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florida/1047646.json

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+"{\"id\": \"1047646\", \"name\": \"R. L. Baker and Ida Will Baker, Petitioners, v. George W. DeMuro, County Judge, Respondent\", \"name_abbreviation\": \"Baker v. DeMuro\", \"decision_date\": \"1915-01\", \"docket_number\": \"\", \"first_page\": \"711\", \"last_page\": \"711\", \"citations\": \"69 Fla. 711\", \"volume\": \"69\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T21:01:57.924554+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"R. L. Baker and Ida Will Baker, Petitioners, v. George W. DeMuro, County Judge, Respondent.\", \"head_matter\": \"R. L. Baker and Ida Will Baker, Petitioners, v. George W. DeMuro, County Judge, Respondent.\\nOriginal Proceeding for Prohibition.\\nStrauss L. Boyd, for Petitioners.\", \"word_count\": \"50\", \"char_count\": \"334\", \"text\": \"Petition of Petitioners for writ of prohibition denied at cost of petitioners, without prejudice to right of petitioners to apply to Circuit Judge for appropriate relief.\"}"

florida/1078317.json

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+"{\"id\": \"1078317\", \"name\": \"Marion Burnham, Plaintiff in Error, vs. The State of Florida, Defendant in Error\", \"name_abbreviation\": \"Burnham v. State\", \"decision_date\": \"1896-01\", \"docket_number\": \"\", \"first_page\": \"327\", \"last_page\": \"331\", \"citations\": \"37 Fla. 327\", \"volume\": \"37\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:54:41.449505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Marion Burnham, Plaintiff in Error, vs. The State of Florida, Defendant in Error.\", \"head_matter\": \"Marion Burnham, Plaintiff in Error, vs. The State of Florida, Defendant in Error.\\nAn information under our statute (section 2419 Revised Statutes) prescribing a penalty against \\u201cwhoever speaks of and concerning any woman, married or unmarried, falsely and maliciously, imputing to her a want of chastity,\\u201d should not only set out the words constituting the oral slander, but should also charge that they were uttered or spoken in .the presence of some one; and the better practice would be to set out the names, or some of them of the persons before whom they were uttered or spoken.\\nWrit of Error to the Circuit Court for Holmes county.\\nThe facts in the case are stated in the opinion of the court.\\nCalhoun & Hines, for Plaintiff in Error.\\nThe Attorney-General, for Defendant in Error.\", \"word_count\": \"1105\", \"char_count\": \"6405\", \"text\": \"Liddon, J.:\\nSection 2419 of the Revised Statutes provides as follows: 'Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously, imputing to her a want of chastity, shall be punished by imprisonment not exceeding one year, or by f\\u00edne not exceeding five hundred dollars. ' ' An information, evidently intended to be brought under this section, was filed against the plaintiff in error. Said information contained two counts. Quitting the formal commencement and conclusion of the information, it charges that the defendant \\\"on the 10th day of July, in the year of our Lord one thousand eight hundred and ninety-four, with force and arms, at and in the county of Holmes aforesaid, then and there being, did then and there speak of and concerning a married woman, to-wit: One Lula Burnham, falsely and maliciously by them and there imputing to her a want of chastity, to-wit: By saying she had sexual intercourse with her brother, Addie Hewett, against the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Florida. And the said State Attorney for the State of Florida, prosecuting for said State, being present in said court, on the second day of November, A. D. 1894, gave the court to be informed and understand that one Marion Burnham, late of the county of Holmes, on the 10th day of July, A. D. 1894, in the county of Holmes, then and there being, did then and there speak of and concerning a married woman, to-wit: One Lula Burn-ham, falsely and maliciously, by then and there imputing to her a want of chastity, by saying that she had sexual intercourse with her brother, Addie Hewett, prior to her marriage, against the form of the statute in such cases made and provided, to the evil example of all others in like .cases offending, and against the peace and dignity of the State of Florida.\\\" The deiendant moved to quash the information upon the grounds, among others, that it \\\"is vague, indefinite and uncertain.\\\" This motion being overruled, the de- \\u2022 fendant was put npon trial upon the information and convicted, and takes a writ of error.\\nSeveral assignments of error are taken and argued, but in view of the conclusion we reach, it is only necessary to refer to one of them, viz: The overruling of the motion to quash the information.\\nOne objection urged to the information is, that it does not aver that the alleged defamatory words were spoken to or in the presence of any person, and therefore it is so loose and uncertain that it does not apprise the defendant of the nature of the charge he is called hpon to meet, and that a judgment in the case would not protect him from future prosecution for the same offence. Considerable investigation convinces us that authority upon the precise point under consideration is quite meagre. It seems pretty generally settled that in declarations in civil suits, in the absence of statutory regulation, the slanderous words must be alleged to have been spoken in the presence of some person or persons. 13 Am. & Eng. Ency. of Law, 472, and authorities cited in note; Hurd vs. Moore, 2 Oregon, 85; Townshend on Slander and Libel, p. 555. We know of no reason why the same certainty and particularity should not be required in criminal pleading, which ought to be even more definite and certain than pleadings in civil cases. The State of Texas has a statute very similar to ours. The point now under consideration was considered and disposed of in the case of McMahan vs. State, 13 Texas App. 220, cited by counsel for plaintiff in error. There the court held that \\\"an indictment for slander, by falsely and maliciously, or falsely and wantonly, imputing to a female a want of chastity, should not only set out the words constituting the oral slander, but should also charge that they were uttered or spoken in the presence of some one; and the better practice would be to set out the names, or some of them, of the persons before whom they were uttered or spoken.\\\" Article 645 of the Texas Penal Code, under which the indictment was found, reads as follows: \\\"If any person shall orally or otherwise falsely and maliciously, or falsely and wantonly impute to any female in this State, married or unmarried, a want of chastity, he shall be deemed guilty of sl\\u00e1nder,\\\" etc. In the body of the opinion the court say: \\\"According to all precedent the indictment or information for slander should allege that the slanderous words were uttered or spoken in the presence of some one. Without proof that they were so uttered or spoken, we imagine it would hardly be possible, in a charge of oral slander, to make out and establish the** crime. Approved precedents and forms contain the allegation that the scandalous or seditious words were uttered, pronounced, declared or spoken 'in presence and hearing of divers-good citizens.' We are further of opinion that the better practice would be for the pleader, under Article 645, to set out the name or names of the parties, or some of them, in whose presence or hearing the words were spoken. It would certainly render the charge more certain and specific, and enable \\u2022 the defendant the more readily to plead whatever judgment might be rendered in bar of any subsequent prosecution for the same offense.\\\" We adopt the views above quoted from the Texas court. A case also similar in some of its respects is People vs. Stark, 136 N. Y. 538, 32 N. E. Rep. 1046.\\nThe judgment is reversed, with directions that the* information be quashed, and that such further proceedings be had as may be consistent with law and this opinion.\"}"

florida/11093952.json

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+"{\"id\": \"11093952\", \"name\": \"GIGLIOTTI CONTRACTING NORTH, INC., Appellant, v. TRAFFIC CONTROL PRODUCTS OF NORTH FLORIDA, INC., Norstar Building Corp., Lennar Homes, Starwood/Tampa I, L.P., and SCI Development, Inc., Appellees; Gigliotti Contracting North, Inc., Appellant, v. Norstar Building Corp., Appellee\", \"name_abbreviation\": \"Gigliotti Contracting North, Inc. v. Traffic Control Products of North Florida, Inc.\", \"decision_date\": \"2001-03-07\", \"docket_number\": \"Nos. 2D99-5033, 2D00-1701\", \"first_page\": \"1013\", \"last_page\": \"1016\", \"citations\": \"788 So. 2d 1013\", \"volume\": \"788\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T01:49:06.142803+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER, A.C.J., and DANAHY, (Senior) Judge, concur.\", \"parties\": \"GIGLIOTTI CONTRACTING NORTH, INC., Appellant, v. TRAFFIC CONTROL PRODUCTS OF NORTH FLORIDA, INC., Norstar Building Corp., Lennar Homes, Starwood/Tampa I, L.P., and SCI Development, Inc., Appellees. Gigliotti Contracting North, Inc., Appellant, v. Norstar Building Corp., Appellee.\", \"head_matter\": \"GIGLIOTTI CONTRACTING NORTH, INC., Appellant, v. TRAFFIC CONTROL PRODUCTS OF NORTH FLORIDA, INC., Norstar Building Corp., Lennar Homes, Starwood/Tampa I, L.P., and SCI Development, Inc., Appellees. Gigliotti Contracting North, Inc., Appellant, v. Norstar Building Corp., Appellee.\\nNos. 2D99-5033, 2D00-1701.\\nDistrict Court of Appeal of Florida, Second District.\\nMarch 7, 2001.\\nDana G. Toole of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, and Stephen R. Dye of Dye, Deit-rich, Prather, Petruff & St. Paul, P.L., Bradenton, for Appellant.\\nJ. Meredith Wester and Angela C. Ca-bassa of Mechanik, Nuccio, Bentley, Williams & Hearne, P.A., Lutz, for Appel-lee Traffic Control Products of Florida, Inc.\\nMichael P. Brundage of Hill, Ward & Henderson, P.A., Tampa, for Appellee Norstar Building Corp.\", \"word_count\": \"1267\", \"char_count\": \"8071\", \"text\": \"CASANUEVA, Judge.\\nGigliotti Contracting North, Inc., appeals a summary judgment after the trial judge denied its motion for intervention in a garnishment proceeding and a judgment of dismissal with prejudice of its construction lien action based on the prior garnish ment judgment. We reverse but commend the trial judge for his valiant efforts to make order out of chaos.\\nBecause of the intertwining factual posture of these cases we outline briefly the procedural history.\\nTraffic Control's Garnishment Case\\u2014 Appeal No. 2D99-5033: In 1998, Traffic Control Products of North Florida, Inc., filed an action against SCI Development, Inc., for damages based on breach of contract. A final summary judgment against SCI and in favor of Traffic Control was entered on June 15, 1999, for $48,096.45. Traffic Control sought to satisfy its judgment by serving a writ of garnishment on Norstar Building Corporation, who owed money to SCI. Norstar answered and acknowledged it owed SCI the sum of $49,624.24, based on the unpaid balance of a construction project contract, but that it had received a number of notices to owner pursuant to chapter 713, Florida Statutes (1997). This indicated that Norstar expected the potential of suits to foreclose claims of lien if the subcontractors remained unpaid. In due time, Traffic Control moved for summary final judgment of garnishment.\\nMeanwhile, in October 1999, Gigliotti, an unpaid subcontractor of SCI on Norstar's construction project with SCI, sought to intervene in the garnishment proceeding as assignee of a contract with SCI and asserted a claim to any proceeds due SCI. Norstar later amended its answer to state that it had determined that three unpaid subcontractors and material suppliers on the project, one of whom was Gigliotti, were due a combined $48,500.46 and, further, that it was entitled to retain money for remedial work and attorney's fees.\\nGigliotti's Construction Lien Case\\u2014 Appeal No. 2D00-170: Before the final summary judgment hearing in the garnishment action, and sensing impending frustration in its efforts there, Gigliotti filed a claim of lien on Norstar's property, the same property that was the subject of the construction contract between Norstar and SCI. In November 1999 Gi-gliotti commenced an action to foreclose the lien.\\nAt the summary judgment hearing in the garnishment case, the trial court orally ordered that from the balance that Nors-tar owed SCI, Norstar could set off $1,971.94 and $3,672.96 to satisfy two unpaid subcontractors, $573.78 for remedial work, and $4,764.41 for its attorneys' fees. Thus, a substantial remaining amount was owed to SCI and available to satisfy Traffic Control's judgment against SCI. The final summary judgment of garnishment awarded Traffic Control $37,641.15. In the same order, Gigliotti's motion to intervene was denied. Gigliotti received no payment on its claim of more than $42,000. In January 2000 the trial court consolidated the garnishment action and the construction lien foreclosure action.\\nIn February 2000 the trial judge determined that Gigliotti's lien foreclosure case was barred by the doctrine of collateral estoppel and dismissed the lien action with prejudice. In doing so, he relied upon Traffic Control's final summary judgment of garnishment which had provided: \\\"the claim of lien recorded on October 10, 1999, by Gigliotti in the amount of $42,855.56 shall be deemed satisfied and released upon payment of this judgment by Norstar Building Corporation.\\\" As can be seen from this scenario, in the garnishment action the trial judge had adjudicated a claim by a party that he had not allowed into the case. Basing the dismissal of that party's construction lien case on collateral estop-pel only added injury to insult.\\nCounsel at oral argument conceded that Norstar has not yet paid out the garnish eed funds. Norstar is willing to pay the funds but claims that it is merely the innocent stakeholder and uncertain who has the better claim to the funds. It understandably does not want to pay SCI's contract price twice.\\nThe statutory remedy of garnishment is governed by the procedures outlined in chapter 77, Florida Statutes (1997). Garnishment statutes are strictly construed. See Williams v. Espirito Santo Bank of Florida, 656 So.2d 212 (Fla. 3d DCA 1995); Paz v. Hernandez, 654 So.2d 1243 (Fla. 3d DCA 1995); T-Jett Enters., Inc. v. Ernest & Stewart, Inc., 543 So.2d 390 (Fla. 3d DCA 1989). Failure to strictly adhere to the garnishment procedures is at the root of Gigliotti's problems. Gigliotti tried to enter the garnishment case as an intervenor, claiming standing only as an assignee of SCI, the judgment debtor, instead of as an unpaid subcontractor on Norstar's construction project. As an as-signee, it merely stood in the shoes of SCI with no greater rights to the money than SCI.\\nSection 77.16, Florida Statutes (1997), provides that a claimant to funds that may be garnisheed, such as Gigliotti, is required to file an affidavit asserting that a certain amount of the funds in the hands of the garnishee belongs to it. If the parties cannot resolve competing claims to the same funds, a jury must be impaneled to determine those competing rights. See H.B. London & Co. v. Wiles, 695 So.2d 876, 878 (Fla. 2d DCA 1997).\\nIt was not an abuse of discretion to deny the motion to intervene as intervention is not a matter of right. See Dep't of Children & Family Servs. v. Brunner, 707 So.2d 1197 (Fla. 1st DCA 1998). However, the pleadings before the trial court did suggest that Gigliotti had a meritorious claim. Denying intervention without leave to comply with the statutory process effectively denied Gigliotti its due process rights to have its apparently meritorious claim as an unpaid subcontractor adjudicated on the merits.\\nWe do not absolve Gigliotti of its responsibility to properly comply with the statutory requirements. Its failure to do so contributed to the procedural quagmire confronting the trial judge. Had its various amended motions to intervene instead been filed in compliance with section 77.16's affidavit requirement, unnecessary waste of judicial labor would have been avoided. Had the trial court permitted Gigliotti an opportunity to comply with section 77.16, or had Gigliotti complied with the statute on its own, its contention that it was entitled to the funds held by the garnishee, Norstar, would have been resolved in a more efficient manner as contemplated by the garnishment statutes. Accordingly, we reverse and set aside the final summary judgment of garnishment and remand with instructions to permit Gigliotti to file the statutorily mandated affidavit to assert its claim to the funds held by the garnishee.\\nNext, we address the dismissal of the construction lien case. In light of our reversing the consolidated garnishment judgment, we also reverse the dismissal with prejudice of Gigliotti's lien case as it was necessarily predicated upon the legal conclusions of the garnishment action. Additionally, the dismissal was wrongfully based upon the performance of a future action which had not then yet taken place, the payment of the judgment by Norstar.\\nReversed and remanded with instructions.\\nPARKER, A.C.J., and DANAHY, (Senior) Judge, concur.\"}"

