employment agreement” but provided Giles was an independent contractor. McCormick insisted that the document be revised and designated an "employment agreement.” The apparent purpose for this was to avoid the possibility of invalidating the performance bond which Orange Valley had.

      . See Shelton v. Erwin, 472 F.2d 1118 (8th Cir.1973).

      . Oper v. Air Control Products, Inc. of Miami, 174 So.2d 561 (Fla. 3d DCA 1965), 6 Am.Jur.2d Attachment and Garnishment § 455 (1963).

      . 13 Fla.Jur.2d Creditors Rights and Remedies §§ 115-117 (1979). Whether service of a writ of garnishment gives rise to a legal or equitable lien, it is sufficient to bring the funds into the hands of the court, just as would the physical seizure of a tangible res. 6 Am.Jur.2d Attachment and Garnishment, supra note 2, at § 485. Accordingly, a garnishor should qualify as a lien creditor under section 679.301(3), Florida Statutes (1983). See In re Matter of Equitable Dev. Corp., 617 F.2d 1152 (5th Cir.1980); In re Cripps, 31 B.R. 541 (Bkrtcy.W.D.Okl.1983); In re Monroe County Hous. Corp., Inc., 29 B.R. 686 (Bkrtcy.S.D.Fla.1983); Miller v. Wells Fargo Bank Int'l Corp., 406 F.Supp. 452 (S.D.N.Y.1975), aff’d, 540 F.2d 548 (2d Cir.1976); Peninsula State Bank v. United States, 211 So.2d 3 (Fla.1968); Florida East Coast Ry. Co. v. Consolidated Eng’g Co., 95 Fla. 99, 116 So. 19 (1928); Pleasant Valley Farms & Morey Condensery Co. v. Carl, 90 Fla. 420, 106 So. 427 (1925); General Lithographing Co. v. Sight & Sound Projectors, Inc., 128 Ga.App. 304, 196 S.E.2d 479 (1973); City Collectors, Ltd. v. Maldonado, 50 Hawaii 223, 437 P.2d 95 (1968); Vittert Constr. & Inv. Co. v. Wall Covering Contractors, Inc., 473 S.W.2d 799 (Mo.Ct.App.1971); Elliot v. Regan, 274 Wis. 298, 79 N.W.2d 657 (1956). Compare Walker Bank & Trust Co. v. Smith, 88 Nev. 502, 501 P.2d 639 (1972).

      .6 Am.Jur.2d Assignments § 97 (1963); 6 Am. Jur.2d Attachment and Garnishment, supra note 2, at § 483; 4 Fla.Jur.2d Assignments § 14 (1978); Restatement (Second) of Contracts § 341 comment a (1981).

      . As such it was a legal, not an equitable assignment. 6 Am.Jur.2d Assignments, supra note 4, at § 7. The fact that it was partially proven by parol, performance and additional documentation does not alter this conclusion. See 6 Am. Jur.2d Assignments, supra note 4 at § 82; 4 Fla.Jur.2d Assignments, supra note 4, at § 2. However, section 679.203, Florida Statutes (1983), now requires written formalities for assignments for security purposes. Restatement (Second) of Contracts, supra note 4, at §§ 324 comments a & c, 341 comment d.

      . The bank argues the service contract was not assignable because it involved the performance on non-delegable duties and the contract prohibited assignment. However, the obligor can waive provisions against non-assignment and consent to such a delegation of duties, as happened here. 4 Fla.Jur.2d Assignments, supra note 4, at § 7; Restatement (Second) of Contracts supra note 4, at § 323 comment c.

      . 1 G. Gilmore, Security Interests in Personal Property, § 10.5 (1965).

      . 13 Fla.Jur.2d Creditors' Rights and Remedies, supra note 3, at § 191.

      . Ginsberg v. Goldstein, 404 So.2d 1098 (Fla. 3d DCA 1981); 6 Am.Jur.2d Attachment and Garnishment, supra note 2, at § 162.


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

text:
    Edwin BORN, etc., Appellant/Cross-Appellee, v. Herbert B. GOLDSTEIN, Appellee/Cross-Appellant.
    No. 83-332.
    District Court of Appeal of Florida, Fifth District.
    April 19, 1984.
    Rehearing Denied May 24, 1984.

      Sam E. Murrell & Sons, Orlando, for appellant/cross-appellee.
    Robert G. Petree, Orlando, for appel-lee/ cross-appellant.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, Edwin Born, appeals from an amended final judgment which granted ap-pellee Herbert Goldstein’s motion for re-mittitur and reduced a jury verdict in Born’s favor from $40,000 to $9,000. Gold-stein has cross-appealed challenging the trial court’s denial of his motion for a directed verdict.

Born sued Goldstein for breach of contract arising out of a business relationship. Born had a burglar alarm installation business and he and Goldstein agreed to open a retail business to sell burglar alarm systems. Born was to manage the new enterprise and was permitted to operate his separate installation business in the back of the retail store. After two and one-half months of operation, Goldstein locked Born out of the store and took over exclusive control of the business, in the process preventing Born from gaining access to his installation business.

The first point on appeal is whether the trial court erred in ordering remittitur and reducing Born’s damage award to $9,000 where it failed to explain the reasons for the reduction or give Born the option of a new trial.

In considering the propriety of re-mittitur here, we note that a trial court may not reduce a jury verdict by ordering a remittitur without permitting the plaintiff to have the option of a new trial. Lewis v. Evans, 406 So.2d 489 (Fla. 2d DCA 1981); Dura Corp. v. Wallace, 297 So.2d 619 (Fla. 3d DCA 1974). Here the trial court ordered a remittitur without accompanying its order with an alternative grant of a new trial. The proper remedy on appeal when confronted with such an order is to vacate the remittitur and let the original judgment stand, assuming that it is legally sound. Lewis v. Evans, 406 So.2d at 491; Dura Corp. v. Wallace, 297 So.2d at 622. Goldstein argues, by way of cross appeal, that the jury’s award is not legally sound, because Born failed to adequately prove his damages at trial.

In a breach of contract action, the innocent party is entitled to recover any gains prevented and losses sustained, including the loss of prospective profits. Adams v. Dreyfus Interstate Devel. Corp., 352 So.2d 76 (Fla. 4th DCA 1977). Prospective profits must be proven with reasonable certainty. Adams. However, as noted in Sampley Enterprises, Inc. v. Laurilla, 404 So.2d 841 (Fla. 5th DCA 1981), it is sufficient if there is a reasonable basis in the evidence for computation of damages, although the result may be only approximate.

