author: DANAHY, Judge.

text:
    F.J. ARTINO and Fedora Artino, his wife, et al., Appellants, v. Samuel C. CUTLER and Doris M. Cutler, his wife, and Karl E. Bigelow, d/b/a Venetian Mobile Home Park, Appellees.
    No. 82-1795.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1983.
    Rehearing Denied Oct. 26, 1983.
    John T. Allen, Jr., St. Petersburg, for appellants.
    Charles J. Bartlett of Icard, Merrill, Cul-lis, Timm & Furen, Sarasota, for appellees.

      Jim Smith, Atty. Gen., and Joanna R. Martin, Asst. Atty. Gen., Tallahassee, for State as amicus curiae.
   DANAHY, Judge.

The appellants (the tenants) are twenty-three tenants living in mobile homes at the Venetian Mobile Home Park, which is owned and operated by the appellees (the park owners). The tenants entered into their tenancies on an oral month-to-month basis. They purchased their mobile homes, removed the wheels, and constructed concrete patios, porches and other amenities attached to their mobile homes. They produced testimony that the cost of removing all of their mobile homes and reassembling them in another park would be approximately $238,180. Further, they introduced testimony that other mobile home parks in the Sarasota area are “closed” parks which do not accept mobile homes relocated from another park.

In 1980 the park owners adopted a rule for the park reading as follows:

That, effective May 1, 1980, all residents of Venetian Mobile Home Park will be allowed to start or continue residence in Venetian Mobile Home Park only under the terms of a signed, written lease. The lease offered to each park resident will be on the same terms as leases offered to all other park residents, excepting only certain variations in rent due to lot size or location.

The park owners then submitted a written lease to each of the tenants containing a provision that any tenant could be ejected on twelve months’ written notice without cause. When the tenants refused to sign this lease, the park owners gave notice of eviction and brought an action in county court to evict the tenants for violation of a park rule. The tenants brought this suit in circuit court for equitable relief, and the cases were consolidated in the circuit court.

After a nonjury trial, the trial judge entered a final judgment in favor of the park owners. The judgment denied any equitable relief to the tenants and gave the tenants the choice of either removing themselves and their mobile homes from the park or selling their mobile homes to third parties within ninety days from the date of the final judgment. The parties entered into a stipulation that the ninety days would run from the date of this court’s mandate. We reverse.

We are concerned with the application of section 83.759(1), Florida Statutes (1981), which provides in part as follows:

Mobile home parks; eviction, grounds, proceedings—
(1) A mobile home park owner or operator may not evict a mobile home or a mobile home dweller other than for the following reasons:
(a) Nonpayment of rent.
(b) Conviction of a violation of some federal or state law ....
(c) Violation of any responsible rule or regulation established by the park owner or operator ....
(d) Change in use of land comprising the mobile home park ... to some other use ....

We note that in 1982 the legislature amended section 83.759 to add subsection (e)as a ground for evicting a mobile home dweller. Under the 1982 amendment, park owners are permitted to evict tenants upon twelve months’ notice without cause, but if they do so, the mobile home dweller is given statutory protection against the losses which he might otherwise be required to bear. § 83.759(l)(d), Fla.Stat. (Supp.1982). The 1982 amendment does not apply to the case before us, however.

In Stewart v. Green, 300 So.2d 889 (Fla. 1974), our supreme court upheld the constitutionality of section 83.759(1) (formerly section 83.69). In doing so, the court commented at length on the unique position of mobile home dwellers who rent on a month-to-month basis and thus, without statutory protection, could be evicted on short notice without cause. Section 83.759(1) was enacted to afford protection to mobile home owners from that vulnerability. The court said “the rules and regulations which a mobile home park owner or operator adopts must not be designed to indirectly circumvent the positive protection provisions of [section 83.-759(1)].”

We hold that the rule adopted by the park owners in the instant case sought to do that which the supreme court described as improper; that is, the rule is designed to indirectly circumvent the provisions of section 83.759(1). Under the pre-1982 version of that statute, a mobile home park owner or operator may not evict a mobile home dweller without cause. The park owners in this case sought to obtain just that right by enacting a rule requiring tenants to enter into written leases and then proffering leases containing a provision that the tenants could be evicted on twelve months’ notice without cause. The rule is improper and may not be grounds for eviction. Thus, we reverse.

Our holding in this case is compatible with the holding of our sister court in Peterson v. Crown Diversified Industries Corp., 429 So.2d 713 (Fla. 4th DCA 1983). In that case, the court disapproved a rule adopted by a mobile home park owner permitting it to evict any tenant without cause on twelve months’ notice. We agree with that holding, and take it one step further— just as a rule permitting eviction on twelve months’ notice without cause is improper, so is a rule requiring a tenant to sign a lease containing such a provision. We also agree with the distinction drawn by the Peterson court between the situation in that ease and the decision of this court in Japanese Gardens Lot Renters Protective Association of Clearwater, Inc. v. Japanese Gardens Mobile Estates, Inc., 345 So.2d 409 (Fla. 2d DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978).

REVERSED and REMANDED for further proceedings not inconsistent with this opinion.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Debra Ann PUZZO, Appellant, v. STATE of Florida, Appellee.
    No. 83-801.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Rehearing Denied Nov. 9, 1983.
    Jane D. Fishman of Marcus & Stark, Plantation, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Sharif v. State, 436 So.2d 420 (Fla. 4th DCA 1983).

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


author: COWART, Judge.

text:
    Ernest Tyrone YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 82-1180.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1983.

      James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

This case involves disjunctive allegations in an information which ambiguously seek to invoke the jurisdiction of the circuit court. The appellant was charged by information with two counts which alleged that on two different dates appellant did “unlawfully and feloniously sell or deliver to another person, cannabis, a controlled substance commonly known as marijuana, in violation of Florida Statute 893.13(l)(a)(2); third degree felony” (emphasis supplied).

Cannabis is a controlled substance named in section 893.03(l)(c), Florida Statutes (1981). Section 893.13(l)(a)(2) makes it a third degree felony for “any person to sell ... or deliver ... a controlled substance named or described in s. 893.03(l)(c).. .. ” However, section 893.13(l)(f) provides that the delivery without consideration of not more than 20 grams of marijuana is a misdemeanor of the first degree.

An information which charges delivery of cannabis without specifying the amount of the cannabis delivered or alleging that the delivery was for consideration charges only a misdemeanor. Boley v. State, 273 So.2d 109 (Fla. 4th DCA 1973), cert. discharged, 287 So.2d 668 (Fla.1973); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. discharged, 283 So.2d 99 (Fla. 1973). On the other hand, the word “sale” by definition means a delivery with consideration and is therefore sufficient in itself to charge a felony. State v. Stewart, 374 So.2d 1381 (Fla.1979). Therefore, the information in this case alleges that appellant either committed a felony or a misdemeanor.

A circuit court has jurisdiction of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged. § 26.012(2)(d), Fla. Stat. (1981). A county court has jurisdiction over all misdemeanor cases not cognizable by the circuit courts. § 34.01(l)(a), Fla.Stat. (1981). When an information charges only a misdemeanor a circuit court has no subject matter jurisdiction over the case. Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978); Boley, 273 So.2d 109; Pope, 268 So.2d 173. When a court lacks subject matter jurisdiction it has no power to decide the case and any judgment entered is absolutely null and void, can be set aside and stricken from the record on motion at any time and may be collaterally attacked. Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926).

Florida Rule of Criminal Procedure 3.140(o) relating to sufficiency as to the form of a charging document is not controlling here. This rule does not validate constitutional and jurisdictional infirmities. The issue in this case is not the accused’s due process right to notice of the charges but his right to be tried by a court which possesses the sovereign power to try the case. This sovereign power is the subject matter jurisdiction of the court. Such subject matter jurisdiction must be properly invoked and perfected.

In State v. Black, 385 So.2d 1372 (Fla. 1980), the Supreme Court of Florida held that a conviction obtained pursuant to a grand jury indictment which did not facially indicate the jurisdiction of the court was void. The court stated “Proper jurisdictional allegations are as essential in an accusatory writ as are those relating to material elements of the crime.” Citing Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972); Conner v. State, 29 Fla. 455, 10 So. 891 (1892). Id. at 1375. In Black, the court answered in the affirmative the certified question “Is a grand jury indictment insufficient to sustain a conviction when it fails to specify the place where the crime allegedly occurred, even though this allegation is subsequently supplied by a bill of particulars, the defendant is not hindered in the preparation or presentation of his defense, and the situs of the crime is proven at trial?”

We have previously held that an information which alleged in the alternative a felony or a misdemeanor was insufficient to invoke the jurisdiction of the circuit court. See Nelson v. State, 398 So.2d 920 (Fla. 5th DCA 1981).

Because the circuit court’s jurisdiction was not properly invoked it did not have jurisdiction and appellant’s convictions are void and are

REVERSED.

DAUKSCH and SHARP, JJ., concur.

      . An information or indictment which wholly fails to allege a crime by totally omitting an essential element cannot be cured by a bill of particulars. “[T]he total omission goes to the jurisdiction of the trial court.” Brewer v. State, 413 So.2d 1217, 1220 (Fla. 5th DCA 1982), pet. den. 426 So.2d 25 (Fla.1983). See also State v. Gray, 435 So.2d 816 (Fla.1983); State v. Black, 385 So.2d 1372, 1375 (Fla. 1980).

      . It is because judicial subject matter jurisdiction is a sovereign power that its lack cannot be remedied by the acquiescence or consent of the parties. Justice Whitfield notes these distinctions in an in-depth discussion of subject matter jurisdiction in Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926).

      . See Florida Power & Light Co. v. Canal Authority, 423 So.2d 421 (Fla. 5th DCA 1982), review denied, 434 So.2d 887 (Fla.1983).