florida/11121360.json

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+"{\"id\": \"11121360\", \"name\": \"N. Joseph SHAMP, Appellant, v. BOARD OF ORTHOTISTS AND PROSTHETISTS, Appellee\", \"name_abbreviation\": \"Shamp v. Board of Orthotists & Prosthetists\", \"decision_date\": \"2001-02-14\", \"docket_number\": \"No. 1D00-1286\", \"first_page\": \"1124\", \"last_page\": \"1125\", \"citations\": \"781 So. 2d 1124\", \"volume\": \"781\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:50:03.852901+00:00\", \"provenance\": \"CAP\", \"judges\": \"KAHN, BROWNING and LEWIS, JJ., concur.\", \"parties\": \"N. Joseph SHAMP, Appellant, v. BOARD OF ORTHOTISTS AND PROSTHETISTS, Appellee.\", \"head_matter\": \"N. Joseph SHAMP, Appellant, v. BOARD OF ORTHOTISTS AND PROSTHETISTS, Appellee.\\nNo. 1D00-1286.\\nDistrict Court of Appeal of Florida, First District.\\nFeb. 14, 2001.\\nRehearing Denied March 28, 2001.\\nMarie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O\\u2019Neill & Mull\\u00eds, St. Petersburg; Seth T. Craine of Brickle-myer, Smolker & Bolves, P.A., Tampa, for Appellant.\\nRobert A. Butterworth, Attorney General; Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.\", \"word_count\": \"286\", \"char_count\": \"1914\", \"text\": \"PER CURIAM.\\nN. Joseph Shamp (Appellant) appeals a final order of the State of Florida Board of Orthotists and Prosthetists (Appellee) finding Appellant ineligible for licensure pursuant to section 468.805, Florida Statutes (1997), and denying his application for Florida licensure. Appellant, who has more than 20 years' out-of-state experience in the field of orthotics and prosthet-ics, moved to Florida to practice in 1996 and filed an application for Florida licen-sure in 1999. He argues that the provision in section 468.805(1) requiring 5 years of experience \\\"in this state\\\" in lieu of certain educational requirements violates substantive due process and the protections provided in the Privileges and Immunities Clause, the \\\"dormant\\\" Commerce Clause, and the Equal Protection Clause. At oral argument, Appellee asserted that the ap propriate avenue for Appellant to seek relief is a declaratory action in the circuit court addressing the statute's constitutionality. See \\u00a7 86.011, Florida Statutes (1997); Butler v. State, Dep't of Insur., 680 So.2d 1103 (Fla. 1st DCA 1996). Given the paucity of the record, we affirm, without prejudice to Appellant's right to seek any appropriate relief in the circuit court on the constitutional issues raised in this appeal. See Great House of Wine, Inc. v. Florida Dep't of Business & Professional Regulation, 752 So.2d 728 (Fla. 3d DCA 2000).\\nAFFIRMED.\\nKAHN, BROWNING and LEWIS, JJ., concur.\"}"

florida/11425057.json

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+"{\"id\": \"11425057\", \"name\": \"In the Interest of P.T., Appellant, v. The STATE of Florida, Appellee\", \"name_abbreviation\": \"In the Interest of P.T. v. State\", \"decision_date\": \"2002-10-16\", \"docket_number\": \"No. 3D02-1511\", \"first_page\": \"1112\", \"last_page\": \"1112\", \"citations\": \"827 So. 2d 1112\", \"volume\": \"827\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:07:33.599540+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before JORGENSON, COPE, and GODERICH, JJ.\", \"parties\": \"In the Interest of P.T., Appellant, v. The STATE of Florida, Appellee.\", \"head_matter\": \"In the Interest of P.T., Appellant, v. The STATE of Florida, Appellee.\\nNo. 3D02-1511.\\nDistrict Court of Appeal of Florida, Third District.\\nOct. 16, 2002.\\nBennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.\\nRobert A. Butterworth, Attorney General, and Maxine K. Streeter, Assistant Attorney General, for appellee.\\nBefore JORGENSON, COPE, and GODERICH, JJ.\", \"word_count\": \"306\", \"char_count\": \"1950\", \"text\": \"PER CURIAM.\\nP.T., the respondent below, appeals from an order of involuntary commitment pursuant to the Baker Act. We affirm in part and reverse in part.\\nWe affirm the order of involuntary commitment. The general master's report, which provided a summary of the testimony and identified the witnesses who testified regarding P.T.'s transfer to a long-term care facility, satisfies the requirements of Florida Rule of Civil Procedure 1.490(f). See De Clements v. De Clements, 662 So.2d 1276, 1284 (Fla. 3d DCA 1995) (\\\"The written record may consist of a narrative summary of the evidence either prepared by the Master or, as indicated above, by some other person acting in a manner consistent with the Rule.\\\").\\nHowever, we reverse the trial court's appointment of a guardian advocate. The general master found that P.T. was competent to consent to treatment within the meaning of section 394.467(6)(d), Florida Statutes, and therefore determined that a guardian advocate should not be appointed. As the uncontradicted testimony of P.T.'s treating psychiatrist supports this finding, the trial court erred in rejecting the master's recommendation. See De Clements, 662 So.2d at 1282 (holding that \\\"a Master's findings of fact and conclusions of law come to the trial court clothed with a presumption of correctness, and the trial court may only reject these findings and conclusions if they are clearly erroneous or if the Master has misconceived the legal effect of the evidence presented.\\\") (citations omitted).\\nAFFIRMED IN PART, REVERSED IN PART.\"}"