Proof of lost profits is generally derived from proof of income and expenses for a reasonable period of time prior to the breach. American Motorcycle Institute v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980). Where the evidence only pertains to gross receipts or fails to establish expenses with specificity, an award of damages will be reversed. E. T. Legg & Assoc. v. Shamrock Auto Rentals, 386 So.2d 1273 (Fla. 3d DCA 1980); American Motorcycle Institute v. Mitchell.

Without engaging in a lengthy review of all the evidence adduced below, we conclude that it established a reasonable basis for the jury’s verdict. Born testified he had been locked out of his installation business for nine months and introduced income tax returns indicating that his business averaged a net profit of approximately $10,000 per year in the previous two years. This was based on gross sales of $50,000 in each year and business expenses of approximately $40,000 a year. Born testified that because of the lockout he incurred additional expenses in notifying customers that he was still in business, that he was unable to obtain credit from two of his suppliers, and that it would take some time to re-establish his operation at its pri- or level.

As to damages sustained in the retail business with Goldstein, Born testified that Goldstein retained some $10,000 to $15,000 of the business’ inventory without accounting to him for his one-half interest. He also testified that displays belonging to him valued at $1,000 were never recovered. Finally, Born testified that Goldstein stole several of his installation customers during the lockout.

We conclude that because the evidence established a reasonable basis for the $40,-000 verdict, the original judgment was legally sound and should be reinstated.

The amended final judgment is REVERSED and this cause is REMANDED for reinstatement of the final judgment based on the jury’s verdict.

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

      . These expenses included the taking out of new telephone numbers, advertisements and mailings to former customers.


text:
    Michael O'NEIL, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 83-1098.
    District Court of Appeal of Florida, Fifth District.
    April 26, 1984.
    Rehearing Denied May 18, 1984.
    R. David Ayers, Jr., of Ayers & Cate, P.A., Winter Park, for appellant.
    Mitchell J. Frank of Rogers & Dowling, P.A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See Time Insurance Co. v. Arnold, 319 So.2d 638 (Fla. 1st DCA 1975).

ORFINGER, C.J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: DANAHY, Acting Chief Judge.

text:
    Jack Lester WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 83-751.
    District Court of Appeal of Florida, Second District.
    April 27, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Acting Chief Judge.

The appellant appeals his conviction for second degree murder on grounds that the trial judge unduly restricted his cross-examination of two key state witnesses, Johnny Lee Ruebin and Christopher Beasley, in violation of his constitutional right to confront and fully cross-examine adverse witnesses against him. We agree in part and reverse for a new trial.

At the trial the testimony revealed the following scenario. On the night in question, the appellant, Beasley, Ruebin, and the victim, Charles Loman, were all at the Hancock Lounge in Tampa. Beasley, who was in the lounge near the screen door, looked out and saw Loman run toward an old brown Cadillac and greet the appellant. Next, Loman and the appellant approached the bar and greeted Beasley. At that time, Beasley saw a gun handle sticking out of the appellant’s pants. The appellant and Loman then stood and talked just outside the screen door where Beasley was listening. Finally, Loman went inside and Beasley turned his attention to a pool game. The next time Beasley saw Loman and the appellant, the two of them went back outside and walked around the corner of the building. Three or four minutes later, Beasley followed them outside to the back corner of the building where he stood by a phone booth and watched them as they stood about a foot apart and talked. When Beasley saw the appellant raise the gun and point it at Loman, Beasley backed away. He then saw Loman running around the corner, heard gunshots, and ran into the bar with most of the other people who had been standing outside. Ruebin, who had been among those standing outside, ran around the side of the building as soon as he heard the shots. He saw a 5'11" man whom he did not recognize jump into the passenger side of a parked 1968 or 1969 Cadillac and watched the car drive away before he ran back into the bar where he found Loman lying on the floor.

At the trial the appellant’s attorney cross-examined the state’s witnesses, Rue-bin and Beasley. To demonstrate their bias or motive, the appellant’s attorney attempted to ask them whether they were presently on probation, resided in the county jail, or had a new charge or probation revocation pending. The trial judge refused to allow such questioning.

Counsel then stipulated to proffers of the cross-examinations of Ruebin and Beasley on these matters. The appellant argued that Ruebin, currently on probation, would say that he had no particular compulsion to testify; he was not in custody; he had no charges pending; he was not on probation at the time of the murder when he gave his statement to the police; but he did have a charge pending by the time his deposition was taken. Beasley, currently residing in the county jail, would say that at the time he gave his statement implicating appellant, he was on two years probation. Beasley would further say that by the time of trial he was facing revocation of this probation and that, if this probation was revoked, he could be sentenced to fifteen years in prison in addition to a maximum sentence of twenty years for the new felony charge pending. Beasley would also add that his probation revocation hearing was scheduled for Friday of the week of appellant’s trial, that his assigned judge had been made aware of his testimony in appellant’s case, and that he had discussed his situation with the state attorney’s office.

In a motion for new trial, appellant’s attorney contended that the court’s restriction of cross-examination of these two witnesses had prevented the jury from hearing appellant’s theory of defense. That theory of defense was that because Beasley was on probation, had a felony charge pending and a revocation hearing pending, he had tailored his statements and testimony to the exigencies of that situation. In support of this motion, appellant’s counsel attached a copy of Beasley’s probation revocation hearing transcript. The transcript reveals that prior to entry of Beasley’s guilty plea, the following argument was presented to the court by the prosecutor:

Your Honor, Mr. Beasley is on probation with this Court for burglary. During the course of that period of probation he committed some new offenses.
He delivered a small amount of cannabis at Hancock’s Bar. However, prior to him committing the new offenses, he became a material witness in a second-degree murder case.
Mr. Beasley testified this last week. He was the only eye-witness to this crime. He was the dominating factor which led to the conviction of Mr. Watts on a second-degree murder charge.
I know that you do not like to negotiate drug delivery cases, but Mr. Beasley has been in jail for approximately three or four months now. He did cooperate fully. He has stood ready to cooperate.
I cannot speak enough about what this man has done to cooperate. Like I said, his testimony did, in fact, lead to a conviction on a second-degree murder case just this week.
I believe that Mr. Blau and I have worked out an arrangement where if the Court would accept the negotiation that you would continue him on probation, he would plead to the new charges and run it concurrent with the probation he is already on.
I know you don’t like to really negotiate drug deliveries, but due to his outstanding cooperation in this murder ease, I feel that the Court should act as I have recommended.