      . Cf. Tucker v. State, 417 So.2d 1006 (Fla. 3d DCA 1982) (failure to allege venue, while fundamental defect, may not be presented for first time on appeal). Tucker is being reviewed by the Florida supreme court, case No. 62,683.

      . We recognize that disjunctive pleading is not always bad as when the words or concepts alleged in the alternative are legal equivalents. In some circumstances it is specifically permitted. See State v. Rand, 231 So.2d 31 (Fla. 3d DCA 1970); Fla.R.Crim.P. 3.140(k)(5). Had the information in the instant case alleged the “sale or delivery of more than 20 grams of cannabis” it would have alleged alternative means of proving a felony and would have properly invoked the jurisdiction of the circuit court.


author: RYDER, Judge.

text:
    Roy Eugene COTTON, Appellant, v. Barbara Faye COTTON, Appellee.
    No. 82-2674.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1983.
    Rehearing Denied Oct. 25, 1983.
    Gary A. Robinson, Bonita Springs, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   RYDER, Judge.

Roy Cotton appeals from the trial court’s order awarding lump sum alimony to Barbara Cotton at the conclusion of their dissolution of marriage proceeding. Appellant’s primary argument deals with the award of $153,375.00 to appellee as lump sum alimony. Concerning this particular award, the trial court ordered:

That the husband be and hereby is ordered to pay to the wife lump sum alimony in the amount of One Hundred Fifty-three Thousand Three Hundred Seventy-five Dollars ($153,375.00), instanter, or the husband may pay the aforesaid lump sum alimony in thirty-nine (39) equal quarterly payments of principal, together with the accrued interest at the statutory rate, the first payment of which shall be made on the first day of January 1983. The husband may prepay the entire amount due together with accrued interest, without any penalty.

The husband contends that the trial court abused its discretion in making the lump sum alimony award to the wife. Our reading of appellant’s arguments to the trial court and on appeal leads us to the conclusion that appellant not only seeks to acquire his proper share of the marital property, but he also seeks to acquire appellee’s share as his own.

The marital home and real property owned by the parties were valued at $284,-500.00. A herd of cattle owned by the parties was valued at $47,250.00. Cash on hand was $29,649.14. Each party was awarded an equitable share of the marital property based upon marital contribution. Claughton v. Claughton, 393 So.2d 1061 (Fla.1980).

Appellant has raised various arguments, none of which requires reversal. In fact, Canakaris v. Canakarls, 382 So.2d 1197, 1201 (Fla.1980), sets out those principles which have been closely followed by the trial court:

In granting lump sum alimony, the trial court should be guided by all relevant circumstances to ensure ‘equity and justice between the parties’.... A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the record reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.

Appellee’s marital contributions through her employment during the marriage and as wife and homemaker supply the justification for the award of lump sum alimony. Furthermore, the record reflects that appellant has the financial ability to pay the lump sum alimony. He is gainfully employed and, pursuant to the distribution of property, he owns substantial property and a cattle operation. The award of lump sum alimony to appellee provides appellant with flexibility in continuing the cattle operation while either paying to appellee her alimony in one payment or making payments to her over an extended period of time. See Philipose v. Philipose, 431 So.2d 698 (Fla. 2d DCA 1983).

The husband has also challenged that part of the final judgment which provides that he may pay the lump sum alimony immediately, pay the award plus accrued interest at the statutory rate over thirty-nine equal quarterly payments, or prepay the entire amount with accrued interest without any penalty. Appellant argues that periodic payments at the legal rate of interest is contrary to the meaning of section 55.03, Florida Statutes. This argument is without merit.

Lump sum alimony is a fixed amount of money or property. Once awarded, it is a vested property right which may be made payable in installments. Philipose, supra; Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); Horne v. Horne, 289 So.2d 39 (Fla. 2d DCA 1974). In making that award, the trial court should consider all relevant circumstances to insure equity and justice between the parties. Canakaris, supra. Palmar v. Palmar, 402 So.2d 20 (Fla. 3d DCA 1981); § 61.08, Fla.Stat. (1981).

We hold that requiring the payment of interest, should appellant choose to pay the award on an installment basis or at some time other than immediately following judgment, is within the sound discretion of the trial court to insure that equity be done between the parties. The husband may avoid the payment of interest by paying the lump sum amount at once. The trial court has given to the husband the opportunity to keep the property, including the cattle operation, intact. The court recognized that in giving to the appellant the opportunity to retain the property, and giving to the appellant the opportunity to pay appellee the lump sum alimony over a period of time, appellee should be compensated for the delay in receiving her alimony. The imposition of interest was one factor which the trial court could and did consider as necessary to do equity and justice between the parties. Canakaris, supra; § 61.08, Fla. Stat. (1981).

We also note that appellant’s reliance on section 55.03, Florida Statutes, for the proposition that the trial court’s authorization of the accrual of interest was improper is without merit. The trial court did not rely on that or any other particular statute in allowing the accrual of interest. The court simply ordered that interest shall accrue if appellant chooses to make periodic payments of the award “at the statutory rate.” The use of that language will allow the rate of interest to go up or down, depending upon future legislative amendments to, or changes in, the statutory rate of interest. We find that the trial court’s order comports with equity and justice and is adequately supported by the record.

The final order entered below is faulty in one respect: the trial court should have retained jurisdiction to entertain any further proceedings concerning the method of payment of the lump sum alimony award to the wife. Depending upon the economic future and its effect on the appellant’s or the appellee’s fortunes, and upon application by either party and a showing of changed circumstances necessitating reformulation in the method of payment, it may be necessary for the trial court to reconsider and formulate a new plan for payment of the lump sum award to the appellee. See Sapp v. Sapp, 275 So.2d 43 (Fla. 2d DCA 1973); § 61.14, Fla.Stat. (1981).

The other arguments advanced by appellant are without merit.

AFFIRMED, but REMANDED with instructions that the trial court retain jurisdiction to entertain the application by either party for changes in the method of payment of the lump sum alimony award.

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


text:
    Jake Charles RICKS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2435.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Vaughn C. Brennan, Winter Haven, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill and Randi B. Klayman, Asst. Attys. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Coleman v. State, 345 So.2d 1093 (Fla. 4th DCA 1977).


text:
    BALBOA INSURANCE COMPANY, a corporation, Appellant, v. HARRY LEE MOTORS, INC., Florida corporation, Appellee.
    No. 83-706.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 1983.
    Rehearing Denied Nov. 8, 1983.

      Gerald E. Rosser, Miami, for appellant.
    Malcolm Lewis Kneale, Miami, for appel-lee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

The appellant insurance company contends that it does not have to pay “actual cash value” upon a loss of a vehicle because the insured had previously obtained the vehicle at a price less than “actual cash value”. The policy in pertinent part reads as follows:

AUTOMOBILE PHYSICAL DAMAGE INSURANCE (DEALERS)
¡fc # * * ⅜ *
1. The company will pay for loss to covered vehicles, under:
Jfc Sfc ⅜? ⅜5 ⅝
12. THEFT COVERAGE — caused by theft or larceny;
* * ⅝ ⅜ * *
EXCLUSIONS
This insurance does not apply:
⅜: * ⅝: # * ⅝*
(i) to the named insured’s prospective profit of any nature;
⅝ ⅜ ⅜ ⅝: ⅜: ⅝5
II. LIMIT OF LIABILITY I. The limit of the company’s liability for loss to any one covered automobile shall not exceed:
(a) the actual cash value of such covered automobile ...; nor
(b) what it would then cost to repair or replace such covered automobile ... with other of like kind and quality ...

The insurance company contends that exclusion (i) prevents the insured from collecting more than it paid for the vehicle and to give “actual cash value” would give the insured a profit. We reject this argument and construe the policy exclusion in reference to “prospective” profit to mean profit which might be earned with the vehicle subsequent to the date of the loss. National Automobile Insurance Association v. Brumit, 98 So.2d 330 (Fla.1957); General Accident Fire & Life Assurance Corporation, Ltd., v. Kellin, 391 So.2d 305 (Fla. 4th DCA 1980); Hartford Accident and Indemnity Company v. Phelps, 294 So.2d 362 (Fla. 1st DCA 1974).

All parties concede that the judgment for the loss should be in the amount of $2,950. and we do hereby modify the final judgment in this regard to that amount.

Therefore the final judgment is affirmed as modified.

Affirmed as modified.


text:
    STATE ex rel. Carl E. CAVANAUGH, Petitioner, v. Honorable Harry Lee COE, III, Circuit Judge for the Thirteenth Judicial Circuit, Hillsborough County, Florida, Respondent.
    No. 83-1569.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1983.
    Samuel R. Mandelbaum and Anthony F. Gonzalez of Anthony F. Gonzalez, P.A., Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee; Diane Barrs, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

This petition for writ of mandamus is brought by an acquitted defendant seeking to compel the circuit court judge to issue a certificate of taxable costs pursuant to section 939.06, Florida Statutes (1981), which provides as follows:

939.06 Acquitted defendant not liable for costs. — No defendant in a criminal prosecution who is acquitted or discharged shall be liable for any costs or fees of the court or any ministerial office, or for any charge of subsistence while detained in custody. If he shall have paid any taxable costs in the case, the clerk or judge shall give him a certificate of the payment of such costs, with the items thereof, which, when audited and approved according to law, shall be refunded to him by the county.

The trial judge refused to issue the certificate on the theory that there was discretion to deny such costs when “... a person who factually is guilty ...” is found not guilty by the jury. We find no such exception express or implied in the statute. Therefore, we grant the petition and direct the trial judge to give petitioner a certificate of taxable costs which he may submit to the county for reimbursement.

MANDAMUS GRANTED.

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


text:
    Clarence ALLEN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-2142.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.
    Rehearing Denied Nov. 9, 1983.

      Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant was given three consecutive three year mandatory minimum sentences for three convictions of armed robbery. Two of the convictions arose out of a single episode for which only one mandatory minimum sentence may be imposed. Palmer v. State, 438 So.2d 1 (Fla.1983) [8 FLW 324]. Accordingly, we remand this cause with directions to the trial court to modify appellant’s sentence so as to delete one of the consecutive mandatory minimum sentences.

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


author: PER CURIAM. BARKDULL, Judge,

text:
    Pedro Pablo PERDOMO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1133.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before' SCHWARTZ, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Defendant appeals his conviction for robbery alleging that a new trial is warranted because of the prosecutor’s improper closing remarks. We agree.

The offending comment is as follows:
[PROSECUTOR]: ...
In fact, unfortunately, most criminals prey on people who are by themselves. They wait for this woman walking alone back to her car at night, to pounce on her and steal her purse and get away with it. Just because there was no other witnesses to the actual commission of the crime does not create a reasonable doubt. There is a reason why, to choose members of Dade County ot [sic] sit on juries — because this is your county, and when you sit as a juror, your job is to decide what you think is criminal conduct in Dade County, and if you want to send a message out there, “Listen robbers you’re picking on somebody by themself, we are going to let you go because there is no corroborating evidence, we find the defendant not guilty,” then walk him out of the door, set him free, that is fine with me. If that is what you want to happen in Dade County, you do that.
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Go to some other area. You just have a few minutes left.
[PROSECUTOR]: I’m concluding, Judge.
Ladies and gentlemen, I don’t think that is what you want to happen in Dade County.

Immediately after the prosecutor completed his closing statement, this discussion ensued:

[DEFENSE COUNSEL]: Your Honor, at this time the defense is going to move for a mistrial based on the statement made by the State that we have the right to subpoena witnesses and we did not bring anybody in. We believe that is a comment on the defendant’s silence.
THE COURT: Deny the motion.
[DEFENSE COUNSEL]: Also the comment as to the jury’s right to have, as far as, if we want this type of crime to be committed in—
THE COURT: I think that is close but I’m not going — I think that is verging on an improper comment but I don’t think it is sufficient grounds to grant a mistrial and I deny the motion.

While the defense counsel’s general objection was insufficient, see Ferguson v. State, 417 So.2d 639 (Fla.1982), the motion for a mistrial at the close of the prosecutor’s argument was timely made to preserve the error for our review. State v. Cumbie, 380 So.2d 1031 (Fla.1980). Gauging by the trial judge’s response, we have no doubt that it was sufficiently specific to apprise the trial court of the potential error as is required by Castor v. State, 365 So.2d 701 (Fla.1978).

Reaching the merits, we find, in accordance with numerous decisions on this issue, that the prosecutor’s comment improperly directed the jury to determine the guilt or innocence of the accused based on the potential message which it would send to the criminal community. See e.g., Hines v. State, 425 So.2d 589 (Fla. 3d DCA 1982), pet for review denied, 430 So.2d 452 (Fla. 1983); Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976); Russell v. State, 233 So.2d 154 (Fla. 4th DCA 1970).

Because the evidence essentially consisted of the victim’s vigorously-challenged identification of the defendant, we cannot find the error to be harmless. Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981); Postell v. State, 398 So.2d 851 (Fla. 3d DCA), pet. for review denied, 411 So.2d 384 (Fla.1981).

Consequently, we reverse and remand for a new trial.

BARKDULL, Judge,

dissenting.

I dissent and would affirm under the reasoning found in Ferguson v. State, 417 So.2d 639 (Fla.1982); Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982).


text:
    Jerry B. PERL, Appellant, v. OMNI INTERNATIONAL OF MIAMI, LTD., a Florida limited partnership, Appellee.
    No. 82-1420.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Robert J. Levine, Miami, for appellant.
    Valdes-Fauli, Richardson & Cobb and Robert S. Turk, Miami, for appellee.

      Before HUBBART, DANIEL S. -PEARSON and JORGENSON, JJ.
   PER CURIAM.

This is an appeal from a final order dismissing with prejudice a complaint for compensatory and punitive damages based on claims of fraud, perjury, forgery, and slander, arising out of administrative proceedings in an unemployment compensation case. We affirm.

The plaintiff Jerry B. Perl filed a complaint in the trial court against his former employer, the defendant Omni International of Miami, Ltd., in which two asserted causes of action were pled. The first such cause of action is for “fraud, forgery and perjury;” the second cause of action is for “slander.” It is alleged in both counts that the plaintiff Perl was terminated from his employment by his employer [the defendant Omni], that the plaintiff Perl submitted a claim for unemployment compensation benefits with the Florida Department of Labor and Employment Security, that this claim was denied based on the defendant Omni’s allegation that the plaintiff Perl was discharged for unsatisfactory job performance, that an appeal was taken therefrom to an appeals referee wherein certain testimony was taken and documents received in evidence, and that the appeals referee also denied the plaintiff Perl’s claim.

The gravamen of the two causes of action is that during the appeals hearing the defendant Omni through its agent John Tos-sillo allegedly gave false and slanderous testimony and submitted false and forged documents which tended to establish that the plaintiff was guilty of job-related misconduct, that the appeals referee based her denial of plaintiff Perl’s unemployment compensation claim on such evidence, and that the plaintiff Perl was damaged thereby. Upon proper motion, the trial court dismissed this complaint as being barred by Section 443.041(3), Florida Statutes (1981). This appeal follows.

As the plaintiff Perl implicitly concedes on appeal, the slander count of the complaint was plainly barred by Section 443.041(3), Florida Statutes (1981), relating to unemployment compensation proceedings. This statute provides:

“PRIVILEGED COMMUNICATIONS. —All letters, reports, communications, or any other matters, either oral or written, from the employer or employee to each other or to the division or any of its agents, representatives or employees which shall have been written, sent, delivered, or made in connection with the requirements and administration of this chapter, shall be absolutely privileged and shall not. be made the subject matter or basis for any suit for slander or libel in any court of the state.” (emphasis added)

Perl contends, however, that the above statute is unconstitutional as it denies him his right of access to the courts as guaranteed by Article I, Section 21 of the Florida Constitution. We disagree. The statute does no more than codify, in part, the common law of defamation as applied to unemployment compensation proceedings and in no way abolishes a cause of action which heretofore existed under the statutory or common law of this state. See W. Prosser, Law of Torts § 114 at 777-81 (4th ed. 1971). The statute, then, cannot possibly constitute a denial of the right of access to the courts under the above constitutional provision and, without doubt, plainly bars the slander action herein. See Kluger v. White, 281 So.2d 1, 4 (Fla.1973).

As for the “fraud, perjury, and forgery” count of the complaint, we have no trouble in concluding that this too is barred under the established law. This count, like the slander count, seeks to attach civil liability for alleged false testimony and alleged false documentary evidence given by a witness in an administrative proceeding. Quite apart from the above statute, it is plain that such civil suits do not lie under our law, as a witness has an absolute privilege when giving testimony and evidence before a judicial or quasi-judicial tribunal; that is, he may not be sued for slander, libel, or other similar causes of action based on the testimony or evidence he gives before such a tribunal. Robertson v. Industrial Insurance Co., 75 So.2d 198 (Fla.1954); Sailboat Key, Inc. v. Gardner, 378 So.2d 47 (Fla. 3d DCA 1979); W. Prosser, Law of Torts § 114 at 777-78 (4th ed. 1971).

The policy reason for this absolute privilege has been well-stated as follows:

“The grounds upon which the rule of absolute privilege is sustained as to judicial proceedings is that all persons connected with the proceedings should be free from fear of being called upon to defend suits arising as a result of derogatory disclosures, and that to' permit such suits would result in a circuitry of actions by which the same issues tried in the judicial proceedings could be retried.” Robertson v. Industrial Insurance Co., 75 So.2d at 200.

Dismissal of the complaint was therefore proper; we further find no merit in the cross appeal. The final order appealed from is in all respects

Affirmed.


author: DANIEL S. PEARSON, Judge. SCHWARTZ, Chief Judge

text:
    Lorn LEITMAN and John Gentile, Appellants, v. Richard BOONE and Donna Boone, his wife, Appellees.
    No. 82-1517.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.

      Kramer & Golden and Richard A. Golden, Miami, for appellants.
    No appearance for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Appellants, the plaintiffs below, brought an action for specific performance of a ‘contract” for the sale of real estate. After a non-jury trial, the trial court denied the plaintiffs relief, finding that the defendants, the putative sellers, had not accepted the plaintiffs’ offer to purchase in the manner contemplated by the parties, that is, by executing the deposit receipt form, and thus, no contract to sell the subject real estate existed. See, e.g., Mehler v. Huston, 57 So.2d 836 (Fla.1952). Thereafter, the trial court awarded attorneys’ fees to the defendants based on a provision in the deposit receipt form which stated that “[i]n connection with any litigation arising out of this contract, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorneys’ fees.” (emphasis supplied). The plaintiffs appeal solely from the award of attorneys’ fees. We reverse.

It is well established that attorneys’ fees may not be awarded unless authorized by a contract or, not pertinent here, a statute, or for services performed by an attorney in creating or bringing into the court a fund or other property. See Estate of Hampton v. Fairchiid-Florida Construction Co., 341 So.2d 759 (Fla.1976); Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); Rader v. Recarey, 352 So.2d 550 (Fla. 3d DCA 1977). See also Rivera v. Deauville Hotel, 277 So.2d 265 (Fla.1973); Stone v. Jeffres, 208 So.2d 827 (Fla.1968). In the present case, the defendants’ entitlement to fees rested solely on a “contract” which the trial court found was never formed. Since there is no basis to conclude that the attorneys’ fee provision was a separable mini-contract enforceable in and of itself, the trial court’s finding that no contract was ever formed means that no legal obligations whatsoever were created between the parties, see Brickell Townhouse, Inc. v. Hirschfield, 404 So.2d 153 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 466 (Fla.1982); accord, Seafarers’ Welfare Plan v. George E. Light Boat Storage, Inc., 402 S.W.2d 231 (Tex.Civ.App. 1966); Ellis v. Williams, 312 S.W.2d 97 (Mo. 1958); 1 S. Williston, W. Jaeger, Williston on Contracts § 15 (3d ed. 1957), and that an award of attorneys’ fees is precluded.