florida/11439806.json

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+"{\"id\": \"11439806\", \"name\": \"David BRYAN, Appellant, v. Cecilia BRYAN, Appellee\", \"name_abbreviation\": \"Bryan v. Bryan\", \"decision_date\": \"2002-06-26\", \"docket_number\": \"No. 3D01-2541\", \"first_page\": \"920\", \"last_page\": \"923\", \"citations\": \"824 So. 2d 920\", \"volume\": \"824\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:42:31.382067+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GERSTEN, GODERICH and SORONDO, JJ.\", \"parties\": \"David BRYAN, Appellant, v. Cecilia BRYAN, Appellee.\", \"head_matter\": \"David BRYAN, Appellant, v. Cecilia BRYAN, Appellee.\\nNo. 3D01-2541.\\nDistrict Court of Appeal of Florida, Third District.\\nJune 26, 2002.\\nRehearing Denied Aug. 28, 2002.\\nAbrams, Etter & Marks, Miami, and Deborah Marks, North Miami, for appellant.\\nKohlman Hamlin, and Robert F. Kohl-man and George C. Vogelsang, Miami, for appellee.\\nBefore GERSTEN, GODERICH and SORONDO, JJ.\", \"word_count\": \"1506\", \"char_count\": \"9176\", \"text\": \"PER CURIAM.\\nDavid Bryan (husband) appeals the trial court's final judgment of Dissolution of Marriage. The husband claims that the trial court erred in denying his emergency motion for continuance. We agree and reverse.\\nDavid Bryan and Cecilia Bryan (wife) were married on August 24, 1995. No children were born of this marriage, however, Wife has a minor child from a prior marriage. In March 2001, husband filed a petition for dissolution of marriage. Wife answered the petition and filed a counter-petition for dissolution of marriage. The counter-petition also named the husband's business, Tropical Falls Landscaping and Maintenance, Inc. (Tropical) as a respondent. On April 25, 2001, the court entered an order specially setting the case for non-jury trial on August 22 and 23, 2001 and jury trial for the week of August 27, 2001. The wife subsequently filed three amended counter-petitions, the last of which was filed May 15, 2001 and included five counts.\\nOn May 22, 2001, the court appointed a business evaluator to determine Tropical's value , and a real estate appraiser to determine the value of the properties owned by the parties. On June 6, 2001, the spe cial master suspended discovery for a month due to the vacation schedules of counsel. On June 10, 2001, husband filed a motion for extension of time to answer the third amended counter-petition. This motion for extension of time was never ruled upon.\\nOn July 31, 2001, husband's counsel withdrew from the case. On August 14, 2001, the husband filed an emergency motion for continuance claiming that his attorney had withdrawn on the date the pretrial catalogue was due; that counsel had not prepared a pre-trial catalogue or taken the deposition of the wife, and had refused to turn over the case files. Husband also advised that he had just received the wife's pre-trial catalog that listed forty witnesses and fifteen experts and he had outstanding discovery issues that needed to be addressed. Finally, he advised the court that he had contacted an attorney to represent him but the attorney would not enter an appearance unless the trials were continued. The court denied the motion for continuance.\\nOn August 16, 2001, husband, pro se, filed a second emergency motion for continuance advising the court that the case was not yet at issue as he had a motion to dismiss pending and had not answered the wife's counter-petition. The motion also requested that the legal issues of the tort claims (jury issues) be heard first as they are interrelated with the equitable claims (non-jury issues). The husband also advised the court that the business evaluator had not yet completed his evaluation and therefore he would not have sufficient time to prepare. On August 17, 2001, wife moved for a default judgment against husband on the counter-petition on the grounds that husband had failed to answer counts I, II, and IV of the third amended counter-petition, that he had failed to appear to court-ordered depositions and to a court-reported exhibit review, and had failed to file his pretrial catalog pursuant to the court's order. Wife filed a notice of dropping count III, and a notice of waiver of jury trial.\\nOn August 21, 2001, the trial court entered an order granting husband's second emergency motion for continuance as to the jury trial(tort issues). The court denied the motion as to the non-jury trial (dissolution issues), finding that the non-jury counts, which related to alimony, real and personal property, equitable distribution, special equity in the marital home as well as occupancy thereof and determination of life insurance, equitable distribution of debt, and wife's claim for attorney's fees, were all at issue. The court gave the husband ten days to answer the outstanding counts and to demand a jury trial on those counts.\\nOn August 22, 2001, the day of trial, husband voluntarily dismissed his petition for dissolution of marriage without prejudice. That same day, the trial court granted wife's motion for default on the third amended counter-petition for dissolution of marriage and proceeded to trial on the non-jury issues. Husband, who appeared pro se, did not present any evidence or cross-examine any of the wife's witnesses. On August 24, 2001, the court entered a final judgment, which awarded wife the marital home, a four acre tract of land, and attorney's fees. The husband received his business and credit card debt associated with the business. The wife did not receive an alimony award. Husband's motion for rehearing was denied.\\nOn appeal, husband challenges the trial court's denial of his motions for continuance, the court's failure to require that the jury issues be tried first and the court's distribution of assets and liabilities and assessment of attorney's fees against the husband. We conclude that the trial court erred in denying the husband's August 14, 2001, motion for continuance and reverse. We do not reach the merits on the remaining issues.\\nThe granting of a motion for continuance is normally within the sound discretion of the trial court. In re Gregory, 313 So.2d 735, 736 (Fla.1975). In determining whether the trial court abused its discretion in denying a motion for continuance several factors to consider include: whether the denial creates an injustice for the moving party; whether the cause of the request for continuance was unforeseeable by the moving party and not the result of dilatory practices; and whether the opposing party would suffer prejudice or inconvenience as a result of a continuance. Fleming v. Fleming, 710 So.2d 601, 602 (Fla. 4th DCA 1998). Under the circumstances of this case, we believe the trial court abused its discretion in denying the husband's motion for continuance.\\nAt the time of trial, the husband had not yet answered the wife's third amended counter-petition for dissolution of marriage. He had filed a motion for extension of time to answer the counter-petition, which was never ruled upon. His attorney withdrew three weeks before trial without filing the pre-trial catalog or taking depositions. The husband was unable to obtain new counsel who was willing to take the case so near to trial without a continuance. Furthermore, the business valuation was received only five days prior to trial. Based on these circumstances, we find the denial of the continuance created an injustice for the husband. See Carpenter v. Carpenter, 451 So.2d 914, 915 (Fla. 1st DCA 1984)(speeial circumstances may require a continuance where there has not been sufficient time to prepare for trial and there is no substantial prejudice to opposing party); see also Clayman v. Clayman, 536 So.2d 358, 359 (Fla. 3d DCA 1988)(trial court abused its discretion when it refused to grant mother's motion for continuance when parties received home studies during the week before trial).\\nWe also find that the motion for continuance was not the result of dilatory practices. The petition for dissolution was filed in March 2001 and the time frame between the filing of the dissolution petition to the entry of final judgment was only five months. This time frame included a month when discovery was suspended by the special master and three weeks when the husband was without an attorney. The wife's third amended counter-petition was not filed until May 15, 2001 and the husband's motion for a continuance to file an answer to the petition was never ruled upon. Nothing in this record suggests that the request for continuance to obtain counsel was made to delay or prejudice the wife's case. See Kamhi v. Waterview Towers Condo. Ass'n., Inc., 793 So.2d 1033,1037 (Fla. 4th DCA 2001)(court abused its discretion in denying motion for continuance in order for party to obtain legal representation).\\nThe wife would not have been prejudiced by a continuance of this matter, see Carpenter, 451 So.2d at 915, and any possible prejudice to the wife as a result of having a brief continuance is outweighed by the significant prejudice to the husband having to proceed pro-se and unprepared at the final hearing. Kamhi, 793 So.2d at 1037. Accordingly, we reverse and remand for a new final hearing on the dissolution issues.\\n. The court subsequently entered an order granting Tropical's motion to dismiss counts I, II, III, and IV of wife's counter-petition and denying the motion to dismiss count V, the breach of contract claim.\\n. The order appointing the business evaluator requested that a report be prepared and filed within thirty days. The report was not filed until August 17, 2001, five days before the day of the trial.\\n. The four week suspension of discovery and the three weeks husband was without benefit of an attorney all came after the filing of wife's third amended complaint on May 15th, and before the trial date of August 22, 2001.\"}"

florida/11834011.json

@@ -0,0 +1 @@
+"{\"id\": \"11834011\", \"name\": \"James Norman BONNER, Appellant, v. STATE of Florida, Appellee\", \"name_abbreviation\": \"Bonner v. State\", \"decision_date\": \"1998-03-11\", \"docket_number\": \"No. 97-05008\", \"first_page\": \"131\", \"last_page\": \"132\", \"citations\": \"709 So. 2d 131\", \"volume\": \"709\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T21:06:13.876619+00:00\", \"provenance\": \"CAP\", \"judges\": \"DANAHY, A.C.J., and CAMPBELL and NORTHCUTT, JJ., concur.\", \"parties\": \"James Norman BONNER, Appellant, v. STATE of Florida, Appellee.\", \"head_matter\": \"James Norman BONNER, Appellant, v. STATE of Florida, Appellee.\\nNo. 97-05008.\\nDistrict Court of Appeal of Florida, Second District.\\nMarch 11, 1998.\", \"word_count\": \"142\", \"char_count\": \"902\", \"text\": \"PER CURIAM.\\nJames Norman Bonner challenges the trial court's summary denial of his motion for posteonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm on all issues assailing the effectiveness of trial counsel without discussion. Bonner also alleged in his motion that his sentence is illegal under the dictates of Hale v. State, 630 So.2d 521 (Fla.1993). The trial court found that the claim was untimely and denied it. Bonner has received relief on this claim in a proceeding alleging ineffectiveness of appel late counsel in this court's case number 98-00272. Accordingly, we affirm that portion of his summary appeal as well because it is now moot.\\nAffirmed.\\nDANAHY, A.C.J., and CAMPBELL and NORTHCUTT, JJ., concur.\"}"

florida/11836040.json

@@ -0,0 +1 @@
+"{\"id\": \"11836040\", \"name\": \"James R. RAUCH, Appellant, v. Rebecca B. RAUCH, Appellee\", \"name_abbreviation\": \"Rauch v. Rauch\", \"decision_date\": \"1998-03-18\", \"docket_number\": \"No. 97-1305\", \"first_page\": \"582\", \"last_page\": \"583\", \"citations\": \"711 So. 2d 582\", \"volume\": \"711\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:50:26.121712+00:00\", \"provenance\": \"CAP\", \"judges\": \"GUNTHER, FARMER and KLEIN, JJ., concur.\", \"parties\": \"James R. RAUCH, Appellant, v. Rebecca B. RAUCH, Appellee.\", \"head_matter\": \"James R. RAUCH, Appellant, v. Rebecca B. RAUCH, Appellee.\\nNo. 97-1305.\\nDistrict Court of Appeal of Florida, Fourth District.\\nMarch 18, 1998.\\nJohn J. Anastasio, Port St. Lucie, for appellant.\\nNo brief filed for appellee.\", \"word_count\": \"664\", \"char_count\": \"4026\", \"text\": \"PER CURIAM.\\nAppellant, James Rauch (the \\\"Father\\\"), timely appeals from an order that failed to enforce a Texas court order awarding him custody under the Uniform Child Custody Jurisdiction Act (\\\"UCCJA\\\"). Appellee, Rebecca Rauch (the \\\"Mother\\\"), failed to appear in this appeal. We reverse.\\nThe Father, the Mother, and their two minor children lived in Texas as a family for three and one-half years. One of the children was enrolled in kindergarten in Texas for the 1994-1995 school year. The Mother also had family who resided in Texas. In mid-1995, the family moved from Texas to Florida. Nearly one year later, in April 1996, the Father moved from Florida back to Texas because of a job transfer. The children remained with the Mother in Florida until the current school semester concluded and the Father found suitable housing in Texas. In June 1996, the Mother and the children returned to Texas to live with the Father. After approximately three weeks, the Mother returned to Florida with the parties' children.\\nIn October 1996, the Father filed for divorce from the Mother in Texas. At the time, the Father was living in Texas, and the Mother and the children were living in Florida. The Texas court entered a final decree of divorce and awarded custody of the parties' two minor children to the Father. The Texas court order stated that the Mother failed to appear, even though she was duly noticed.\\nThe Father then filed a petition in a Florida circuit court, seeking enforcement of the Texas court order. After a brief hearing attended by both parties, the Florida circuit court entered an order refusing to recognize the Texas court order. The Florida circuit court found instead that Florida had jurisdiction over the children pursuant to the UC-CJA. Moreover, the Florida circuit court awarded the Mother custody of the children.\\nUnder the UCCJA, recognition and enforcement of a foreign state's order is mandatory if the state in which the prior decree was rendered has adopted the UC-CJA, has statutory jurisdictional requirements substantially like the UCCJA, or would have had jurisdiction under the facts of the case if the UCCJA had been the law in that state. Unif. Child Custody Juris. Act, \\u00a7 13 cmt., 9 U.L.A. 276 (1988); see \\u00a7 61.1328, Fla.Stat. (1997). Here, Texas has adopted the UCCJA, and the codification of its provisions are substantially similar to Florida's UCCJA provisions and the uniform provisions. See \\u00a7 152.003-.025, Tex.Fam. Code Ann. (West 1997); see also \\u00a7 61.1302-.1348, Fla.Stat. (1997). On its face, the Texas order was entered in compliance with the jurisdictional provisions under the UCCJA. See 152.003, Tex.Fam.Code Ann. (West 1997). Because the Texas order is facially valid, a Florida court is not at liberty to choose .to disregard it, even if the Florida court believes it also has jurisdiction over the parties' children. See Yon v. Fleming, 595 So.2d 573, 577 (Fla. 4th DCA 1992). Otherwise, one of the purposes of the UCCJA to \\\"facilitate the enforcement of custody decrees of other states\\\" would be thwarted. See \\u00a7 61.1304(7), Fla.Stat. (1997); Yon, 595 So.2d at 577.\\nUnder the provisions of the UCCJA, the Texas order was entitled to full faith and credit from the Florida circuit court. Thus, the Florida circuit court erred in failing to enforce the Texas order. Because of this, the Florida circuit court also erred in awarding custody to the Mother, especially in light of the fact that neither party requested such relief. See, e.g., Oakley v. Oakley, 439 So.2d 1044 (Fla. 4th DCA 1983); Defreitas v. Defreitas, 398 So.2d 991 (Fla. 4th DCA 1981). Accordingly, we reverse the Florida circuit court's order and remand with instructions to enforce the Texas order awarding custody to the Father.\\nREVERSED.\\nGUNTHER, FARMER and KLEIN, JJ., concur.\"}"