After a plea bargain was made between the appellant and the state and accepted by the court, the court imposed exactly the sentence requested by the prosecutor. The court ultimately withheld adjudication, sentenced Beasley to probation on the new charge, and continued Beasley’s previous probation.

In a criminal trial the defendant has the absolute right to fully cross-examine adverse witnesses to discredit them by showing bias, prejudice, interest, or possible ulterior motive for testifying. This is particularly so where a key witness is being examined. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Steinhorst v. State, 412 So.2d 332 (Fla.1982); Hannah v. State, 432 So.2d 631 (Fla. 3d DCA 1983); Kelly v. State, 425 So.2d 81 (Fla. 2d DCA 1982), petition for rev. denied, 434 So.2d 889 (Fla.1983); Mendez v. State, 412 So.2d 965 (Fla. 2d DCA 1982).

Impeachment of a key state witness concerning the fact that he is awaiting sentencing for some offense and might have an expectation of leniency in that case or that he is on probation and has a desire to testify so as to please the authorities who have some discretion over his probationary status, is permissible for the purpose of demonstrating the witness’s bias or motive for testifying for any reason other than to tell the truth. Garey v. State, 432 So.2d 796 (Fla. 4th DCA 1983); Hannah; Moreno v. State, 418 So.2d 1223 (Fla. 3d DCA 1982); Daniels v. State, 374 So.2d 1166 (Fla. 2d DCA 1979); Cowheard v. State, 365 So.2d 191 (Fla. 3d DCA 1978), cert. denied, 374 So.2d 101 (Fla.1979). Denial of effective cross-examination in such circumstances constitutes constitutional error requiring reversal unless the error is harmless beyond a reasonable doubt. Davis; Steinhorst; Garey; Hannah; Kelly; Moreno; Russo v. State, 418 So.2d 483 (Fla. 2d DCA 1982); Mendez; Engram v. State, 405 So.2d 428 (Fla. 1st DCA 1981), petition for rev. denied, 417 So.2d 328 (Fla.1982); Daniels.

In the case before us, the trial court erred in restricting the appellant’s cross-examination of both Ruebin and Beasley. However, a review of the record leads us to conclude that the error concerning Ruebin was harmless beyond a reasonable doubt. Although Ruebin was placed on probation for a charge arising after the murder incident, there was neither a probation revocation hearing nor new charges pending against him when he testified at trial. Thus he had no compelling self-interest or “motive to testify so as to please authorities who have some discretion over his status.” Daniels at 1167. Omission of any evidence relating directly to his credibility insofar as it related to his status was not prejudicial to the appellant.

On the other hand, we find that it was not harmless error to limit appellant’s cross-examination of Beasley. Beasley was the key prosecution witness and his credibility in presenting the story of how the shooting occurred was crucial to the prosecution’s case. Only he could identify the appellant as the person who was conversing with the victim behind the building and pointing a gun at the victim moments before shots were heard. Beasley was granted leniency and continued probation because of his cooperation in the case at bar. When the appellant was denied the opportunity to explore those matters on cross-examination, he was denied rights guaranteed to him by the Sixth Amendment. He should have been given the opportunity to question Beasley about his probationary status as well as the penden-cy of both a new felony charge and the revocation hearing in an attempt to demonstrate that Beasley’s testimony in appellant’s case was calculated to affect those proceedings. Kelly; Russo; Mendez; Moreno; Daniels. Given Beasley’s central position in the appellant’s case, a different result might have been obtained had the jury been able to hear all of the testimony relevant to Beasley’s credibility and possible motive for testifying.

Accordingly, the judgment is REVERSED and the cause is REMANDED for a new trial.

SCHOONOVER and LEHAN, JJ., concur.


text:
    John BONHAM and Gerald Coucoulas, Appellants, v. The STATE of Florida, Appellee.
    No. 82-2432.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Rehearing Denied June 5, 1984.
    Bennett H. Brummer, Public Defender and Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, and Diane H. Tutt, Sp. Asst. Public Defender, Kurt Marmar, Coral Gables, for appellants.
    Jim Smith, Atty. Gen. and Penny H. Brill and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendants’ failure to object at trial to the admission of certain evidence which they had unsuccessfully moved to suppress before trial waives their right to claim on appeal that the evidence was erroneously admitted. Fraterrigo v. State, 151 Fla. 634, 10 So.2d 361 (1942); Robertson v. State, 94 Fla. 770, 114 So. 534 (1927); Rodriguez v. State, 433 So.2d 1273 (Fla. 3d DCA 1983), and cases collected therein; Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978). We find no merit in, and certainly no support for, the defendants’ contention that an exception to this well-settled rule exists where the pretrial motion to suppress is heard and decided immediately before the commencement of trial.

Affirmed.


author: JORGENSON, Judge. FERGUSON, Judge

text:
    Robert E. SNOW and Cynthia Snow, as parents and natural guardians of Randall K. Snow, a minor, Appellants, v. Chris NELSON and Jeannie Nelson, as parents and guardians of Mark Nelson, a minor, and United Services Automobile Association, Appellees.
    No. 83-737.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.

      Horton, Perse & Ginsberg and Arnold Ginsberg, Huggett & Martucci, Miami, for appellants.
    Gilmour, Morgan & Rosenblatt and Victor Lance, Miami, for appellees.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   JORGENSON, Judge.

This case involves the question of parental responsibility for injuries inflicted by a minor child. Because we are restrained by supreme court precedent, we affirm the trial court’s direction of a verdict for the parents of the alleged tortfeasor. However, because we are unable to reconcile the precedential supreme court holding, or our own, with what we feel to be the dictates of justice and fairness and feel that it is time for a more enlightened approach to the questions involved, we respectfully certify to the Supreme Court of Florida that the present case passes upon a question of great public importance and warrants a re-examination of the principles announced in Gissen v. Goodwill, 80 So.2d 701 (Fla.1955).

I

Fourteen-year-old Mark Nelson, who was not only older but was also a foot taller than his younger playmate, invited thirteen-year-old Randall Snow to play a game, of Mark’s invention, that required two croquet mallets, two tennis balls and a street. The game consisted of each child’s hitting his assigned tennis ball with a croquet mallet, repeatedly, until the ball reached a predetermined location down the street, upon which goal being reached, the direction of the race would be reversed and the process repeated until the return of the tennis balls to the point of departure. After the two children had been playing the game for awhile, Mark, who admitted that he saw “a person” in his path at the time, took what he described as a “fast swing” because Randall (who was younger and smaller but apparently faster) was winning. The game ended when Mark’s errant swing hit Randall in the eye, resulting ultimately in its removal, as well as in the permanent termination of Randall’s senses of smell and taste.