We now address the dissent.

We have not for one moment suggested that the piece of paper in question (the deposit receipt) never existed, had its molecules miraculously rearranged, suddenly disappeared, was physically obliterated, or mysteriously evaporated. What we have said is that a piece of paper which, as here, was found to be a mere offer is not a contract.

“ ‘A mere offer not assented to constitutes no contract, for there must be not only a proposal, but an acceptance thereof. So long as a proposal is not acceded to, it is binding upon neither party, and may be retracted.’ ”
Etheredge v. Barkley, 25 Fla. 814, 817, 6 So. 861, 862 (1889) (quoting Story, J., 1 Story, Contracts § 490).

See also Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (1947); Webster Lumber Co. v. Lincoln, 94 Fla. 1097, 115 So. 498 (1927).

The trial court’s finding in the present case was that the offer made by the plaintiffs was not accepted, that is, no contract was ever formed. It was not, as it might have been, that an agreement had been formed, but such agreement was not enforceable because the statute of frauds had not been satisfied. The trial court’s finding is one of fact.

“When there is evidence from which it can be concluded that the parties intended to execute a written contract but never did so, it becomes a question of fact to determine whether the parties had agreed to an oral contract or whether .there was to be no contract until the written contract was executed. Thus it is a question of the intent of the party whether the contemplation of the execution of a written contract was merely to memorialize a prior oral contract or whether it was intended that there should not be any binding contract until the written contract was executed. In resolving that question of fact, the absence of writing that would satisfy the statute of frauds may have some evidentiary value as indicating that there was no intent to be bound by a contract prior to the execution of a written contract.”
2 R. Anderson, Uniform Commercial Code § 2-201:18 (3d ed. 1982) (footnote omitted).

Thus, as in the present case,

“[T]he purported contract on which this bill of complaint was founded was in fact no contract at all because the instrument had not been signed.
“If ... a party neither had nor signified ... an intention to close the contract until it was fully expressed in a written instrument and attested by signatures, then he will not be bound until the signatures are affixed .. .. ”
Rork v. Las Olas Co., 156 Fla. 510, 518-19, 23 So.2d 839, 843 (1945) (emphasis supplied).

Because the trial court found that there was to be no contract until the written contract was executed, and that finding is supported by substantial competent evidence, we are not free to cavalierly disregard the trial court’s finding by saying that the deposit receipt was intended to be a mere memorialization of a prior agreement.

The distinction between no contract at all and a contract that is unenforceable makes all the difference here. One simply cannot be entitled to fees “arising out of this contract” when no contract ever existed; one may arguably be entitled to fees “arising out of this contract” where a contract exists, but its enforcement is prevented, as, for example, by the statute of frauds.

“A contract where the parties have not complied with the requirements of the statute is neither void nor voidable; it has much effect upon the legal relations of the contracting parties with each other and with third persons. It can be properly described as unenforceable, however, inasmuch as the ordinary legal remedies are unavailable. If the defense of the statute is properly made, a judgment for damages for breach of the contract cannot be obtained; and neither can a decree for specific performance unless there has been fraud, mistake, or substantial part performance or action in reliance on the contract. It has been held that a statutory criminal process, provided for the enforcement of certain types of contracts, is not available; and the contract cannot be indirectly enforced by the use of tort remedies by alleging that refusal to perform the contract or to execute a sufficient memorandum is tortious, or by suing the seller of goods in trover because he has repudiated the oral contract and sold the goods to a third person.
“In the foregoing ways the statute may make a contract ‘invalid’; but there are many other ways in which the ‘validity’ of the contract is recognized.”
2 A. Corbin, Corbin on Contracts § 279 at 20-21 (1950) (footnotes omitted).

See also Golden v. Golden, 273 Or. 506, 541 P.2d 1397 (1975) (statute of frauds not operative to prevent evidence of the oral contract being used to obtain relief other than enforcement of contract, e.g., action by buyer to recover downpayment on oral contract for sale of land); Daugherty v. Kessler, 264 Md. 281, 286 A.2d 95 (1972) (although oral agreement of lease unenforceable between parties because of non-compliance with statute of frauds, claim that third party interfered with agreement by inducing lessee to break lease sustainable).

Next, we do not agree that Brown v. Gardens by The Sea South Condominium Association, 424 So.2d 181 (Fla. 4th DCA 1983), and Rustic Village, Inc. v. Friedman, 417 So.2d 305 (Fla. 3d DCA 1982), are closely analogous or even apposite to the present case. These cases involved actions brought under Florida’s Deceptive and Unfair Trade Practices Act, Section 501.201, et seq., Fla. Stat. (1981). In each the court’s holding was that where a plaintiff unsuccessfully brings a claim under the Act, the defendant, as the prevailing party, is to be awarded the statutorily authorized attorneys’ fees, notwithstanding that the plaintiff’s cause of action is found to be one not covered by the statute.

We have no quarrel with such a holding. The holding, however, represents no more than a judicial construction of a statute and a determination that the Legislature intended that the prevailing party in a consumer protection suit be entitled to attorneys’ fees without regard to the basis upon which the party prevails. Thus, by invoking an existing and valid statute which calls for an award of attorneys’ fees, one may subject himself to having attorneys’ fees assessed against him if he does not prevail. But surely it does not follow that when one unsuccessfully invokes a non-existent contract which calls for an award of attorneys’ fees, that attorneys’ fees may be awarded against him. Thus, the propriety of the attorneys’ fees award in Brown and Rustic Village, Inc. flows from the existence of a valid statute, while the impropriety of the attorneys’ fees award here is a consequence of the non-existence of a contract.

Care Construction, Inc. v. Century Convalescent Centers, Inc., 54 Cal.App.3d 701, 126 Cal.Rptr. 761 (1976), relied on in the dissent, sheds light on this distinction. There, even though no binding contract between the parties was found to exist, the prevailing party was said to be entitled to attorneys’ fees because — and only because — a California statute was construed to provide for such fees. The statute in question, California Civil Code § 1717, provided:

“In any action on a contract, where such contract specifically provides that attorney’s fees costs, which are incurred to enforce the provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to costs and necessary disbursements.”

The court interpreted the legislative purpose behind the statute to be one of mutuality: “Thus, as long as the action here involved a contract it was ‘on a contract’ and within Civil Code, § 1717,” 126 Cal.Rptr. at 764. Given the California court’s interpretation of the statute, the prevailing party was entitled to fees even though no binding agreement was found to exist between the parties. See also Moulin Electric Corp. v. Roach, 120 Cal.App.3d 1067, 175 Cal.Rptr. 111 (1981). Florida has no such statute.

Similarly, we take issue with the dissent’s assertion (and the similar suggestion in Sousa v. Palumbo, 426 So.2d 1072 (Fla. 4th DCA 1983)) that the plaintiffs are estopped to assert that no award of attorneys’ fees can be made against them because they had previously unsuccessfully asserted that there was a contract. The plaintiffs sued on what they believed to be a contract. The trial court found that there was none. Based on that adverse legal ruling, the plaintiffs claimed that if there is no contract, there cannot be an award of attorneys’ fees to the defendants.

One cannot seriously contend that a litigant cannot claim there is a contract and say to a court, “if, however, you find against me on my claim, then based on that finding, you cannot award attorneys’ fees to my opponent.” In judicial proceedings, a party simply is not estopped from asserting a later inconsistent position (if that it can be called), unless the party’s initial position was successfully maintained. Olin’s, Inc. v. Avis Rental Car System of Florida, Inc., 104 So.2d 508 (Fla.1958). See Grauer v. Occidental Life Insurance Co., 363 So.2d 583 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 468 (1979). Here the plaintiffs did not successfully maintain that there was a contract, and they are thus not estopped from thereafter maintaining that since there is no contract, no attorneys’ fees can be awarded.

As we have said, the rule which precludes a person from maintaining a position inconsistent with a previously asserted position is not applicable unless the previously asserted position was successfully maintained. See Grauer v. Occidental Life Insurance Co., 363 So.2d at 585. This is illustrated in Fuqua v. Hanson, 222 Kan. 653, 567 P.2d 862 (1977). There, Fuqua brought an action to quiet title to certain property asserting therein that she had absolute title to the property. The trial court found against her on that claim, but declared that Fuqua did have an equitable mortgage in the subject property. On appeal, Fuqua defended the trial court’s ruling, and Hanson claimed that Fuqua, having initially claimed absolute title, was estopped from now claiming that she was entitled to an equitable interest in the property. The court’s response, pertinent here, was that:

“The doctrine of estoppel is not applicable here. An estoppel may be recognized by a court when a party takes inconsistent positions as to factual matters; this does not relate to a later position resulting from a pronouncement of a proposition of law. Mrs. Fuqua consistently maintained she had absolute title and not an equitable mortgage. It was the court that decreed an equitable mortgage as it had the right and duty to do under the cases previously cited herein.” 567 P.2d at 867.

Similarly, Leitman and Gentile consistently maintained that they had a contract with the defendants. It was the trial court that found they did not. Accordingly, they are not estopped from relying upon that adverse ruling and asserting any position consistent with the ruling.