florida/11855966.json

@@ -0,0 +1 @@
+"{\"id\": \"11855966\", \"name\": \"Carla M. BARBERENA and Miguel Barberena, Appellants, v. William GONZALEZ and Guillermo Gonzalez, Appellees\", \"name_abbreviation\": \"Barberena v. Gonzalez\", \"decision_date\": \"1998-01-28\", \"docket_number\": \"No. 96-2294\", \"first_page\": \"60\", \"last_page\": \"62\", \"citations\": \"706 So. 2d 60\", \"volume\": \"706\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T00:13:52.071372+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before NESBITT, GODERICH and GREEN, JJ.\", \"parties\": \"Carla M. BARBERENA and Miguel Barberena, Appellants, v. William GONZALEZ and Guillermo Gonzalez, Appellees.\", \"head_matter\": \"Carla M. BARBERENA and Miguel Barberena, Appellants, v. William GONZALEZ and Guillermo Gonzalez, Appellees.\\nNo. 96-2294.\\nDistrict Court of Appeal of Florida, Third District.\\nJan. 28, 1998.\\nRehearing Denied March 11, 1998.\\nJohn H. Ruiz, Miami, Orestes Perez, Pembroke Pines, and Luisa M. Linares, Miami, for appellants.\\nHightower & Rudd, Miami, and Shelley Ray Senecal, Miami, for appellees.\\nBefore NESBITT, GODERICH and GREEN, JJ.\", \"word_count\": \"1346\", \"char_count\": \"8408\", \"text\": \"GODERICH, Judge.\\nThe plaintiffs, Carla and Miguel Barbere-na, appeal from a final judgment and from several post-trial orders. We reverse, in part, and affirm, in part.\\nOn June 19, 1992, Carla Barberena was involved in an automobile accident with another car. Carla Barberena and her husband, Miguel Barberena, brought a negligence action against the driver and the owner of the other car. The Barberenas sought damages for Carla Barberena's personal injuries and for Miguel Barberena's loss of consortium.\\nAt trial, the defendants admitted liability, and the parties proceeded to a jury trial on the issues of causation, permanency of the injury, and damages. The jury returned a verdict finding that Carla Barberena suffered a permanent injury as a result of the accident and awarded her $10,146 for past medical expenses, $10,000 for past pain and suffering, $0 for future medical expenses, and $0 for future pain and suffering. The jury awarded Miguel Barberena $0 for past and future loss of consortium.\\nThe plaintiffs moved for an additur and/or a new trial on the basis that the jury's award was inadequate as to Carla Barberena's future medical expenses and future pain and suffering and as to Miguel Barberena's past and future loss of consortium. In turn, the defendants filed a motion seeking a set-off for the amount of personal injury protection benefits paid, pursuant to section 768.76, Florida Statutes (1993).\\nAfter a hearing on the post-trial motions, the trial court granted the plaintiffs' motion for additur and/or a new trial, in part, and awarded Miguel Barberena $2,000 for past and future loss of consortium. The trial court also granted the defendants' motion for set-off in the amount of $10,000. Accordingly, the trial court entered a final judgment awarding Carla Barberena $10,146 and Miguel Barberena $2,000. The Barberenas' appeal follows.\\nThe plaintiffs contend that the trial court erred by granting the defendants' motion for set-off, pursuant to section 768.76, Florida Statutes (1993). Specifically, the plaintiffs argue that section 768.76 is inapplicable to this cause of action because this cause arose out of the ownership, operation, use or maintenance of a motor vehicle and accrued before October 1,1993. Instead, the plaintiffs maintain that section 627.7372, Florida Statutes (1991), controls and that the defendants failed to meet the statute's requirements by not presenting any evidence of collateral source payments to the jury.\\nIn response, the defendants contend that section 627.7372 was repealed and that therefore, they were not required to present evidence of collateral source payments to the jury. Instead, the defendants maintain that section 768.76, Florida Statutes (1993), controls and provides that the court shall reduce the award of damages by the total amount of all collateral source payments. Based on the facts of the instant case, we agree with the plaintiffs.\\nIn Kirkland v. Allstate Insurance Co., 656 So.2d 106 (Fla. 1st DCA 1995), the First District addressed the conflict between section 768.76 and section 627.7372. The First District explained that section 768.76. is a general provision that authorizes the court to reduce the jury's damage award by the total amount of collateral source payments paid for the benefit of the claimant, while section 627.7372 is a more specific provision that applies to personal injury actions that arise out of the ownership, operation, use or maintenance of a motor vehicle and requires that evidence proving the total amount of collateral souree payments be presented to the jury during trial and that the jury be instructed to deduct from its verdict the value of all benefits received by the claimant from any collateral source. Kirkland, 655 So.2d at 109. The First District concluded that in automobile cases, section 768.76 must yield to the more specific section 627.7372. Kirkland, 655 So.2d at 109 (citing \\u00a7 768.71(3), Fla.Stat.).\\nAlthough the defendants correctly state that section 627.7372 was repealed by Chapter 93-245, Laws of Florida, this does not affect the applicability of section 627.7372 to this case: Chapter 93-245 provides that the act shall take effect on October 1, 1993, and apply to causes of action accruing on or after such date. Thus, in the instant-case, where the cause of action accrued on June 19, 1992, section 627.7372 controls and requires the presentation of evidence of collateral source payments to the jury. Because the defendants in this case failed to present evidence of collateral source payments to the jury, the trial court erred by granting the defendants' post-trial motion for set-off and we must reverse that portion of the final judgment that incorporates the set-off.\\nNext, the plaintiffs contend that the trial court erred by denying their motion for additur and/or new trial on the issue of Carla Barberena's damages for future medical expenses and future pain and suffering. The plaintiffs maintain that the jury award was grossly inadequate in light of the jury's finding of permanent impairment and the expert testimony that was presented regarding future medical expenses and future pain and suffering. We dis\\u00e1gree.\\nIn Allstate Insurance Co. v. Manasse, 707 So.2d 1110 (Fla.1998), quashing 681 So.2d 779 (Fla. 4th DCA 1996), the Florida Supreme Court held that where a jury makes a finding of permanent injury and awards future medical expenses, an award of zero future noneconomic damages is not inadequate as a matter of law. In its opinion, the Supreme Court quoted Judge Larry A. Klein's dissent in the Fourth District's opinion stating that his reasoning buttressed their conclusion:\\nFuture damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering. The need for future medical expenses is often in dispute, however, as it was here. It does not necessarily therefore follow, in my opinion, that an award of future medical expenses requires an award of noneconomic damages.\\nOur standard jury instructions do not require consistency in these verdicts. They allow a jury to return a verdict finding a permanent injury, but do not require an award of damages.\\nManasse, 701 So.2d 1110 (quoting Manasse, 681 So.2d at 784-85 (Klein, J., dissenting)).\\nAlthough the instant case is slightly different from Manasse in that the jury found a permanent injury but refused to award both future medical expenses and future pain and suffering, we believe that this rationale is still applicable. Because a review of the record shows that the need for an award of future medical expenses and future pain and suffering was disputed by the parties' experts, we conclude that the trial court was acting within its discretion when it denied that portion of the plaintiffs' motion for addi-tur and/or new trial.\\nAffirmed, in part; reversed, in part, and remanded for entry of judgment consistent with this opinion.\\n. 768.76 Collateral sources of indemnity.\\u2014\\n(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to him, from all collateral sources .\\n. 627.7372 Collateral sources of indemnity.\\u2014\\n(1) In any action for personal injury or wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle, the court shall admit into evidence the total amount of all collateral sources paid to the claimant, and the court shall instruct the jury to deduct from its verdict the value of all benefits received by the claimant from any collateral source.\"}"

florida/11920323.json

@@ -0,0 +1 @@
+"{\"id\": \"11920323\", \"name\": \"Larry R. DAVIS, Appellant, v. Jeanette V. DAVIS, Appellee\", \"name_abbreviation\": \"Davis v. Davis\", \"decision_date\": \"1997-04-18\", \"docket_number\": \"No. 96-828\", \"first_page\": \"626\", \"last_page\": \"628\", \"citations\": \"691 So. 2d 626\", \"volume\": \"691\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T17:14:25.996651+00:00\", \"provenance\": \"CAP\", \"judges\": \"W. SHARP and GOSHORN, JJ\\u201e concur.\", \"parties\": \"Larry R. DAVIS, Appellant, v. Jeanette V. DAVIS, Appellee.\", \"head_matter\": \"Larry R. DAVIS, Appellant, v. Jeanette V. DAVIS, Appellee.\\nNo. 96-828.\\nDistrict Court of Appeal of Florida, Fifth District.\\nApril 18, 1997.\\nMichael K. Poe of Poe & Poe, P.A., Melbourne, for Appellant.\\nMaureen M. Matheson of Reinman & Wattwood, P.A., Melbourne, for Appellee.\", \"word_count\": \"1168\", \"char_count\": \"6954\", \"text\": \"PETERSON, Chief Judge.\\nLarry R. Davis appeals a court order requiring him to pay permanent periodic alimony based upon an imputation of income. The specific issue he raises is whether the trial court erred by imputing income to him as though he were gainfully employed when in fact he had been retired for over ten years.\\nLarry left school in the ninth grade, began a naval career as a teenager in 1957, and married Jeanette in 1961. Two daughters and a son were born of the marriage, all of whom were bom about a year apart. His duties often kept him from home, including a 13 month tour in Vietnam. In 1977 he retired and found a job as a tugboat master with the Panama Canal Company in 1978. He retired from that job in 1984. At the time of trial, Larry was 55, suffered from arthritis in his hands and knees, and appeared to have limited, if any, employment potential.\\nJeanette similarly has limited employment potential as she has never worked outside the home. Her health has not been good although her medical expenses have decreased and her past surgeries for cancer had been successful. Continuing periodic examinations are required to monitor for cancerous growths. She is concerned about future availability of health insurance once coverage terminates through Larry's sources.\\nThe trial court equitably distributed the parties' assets. Larry's combined military and civil service pensions were allocated at $1,077 per month to Jeanette and $1,428.42 to Larry. The marital domicile with a value of $155,000 was to be sold and the proceeds evenly split. The court further ordered Larry to pay permanent periodic alimony of $525 per month based upon an imputation of income of $1,200 per month.\\nIn awarding alimony, the court must consider the need for support of one spouse and the ability of the other to pay. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). The ability of a spouse to pay alimony must be based on present ability. It is improper for a court to look to past earnings or speculate on future earnings. Olds v. Olds, 555 So.2d 883 (Fla. 2d DCA 1990); Keman v. Keman, 495 So.2d 275 (Fla. 5th DCA 1986). A court, however, may impute income upon a showing that there is a capability to earn more by the use of more diligent efforts. Gildea v. Gildea, 593 So.2d 1212 (Fla. 2d DCA 1992); Brooks v. Brooks, 602 So.2d 630, 631 (Fla. 2d DCA 1992). Stated differently, the court may impute income only if the party has the ability to remedy the situation. Gildea; see also Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991) (court must consider recent work history, occupational qualifications, and prevailing wages when imputing income).\\nThe trial court's finding that Larry is \\\"voluntarily unemployed, but could earn $1,200.00 per month based on his skills, past work and investment talents,\\\" is unsupported by the evidence in the record. In fact, the record suggests otherwise. See Fusco v. Fusco, 616 So.2d 86 (Fla. 4th DCA 1993) (lack of competent substantial evidence in record to support imputing additional income requires deletion of permanent alimony based upon such imputed income). While it is true that Larry has been voluntarily unemployed since 1984, there is no evidence that he has any skills which will make him employable in today's market. One witness testified that tug masters still serving in Panama were older men in their fifties and late forties and that there had been no new hiring in Panama for some time due to a treaty signed with Panama. Regardless, it seems that Larry will no longer be able to work as a tug master due to his arthritis. In review, Larry has only a ninth grade education, the only trade he knows is that of tug boat mate or master, and he particularly testified he had no skills with which to compete in today's market. Jeanette failed to present any evidence to contradict Larry's assertion that he has limited skills. Rather, she admitted at trial that Larry's only skill is that of tug boat operator. As for the trial court's determination that income could be imputed to Larry based on his \\\"investment talents,\\\" the mere fact that Larry took money he received and gave it to an investment counselor to invest does not mean he has \\\"investment talents.\\\"\\nIn sum, there is insufficient evidence to support the trial court's finding that Larry could earn $1,200 per month. There is no evidence as to the anticipated source of the imputed income. Moreover, as to Jeanette's needs, the record evidence does not indicate that she is in need of alimony. Jeanette was awarded 43% of the retirement pension, amounting to $1,077.58 per month. She was also awarded about $78,000 cash based on the sale of the parties' marital home and limited partnership. Such awards are sufficient to sustain Jeanette in the \\\"modest standard of living\\\" to which the parties are accustomed.\\nFinally, it appears that both of the parties desire to continue their retirement and custom of living that they have both enjoyed for the last ten years of their marriage. Their standard of living was primarily financed by Larry's pension benefits and both seemed content with that. The portion of those benefits that are considered marital assets are now being divided between them as are the proceeds from the sale of the home and other investments. If either party desires to supplement such income, they certainly may do so as they are good candidates for training in minimum wage type jobs. In fact, the minimum wage was seized upon by the trial court to impute income to Larry. But there is no reason to eliminate Jeanette as a candidate for a minimum wage employee.\\nis concern, however, for the uncertain future medical requirements that Jeannette may encounter in view of her his-hisof cancer. The record reflects that she is unable to obtain medical insurance to re-rethe health care previously available to her as a spouse of a military veteran. Due to that uncertainty, although Jeanette does not have current burdensome medical expenses, and because this is a marriage of long dura-durawe believe that it is appropriate that we remand to the trial court for consideration of a nominal award of permanent periodic ali-alithat is capable of being modified should Jeanette's medical expenses become burdensome through no fault of her own. While medical insurance would be the desir-desirmethod of funding such expenses, Jean-Jeantestimony that insurance is unavailable remains unrefuted.\\nThe final judgment of dissolution is affirmed except for that portion requiring Larry to pay permanent periodic alimony based upon an imputation of income.\\nJUDGMENT AFFIRMED IN PART, REVERSED IN PART.\\nW. SHARP and GOSHORN, JJ\\\" concur.\"}"