Randall’s parents, the Snows, brought a tort action against Mark’s parents, the Nelsons, and the Nelsons’ liability insurer. The complaint premised recovery both on vicarious liability and the Nelsons’ direct negligence in controlling the conduct of Mark. At trial the issues were narrowed to the latter. Testimony revealed that Mark had a propensity to be rough with smaller children (the majority of his playmates), sometimes pushing or hitting them. Mark’s father characterized reports to him of these incidents as “kids’ tattling.” He also testified that he had seen his son playing the game before and that he thought his son played the game frequently. At the close of the evidence the Nelsons and their liability insurer moved for a directed verdict. The trial court reserved its ruling until after the jury had retired, then granted the motion. The jury found Mark’s parents seventy-five per cent at fault with total damages of $135,000.

II

One of the more inscrutable holdovers from the ancient establishments of the common law is the historically ubiquitous idea that a parent who has visited upon the world a tort-inflicting child ought not to be held financially responsible for the torts that the child has in turn visited upon those of us unfortunate enough to have gotten in the way. As Dean Prosser observed, “With the child usually quite irresponsible financially, and the parent not liable at all, the result has been a rather serious problem of uncompensated juvenile depredation ...,” W. Prosser, Law of Torts § 123 (4th ed. 1971). Nevertheless, when the Florida Supreme Court first confronted the issue several decades ago, it accepted as “basic and established law that a parent is not liable for the tort of his minor child because of the mere fact of his paternity,” Gissen at 703, and sent forth without compensation the hapless gentleman a portion of whose finger had been severed from his hand by the playful antic of eight-year-old Geraldine Goodwill, see id. at 702, 705-06.

There are, however, as is generally true with harsh doctrine created in a distant and dissimilar era, judicial “exceptions” ,to the rule of parental irresponsibility. These are (1) the entrustment of a child with an instrumentality which, because of the child’s lack of age, judgment or experience, may become a source of danger to others; (2) the existence of a relationship between the parent and child that is in fact a master and servant or principal and agent relationship; (3) a parent’s knowing of and consenting to, directing or sanctioning a child’s wrongdoing and (4) a parent’s failing to exercise parental control over a child although the parent knows or in the exercise of due care should have known that injury to another is a probable consequence. E.g., Gissen at 703.

We feel that the facts of this case readily fall within the last and broadest of these “exceptions,” which, indeed, is not an exception to vicarious liability but a recognition of direct parental responsibility, the duty of a parent to exercise reasonable control over the conduct of a child:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts § 316 (1965).

According to the encyclopedists and annotators, the facts recounted in the cases where courts have found evidence sufficient for a determination by the factfinder of parental negligence present a pattern wherein the injury inflicted by the child is one which reasonably should have been foreseen by the parent as likely to flow, as a natural and probable consequence, from the child’s course of conduct involving similar acts. See, e.g., 67A C.J.S. Parent & Child §§ 125-26 (1978); Annot., 54 A.L.R.3d 974, 992-1008 (1973 & Supp.1983); 59 Am.Jur.2d Parent & Child § 133 (1971 & Supp.1983). A survey of the various eases, though, reveals that the application of this similar acts rule is at times of sufficient breadth to conclude that if the rule ever existed universally, which is to be doubted, it has been transcended and replaced by a less restrictive case-by-case determination of parental negligence limited only by the broad bounds expressed in the Restatement. Parents, therefore, are “responsible for [the] conduct [of their children] in so far as [they have] the ability to control it,” Restatement (Second) of Torts § 316 comment a, and have the “opportunity” and know of “the necessity of so doing,” id. comment b. We feel that this broader rule, which we believe to be a requirement of reasonable care in the circumstances, short of some form of vicarious liability, is the better rule.

III

The fact pattern of Gissen, however, compels the conclusion that the supreme court had a somewhat restrictive application of the similar acts rule in mind when it addressed the issue in 1955. Julius Gissen brought an action against Geraldine Goodwill’s parents, alleging that he was an employee of the Gaylord Hotel in Miami Beach and that the Goodwills were guests at the Gaylord. See Gissen at 702. The complaint further alleged that Mr. and Mrs. Goodwill negligently failed to restrain their child and

“that said parents had full knowledge of previous particular acts committed by their daughter about the hotel premises, such as striking, knocking down and damaging objects of furniture and furnishings and disturbing and harassing the guests and employees of the hotel and that the defendant Geraldine Goodwill did commit other wanton, wilfull and intentional acts of a similar nature to the act committed against the plaintiff, such as striking guests and employees of the aforesaid hotel, which acts were designed or resulted in injury [sic], so that the child’s persistent course of conduct would as a probable consequence result in injury to another,”

id. Injury to another did result when little Miss Goodwill “ ‘wilfully, deliberately, intentionally and maliciously’ ” swung a door “ ‘with such great force and violence against the plaintiff ... that the middle finger on plaintiff’s left hand was caught in the door and a portion of said finger was caused to be instantaneously severed and fell to the floor,’ ” id.

After examining seven cases that considered direct parental responsibility, the supreme court found that ''[o]ne common factor” allowing a finding of parental liability was a determination that “the child had the habit of doing the particular type of wrongful act which resulted in the injury complained of,” Gissen at 705. “It is nowhere claimed,” the court continued, “that the child here involved had a propensity to swing or slam doors at the hazard of persons using such doors,” id., and, with a 4-0 ruling, affirmed the trial court’s dismissal of the complaint, see id. at 706; accord Spector v. Neer, 262 So.2d 689 (Fla. 3d DCA 1972).

The supreme court’s analysis was not well received by contemporary commentators, one noting that

the result is a rather inequitable one. While the parent, in this state, is not liable for the torts of his minor because of the mere fact of paternity, nevertheless, it would appear, that if it is plainly shown by the facts, that the child was actually possessed of vicious tendencies and the parents knew or should have known of them, then liability should attach, even though the specific wrongful conduct was not known to be habitual,

Torts, Third Survey of Florida Law, 12 U.Miami L.Rev. 469, 490 (1958), and another writing “[i]t is submitted that the parents of incorrigible children are lucky if their children are versatile in their wrongdoing. If their children lack ingenuity in their devilment, the parents may be held liable,” Murray, Domestic Relations, Second Survey of Florida Law, 10 U.Miami L.Q. 317, 352 (1956). We agree. The supreme court’s holding in Gissen, purporting to adopt the similar acts rule, but instead creating a “particular acts” rule, not only mandates a rule far narrower than the more enlightened rule expressed in the Restatement; we feel that as the rule was applied to the facts in Gissen even fact patterns where the injury should reasonably have been foreseen to flow, under the similar acts rule, as a natural and probable consequence from the child’s course of conduct involving similar acts would be insufficient to survive a legal preclusion of submission to the factfinder. If the facts in Gissen were not sufficient for a determination that the child’s course of behavior would naturally and probably result in injury, what facts could be?