Lastly, the dissenter is quite correct in stating that if the plaintiffs “had succeeded in enforcing the agreement, fees would unquestionably have been awarded to them.” That is so because an agreement would have necessarily been found to exist. Had an agreement been found to exist, but merely found to be unenforceable, the defendants would have been entitled to attorneys’ fees. Thus, the situation can hardly be characterized as heads I win, tails I win. Instead, and rather unremarkably, it is simply a matter of if there were a contract, the prevailing party is entitled to fees. There being no contract, there can be no fees.

Reversed and remanded with directions to vacate the order awarding attorneys’ fees to the defendants.

SCHWARTZ, Chief Judge

(dissenting).

In my view, the result reached by the court is based upon the application of a legal catch phrase rather than a reasoned analysis of the problem before us. The majority ultimately rests its conclusion upon the determination that there was really “no contract” between the parties — as if the judgment on the merits had effected a miraculous molecular rearrangement and resulting disappearance of the piece of paper upon which the appellants unsuccessfully sued. But the trial court did not rule and, notwithstanding what is often said about circuit judges, did not possess the supernatural power necessary to rule that the document had never existed or had been physically obliterated ex post facto. In any case, the issue before us is not a metaphysical, but the very practical one of the consequences of the appellants’ action on an instrument which states in so many words that if one does not succeed in that enterprise, he must pay the attorney’s fees of his victorious opponent. It seems clear to me that, by suing upon it, the plaintiffs, who themselves signed the instrument, necessarily subjected themselves to the effect of the attorney’s fee clause of that same writing. Since that provision itself states that the prevailing party in any action “arising out of this contract” is entitled to those fees, it can make no difference which side wins the case; in this context, the word “contract” must mean the paper sued upon, irrespective of what the litigation establishes is its legal effect. Looking at it in a somewhat different way, by claiming that the document was enforceable and thereby inducing detrimental reliance upon that position by requiring the defendants to defend against it, the plaintiffs satisfied all the elements of an “estoppel.” See 28 Am.Jur.2d Estoppel and Waiver § 27 (1966). They must not now, having lost, be heard to say that the suit did not arise “under this contract” after all.

This was the precise and very recent holding of Sousa v. Palumbo, 426 So.2d 1072 (Fla. 4th DCA 1983), which is exactly on point and exactly contrary to the court’s decision:

The appellant’s action was clearly one seeking ‘to enforce or interpret the rights or obligations of the parties’ since such action sought an interpretation of the contract by which it would be enforceable severally against each stockholder executing the contract, each of the appellees having done so. Upon prevailing against appellant’s action the appellees were entitled to fees and costs. Furthermore, in our view, the appellees should not be estopped to invoke this provision because they claimed in defense that there was no enforceable contract. To estop the appel-lees in such cases is to ignore the plain meaning of the attorneys’ fee provision that provides for fees and costs to the prevailing party. Indeed, if anyone should be estopped it should be the appellant who claims that the agreement is valid and enforceable against the appel-lees, but seeks to deny validity and enforceability of the attorneys’ fee provision.

426 So.2d at 1073. Accord, Anaheim Co. v. Elliott, 45 Or.App. 597, 609 P.2d 382 (1980) (defendant successfully resisting mortgage foreclosure on ground that no mortgage had been agreed to entitled to attorney’s fees under provision of mortgage); see also, Care Construction, Inc. v. Century Convalescent Centers, Inc., 54 Cal.App.3d 701, 126 Cal.Rptr. 761 (1976); but cf. Moulin Electric Corp. v. Roach, 120 Cal.App.3d 1067, 175 Cal.Rptr. 111 (1981); Quagliana v. Exquisite Home Builders, Inc., 538 P.2d 301 (Utah 1975). Furthermore, unlike the majority, but like the fourth district, I think that Rustic Village, Inc. v. Friedman, 417 So.2d 305 (Fla. 3d DCA 1982) and Brown v. Gardens by the Sea South Condominium Ass’n, 424 So.2d 181 (Fla. 4th DCA 1983) (following Rustic Village) are highly persuasive. Both cases hold that a defendant who successfully argues, contrary to the plaintiff’s contention, that Sec. 501.2105, Fla.Stat. (1981) does not apply to the suit is nonetheless entitled to an award under the provision of that very statute which authorizes fees to the successful party in an action brought pursuant to 'its terms. The majority suggests that this case is different because the statute itself, supposedly unlike the agreement here, remains extant. This view is but a reflection of the basic vaporization theory of the ruling below about which I have already expressed my incredulity. See also, Business Aide Computers, Inc. v. Central Florida Mack Trucks, Inc., 432 So.2d 681 (Fla. 5th DCA 1983) (action for rescission of lease governed by venue provision applicable to “any legal action ... taken in connection with this lease”).

In sum, I prefer the square holdings in Sousa and Elliott and the closely analogous one in Rustic Village to a conclusion which is supported not by controlling authority, but by what I must characterize as a bit of judicial conjuration. I would affirm the order under review.

      . The final judgment recites in pertinent part: “1. That certain telegram sent by Richard Boone to Pyms-Suchman Real Estate Company, was not within the contemplation of the parties to constitute an acceptance of the proposed Real Estate offer of the Plaintiffs. “2. That it was contemplated that the signing and acceptance of that certain Deposit Receipt dated January 7, 1981, by all parties would constitute a legally binding contract.”

      . This distinction is most certainly not lost on the author of the dissent. See Brickell Townhouse, Inc. v. Hirschfield, 404 So.2d 153, where Judge Schwartz wrote:
      “Under these circumstances [where Brickell’s offer to convey was not met by Hirschfield’s acceptance] no binding contract of sale and purchase ever came into effect, and there was therefore no agreement which was legally enforceable in any fashion, much less by the extraordinary remedy of specific performance. (citation omitted). Moreover, the fact that Brickeil did not execute any such agreement in writing precludes enforcement because of the statute of frauds.” Id. at 154-55 (emphasis supplied).

      . The enforcement of a contract may also be prevented by a provision in the contract preventing its enforcement until a certain condition is met. This is the meaning of .Sousa v. Palumbo, 426 So.2d 1072 (Fla. 4th DCA 1983), in which there is little question that a contract between the plaintiff and the three defendant-stockholders existed, but the contract was by its terms unenforceable until the remaining three stockholders signed. Because Sousa is thus distinguishable from the present case, our disagreement with the case is restricted to the suggestion therein that the plaintiff was es-topped from claiming that the defendants could not recover attorneys’ fees and the court’s reliance on Brown v. Gardens by The Sea South Condominium Association, 424 So.2d 181 (Fla. 4th DCA 1983), and Rustic Village, Inc. v. Friedman, 417 So.2d 305 (Fla. 3d DCA 1982), as being analogous. Our disagreement with these aspects of Sousa is more fully discussed infra. Likewise, the enforcement of a contract may be prevented by equitable considerations, such as that the contract was fraudulently induced. In such a case, since a contract exists, even though later declared to be void or voidable, certain of its provisions may be operative. See Business Aide Computers, Inc. v. Central Florida Mack Trucks, Inc., 432 So.2d 681 (Fla. 5th DCA 1983).

      . This proposition is obvious. For example, a man who unsuccessfully contends that he is the father of a child surely is not estopped from later contending that he is not responsible for child support; a person who unsuccessfully asserts that his relationship with the tortfeasor is not such as to make him vicariously liable for the tortfeasor’s act surely is not estopped to later claim that the tortfeasor found to be at fault must indemnify him.

      . Indeed, assuming, arguendo, that other elements necessary to create an estoppel were present, it would be the defendants who would be estopped, since they successfully maintained that there was no contract and now are maintaining that there is a contract for the purpose of recovery of attorneys’ fees.

      . If the appellants had succeeded in enforcing the agreement, fees would unquestionably have been awarded to them. Heads I win; tails I win; and if the coin falls in a crack and remains upright, I win then, too. See Brown v. Gardens by the Sea South Condominium Ass’n, 424 So.2d 181, 184 (Fla. 4th DCA 1983).

      . By using this expression, the writer may well be subject to the charge of being overly simplistic which has been leveled against the majority. It can only be said that at least my magic word is appropriate.

      . The majority’s faulty contrary analysis is based on the erroneous belief that the estoppel goes to the existence of a contract vel non; rather, it concerns the plaintiffs’ inability to deny that their action arose under it.

      . With similar results, I have previously expressed my view that we should ordinarily follow the controlling decisions of our fellow district courts. Berek v. Metropolitan Dade County, 396 So.2d 756, 760 n. 1 (Fla. 3d DCA 1981) (Schwartz, J. dissenting), aff’d, 422 So.2d 838 (Fla.1982). This policy is certainly subject to an exception which arises when the court cannot conscientiously agree with a previous opinion. Since, however, I do not believe that the majority is even close to correct in this case, I fail entirely to see how it can feel strongly about its error.


text:
    CLUB ON THE BAY, INC., Appellant, v. The CITY OF MIAMI BEACH, Florida, Appellee.
    Nos. 82-1528, 82-2358.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Greene & Cooper and Marc Cooper and Joan M. Bolotin, Samuel I. Burstyn, Miami, for appellant.
    Lucia Allen Dougherty, Rosenberg, Reis-man & Glass and James E. Glass and R. Hugh Lumpkin, Miami, for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

These consolidated appeals are brought by Club on the Bay, Inc. from (1) a summary final judgment declaring the title to certain property, the Island View property, quieted and adjudging Club on the Bay to have no interest, right, title or lien on the property, and (2) an order awarding attorney’s fees to the City of Miami Beach.

The trial court’s final judgment and order assessing attorney’s fees read, in pertinent part, as follows:

FINAL JUDGMENT

This is an action by Club On The Bay, Inc. against the City of Miami Beach for declaratory and other relief.