florida/12187118.json

@@ -0,0 +1 @@
+"{\"id\": \"12187118\", \"name\": \"Diane C. SULLIVAN, Appellant, v. STATE of Florida, Appellee\", \"name_abbreviation\": \"Sullivan v. State\", \"decision_date\": \"2016-09-30\", \"docket_number\": \"No. 2D15-1397\", \"first_page\": \"1286\", \"last_page\": \"1286\", \"citations\": \"200 So. 3d 1286\", \"volume\": \"200\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T02:12:30.264301+00:00\", \"provenance\": \"CAP\", \"judges\": \"NORTHCUTT, CASANUEVA, and SALARIO, JJ., concur.\", \"parties\": \"Diane C. SULLIVAN, Appellant, v. STATE of Florida, Appellee.\", \"head_matter\": \"Diane C. SULLIVAN, Appellant, v. STATE of Florida, Appellee.\\nNo. 2D15-1397.\\nDistrict Court of Appeal of Florida, Second District.\\nSept. 30, 2016.\\nStephen M. Grogoza, Naples, for Appellant.\\nPamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.\", \"word_count\": \"186\", \"char_count\": \"1235\", \"text\": \"PER CURIAM.\\nWe have for our consideration an appeal from county court where a question of great public importance was certified, and we accepted jurisdiction pursuant to Florida Rule of Appellate Procedure 9.160(e)(2). The Collier County Court, pursuant to rule 9.030(b)(4), certified the following question to this court as involving a matter of great public importance:\\nWHETHER A SISTER STATE'S MOTOR VEHICLE RECORD, ADMITTED INTO EVIDENCE UNDER CHAPTER 90.902, FLORIDA STATUTES, IS SUFFICIENT TO ESTABLISH THE ELEMENT OF A PRIOR ADMINISTRATIVE SUSPENSION FOR A REFUSAL TO SUBMIT TO TESTING?\\nUpon further consideration of the parties' briefs and oral arguments, we decline to accept this appeal and do not answer the certified question. Accordingly, we transfer this appeal to the Twentieth Judicial Circuit of Florida, appellate division, pursuant to rule 9.160(f)(2).\\nNORTHCUTT, CASANUEVA, and SALARIO, JJ., concur.\"}"

florida/1234280.json

@@ -0,0 +1 @@
+"{\"id\": \"1234280\", \"name\": \"Independent Life and Accident Ins. Co. v. George Nixon\", \"name_abbreviation\": \"Independent Life & Accident Ins. v. Nixon\", \"decision_date\": \"1933-06-22\", \"docket_number\": \"\", \"first_page\": \"167\", \"last_page\": \"170\", \"citations\": \"111 Fla. 167\", \"volume\": \"111\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T17:33:20.070189+00:00\", \"provenance\": \"CAP\", \"judges\": \"Davis, C. J., and Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.\", \"parties\": \"Independent Life and Accident Ins. Co. v. George Nixon\", \"head_matter\": \"Independent Life and Accident Ins. Co. v. George Nixon\\n149 So. 16\\nOpinion Filed June 22, 1933.\\nLee Guest, for Plaintiff in Error;\\nA. C. Johnson, for Defendant in Error.\", \"word_count\": \"714\", \"char_count\": \"4057\", \"text\": \"Per Curiam.\\nThis was an action at law upon an insurance policy wherein the defendant filed a plea in abatement reading as follows:\\n\\\"The above named defendant, by its undersigned attorney, prays judgment of the writ and declaration herein, and that the same may be quashed, because it says that among the conditions' and privileges of the policy of insurance herein sued upon and attached to plaintiff's declaration, it is covenanted and agreed by and between plaintiff and the insured herein, Frank Green, that, 'No suit or action at law, or in equity, shall be maintainable to enforce the performance of this contract until sixty days shall have expired after filing in the principal office of the company (defendant herein) of the proof of death'; that plaintiff filed proof of the death of said! insured on the 25th day of May! A. D. 1931; that thereafter on the 16th day of July,' A. D. 1931, said plaintiff began this' suit at law on said policy by filing praecipe for summons ad respondendum, contrary to the provisions of said policy; and this the, defendant is ready to verify; wherefore defendant prays judgment of the said writ and declaration, and that the same may be quashed.\\\"\\nUpon motion of the plaintiff below the plea in abatement was' stricken, which ruling forms one of the assignments of error required,- to be considered on this appeal.\\nSection 4651 C. G. L., 2931 R. G. S., reads as follows:\\n\\\"All provisions and stipulations contained in any contract whatever entered into after May 26, 1913; fixing the period of time in which suits, may be instituted under any such contract, or upon any matter growing out of the: provisions of any such contract, at a period of time less than that provided by the statute of limitations of this State, are hereby declared to be contrary to the public policy of this State, and to be illegal and void. No court in this State shall give effect to any provision or stipulation of the character mentioned in this section. Ch. 6465, Acts' May 26, 1913, Secs. 1, 2.\\\"\\nThe record shows' that the motion to strike the plea above mentioned was granted by the Circuit Judge on the ground that the' restriction in the contract as to the time that suit might be brought thereon, which was made the basis of the plea in abatement, was clearly in violation of said Section 4651 C. G. L., supra.\\nThe conclusion of a majority of the Court is that the court erred in striking the plea in abatement and that while it might be true as suggested by the defendant in error, that the insurer had waived its rights to invoke the matters set up in the plea because it had denied liability under the policy, yet this is a matter which should be made to appear by appropriate replication.\\nSection 4651 C. G. L., 2931 R. G. S., has no reference to thos'e provisions of contracts which restrict the right to institute suit until after certain conditions precedent, such as filing proofs and the like, are complied with. In cases falling within the purview of such clauses in a contract no action is maintainable until after the conditions of the contract have been met or unles's it be alleged and proved that the condition has been waived. Such provision does not tend to shorten the statute of limitations because the statute of limitations does not begin to run until the right to maintain a suit has accrued. Therefore such a provision in a contract would not be violative of Section 4651 C. G. L., supra, which merely renders void all provisions and stipulations contained in any contract fixing the period of time in which suit may be instituted under such contract at a period of time less' than that provided by the statute of limitations of this State. See National Surety Co. v. Williams, 74 Fla. 446, 77 Sou. Rep. 212.\\nReversed and remanded for appropriate proceedings.\\nDavis, C. J., and Whitfield, Ellis, Terrell, Brown and Buford, J. J., concur.\"}"

florida/12349742.json

@@ -0,0 +1 @@
+"{\"id\": \"12349742\", \"name\": \"Dillon v. State\", \"name_abbreviation\": \"Dillon v. State\", \"decision_date\": \"2016-09-30\", \"docket_number\": \"2D15-2995\", \"first_page\": \"1036\", \"last_page\": \"1036\", \"citations\": \"211 So. 3d 1036\", \"volume\": \"211\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T01:41:37.046590+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dillon v. State\", \"head_matter\": \"Dillon v. State\\n2D15-2995\\n09/30/2016\", \"word_count\": \"9\", \"char_count\": \"57\", \"text\": \"Aff.\\nCir. Ct. (Lee)\"}"

florida/12354135.json

@@ -0,0 +1 @@
+"{\"id\": \"12354135\", \"name\": \"Junes v. State\", \"name_abbreviation\": \"Junes v. State\", \"decision_date\": \"2016-11-09\", \"docket_number\": \"3D16-2155\", \"first_page\": \"713\", \"last_page\": \"713\", \"citations\": \"208 So. 3d 713\", \"volume\": \"208\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T01:41:38.868434+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Junes v. State\", \"head_matter\": \"Junes v. State\\n3D16-2155\\n11/09/2016\", \"word_count\": \"9\", \"char_count\": \"63\", \"text\": \"Aff.\\nCir. Ct. (Miami-Dade)\"}"

florida/12374326.json

@@ -0,0 +1 @@
+"{\"id\": \"12374326\", \"name\": \"Russell v. State\", \"name_abbreviation\": \"Russell v. State\", \"decision_date\": \"2017-01-26\", \"docket_number\": \"1D16-3824\", \"first_page\": \"1211\", \"last_page\": \"1211\", \"citations\": \"222 So. 3d 1211\", \"volume\": \"222\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T21:21:52.144370+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Russell v. State\", \"head_matter\": \"Russell v. State\\n1D16-3824\\n01/26/2017\", \"word_count\": \"9\", \"char_count\": \"61\", \"text\": \"Aff.\\nCir. Ct. (Taylor)\"}"

florida/12376377.json

@@ -0,0 +1 @@
+"{\"id\": \"12376377\", \"name\": \"Angulo v. State\", \"name_abbreviation\": \"Angulo v. State\", \"decision_date\": \"2017-07-27\", \"docket_number\": \"4D16-3813\", \"first_page\": \"567\", \"last_page\": \"567\", \"citations\": \"228 So. 3d 567\", \"volume\": \"228\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T18:56:35.429380+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Angulo v. State\", \"head_matter\": \"Angulo v. State\\n4D16-3813\\n07/27/2017\", \"word_count\": \"10\", \"char_count\": \"64\", \"text\": \"Aff.\\nCir, Ct. (Palm Beach)\"}"