IV

In Southern American Fire Insurance Co. v. Maxwell, 274 So.2d 579 (Fla. 3d DCA), cert. dismissed mem., 279 So.2d 32 (Fla.1973), this court addressed a fact pattern wherein a five-year-old child, six days after the training wheels were removed from her new bicycle, rode it on a sidewalk, without her parent’s permission, and into a woman walking on the sidewalk, see id. at 580. Rejecting an argument that the bicycle was a dangerous instrumentality, see id. at 581, this court stated that “[h]ere we have a 5 year old girl who for one month used a small bicycle with training wheels. Subsequently, one week after the receipt of a larger bicycle, she was permitted to ride it without the training wheels and out of the sight and supervision of her parents,” id. “In these cases,” this court continued, “the question of liability is to be determined on the broad basis of whether ... the parent has been guilty of negligence, that is, a failure to exercise due care in the circumstances,” id., and affirmed the trial court’s submission of the issue to the jury, see id.

In reaching its conclusion in Southern American Fire Insurance Co. this court cited to and was apparently persuaded by the fourth district’s decision in Seabrook v. Taylor, 199 So.2d 315 (Fla. 4th DCA), cert. denied mem., 204 So.2d 331 (Fla.1967), wherein the court stated that

the Gissen case does not hold specifically that those exceptions enumerated therein are exclusive. In all cases the question of liability is to be determined on the broad basis of whether ... the parent has been guilty of negligence, that is, a failure to exercise due care in the circumstances,

Seabrook at 317.

Implicit in these holdings is a rejection of the rule expressed in Gissen, both in its broader, similar acts, and narrower, particular acts, senses and an adaptation of what we here characterize as the reasonable care in the circumstances rule: a determination based upon the unique facts of each case and an application of the language of the Restatement.

V

For the foregoing reasons, bound as we are by the supreme court’s holding in Gissen but being of the opinion that that holding is not supported, by the weight of authority and that a more enlightened rule would better serve the needs of Florida’s citizens, see Hoffman v. Jones, 280 So.2d 431 (Fla.1973), we affirm the trial court’s order and certify that this case passes upon the following question of great public importance:

To what extent and in what manner may parents be held legally responsible for injuries inflicted by their minor children upon third parties?

Affirmed. Question certified.

FERGUSON, Judge

(dissenting).

Judge Jorgenson has prepared an opinion which thoughtfully presents all pertinent facts and the law on the subject. My disagreement is with the interpretation or application of the law to these facts to take away a jury verdict.

Gissen v. Goodwill, 80 So.2d 701 (Fla.1955), in my opinion, does not compel the conclusion reached by the majority. The Gissen holding, as noted by a sister court in Seabrook v. Taylor, 199 So.2d 315 (Fla. 4th DCA), cert. denied, 204 So.2d 331 (1967), is limited to those cases where a plaintiff fails totally to plead a relationship between specific conduct of the child which causes injury to another and a lack of restraint on the part of the parents. To the contrary, however, the jury verdict finds support in Gissen.

In Gissen, our supreme court noted that there are four “broadly defined exceptions” to the general rule that a parent is not liable for the tort of his minor child. The fourth exception supports a finding of liability:

Where he [the parent] fails to exercise parental control over his minor child, although he knows or in the exercise of due care should have known that injury to another is a probable consequence. Gissen, 80 So.2d at 703.

The court interpreted this exception quite narrowly, holding that a cause of action against the parents for the tort of their minor child fails where “the negligence charged with relation to parental restraint is not claimed to flow from the commission of an act or course of conduct which the child habitually engaged in and which led to the appellant’s injury.” [e.s.] 80 So.2d at 705. There, the complaint was deficient because it did not allege that the child had a propensity to swing or slam doors, thereby causing injury.

The complaint in this case, apparently, did not suffer the pleadings defect which was fatal to the Gissen complaint. Further, the facts in the present case, unlike those in Gissen, do point to a course of conduct in which the child habitually engaged. There was, at trial, ample evidence that the minor child had a propensity to be rough at play with smaller children. Further, there was evidence that the violent propensities of the child to assault smaller children at play were known to the parents, and that the parents resisted suggestions that the child be restrained or corrected.

The cases cited by the majority, and relied upon by the court in Gissen, serve only to reinforce the conclusion that parental liability is appropriate here. See Ryley v. Lafferty, 45 F.2d 641 (D.Idaho 1930) (parents may be liable where child had habit of inveigling smaller boys into secluded places and there beating, bruising, maiming, and punishing them); Ellis v. D’Angelo, 116 Cal.App.2d 310, 253 P.2d 675 (Dist.Ct.App.1953) (parents may be liable where son habitually engages in violently attacking and throwing himself forcibly and violently against other people); Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 155 A.L.R. 81 (1944) (parents may be liable where child is in habit of assaulting and mistreating smaller children and parents know of such habit yet encourage their son in such conduct); Norton v. Payne, 154 Wash. 241, 281 P. 991 (1929) (parents who knew about and encouraged child’s habit of striking other children with sticks may be liable for injury)-

The narrow question presented by this appeal is whether plaintiffs presented evidence tending to show that (1) defendant parents knew of their child's habit of assaulting smaller children while at play, and (2) the parents condoned such conduct by expressions of resentment or resistance to admonition by others. The evidence was sufficient to present a fact issue for the jury, and their findings should not have been overturned by the trial court as a matter of law. It is only in the absence of any evidence that a court should direct a verdict for a defendant. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981). I would reverse and reinstate the jury verdict.

      . There is, thus, little solace for the torted in Lord Kenyon's assertion that "[i]f an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a court of justice,” Jennings v. Randall, 101 Eng.Rep. 1419, 1419 (1799). Nor is there, thus far, much solace to be found in statutory abrogation of the common-law rule of parental irresponsibility, the various statutes tending to limit severely financial responsibility. See Annot., 8 A.L.R.3d 612 (1966 & Supp.1983).