The action was initially filed by Club On The Bay, Inc. and the two principals of that corporation, Harry Singer and Arthur Schifrin, against the City of Miami Beach, the Mayor, the City Commissioners and the City Manager.

The claims on behalf of the individual Plaintiffs, Mr. Singer and Mr. Schifrin, as well as all of the claims against the individual defendants, were withdrawn and this case proceeded on the Complaint of Club On The Bay, Inc. and the Counterclaim of the City of Miami Beach, seeking to declare that the Club On The Bay, Inc. had no further estate, right, title or interest in the real property owned by the City of Miami Beach which is the subject of this action.

In due course this cause came before the Court for hearing on the Motion for Summary Judgment filed by the City of Miami Beach, seeking entry of summary judgment against Club on the Bay, Inc. on the Complaint and in favor of the City of Miami Beach on the Counterclaim.

After examining the record herein, the Court finds that the following material facts are not in dispute:

1. The City of Miami Beach owned certain property known as the Island View property which it sought to develop for recreational purposes. To this end the City solicited bids from persons interested in developing the property for recreational purposes.

2. The Club On The Bay, Inc. was the successful bidder and the City Council passed a resolution authorizing the City to enter into a lease with Club On The Bay, Inc. •

3. After extensive negotiations, intervening lawsuits and other matters had transpired the parties ultimately entered into the lease on July 30, 1979 between the City of Miami Beach, as lessor, and Club On The Bay, Inc., as lessee.

4. The written lease required the property be used by Club On The Bay, Inc. as “a recreational facility including therein restaurant, bar, discotheque facilities, tennis, handball, swimming and a marina.” This facility was to be constructed by Club On The Bay, Inc. in accordance with certain architectural renderings and plans that had been submitted by Club On The Bay, Inc. The plans contemplated a clubhouse facility of some 40,000 sq. feet with shops and ship stores, ballrooms and attendant facilities such as discotheques, card rooms, health club, saunas, 90 boat slips and 6 tennis courts.

5. The lease further provided that Club On The Bay, Inc. could not substantially deviate from the plans and could not use the property for any other purpose without the written consent of the City. The lease also provided that time was of the essence and required that construction commence not later than twelve (12) months after the date of the lease and the project be completed on February 1, 1982.

6. The lease finally contained the standard provision that it was the entire contract between the parties and could not be altered, changed or modified except by instrument of equal dignity.

7. After executing the lease in July, 1979, Club On The Bay, Inc. did not go forward with the construction and development of the proposed recreational facility in accordance with the architectural renderings and plans as originally submitted by Club On The Bay, Inc. Instead, in April, 1980, several months after the lease had been executed, Club On The Bay, Inc. submitted to the City a proposed Amendment to the lease so. that the property could be utilized for a high-rise rental project.

8. Club On The Bay, Inc. requested that the City consider this Amendment and requested an additional ninety (90) day period for doing so. At a public hearing on May 7, 1980, the City Commission voted to extend the time within which Club On The Bay, Inc. had to commence performance by a period of ninety (90) days. Thereafter, in due course, the proposed Amendment was submitted to the City Council and at a public hearing in September, 1980, the City Commission voted to reject the request that the lease be amended so that the property could be used for a high-rise rental project.

9. After the Club On The Bay’s proposed Amendment was rejected, Club On The Bay, Inc. did not go forward with the construction and development of the recreational facility in accordance with the original architectural drawings or plans. Instead, in October, Club On The Bay, Inc. submitted a revised set of architectural plans to the City and requested a conditional use approval to construct the recreational facility on the property and requested permission to deviate from the original plans.

10. These requests were submitted to the Commission and at a public hearing in November, 1980, the City approved the conditional use to construct the recreational facility. The City, however, denied the Club’s request to deviate from the original plans because the plans submitted in October, 1980 were for a facility approximately one-fourth (¼) the size of the required facility in that it only had 11,000 sq. feet of building. Additionally there were no shops or ship stores, no ballroom, no discotheque, no card rooms, no health clubs, no saunas, and only 23 boat slips and 3 tennis courts.

11. Thereafter, Club On The Bay, Inc. did not go forward with the project and after the time for doing so expired, Club On The Bay, Inc. filed this action.

CONCLUSIONS OF LAW

The rules of law that govern municipal corporations and those who deal with municipal corporations are well settled.

Municipal corporations must comply with charter provisions in selling, leasing or operating public property and municipal officials may only act in accordance with the duties as defined in the applicable city charter.

Under Section 6 of the Charter of the City of Miami Beach, the City is empowered to sell, lease and operate public property, however, the City may only do so through legal instruments in writing. Further, there are limitations on the powers of the mayor and the city commissioners and under Section 8 of the City Code the Mayor may only execute legal instruments in writing when authorized to do so by ordinance or resolution by the City Commission.

Entrepreneurs who do business with or contract with a municipality must at their peril inquire as to the power of the municipality and its officers to make contracts and they are bound to ascertain the nature and extent of the authority of any municipal agent. Entrepreneurs who deal with a municipality are required to know the limits of authority and. as a matter of law, estoppel is not usually available to such entrepreneurs.

Club On The Bay, Inc. did not perform under the lease and there was no duty on the part of the City to agree to modify or extend the lease, thus, Club On The Bay, Inc. has no rights under the lease since the time for performance has expired.

JUDGMENT

After full consideration, it is:

ORDERED AND ADJUDGED that the Motion for Summary Judgment filed by the Gity of Miami Beach be and the same hereby is granted whereupon, it is:

ORDERED AND ADJUDGED as follows:

1. Adjudged that Plaintiff, Club On The Bay, Inc. take nothing by this action and the Complaint be and it hereby is dismissed with prejudice and the Defendant, City of Miami Beach go hence without day and it is further:

2. Adjudged that title to the Island View property owned by the City of Miami Beach is hereby quieted and Club On The Bay, Inc. and all persons claiming by, through or under Club On The Bay, Inc. are adjudged to have no estate, right, title, lien or interest in and to the property or any part thereof and the City of Miami Beach is entitled to have sole and complete possession of the property, and it is finally

3. Ordered that City of Miami Beach shall be entitled to recover its costs of this action and a reasonable attorneys fees upon due motion, notice and hearing.

⅜; ⅜: # ⅜ ⅜: ⅜:

ORDER ASSESSING ATTORNEY’S FEES

Pursuant to due notice this cause came before the Court for hearing on the Motion to Assess Attorney’s Fees filed by The City of Miami Beach and the Court after having considered the services rendered on behalf of The City of Miami Beach in this case and the stipulation and argument of counsel, after due consideration, it is:

ORDERED that the City of Miami Beach do have and recover from Club On The Bay, Inc., the sum of $9,312.50 as a reasonable attorney’s fee incurred by The City of Miami Beach in connection with this action, for which sum let execution issue.

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Appellant urges reversal on the grounds that there remain material disputed questions of fact as to whether there actually was any default under the terms of the lease, whether the City should be estopped or waived its rights to assert termination, and whether the City made performance impossible and thus excused any non-performance by Club On The Bay. Appellant also contends that the trial court erred in awarding attorney’s fees to the City.

We have carefully considered all of appellant’s contentions in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated.

Accordingly, the judgment and order appealed are affirmed.

Affirmed.


author: NESBITT, Judge.

text:
    Andres GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2006.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   NESBITT, Judge.

Garcia was charged and convicted of felony murder in the third degree. The underlying felonies charged were possession or attempted possession with intent to sell cocaine and/or the sale of cocaine. He challenges the sufficiency of the evidence to support his conviction.

The testimony adduced at trial indicated that the defendant was approached by two men to arrange a purchase of cocaine. The defendant contacted Onel Rodriguez to inquire if he could supply the drugs and arranged to bring the two men to Onel’s apartment later in the day. At the agreed time, Garcia accompanied the men to Onel’s residence, but remained outside. No testimony was offered as to what transpired inside Onel’s bedroom. A witness stated that she saw the men enter Onel’s room; she heard loud noises and saw the two men-flee from the apartment, one brandishing a revolver. Onel and another man remained in the room. Police responded to a call regarding gunfire in the area and discovered the body of the victim later identified as Campos. In the meantime, Onel fled from the apartment.

On this evidence, we agree with the defense that the circumstantial evidence did not exclude the reasonable hypothesis that the homicide was an act independent from the underlying felony. See Bryant v. State, 412 So.2d 347 (Fla.1982); Mahaun v. State, 377 So.2d 1158 (Fla.1979); Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). Nonetheless, the evidence does support a conviction for the lesser included offense of attempted sale of cocaine.

Because of this disposition, it is necessary for us to consider the appellant’s second issue on appeal which pertains to an allegedly improper comment on the defendant’s silence. The prosecutor’s statement during closing argument was: “Also, think back about the presentation of the defense and I think you will have some doubts.” The defense promptly objected and moved for a mistrial claiming that since the defense did not present a case, the comment was susceptible to being interpreted as a reference to the defendant’s silence. The trial court denied the motion and we are in accord with that ruling.

While it is true that the defendant neither testified himself, nor put on any witnesses, a possible defense was explored during the cross-examination of the medical examiner. Defense counsel, at that time, asked questions which related to the possibility that the victim had committed suicide. As such, the state could properly ask the jury to think back to the defense-proffered evidence of suicide. This statement falls within the permissible range of comment on the nature of the evidence as it existed before the jury. White v. State, 377 So.2d 1149 (Fla.1979), cert. denied, 449 U.S. 845, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980); State v. Jones, 204 So.2d 515 (Fla.1967).

For the foregoing reasons, we affirm in part, reverse in part, and remand to the trial court with directions to adjudicate the defendant guilty of attempted sale of cocaine.

JORGENSON, J., concurs in result only.