florida/1251729.json

@@ -0,0 +1 @@
+"{\"id\": \"1251729\", \"name\": \"The State of Florida ex rel., Daniel A. Finlayson, Relator, v. Ernest Amos, as Comptroller of the State of Florida, Respondent\", \"name_abbreviation\": \"State ex rel. Finlayson v. Amos\", \"decision_date\": \"1918-06-22\", \"docket_number\": \"\", \"first_page\": \"26\", \"last_page\": \"38\", \"citations\": \"76 Fla. 26\", \"volume\": \"76\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T00:02:21.293257+00:00\", \"provenance\": \"CAP\", \"judges\": \"Taylor and Ellis, J. J., concur.\", \"parties\": \"The State of Florida ex rel., Daniel A. Finlayson, Relator, v. Ernest Amos, as Comptroller of the State of Florida, Respondent.\", \"head_matter\": \"The State of Florida ex rel., Daniel A. Finlayson, Relator, v. Ernest Amos, as Comptroller of the State of Florida, Respondent.\\nOpinion filed June 22, 1918.\\nPetition for Rehearing denied August 8, 1918.\\n1. When the language of a Statute is capable of two constructions, the Courts may resort to the history of its passage through the Legislature, to ascertain the Legislative intent.\\n2. Where the Legislative Journals show that in the passage of an Act through the Legislature, language which gave to the Act the construction placed on it by the Comptroller, was stricken from the bill by amendment, and a clause substituted therefor that conflicts with the departmental construction, the Legislative intent as shown by its act in changing the language of the Act will be adopted by the Court.\\nA case of original jurisdiction;\\nPeremptory writ awarded.\\nJ. H. Slvmnwn and D. A. Finlayson, for Relator;\\nVan G. Swearingen, Attorney General, and G. O. Andrews, Assistant, for Respondent.\", \"word_count\": \"3827\", \"char_count\": \"22381\", \"text\": \"Browne, C. J.\\nThe petitioner .who is the owner of an automobile of 32 horse power with a seating capacity of one and not more than five persons, made application to the Comptroller under the provisions of Chapter 7275, Acts of the Legislature of 1917, to have his automobile registered in accordance with law.\\nHe sent five dollars with his application, but the Comptroller refused to register his car, or to assign him a number, or to furnish him with metal number plates so that he might operate his car upon the public highways of the State. An alternative writ of mandamus was issued, and in his return the Comptroller states that the registration fee for the petitioner's car is $12.00 and not $5.00, and demands $7.00 more from the petitioner before registering his car and otherwise complying with the law.\\nThe issue made by the pleadings, presents for determination by this Court the construction to be placed on Series B and C of Sec. 6 of the automobile license Act of 1917, that reads in part as follows:\\n\\\"The following fee shall be paid to the Comptroller upon the registration or re-registration of motor vehicles in accordance with the provisions of this' Act.\\nPASSENGEE VEHICLES.\\nSeries A \\u2014 Motorcycles.........................$ 2.00\\nSeries B \\u2014 For any automobile and other motor driven vehicle with a seating capacity of one and not more than five persons.. 5.00\\nSeries C \\u2014 -Automobiles of more than 25 h. p., and not more than 40 h. p................. 12.00\\nSeries D \\u2014 Automobiles of more than 40 h. p., and not more than 60 h. p................. 15.00\\nSeries E \\u2014 Automobiles of more than 60 h. p...... 30.00\\nAny type of automobile seating ten or more passengers...............................100.00\\\"\\nThe petitioner contends that as his automobile has a seating capacity of not mbre than five persohs, he should pay a fee of $5.00 as provided for in Series B.' The Comptroller holds that as the automobile is of more than 25 h. p. and not more than 40, he must pay a fee of $12.00.\\nIn construing a Statute it is the duty of the Court to give force and effect to every part of it to carry out the intent of the Legislature, if possible. Where the language is clear the intent is ascertained from the language of the Act itself, and it is the duty of the Court to give to the language used its plain and natural meaning, for the Legislature is presumed to mean what it has plainly expressed, and there is no field for construction. If the Act contains contradictory provisions the Courts will endeavor to so construe it as to give force and effect to the entire Act and harmonize it if possible, and failing in this, they seek light from other sources. Where the language is plain and unequivocal, the Courts must follow it implicitly, but where it is doubtful or. ambiguous, \\\"it is the duty of the Court to remove the doubt by deciding it; and when the Court has given its decision, the point can no longer be considered' doubtful.\\\" Lewis' Sutherland Statutory Construction, Sec. 363. They should not, however, adopt an arbitrary conclusion as to what was the intention of the Legislature, if there is any way in which that may be ascertained. Lewis' Sutherland on Statutory Construction, Section 363, says: - \\\"If a Statute is valid, it is to have effect according to the purpose and intent of the lawmaker. The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent. * A legislative intention to be efficient as law must be. set forth in a statute; it is therefore a written law. How the intention is to be ascertained is only answered by the principles and rules of exposition. If a Statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices; then interpretation is needless. And where the intention of a Statute has been ascertained by the application of the rules of interpretation, they have served their'purpose, for all such rules are intended to reach that intent. The sole authority of the Legislature to make laws is the foundation of the principle that courts of justice are bound to give effect to its intention. When that is plain and palpable they must follow it implicitly. The rules of construction with which the books abound apply only where the words used are of doubtful import; they are only so many lights to assist the Courts in arriving with more accuracy at the true interpretation of the situation.\\\"\\nIt is contended by the Comptroller that because Series O fixed the amount of the license to be paid for automobiles of more than 25 and not more than 40 h. p., Series B should' be construed as including only automobiles that have 25 h. p'. or less. On the other hand it is contended, that as all automobiles without regard to their h. p. with a seating capacity of one and not more than 'five persons, have been provided for in Series B, that Series C must be construed in connection with Series B, and that Series C. D and E were intended to apply only to automobiles of a seating capacity of more than five and less than ten persons. There seems to be more reason-for the latter construction than for the former, because Series B uses the most comprehensive and inclusive word \\\"any\\\" when creating a class that is to be governed solely by seating capacity. It makes an all-embracing class and includes in it \\\"any automobile\\\" of a seating capacity of one and not more than five persons, without regard' to horse power, weight,' speed, capacity of any other qual-' ity. Series'C, I) and \\u00c9 tlierefor\\u00e9 provide for other \\u00e1ut'\\u00f3 mobiles than those included in Series B, that have a seating capacity of more than five persons and not more than ten.\\nThe Act makes six classifications of motor driven passenger vehicles, and in two, \\u00abeating capacity is made the sole test of the amount of license tax to be paid. Neither of these classifications refers in any way to horse power.\\nIt was admitted by the Attorney General in the argument before this Court, that in deciding which class of automobiles should pay a license tax of $100.00, the Comptroller made seating capacity and not horse power the test. That an automobile of a seating capacity of ten or more passengers is required to. pay $100.00 license without regard' to its horse power, but that in determining which class of automobiles should pay only $5.00, the hors.e power was made the test. No reason is given for this- distinction, nor can it be justified under any construction of the law.\\nOwing to the conflicting provisions of the law under consideration, it would be difficult to- reach a perfectly satisfactory conclusion if we had no light to guide us except the language of the law itself. In such a dilemma we may seek for light in the history of the passage of the Act through the Legislature.\\nIn the case of McCluskey v. Cromwell, 11 N. Y. 593, the Court said: \\\"It is beyond question the duty of Courts in construing Statutes, to- give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But in the construction, both of Statutes and contracts, the intent of the framers and parties is to be sought first of all, in the words and' language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning.\\\" .\\nLewis' Sutherland on Statutory Construction, Section 470, says: \\\"The proceedings of the Legislature in reference to the passage of an Act may be taken into consideration in construing the Act. Thus the reports of committees made to the Legislature have been held to be proper sources of information in ascertaining the intent or meaning of the Act. Amendments made, or proposed and defeated, may also throw light on the construction of the Act as finally passed, and may properly be taken into consideration.\\\"\\nIn Edger v. Randolph County, 70 Ind. 331, the Court said: \\\"But it has never been held by this Court, that for the purpose of construction or interpretation, and with the view of ascertaining the legislative will and intention in the enactment of a law, the Courts may not properly resort to the journals of the two legislative bodies to learn therefrom the history of the law in question, from its first introduction as a bill until its final passage and approval. Where, as in this case, a Statute has been enacted', which is susceptible of several widely differing constructions, we know of no better means for ascertaining the will and intention of the Legislature, than that which is afforded, in this case, by the history of the Statute, as found in the journals of the two legislative bodies.\\\"\\nIf after the adoption of the amendment the Legislature through inadvertence failed to- change the provision of the Act which seemingly conflicted with the amendment, such failure in no wise destroyed the governing force of thei latest expression of the legislative will and intent, as evinced by the amendment, and where the law is capable of two constructions, that which is ip accord with the amendment must prevail.\\n\\\"It is easy to understand how in the hurry of legislation there may be a failure, in connection with the adoption of an amendment, carefully to eliminate provisions which are really intended to be superseded; but it would discredit the intelligence of the law-making power to indulge the supposition that in the adoption of an amendment, containing such a definite statement of what was intended as is found in the amendment in question, the General Assembly failed to appreciate the force of such words.\\\" Arnett v. State, 168 Ind. 180, 80 N. E. Rep. 153, 8 L. R. A. (N. S.) 1192.\\nIn State v. Burr, 16 N. D. 581, 113 N. W. Rep. 705, the Court said: \\\"As originally' introduced, the emergency clause was a part of the Act the same as it now appears in the Act. When the bill was under consideration upon its final passage in the Senate, the Act was amended by entirely striking out Section 4 as it was when introduced, and inserting in lieu thereof the Section 4 of the Act as it now appears. Section 5 of the Act as originally introduced was amended so as to read as Section 5 now does, and Section 5 of the original Act was made to read as Section 6 now does. As amended in these particulars, the bill passed the Senate, and, after once having failed to pass in the House, was reconszidered, passed unchanged, and sent back to the Senate. From the proceedings in the Senate when Section 4 was stricken out and a provision for the election of the first incumbent to the office at the next general election inserted, \\\"it becomes apparent that it was the will of the Senate- that: the office should be'filled by- election, \\u00e1nd not by appointment. This was a positive, unequivocal expression of wbat was the intent of the Senate on that question when that question alone was under consideration, and must govern notwithstanding seeming contradictory provisions that remained in the bill, undoubtedly through inadvertence. The force of this amendment of Section 4 shuts out all room for doubt as to whether the office was to be filled by election by the people, or by appointment, and forecloses any necessity of attempting to reconcile the inharmonious sections by giving to the words 'election' and 'chosen' synonymous meaning. The controlling effect of sections adopted as parts of laws by amendment has often been recognized and given full effect in cases where the amendment did not signify a specific intent in so prounounced a manner as the one under consideration.\\\"\\nThe case of Small v. Small, 129 Pa. St. 366, 18 Atl. Rep. 497; was an action in assumpsit brought by a wife against her husband. It was contended tha\\u00ae a right of action was given her by a Statute which provided that \\\"husband and wife shall have the same civil remedies upon contracts in their own name and right, against all persons, for the protection and recovery of their separate property, as unmarried persons.\\\" The Court in deciding upon the effect of this provision of the law said: \\\"This language is general and unlimited. It makes no exception of actions against each other, and, taken by itself, its natural meaning is perhaps, broad enough to include them without straining.\\\" There were, however, other provisions seemingly contradictory to this construction, and the Court had recourse to the legislative journals to ascertain what was the legislative intent, and found that the Act was originally introduced contained after the words \\\"against all persons\\\" the words \\\"including each*' other.\\\" The words \\\"including each other\\\" were stricken out on amendment, and the section passed without them. This the Court said \\\"confirmed almost to a demonstration\\\" that the Legislature did not intend for husband and wife to sue each other.\\nIn the case of Barnard v. Gall, 43 La. Ann. 959, 10 South. Rep. 5, the Court had two license Acts under consideration. The one of 1886 contained \\\"saw mills\\\" among other occupations on which license taxes were imposed. In 1890 another license Act was passed, and the section providing for license taxes was identical with the provision of the Act of 1886, except that \\\"saw mills\\\" were omitted in the last Act. It was contended that because the Act of 1886 had not been repealed^ its provisions were in force, and saw mills subject to a license. From reading the two Acts this contention seemed plausible. But the Court said: \\\"We are also referred to the official journal of the House of Representatives showing that the Act of 1890 originally presented contained the word 'saw mills' and that an express amendment to strike it out was offered.and adopted. This amendment established very clearly the legislative intent to exclude the business of saw mills from license taxation.\\\"\\nThe Act under consideration was originally introduced as Senate Bill No. 262. As it passed the Senate and went to the House, Series B read, \\\"automobiles of not more than 25 h. p. $7.00.\\\" In the House an amendment was adopted to strike out the words \\\"automobiles of not more than 25 h. p. $7.00,\\\" and insert in lieu thereof' the following: \\\"For any automobile and other motor driven vehicle with a seating capacity of one and not more than five persons $5.00.\\\" There were several other amendments adopted by the House, and when the bill was reported back to the Senate that body refused to concur in any of them. A committee of conference was Then appointed, which recommended that the House recede from some of its amendments and that th\\u00e9 Senate concur in others. Among- those that the Senate concurred in was the one that changed the basis for fixing the amount of a license to be paid on automobiles in Series B from \\\"Horse power\\\" to \\\"Seating capacity.\\\"\\nIt was through no inadvertence that the Legislature did this, because the amendment was first considered' and adopted in the House, next considered and rejected in the Senate, then considered by a conference committee composed, of members from both houses, and thereafter adopted by the Senate upon recommendation of the conference committee.\\nThe ruling- of the Comptroller nullifies the amendment and restores to the bill that part of it which the Legislature rejected' after most thorough consideration. If the amendment had not been adopted, the Comptroller's interpretation would be correct, but he ignores the amendment, and interprets the law as if it had passed as originally introduced in the Senate. There is no authority for a department of the government charged with the execution of a law, to restore a provision which the Legislature strikes from the Act when in progress of its passage. Whatever the Legislature does within its constitutional authority, no other department of the government may change, modify, alter or amend.\\nIt seems quite clear to us that when the Legislature struck from the Act under consideration as originally introduced, language identical with the construction now placed upon Series B by the Comptroller, the Legislature in 'the clearest and most positive manner showed its disapproval of his construction, and this Court must enforce the clearly expressed legislative will.\\nWfe, therefore, find that Series B of Chapter 727\\\">, Acts of 1917, provides for a license tax of only five dollars on any automobiles or other motor driven vehicles with a seating capacity of one and not more than live passengers, without regard to horse power.\\nThe peremptory writ is awarded.\\nTaylor and Ellis, J. J., concur.\\nWhitfield and West, J. J., dissent.\"}"