      . See, e.g., Ryley v. Lafferty, 45 F.2d 641 (D.Idaho 1930) (child with habit of persuading and inveigling smaller boys into secluded places and beating, bruising, maiming and punishing them persuaded and inveigled a smaller boy into a secluded place, forced him to undress and beat and bruised him with switches, sticks and straps); Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961) (child with habit of striking, beating and abusing younger children struck, beat and kicked another child); Ellis v. D’Angelo, 116 Cal.App.2d 310, 253 P.2d 675 (1953) (child with habit of violently assaulting and throwing himself forcibly against persons and violently shoving and knocking them pushed babysitter to the floor); Mitchell v. Wiltfong, 4 Kan.App.2d 231, 604 P.2d 79 (1979) (child who had beaten, harassed and assaulted neighborhood children inflicted intentional mental distress, worry, concern, physical pain and suffering upon children and their parents); Moore v. Lexington Transit Corp., 418 S.W.2d 245 (Ky.1967) (child who had on past occasions been permitted to open car door at a particular intersection opened car door at the same intersection, without permission, causing car door to strike moving bus); Caldwell v. Zaher, 344 Mass. 590, 183 N.E.2d 706 (1962) (child with habit of assaulting, accosting, tormenting and molesting young children assaulted, accosted, tormented and molested young child); Gudziewski v. Stemplesky, 263 Mass. 103, 160 N.E. 334 (1928) (child who had used an air gun, not a dangerous instrumentality, indiscriminately and mischieviously on three occasions by placing children in a line and pointing the air gun at them from a distance of ten or eleven feet, shooting at clothes hanging in the yard to dry and shooting at a shanty and birds, used the air gun to shoot another child in the eye); Lane v. Chatham, 251 N.C. 400, 111 S.E.2d 598 (1959) (child who had three times misused an air rifle, not a dangerous instrumentality, by shooting person in hip, shooting another person with match stems in arms and legs and chasing another person a couple of times while carrying air rifle without firing it, pointed air rifle directly at another person and shot him in the eye); Landis v. Condon, 95 Ohio App. 28, 116 N.E.2d 602 (1952) (child with vicious propensities and disposition jumped upon another child’s back and threw the child to the floor); Sawyer v. Kelly, 194 Okla. 516, 153 P.2d 97 (1944) (child who was permitted to ride horse with only a halter to control the animal was riding the horse when it ran into an automobile); Condel v. Savo, 350 Pa. 350, 39 A.2d 51 (1944) (child with habit of mauling, pummelling, assaulting and mistreating smaller children threw another child down a steep and precipitous embankment); Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963) (children who had a propensity to assault others assaulted and battered plaintiff); Eldredge v. Kamp Kachess Youth Servs., Inc., 90 Wash.2d 402, 583 P.2d 626 (1978) (children who had escaped from a group child care facility, whose legal standard of care was that of a parent, had stolen and abandoned an automobile and had committed a burglary, were apprehended and reassigned to the same facility, escaped again, stole an automobile and wrecked the automobile and its contents); Norton v. Payne, 154 Wash. 241, 281 P. 991 (1929) (child with habit of striking smaller children with sticks struck another child in the eye with a stick); Mazzocchi v. Seay, 126 W.Va. 490, 29 S.E.2d 12 (1944) (child who was given an air rifle, not a dangerous instrumentality, used the air rifle to shoot another child in the eye); Gerlat v. Christianson, 13 Wis.2d 31, 108 N.W.2d 194 (1961) (child who was permitted, without adult supervision, to use a readily accessible air rifle, not a dangerous instrumentality, shot playmate in the eye while child’s father was present in another part of the house but had not ascertained that the air rifle was being used).

      . We note that under the reasonable care approach the child need not be a tortfeasor for parental liability to attach. See Restatement (Second) of Torts § 316 comment c. This, of course, distinguishes the direct liability approach from vicarious liability where any liability of the parent would involve as a prerequisite a tortious child.

      . By parental vicarious liability for the torts of children we envision something more than the $2,500 maximum liability that section 741.24, Florida Statutes (1983), places upon the parents of children who maliciously or wilfully destroy or steal property. The best approach appears to be that used in Louisiana where, unhampered by the common law, the Civil Code has since 180⅞ imposed strict liability upon a parent for the tort of a child. See Annot., 8 A.L.R.3d at 617-24 and the cases cited therein.

      . Including four of those appearing in note 2, supra: Ryley, Ellis, Condel and Norton.

        . We would be less than veracious if we did not point out that we are at a loss as to how the supreme court determined its “one common factor" and how it was able to so limit its holding based upon the fact patterns in the cases it cited. In Ryley and Ellis the “particular type of wrongful act" involved was in each instance considerably more general and all-encompassing than in Gissen. In Condel the tortious act was unprecedented. Only in Norton could the tortious act be said to have been arguably as narrow as the "particular type of wrongful act” involved in, Gissen. Of the remaining three cases cited in Gissen, only Martin v. Barrett, 120 Cal.App.2d 625, 261 P.2d 551 (1953), an affirmance of the dismissal of the complaint upon a finding that there was "no previous wrongful act by the son in using the [air] gun alleged, or any prior knowledge by the mother that the son had improperly used the gun” and that the father knew neither of the circumstances of the injury or of any previous careless use of the air gun, id. at 628, 261 P.2d at 553, appears to approach the narrowness of the Gissen holding. Steinberg v. Cauchois, 249 A.D. 518, 293 N.Y.S. 147 (1937), was an affirmance of a jury determination of innocence. In Bateman v. Crim, 34 A.2d 257 (D.C.1943), a directed verdict for the parents was affirmed where neither "boy had previously played with a football on the public streets or had conducted himself in other than an orderly manner,” id. at 258 (emphasis added).

      . Florida’s courts have been quite creative in circumventing the harsh rule in Gissen, one court even going so far as to label a baby stroller a dangerous instrumentality. See Bullock v. Armstrong, 180 So.2d 479 (Fla. 2d DCA 1965).