      . The defendant makes the further argument that liability for third degree murder may only be imposed where the homicide is committed by a co-felon and that there is no evidence on this issue. Because we have determined that the requisite causal connection between the felony and the homicide has not been proven, we need not decide these issues and specifically decline to do so.


author: SCHWARTZ, Chief Judge.

text:
    Alfred ARONOVITZ, Appellant, v. Marilyn ARONOVITZ, Appellee.
    No. 82-2238.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellant.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The husband-appellant’s only contention on this appeal is that the amount of permanent periodic alimony granted below is excessive. Although he is admittedly well-able to afford it, he complains that the award is itself sufficient to support the 53-year-old wife without the necessity of her going to work after the dissolution. Even accepting arguendo the factual accuracy of this claim, in the light of all the circumstances demonstrated in the record, including that at his request the wife was not employed at any time during the parties’ 25-year marriage, and that it was terminated because the husband desired to do so, we surely cannot find that the trial court abused its discretion, much less committed an error of law, in making the challenged award. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Forster v. Forster, 436 So.2d 966 (Fla. 3d DCA 1983), and cases cited; Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980), rev. denied, 397 So.2d 777 (Fla.1981); McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979).

Affirmed.


text:
    Luis STABINSKI, as Trustee for Leslie Elise Bird, Appellant, v. MEYER, WEISS, ROSE, ARKIN, SHAMPANIER, ZIEGLER & BARASH, P.A., Appellee.
    No. 82-2412.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.

      Robey & Pelstring and R. James Pelstr-ing, Miami, for appellant.
    Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash and A. Jeffrey Barash, Miami Beach, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   NESBITT, Judge.

After the death of her parents in an airplane accident, a guardianship was commenced on behalf of Leslie Elise Bird. Litigation for the wrongful death of her parents and her own injuries resulted in a substantial settlement for Leslie, the proceeds of which partially funded the guardianship. Upon reaching the age of majority, Leslie set up a trust and sought to transfer the guardianship assets. Prior to the complete distribution, the trustee filed a petition which alleged that the guardian had mismanaged the ward’s assets by failing to marshal a referral fee paid to the guardian’s husband and brother-in-law by the attorney who handled the wrongful death action. Following dismissal of the petition, the attorneys for the guardianship filed a motion for their fees which included amounts expended in defending against the trustee’s petition. From an award of fees against the trust, the trustee appeals and the attorneys cross-appeal challenging the inadequacy of the fee. We affirm the trial court’s ruling.

The first issue raised by the trustee is that the estate may not be charged attorneys’ fees where the services rendered -were for the benefit and protection of the guardian. This blanket rule which the appellant urges us to adopt would in effect require the guardian to defend against all claims relating to his fiduciary capacity at his own expense. Such a rule would hardly make it conducive for one to serve as a court-appointed fiduciary. Moreover, as a matter of policy, the enhanced risk would require a greater fee to be paid the guardian, the end result of which would be to diminish the estate. Nonetheless, there may be circumstances where the guardian of the property, even though successful against a claim, would not be entitled to charge the estate for fees expended. Looking to the facts presented here, we find that this is not such a case.

The order of settlement in the wrongful death action authorized payment of attorneys’ fees directly to the attorney who handled the litigation, leaving a net proceed for the ward. The questioned referral fee was paid from the attorney’s portion of the settlement, and not from the ward’s net proceeds. Furthermore, the fees which were awarded were customary and usual. For all of these reasons, the trial court dismissed the petition, finding that the guardian was not guilty of mismanagement or other wrongdoing as charged by the trustee. Because we find that the trustee’s claim was substantially without merit, we conclude that the attorney for the guardian is entitled to fees under section 744.424(1), Florida Statutes (1981).

The second contention raised by the trustee is that the probate court erred in awarding fees for services rendered after the ward attained majority status. While it is true that upon reaching the age of majority, Leslie was free to contract with any other attorney, this does not relieve her from responsibility for expenses legitimately incurred in closing out the estate. Poling v. City Bank & Trust Co. of St. Petersburg, 167 So.2d 52 (Fla. 2d DCA 1964).

Finally, the trustee argues that the fees were improperly charged against the trust assets rather than the guardianship. Although section 744.521, Florida Statutes (1981) and Florida Rule of Probate and Guardianship 5.680(c), construed together, direct a guardian to withhold from distribution sufficient assets to defray the costs of winding up the guardianship, this does not preclude an award from being collected out of the trust. After all, the funds of a guardianship' are nothing more than trust funds. Beck v. Beck, 383 So.2d 268 (Fla. 3d DCA 1980). As long as the award represents legitimate expenses incurred in winding up the estate, it must be borne by the ward from any entity over which the court has jurisdiction.

Having determined that attorneys’ fees could properly be awarded for the services rendered and could be awarded from the trust assets, we adhere to the well-established rule that the amount of compensation awarded is discretionary with the trial judge and his determination will not be disturbed where there is substantial competent evidence to support the award. Gamse v. Touby, 382 So.2d 115 (Fla. 3d DCA 1980). Accordingly, we reject the cross-appellee’s contentions pertaining to the amount of the award.

Affirmed.


text:
    CREDIT ALLIANCE CORPORATION, a California corporation, Appellant, v. WESTLAND MACHINE COMPANY, INC., a Florida corporation, Appellee.
    No. 83-258.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    As Modified on Denial of Rehearing Nov. 29, 1983.

      Michael A. Bienstock, Miami, for appellant.
    Oscar J. Delgado, Hialeah, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Credit Alliance, the plaintiff below, sought a deficiency judgment stemming from the replevin and public sale of certain industrial equipment purchased by West-land and financed by Credit Alliance. A jury verdict was rendered in favor of West-land and Credit Alliance appealed. We reverse and remand for further proceedings consistent with the views expressed herein.

The principal error alleged by Credit Alliance is the trial court’s failure, in spite of a contractual waiver of trial by jury, to strike Westland’s jury demand. Relying on section 672.302, Florida Statutes (1981), Westland argues that such a contractual provision, concededly buried in boiler plate, is unconscionable. We disagree. The contract in question was agreed to by experienced businessmen. There is no evidence of overreaching or unconscionability within the meaning of section 672.302. Although the record demonstrates that he never read the contract, Westland’s president cannot now be heard to complain of its terms. He is bound by the contract which he signed. See Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla.1977); All Florida Surety Co. v. Coker, 88 So.2d 508 (Fla.1956); Alejano v. Hartford Accident & Indemnity Co., 378 So.2d 104 (Fla. 3d DCA 1979); John Deere Industrial Equipment Co. v. Roberts, 362 So.2d 65 (Fla. 1st DCA 1978), cert. denied mem., 372 So.2d 470 (Fla.1979).

Westland’s alternative argument, that a contractual provision waiving a jury trial is or should be void as against public policy, is without merit. See Central Investment Associates v. Leasing Service Corp., 362 So.2d 702 (Fla. 3d DCA 1978) (contractual waivers of jury trial are enforceable in both Florida and New York), and the cases cited therein.

Reversed and remanded for further consistent proceedings.


text:
    ZAYRE CORPORATION, Appellant, v. Rigoberto MARTINEZ, Appellee.
    No. 83-342.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.

      Underwood, Gillis, Karcher & Valle and William G. Edwards, Miami, for appellant.
    Stone, Sostchin & Gonzalez and Robert Rossano, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

Zayre’s, the defendant below, appeals from a judgment for $500 compensatory and $15,000 punitive damages in the plaintiff Martinez’s ’ favor. In answer to special interrogatories, the jury found against the plaintiff on his claims that store security guards assaulted and battered him and that Zayre’s had negligently “hired or retained” those employees. The award was based solely upon the trial court’s directing a verdict against Zayre’s on Martinez’s claim of false imprisonment. We find error in this ruling because the record presents a jury issue as to whether Martinez was confined pursuant to a lawful citizen’s arrest for a breach of the peace committed when he allegedly unjustifiably struck one or both of the guards. Sec. 877.03, Fla.Stat. (1979); Sturman v. City of Golden Beach, 355 So.2d 453 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 836 (Fla.1978). The availability of this defense is not affected, as the plaintiff argues, even if the guards did not then or at trial assert such an arrest as a justification for their actions. See State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983); State v. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982); Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981).

For this reason, a new trial must be held on the false imprisonment claim alone. We point out that, in the light of the verdict already returned, Zayre’s may be held liable for punitive damages under Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981) only if the jury concludes that it negligently failed properly to train the guards in question. Preventive Security and Investigators, Inc. v. Troge, 423 So.2d 931 (Fla. 3d DCA 1982). This issue was fairly presented by the testimony admitted without objection below but was not submitted to the jury on the erroneous ground that it had not been alleged in the complaint. See Fla.R.Civ.P. 1.190(b); Di Teodoro v. Lazy Dolphin Development Co., 418 So.2d 428 (Fla. 3d DCA 1982), rev. denied, 427 So.2d 737 (Fla.1983); Batista v. Walter & Bernstein, P.A., 378 So.2d 1321 (Fla. 3d DCA 1980).

Reversed and remanded.

      . We not only do not ourselves agree with Zayre’s appellate contention that negligent “retention” — an issue which was sent to the jury — and “training” are the same thing, we note that the distinction was also clear to its trial counsel who successfully moved to strike the word “trained” from the jury interrogatory because that separate contention was not raised in the pleadings.


text:
    A.K., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-398.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

A.K. appeals an adjudication of delinquency and alleges as error that the evidence was insufficient to establish his guilt as an aider and abettor under section 777.-011, Florida Statutes (1981). We agree that the evidence was insufficient and accordingly reverse and remand with directions to discharge the defendant.

The evidence adduced at trial showed that A.K. and another youth approached an automobile and looked into its window. A.K.’s companion then motioned him to cross the street, which A.K. did. The youth who remained by the automobile removed a book therefrom and re-joined A.K. The two youths were subsequently apprehended. We find the facts in this case indistinguishable from those in J.L.B. v. State, 396 So.2d 761 (Fla. 3d DCA 1981), and reverse upon that authority and upon the authority of G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981).