florida/12670011.json

@@ -0,0 +1 @@
+"{\"id\": \"12670011\", \"name\": \"George Alexander HILL, Sr., Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).\", \"name_abbreviation\": \"Hill v. State\", \"decision_date\": \"2018-03-13\", \"docket_number\": \"CASE NO.: 2D18\\u20130156\", \"first_page\": \"252\", \"last_page\": \"252\", \"citations\": \"244 So. 3d 252\", \"volume\": \"244\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"District Court of Appeal of Florida, Second District\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-27T21:06:30.258493+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"George Alexander HILL, Sr., Appellant/Petitioner(s),\\nv.\\nSTATE of Florida, Appellee/Respondent(s).\", \"head_matter\": \"George Alexander HILL, Sr., Appellant/Petitioner(s),\\nv.\\nSTATE of Florida, Appellee/Respondent(s).\\nCASE NO.: 2D18-0156\\nDistrict Court of Appeal of Florida, Second District.\\nMarch 13, 2018\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"31\", \"char_count\": \"230\", \"text\": \"Denied.\"}"

florida/12672040.json

@@ -0,0 +1 @@
+"{\"id\": \"12672040\", \"name\": \"Barbara A. JONES, Appellant/Petitioner(s), v. U.S. BANK NATIONAL ASSN., Appellee/Respondent(s).\", \"name_abbreviation\": \"Jones v. U.S. Bank Nat'l Assn\", \"decision_date\": \"2017-07-26\", \"docket_number\": \"CASE NO.: 2D17\\u20131242\", \"first_page\": \"289\", \"last_page\": \"289\", \"citations\": \"246 So. 3d 289\", \"volume\": \"246\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"District Court of Appeal of Florida, Second District\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-27T21:06:30.343864+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Barbara A. JONES, Appellant/Petitioner(s),\\nv.\\nU.S. BANK NATIONAL ASSN., Appellee/Respondent(s).\", \"head_matter\": \"Barbara A. JONES, Appellant/Petitioner(s),\\nv.\\nU.S. BANK NATIONAL ASSN., Appellee/Respondent(s).\\nCASE NO.: 2D17-1242\\nDistrict Court of Appeal of Florida, Second District.\\nJuly 26, 2017\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"31\", \"char_count\": \"230\", \"text\": \"Dismissed.\"}"

florida/12672124.json

@@ -0,0 +1 @@
+"{\"id\": \"12672124\", \"name\": \"The ARBA GROUP, INC.; Ira Smedra; and Jacob Wintner, Appellants, v. Loretta A. SLAWTER, as personal representative of the Estate of Mary P. Luty; Joseph J. Cinquemano, a/k/a Giuseppo J. Cinquemano, as personal representative of the Estate of Catherine Cinquemano; Jo Ellen Peters, as executrix of the Estate of Robert D. Martin; Barri Ferguson, as administratrix of the Estate of Tyrell Ferguson; Earl Dewayne Duvall, as administrator of the Estate of Myrtle Duvall; David King, as executor, and Gladys Blankenship, as executrix of the Estate of Wilburn King; Sherry Brackett, as executrix of the Estate of Helen May Newport; Pamela Minton, as administratrix of the Estate of Doris Dukes; Lisa Shaheen, by and through Michael Shaeen, power of attorney; Dorothy L. Holland; and Stella Rowe, by and through Harlen Rowe, guardian, Appellees.\", \"name_abbreviation\": \"Arba Grp., Inc. v. Slawter\", \"decision_date\": \"2017-11-17\", \"docket_number\": \"Case No. 2D17\\u20132264\", \"first_page\": \"311\", \"last_page\": \"311\", \"citations\": \"246 So. 3d 311\", \"volume\": \"246\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"District Court of Appeal of Florida, Second District\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-27T21:06:30.343864+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"The ARBA GROUP, INC.; Ira Smedra; and Jacob Wintner, Appellants,\\nv.\\nLoretta A. SLAWTER, as personal representative of the Estate of Mary P. Luty; Joseph J. Cinquemano, a/k/a Giuseppo J. Cinquemano, as personal representative of the Estate of Catherine Cinquemano; Jo Ellen Peters, as executrix of the Estate of Robert D. Martin; Barri Ferguson, as administratrix of the Estate of Tyrell Ferguson; Earl Dewayne Duvall, as administrator of the Estate of Myrtle Duvall; David King, as executor, and Gladys Blankenship, as executrix of the Estate of Wilburn King; Sherry Brackett, as executrix of the Estate of Helen May Newport; Pamela Minton, as administratrix of the Estate of Doris Dukes; Lisa Shaheen, by and through Michael Shaeen, power of attorney; Dorothy L. Holland; and Stella Rowe, by and through Harlen Rowe, guardian, Appellees.\", \"head_matter\": \"The ARBA GROUP, INC.; Ira Smedra; and Jacob Wintner, Appellants,\\nv.\\nLoretta A. SLAWTER, as personal representative of the Estate of Mary P. Luty; Joseph J. Cinquemano, a/k/a Giuseppo J. Cinquemano, as personal representative of the Estate of Catherine Cinquemano; Jo Ellen Peters, as executrix of the Estate of Robert D. Martin; Barri Ferguson, as administratrix of the Estate of Tyrell Ferguson; Earl Dewayne Duvall, as administrator of the Estate of Myrtle Duvall; David King, as executor, and Gladys Blankenship, as executrix of the Estate of Wilburn King; Sherry Brackett, as executrix of the Estate of Helen May Newport; Pamela Minton, as administratrix of the Estate of Doris Dukes; Lisa Shaheen, by and through Michael Shaeen, power of attorney; Dorothy L. Holland; and Stella Rowe, by and through Harlen Rowe, guardian, Appellees.\\nCase No. 2D17-2264\\nDistrict Court of Appeal of Florida, Second District.\\nOpinion filed November 17, 2017\\nKevin D. Franz of Boyd & Jenerette, P.A., Coconut Creek, for Appellants.\\nJoanna Greber Dettloff, Megan L. Gisclar, and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, for Appellees.\", \"word_count\": \"187\", \"char_count\": \"1203\", \"text\": \"PER CURIAM.\\nAffirmed.\\nLaROSE, C.J., and VILLANTI and CRENSHAW, JJ., Concur.\"}"

florida/12676186.json

@@ -0,0 +1 @@
+"{\"id\": \"12676186\", \"name\": \"Leah SIMMS, Terri Leigh Jones, Tonya Sue Chavis, and Leslie Anderson-Adams, Appellants, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION and Jonathan Zachem, Secretary, in his official capacity, and Department of Management Services, and DMS Secretary, Erin Rock, in her official capacity, Appellees.\", \"name_abbreviation\": \"Simms v. State\", \"decision_date\": \"2018-07-27\", \"docket_number\": \"No. 1D17-3974\", \"first_page\": \"77\", \"last_page\": \"77\", \"citations\": \"251 So. 3d 77\", \"volume\": \"251\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"District Court of Appeal of Florida, First District\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-27T21:06:33.204725+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Leah SIMMS, Terri Leigh Jones, Tonya Sue Chavis, and Leslie Anderson-Adams, Appellants,\\nv.\\nSTATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION and Jonathan Zachem, Secretary, in his official capacity, and Department of Management Services, and DMS Secretary, Erin Rock, in her official capacity, Appellees.\", \"head_matter\": \"Leah SIMMS, Terri Leigh Jones, Tonya Sue Chavis, and Leslie Anderson-Adams, Appellants,\\nv.\\nSTATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION and Jonathan Zachem, Secretary, in his official capacity, and Department of Management Services, and DMS Secretary, Erin Rock, in her official capacity, Appellees.\\nNo. 1D17-3974\\nDistrict Court of Appeal of Florida, First District.\\nJuly 27, 2018\\nRehearing Denied August 22, 2018\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"68\", \"char_count\": \"483\", \"text\": \"Affirmed.\"}"

florida/12695224.json

@@ -0,0 +1 @@
+"{\"id\": \"12695224\", \"name\": \"Jakeilah WEEKS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).\", \"name_abbreviation\": \"Weeks v. State\", \"decision_date\": \"2019-05-22\", \"docket_number\": \"CASE NO.: 2D19-1682\", \"first_page\": \"348\", \"last_page\": \"348\", \"citations\": \"274 So. 3d 348\", \"volume\": \"274\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"District Court of Appeal of Florida, Second District\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-27T21:07:32.693112+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Jakeilah WEEKS, Appellant/Petitioner(s),\\nv.\\nSTATE of Florida, Appellee/Respondent(s).\", \"head_matter\": \"Jakeilah WEEKS, Appellant/Petitioner(s),\\nv.\\nSTATE of Florida, Appellee/Respondent(s).\\nCASE NO.: 2D19-1682\\nDistrict Court of Appeal of Florida, Second District.\\nMay 22, 2019\\nDECISION WITHOUT PUBLISHED OPINION\", \"word_count\": \"31\", \"char_count\": \"228\", \"text\": \"Mandamus is denied.\"}"