      . In Seabrook the court held that under all the evidence, the trial court properly submitted to the jury the question of whether the parents were negligent in keeping a loaded pistol in an unlocked place in a room to which a child had access. We adopted that court’s interpretation of Gissen in Southern American Fire Insurance Co. v. Maxwell, 274 So.2d 579 (Fla. 3d DCA), cert. dismissed, 279 So.2d 32 (Fla.1973) (whether parents failed to exercise their parental duty to ascertain if their five-year-old child was competent to control a two-wheel bicycle without supervision was question for the jury).


text:
    Dorothy EVANS, Appellant, v. Leon ADAMS, Appellee.
    No. 83-2359.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Rehearing Denied June 5, 1984.
    Melvin A. Rubin and Kenneth A. Friedman, Miami, for appellant.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul Siegel, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order vacating the final judgment of paternity is reversed with directions to reinstate said final judgment upon a holding that the hearing which resulted in the entry of the final judgment of paternity comported in all respects with due process requirements and did not, despite the trial court’s unsubstantiated pronouncement to the contrary, run afoul in any respect of this court’s decision in Robbins v. Robbins, 429 So.2d 424 (Fla. 3d DCA 1983), inasmuch as there was sufficient competent evidence educed at such hearing to establish that Adams was the father of the three children, and any failure of Adams to defend against the paternity charge was a failure of his own making.

Reversed and remanded with directions.


text:
    David SCHWARTZ, Appellant, v. Zenia SCHWARTZ, Appellee.
    No. 83-2889.
    District Court of Appeal of Florida, Third District.
    May 1, 1984.
    Rehearing Denied June 5, 1984.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellant.
    Edward J. Schack, Oakland Park, for ap-pellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Finding that the action of the trial court in awarding permanent periodic alimony to the wife, whose income virtually equalled and whose earning capacity and net worth (both before and after the equitable distribution effected by the trial court) exceeded those of the husband, fails to satisfy the test of reasonableness laid down in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and reemphasized in Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983), we reverse the alimony award and remand the cause with directions that the trial court reserve jurisdiction to award alimony to either party in the future. In light of our reversal of the award of alimony, the trial court shall also reconsider that part of its final judgment of dissolution refusing to award attorneys’ fees and costs to the wife. In all other respects the final judgment of dissolution is affirmed.

Affirmed in part; reversed in part, with directions.


author: ZEHMER, Judge.

text:
    CENTRAL PROPERTIES, INC., Appellant, v. William H. ROBBINSON, Trustee, and V. Randolph Delk, Trustee, and Westside, Inc., Appellees.
    No. AS-289.
    District Court of Appeal of Florida, First District.
    May 2, 1984.
    Rehearing Denied May 31, 1984.

      James D. Easley, Niceville, for appellant.
    E. Allan Ramey, DeFuniak Springs, for appellees.
   ZEHMER, Judge.

Central Properties, Inc., appeals an adverse judgment denying specific performance of a contract purporting to grant a right of first refusal to purchase “a water and sewer system.” With some modification, the trial court’s order is affirmed.

In August 1977, Central Properties, Inc., and the appellees, William H. Robbinson, as trustee, V. Randolph Delk, as trustee, and Westside, Inc., a real estate development company, entered into an option agreement whereby Central Properties could purchase sixty acres of land in Walton County from Westside. As part of this agreement, Central Properties received a “right of first refusal ... to purchase the water and sewer system on the remaining property of [Westside, Inc.] under the terms and conditions being sold to any other party.” The agreement also gave Central Properties thirty days to make an election after receiving written notice of any such proposed sale from Westside. Central Properties exercised the option and purchased the sixty acres pursuant to the agreement.

Thereafter, Westside’s owners created another corporation, Westside Utilities, Inc., to own and operate the water and sewer system, and transferred the system to that corporation. The shareholders of Westside Utilities and Westside, Inc., with one exception, were the same. On this appeal, the parties do not dispute the trial court’s ruling that the right of first refusal in the original option agreement between Central Properties and Westside survived this transfer of the system and became binding on Westside Utilities and its owners.

One of the principal developments on Westside’s property was a condominium known as Sand Cliffs. In 1981, the condominium was the principal user of the water and sewer system. During April and May of that year, the owners of Westside Utilities, Inc., and the Sand Cliffs Owners Association discussed the transfer of the system to the Association. On May 8, 1981, the Association sent a letter to William H. Rob-binson, a stockholder of and spokesman for Westside Utilities, in which the Association confirmed its proposal “to take over the water and sewer systems now being operated by Westside Utilities, Inc.,” by acquiring all the capital stock of Westside Utilities, to be held in the name of the Association or a separate corporation to be organized by the Association. At the time of that letter, several essential terms of the proposal remained open for further negotiation and agreement. For example, both parties recognized that the system was in poor repair, and the Association’s May 8 letter recited that:

Our Association would promptly transfer funds in an amount of not less than $25,000 to Westside to be used for capital improvements and maintenance of the system so that it would be in good working condition capable of providing reliable and satisfactory service. The cost of doing this cannot be determined in advance with a high degree of accuracy. Our Association will, however, commit to provide additional funds as needed for such purposes up to an amount of not less than $50,000. Among the work anticipated is the enclosure of controls and other components in suitable buildings for protection against environmental damage, etc., the drilling of an additional well so that both reliability and quality of water supply is improved, catching up with long overdue maintenance such as sandblasting and repainting tanks and the like, replacement of some components, acquisition of one or more standby pumps and whatever else it takes to put both systems into good working order. (Emphasis added.)

Thus, the Association was committing to expend, without apparent limitation, “not less than $50,000” to correct certain deficiencies and to do “whatever else it takes to put both .systems in good working order.” Also, the letter refers to unresolved commitments owed by Westside Utilities to Central Properties regarding water and sewer service for the development of the property Central Properties had purchased and to other details that remained to be finalized, all of which would have to be set forth in the closing documents. The May 8 letter concluded with the statement:

It is my understanding that you will communicate with Mr. Bragg so as to determine if he will waive the 30 day period and let us proceed with the foregoing as rapidly as possible.

In a letter dated May 12, 1981, Robbin-son sent the Association’s letter to Jay Bragg, president of Central Properties, offering it the right- to purchase the water and sewer system under the terms and conditions set forth in Sand Cliffs’ May 8 letter. Robbinson also stated to Bragg that:

If you know now that you do not have an interest in purchasing these systems under these terms and conditions and would agree to waive the 30 day period or release it, it would assist all concerned in getting the matter to an expeditious conclusion. We are anxious, as we know you are, to get this matter into a permanent solution, and we will appreciate your cooperation in this regard.

Apparently, both Westside Utilities and the Association believed that Central Properties would not insist upon exercising its right of first refusal and wanted to confirm that belief in writing.

In a letter to Robbinson dated May 15, 1981, Central Properties, through its attorney, James E. Moore, stated that it would relinquish its right of first refusal if West-side Utilities would sell the water and sewer system to John V. Smith Water Company. That letter contained no reference to Robbinson’s May 12 letter or to the Sand Cliffs proposal. Robbinson did not respond to Moore’s letter of May 15. On May 22, 1981, Moore wrote a second letter to Rob-binson, informing him that Central Properties was electing to exercise its right of first refusal to purchase the water and sewer system pursuant to the terms of the Sand Cliffs offer.