Reversed and remanded with directions to discharge the defendant.


text:
    Martin Z. MARGULIES, Appellant/Petitioner, v. The Honorable David L. LEVY, Judge of the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida; The Honorable Frederick N. Barad, Judge of the 11th Judicial Circuit in and for Dade County, Florida, Respondents, and Regina Tisiker Margulies, Appellee/Respondent.
    Nos. 83-517, 83-525.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Floyd, Pearson, Stewart, Richman, Greer & Weil, Podhurst, Orseck, Parks, Josefs-berg, Eaton, Meadow & Olin and Aaron Podhurst, Miami, for appellant/petitioner.
    Sams, Gerstein & Ward, Greene & Cooper and Marc Cooper, Miami, for appellee/re-spondents.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

Martin Margulies, the petitioner in a dissolution action, alternatively appeals from an interlocutory order vacating a previously entered interlocutory order which affirmed the validity of an antenuptial agreement; or seeks review of the second order by certiorari; or seeks a writ of prohibition forbidding the judge from entering the second order. Margulies also seeks a writ of prohibition forbidding the successor judge from revisiting the issue of the validity of the antenuptial agreement.

Interlocutory orders are modifiable by the trial judge at any time before entry of a final judgment. Whitaker v. Wright, 100 Fla. 282, 129 So. 889 (1930); Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924); Holman v. Ford Motor Co., 239 So.2d 40 (Fla. 1st DCA 1970). The order in question is a non-ap-pealable interlocutory order over which we have no jurisdiction. We decline to grant the extraordinary relief requested. See Shapiro v. Shapiro, 432 So.2d 739 (Fla. 4th DCA 1983).

Appeal dismissed. Certiorari denied. Prohibition denied.


text:
    Julita Marie MILETE, Appellant, v. The STATE of Florida, Appellee.
    No. 83-642.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    John J. Quinn, Vero Beach, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

The defendant appeals from her adjudication of guilt for possession of marijuana. She entered a plea of nolo contendere specifically reserving the right to appeal the denial of her motion to suppress the contraband seized from her house trailer.

The crux of the affidavit to support the application for a warrant came from an anonymous tipster regarding his participation in the placement of the bales of marijuana in the defendant’s trailer. The anonymous tipster relayed this information to a confidential informant whose reliability was credited by an affiant. Although there is no reason to doubt the veracity of the affi-ant or the reliability of the informant, there remains upon the state the duty of demonstrating probable cause under Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Gates is controlling here by virtue of article I, section 12, Florida Constitution.

In Gates, the United States Supreme Court stated that “an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” However, the court continued, these elements “should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is ‘probable cause’ .. . .” 103 S.Ct. at 2327-28. The Court held that there was probable cause because the anonymous tip contained details which would be difficult to obtain or predict and the police corroborated the veracity of this information. Therefore, in the totality of the circumstances, it was not unlikely that the anonymous informant also had reliable information about the alleged illegal activities. 103 S.Ct. at 2335.

The instant warrant was based on nothing more than the unverified allegation of an anonymous tipster. This did not rise to the probable cause standard enunciated in Gates. The Supreme Court clearly stated that “standing alone, the anonymous letter ... would not provide the basis for a magistrate’s determination that there was probable cause .... ” 103 S.Ct. at 2326. Therefore, the trial court erred in denying the defendant’s motion to suppress and thereafter adjudicating her guilty on the plea of nolo contendere.

For the foregoing reasons, the judgment appealed from is reversed with directions to discharge the defendant.


text:
    COIN COPIES, INC., a Florida corporation, Appellant, v. FINANCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION OF DADE COUNTY, a United States corporation, Appellee.
    No. 83-660.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.
    Henry W. Ciar, Coral Gables, for appellant.
    No appearance, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Coin Copies, Inc., the defendant below, appeals from a non-final order denying its motion to quash service by publication made upon it pursuant to Section 49.051, Florida Statutes (1981). The appellant contends, and we agree, that the record, containing the affidavit of the attorney for the plaintiff-association which alleged in con-clusory terms that he had made “diligent search and inquiry ... to discover the names and whereabouts of all persons upon whom the service of process would bind the corporation,” and the attorney’s elucidating statement that his diligent search and inquiry consisted solely of the fact that the sheriff on seven occasions during an approximate one-month period had been unsuccessful in effecting personal service upon the defendant-corporation, provided an insufficient basis upon which to conclude that all officers, directors, general managers, cashiers, resident agents and business agents of the corporation were either absent from the state, could not be found within the state, were concealing themselves, or that their whereabouts were unknown, and thus, an insufficient predicate for constructive service. See Robinson v. Cornelius, 377 So.2d 776 (Fla. 4th DCA 1979), and cases cited therein.

Reversed with directions to quash the service by publication.


author: FERGUSON, Judge.

text:
    Louise PATTERSON, Appellant, v. Marion SLACHTER, Appellee.
    No. 83-790.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.

      Jeffrey A. Schwarz, North Miami, for appellant.
    Lee, Schulte, Murph & Coe, Miami, Palmer & Slachter, and David Slachter, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

The complaint and final judgment in a foreclosure action contained legal descriptions of two parcels owned by defendant, but the description as to one parcel erroneously included adjacent land belonging to some third person. The trial court, after conducting a hearing with notice on several of plaintiff’s motions, entered an amended judgment which correctly described the properties to be foreclosed and ordered a new foreclosure sale. As the single point on appeal, defendant contends, essentially, that because the property was not correctly described in the original complaint and final judgment, the only remedy is a retrial of all the issues. We disagree.

Defendant, while alleging prejudice, has not demonstrated why the post-judgment proceedings conducted in the trial court were inadequate to protect her rights. The mistake complained of here, that the legal description in the prior judgment included a small parcel of land owned by a third person, when all property owned by defendant which was the subject of the foreclosure action was adequately described, was correctable without a new trial. Fla.R.Civ.P. 1.540(b). See Hutchison v. Wintrode, 286 So.2d 231 (Fla. 2d DCA 1973) (after trial court has heard evidence directed to reformation of property description, and opposing party is given opportunity to present defenses, court may amend judgment to reflect proper legal description).

Judgments generally will not be reversed because of errors which do not cause injury. Stringfellow v. Adams, 99 Fla. 623, 127 So. 338 (1930); Warning Safety Lights, Inc. v. Gallor, 346 So.2d 92 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 518 (Fla.1978).

Affirmed.


author: DANIEL S. PEARSON, Judge. JORGENSON, Judge,

text:
    Mark Allen ALBERT, Petitioner, v. Nicholas SALCE and Anna Salce, his wife, Respondents.
    No. 83-1208.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1983.

      Pyszka & Keller, Miami, and Cathy Tou-by, North Miami, and Carl A. Borgan, Coral Gables, for petitioner.
    Urich & Shenkman and Robert Urich, Miami, for respondents.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Mark Allen Albert, the defendant below, petitions this court for a writ of certiorari to review a trial court order which, inter alia, compels him, despite his claim that such answers may tend to incriminate him, “to answer the questions propounded to him at his deposition relating to his ingestion of drugs, prescription or otherwise, within twenty-four (24) hours preceding the accident which is the gravamen of this action.” Finding that this portion of the order departs from the essential requirements of the law, we grant the petition and vacate the offending portion insofar as it compels the petitioner to answer questions concerning his ingestion of other-than-legally-prescribed drugs.

The accident in question occurred on February 8, 1980. At his deposition, petitioner was asked by plaintiffs’ counsel whether in the twenty-four hours prior to the accident he had any medication, pills, hallucinogens, or any other drugs of any nature, with or without a doctor’s prescription. The petitioner refused to answer on self-incrimination grounds. This refusal could be overridden only if the trial court determined that the answers could not possibly have any tendency to incriminate or the witness was clearly mistaken in his apprehension about the possibility of prosecution. Lewis v. First American Bank of Palm Beach County, 405 So.2d 300 (Fla. 4th DCA 1981). See Town v. Reno, 395 So.2d 602 (Fla. 3d DCA 1981).

It is plain that an admission of use of other-than-legally-prescribed drugs, if not directly tending to incriminate, most certainly furnishes a link in the chain of evidence which could support a prosecution for the possession, at least, of such drugs. It is no less obvious that the possibility of prosecution (even putting aside the possibility of federal, out-of-state and foreign prosecutions, or sophisticated on-going conspiracies) is not merely imaginary. Section 893.-13(l)(b), Florida Statutes (1979), provides, inter alia, that any person who possesses in excess of ten grams of certain controlled substances described in Section 893.03(l)(a) or (b) is guilty of a first-degree felony for which the statute of limitations is four years. See § 775.15(2)(a), Fla.Stat. (1979). Thus, without looking beyond the confines of Florida, where the accident and presumably the asked-about drug use occurred, we can readily see that the possibility of prosecution exists in this state at least until February 7 or 8, 1984.

Accordingly, the order under review is vacated insofar as it compels the petitioner to answer questions concerning his use of other-than-legally-prescribed drugs during the time in question.

Certiorari granted; order vacated in part.

JORGENSON, Judge,

specially concurring.

The respondent has not favored this court with a response to the Petition for Writ of Certiorari. On the basis of this limited record I agree that certiorari is appropriate. But see Lund v. Lund, 161 So.2d 873 (Fla. 2d DCA 1964), approving the statement in Annest v. Annest, 49 Wash.2d 62, 298 P.2d 483 (1956), that “when a party claims the privilege of not answering a proper question, the court may dismiss his action or strike his testimony,” Lund at 875. See generally Annot., 4 A.L.R.3d 545 (1965).