Sand Cliffs and the shareholders of Westside Utilities took no further steps to consummate the proposed transaction described in their letter of May 8. Rather, on June 9, 1981, Robbinson, on behalf of West-side Utilities, wrote to Central Properties that Sand Cliffs Owners Association had withdrawn the proposal described in their May 8 letter and that Westside was withdrawing the proposal in its May 12 letter. Robbinson’s letter further recited:

In reviewing the matter we do not believe that paragraph 11 of the original purchase agreement is activated (or has any validity) as far as the proposal received from Sand Cliffs Owners Association is concerned. We were under the impression that Central Properties, Inc., was in agreement with the Sand Cliffs Owners Association taking over the operation of the systems and we wrote our letter of May 12 as a matter of clearing a technicality.

On June 22, 1981, Central Properties responded to the June 9 letter, taking the position “that it has exercised its option to purchase under the terms as specified in the letter of May 8, 1981,” and demanding that the transaction be closed with Central Properties on the terms set forth in the Association’s May 8 letter.

On July 14, 1981, Westside Utilities and Sand Cliffs executed a “management agreement” and a “lease agreement” providing that Sand Cliffs would lease and manage the water and sewer system. The utility system is presently being managed and operated under the terms of these agreements. On July 28, Sand Cliffs also acquired an option to purchase the capital stock of Westside Utilities, but has not attempted to exercise it.

Central Properties instituted this litigation to obtain specific performance of the contract to acquire the water and sewer system allegedly created by its acceptance of the terms of the proposal contained in appellees’ letters of May 8 and 12, together with damages for appellee’s failure to perform the contract. William H. Robbinson and Randolph Delk, as trustees, Westside, Inc., and Westside Utilities, Inc., have been named as defendants by Central Properties. Sand Cliffs Owners Association has become a defendant by intervention. After a full trial of the issues, the circuit court entered its order and final judgment ruling that there was “no meeting of minds concerning the proposal set out in Mr. William Robbinson’s letter of May 12, 1981,” and that Central Properties “is not entitled to the specific performance or other relief sought in the complaint.” The circuit court also found that Central Properties’ right of first refusal does not apply to the sale or transfer of the capital stock of Westside Utilities, Inc., and ruled that such stock could be acquired by Sand Cliffs under the terms of its option dated July 28, 1981. Central Properties challenges these rulings on this appeal.

It is well established, as appellant’s brief states, that a meeting of the minds of the parties on all essential elements is a prerequisite to the existence of an enforceable contract, and where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds. Enid Corp. v. Mills, 101 So.2d 906 (Fla. 3d DCA 1958); 11 Fla.Jur.2d, Contracts, § 13. The record contains ample evidence to support the trial court’s finding that there was no “meeting of the minds” of the parties in this case. Appellant has failed to demonstrate that the trial court committed any error of law or abused its discretion in refusing to grant specific performance and other relief to the appellant. The correspondence and other evidence in the record clearly support a finding that the owners had not unconditionally manifested acceptance of a specific offer of purchase submitted by the Association, and all essential elements of the contract had not been finalized and agreed upon by these parties. The letters of May 8 and May 12, which Central Properties contends constitute the offer which it accepted, were obviously sent for the purpose of obtaining confirmation in writing that Central Properties would release its right of first refusal if Sand Cliffs and the owners of West-side Utilities should reach final agreement of the terms for a transfer of the water and sewer system to the Association. Once Central Properties indicated it would insist on exercising the right of first refusal, Sand Cliffs and Westside Utilities ceased further negotiations to finalize the terms for transferring the system to the Association.

A right of first refusal cannot ripen into a binding contract of purchase and sale until the owner of the property manifests an unconditional willingness to accept a third person’s offer of purchase on specific terms and the holder of the right of first refusal tenders an unqualified acceptance of all terms of the offer without modification. Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854 (Fla. 3d DCA 1970). The cost and extent of repairs necessary to put the system into “good working order” was not described with any degree of specificity, but was both uncertain and uncir-cumscribed in amount; thus, essential elements of the agreement remained open for further negotiation and agreement by the parties. A contract so indefinite in its terms is not ordinarily susceptible of specific performance. See, Bay Club, Inc. v. Brickell Bay Club, Inc., 293 So.2d 137 (Fla. 3d DCA 1974); 29A Fla.Jur., Specific Performance, §§ 40-42.

We do find, however, that the trial court erred in ruling that the capital stock of Westside Utilities is not subject to the right of first refusal held by Central Properties and that it may be acquired by Sand Cliffs Owners Association under the terms of its option dated July 28, 1981, without regard to Central Properties’ right. The word “system” has been defined as “a group of interacting, interrelated, or interdependent elements forming or regarded as forming a collective entity.” The American Heritage Dictionary of the English Language, 1306 (W. Morris ed., 1979). We note that at the time the right of first refusal was given, the water and sewer system was owned by Westside, Inc., together with all other properties being developed by it. Hence, any sale or transfer of that system could be accomplished only by a sale of the physical properties constituting its component parts. But the property constituting the system was thereafter transferred by Westside to a new corporation created for the sole purpose of owning and operating the system. All components of the system now being segregated in a separate corporation which was also obligated to honor Central Properties’ right of first refusal, any attempt by this new corporation or its owners to sell that system by either a sale of its components or transfer of all its capital stock should be construed as subject to the right of first refusal. Otherwise, the purpose and intent of. the right of first refusal originally given to Central Properties could be circumvented quite easily. This is not to say that an individual shareholder of Westside Utilities could not sell or transfer his/her shares free of Central Properties’ right of first refusal under circumstances where the purpose and result of the sale is not to convey complete ownership and control of the system to another entity in circumvention of Central Properties’ right of first refusal. But we are not faced with that situation here, and our decision is not intended to reach that question.

We reverse the ruling of the court below that the capital stock of Westside Utilities is not covered by the right of first refusal and direct that the final judgment be so modified. In all other respects, the final judgment is AFFIRMED.

THOMPSON and WIGGINTON, JJ„ concur.

      . The management agreement and lease agreement made by Westside Utilities and Sand Cliffs Owners Association on July 14, 1981, to facilitate the continued operation and improvement of the water and sewer system is not within the terms of the right of first refusal. The continued validity of these agreements is not affected by this decision.