florida/1272731.json

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+"{\"id\": \"1272731\", \"name\": \"Ernest Meres, Appellant, v. Christos Giallurakis and Cosmos Giallurakis, Partners as Giallurakis Brothers, et al., Appellees\", \"name_abbreviation\": \"Meres v. Giallurakis\", \"decision_date\": \"1926-07-27\", \"docket_number\": \"\", \"first_page\": \"400\", \"last_page\": \"401\", \"citations\": \"92 Fla. 400\", \"volume\": \"92\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:48:25.189600+00:00\", \"provenance\": \"CAP\", \"judges\": \"Whitfield, P. J., and Terrell and Buford, J. J., concur;\", \"parties\": \"Ernest Meres, Appellant, v. Christos Giallurakis and Cosmos Giallurakis, Partners as Giallurakis Brothers, et al., Appellees.\", \"head_matter\": \"Ernest Meres, Appellant, v. Christos Giallurakis and Cosmos Giallurakis, Partners as Giallurakis Brothers, et al., Appellees.\\nDivision B.\\nOpinion Filed July 27, 1926.\\nMcKay, Withers & Ramsey, for Appellant;\\nW. K. Zewadski and W. K. Zewadski, for Appellees.\", \"word_count\": \"235\", \"char_count\": \"1368\", \"text\": \"Per Curiam.\\nThis cause having heretofore been submitted to the Court upon the transcript of the record of the order herein, and briefs and argument of counsel for the respective parties, and the record having 'been seen and inspected, and the Court being now advised of its judgment to be given in the premises, it seems to the Court that there is not sufficient cause shown by the pleadings to warrant the provision contained in said order that the defendant Ernest Meres deposit with the Clerk of the Court, in addition to the sum of Eight Thousand Dollars, the interest at 8% on said sum from January 7, 1924; it is, therefore, considered, ordered and adjudged by the Court that said order of the Circuit Court requiring the deposit of the interest aforesaid be and the same is hereby reversed. The item of interest may be disposed of on final hearing. That the order in all other respects be affirmed and that the costs of this appeal be taxed against the appellant.\\nReversed in part.\\nWhitfield, P. J., and Terrell and Buford, J. J., concur;\\nBrown, C. J., and Ellis and Strum, J. J., concur in the opinion.\"}"

florida/1275880.json

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+"{\"id\": \"1275880\", \"name\": \"D. S. Lovett and H. W. Lovett, Appellants, v. C. C. Lovett, Mrs. H. B. Neel, Mrs. Eunice Burnett, Mrs. Julia Bragdon, Mamie Lovett Fletcher, Ben Charles Allen, George Allen and Mrs. Susie Lovett, Appellees\", \"name_abbreviation\": \"Lovett v. Lovett\", \"decision_date\": \"1927-03-29\", \"docket_number\": \"\", \"first_page\": \"611\", \"last_page\": \"656\", \"citations\": \"93 Fla. 611\", \"volume\": \"93\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:26:35.060810+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"D. S. Lovett and H. W. Lovett, Appellants, v. C. C. Lovett, Mrs. H. B. Neel, Mrs. Eunice Burnett, Mrs. Julia Bragdon, Mamie Lovett Fletcher, Ben Charles Allen, George Allen and Mrs. Susie Lovett, Appellees.\", \"head_matter\": \"D. S. Lovett and H. W. Lovett, Appellants, v. C. C. Lovett, Mrs. H. B. Neel, Mrs. Eunice Burnett, Mrs. Julia Bragdon, Mamie Lovett Fletcher, Ben Charles Allen, George Allen and Mrs. Susie Lovett, Appellees.\\nEn Banc.\\nOpinion Filed March 29, 1927.\\nPetition for Rehearing Denied May 11,1927.\\nDavis and Pepper, for Appellants;\\nJohn F. Harrell, for Appellees.\", \"word_count\": \"12577\", \"char_count\": \"71791\", \"text\": \"Statement.\\nBrown, J.\\nThis ease is before us on appeal from the final decree and several interlocutory decrees in a proceeding for partition brought in the Circuit Court for Madison County.\\nOn the 18th day of May, 1918, H. Lovett, a citizen and resident of Madison County, Florida, died seized of certain lands, the description of which appears in the bill of complaint. At the time of his death, H. Lovett was also seized of an undivided two-thirds (2/3) interest in certain other lands, which were the property of a partnership consisting of H. Lovett and his son, D. S. Lovett. The lands so held are described in the separate answer of George Allen, to the bill of complaint. Upon his death, H. Lovett -left surviving him, his widow, Mrs. Susie Lovett, and six (6) children, viz.: D. S. Lovett, H. W. Lovett, C. C. Lovett, Mrs. H. B. Neel, Mrs. Eunice Burnett and Mrs. Julia Bragdon. Other heirs of the said H. Lovett were Mamie Lovett Fletcher and Ben Charles Allen, minor children of Mamie Lovett, who was the child of H. Lovett and George Allen, the surviving husband of Mamie Lovett. After the death of Ii. Lovett, and before the proceedings began in this cause, Mrs. Susie Lovett, the widow, elected to take a child's part in the estate of H. Lovett, deceased. This having been set aside for her in a manner agreeable to all parties concerned, was later sold by her to the heirs of H. Lovett, each purchasing an interest in her estate in the same proportion as was his or her interest in the estate of H. Lovett, deceased. The lands embraced in the bill of complaint and the answer, as aforesaid, were all of the lands owned by the said H. Lovett upon his death.\\nOn the 10th day of July, 1922, D. S. Lovett, H. W. Lovett, C. C. Lovett, Mrs. Julia Bragdon, Mrs. Ii. B. Neel and Mrs. Eunice Burnett, the surviving children of H. Lovett, deceased, exhibited their bill in Chancery in the Circuit Court of the Third Judicial Circuit of Florida, in and for Madison County, wherein certain of the lands of which EL Lovett was seized at his death lay, against Mamie Lovett Fletcher, Ben Charles and George Allen and Mrs. Susie Lovett, for a partition of a part of the lands of which El. Lovett was seized at his death. No reason appears in the said bill of complaint why the prayer for partition was confined to a part' only of the lands constituting the estate of El. Lovett. Notice of lis pendens covering the lands described in the bill of complaint was filed on the 13th day of July, 1922, and an order of publication was directed to the defendants in the partition proceedings, which defendants were nonresidents of the State of Florida.\\nOn the 11th of July, 1923, a decree pro confesso was entered against Mrs. Susie Lovett; on November 1, 1922, G. W. Tedder, of Madison County, Florida, was appointed guardian ad litem for the minor defendants, Mamie Lov ett Fletcher and Ben Charles Allen. On November 7,1922, G. W. Tedder, as guardian ad litem for the said minors, filed his answer, in which he neither confessed nor denied the allegations of the bill, but prayed strict proof of each and every'allegation contained in the bill of complaint. On the 2nd day of October, 1922, the separate answer of George Allen was filed. This answer begins on page 18 of the Transcript of Becord. The answer admitted the death of H. Lovett at the time named in the bill, and that he died seized of the lands which the bill of complaint described. It averred further, however, that H. Lovett, at the time of his death, was seized of an undivided two-thirds (2/3) interest in certain other lands in Madison County, Florida, which the parties complainant and defendant likewise owned as co-tenants. The answer further described these lands and prayed that they, too, might be partitioned by the Court along with the lands described in the bill of complaint. The answer did not contain any prayer for process against any of the parties. None of the defendants except George Allen was a party to this pleading, and the style of the caption was identical with that of the bill of complaint. No exceptions were filed to such answer. Application was made on the 13th day of February, 1923, by the solicitors for the complainants for an examiner to be appointed to take the testimony in the cause. And on the same day, an examiner was appointed by M. F. Horne, Judge of the Court wherein the cause was pending. Without further pleading of any sort, the testimony was taken before the examiner, the hearing being completed December 4th, 1923.\\nOn the 14th day of February, 1924, the Court made an order decreeing the interests of the parties in the land involved in the said cause, except as to defendant Susie Lovett, whose interest was decreed to have been vested in the other parties, and that it should be partitioned, and appointing commissioners to make such partition. This order and decree considered the lands described in the bill and those described in the answer of George Allen as one unit, and decreed the interest of the parties to the cause upon the basis that all of the said lands constituted a unit. The three commissioners appointed by the said order went upon the lands involved therein, viewed them, and on the 3rd day of April, 1924, reported to the Court that the said lands could not be partitioned without manifest prejudice to the parties in interest. The lands described in the bill and in the separate answer of George Allen were considered as one unit by the commissioners making the investigation and report. On April 8th, 1924, the complainants filed exceptions to the report of the commissioners. After argument upon the exceptions filed in the cause, the Court, on the 8th day of May, 1924, referred the matter of partition back to the commissioners already appointed for the purpose of partition.\\nOn August 25th, 1924, two of the commissioners appointed to make a partition in the order of February 14th, 1924, viz.: J. Q. Leslie and W. B. Mays, reported to the Court that the lands decreed by the Court in the order of February 14th, 1924, to be partitioned, that is to say, the lands described in the bill of complaint' and the separate answer of George Allen, had been viewed and had been partitioned as directed by the decree of the Court. Thereafter, on the 26th day of August, 1924, W. P. Thompson, one of the commissioners appointed by the Court in its decree of February 14th, filed his separate report, in which he stated that he had formerly joined in the majority report, but had struck his name from the said report, upon having changed his opinion of the value of the land under partition, by a further visit to the said land. He reported fur ther that the said land, in his opinion, could not be partitioned without manifest prejudice to the parties in interest. On the 30th of August, 1924, George Allen filed exceptions to the report of the majority commissioners, W. B. Mays and J. Q. Leslie. These exceptions of George Allen came before the Court for hearing on the 13th day of June, 1925, whereupon the Court sustained the exceptions, discharging the commissioners appointed in the order of Feburary 14, 1924, and appointing new commissioners to make a partition of the lands involved, viz.: the lands described in the bill of complaint and in the separate answer of George Allen. One of these commissioners was discharged on account of his inability to serve and in his stead another commissioner was appointed. Thereafter, on the 16th day of September\\u00bb 1925, these commissioners reported -to the Court that the lands described in the decree of the Court of February 14th, 1924, could not be partitioned without great prejudice to the owners thereof. This report was, on September 30th, 1925, confirmed by the Court and in addition, the Court, by its decree of that date, ordered that the lands described in the decree of February 14,1924, should be sold at public sale to the highest bidder. This decree described the lands involved, in which description the lands set out in the bill of complaint were described as Tract One and those included in the separate answer of George Allen designated as Tract Two.\\nThe commissioners on the 2nd day of November, 1925, reported to the Court that in accordance with the decree of the Court dated September 30th, 1925, they had sold the lands ordered in said decree to be sold, at public auction on the 2nd day of November, 1925. The commissioners reported further than Tract One of the said lands was sold to Mrs. Julia Bragdon, Mrs. Eunice Burnett, C. C. Lovett and Mrs. PI. B. Neel, and that Tract Two of the said land was sold to D. S. Lovett.\\n\\\"On the 16th day of November, 1925, the day named by solicitors for complainant upon which they would apply to the Court for a confirmation of the report of sale submitted by the commissioners, H. W. Lovett and D. S. Lovett presented to the Court exceptions to the said commissioners ' report. Upon the hearing of said exceptions, the Court announced that it would confirm the report of the commissioners; whereupon, the objector, H. W. Lovett, ore tenus, moved the Court for an amendment of the report of the said commissioners, permitting the substitution of the name of D. S. Lovett as purchaser of Tract One of the lands involved, in the place of C. C. Lovett, Mrs. Julia Bragdon, Mrs. Eunice Burnett and Mrs. PI. B. Neel* upon the said D. S. Lovett paying the sum of Fifty-five Thousand Five Hundred Dollars ($55,500.00), instead of Fifty-one Thousand Six Hundred Dollars ($51,600.00) named in the report of the commissioners as the sale price of the said lands. The Court, thereupon, granted the said motion and allowed ten (10) days for compliance with the same motion, on the consideration that the objector, D. S. Lovett, pay into the registry of the Court the sum of One Thousand Dollars ($1,000.00) to be devoted to the payment of the costs in the said cause. The cause came on again for hearing before the Court on the 25th day of November, 1925, and the objector not being ready to pay the sum of Fifty-five Thousand Five Hundred Dollars ($55,500.00), as aforesaid, the Court made an order purporting to confirm the report of the sale made by the commissioners appointed for that purpose. This decree of the 25th day of November, 1925, is the only decree of the Court confirming a sale of the lands involved in this cause, and this decree makes-no reference to the report of the commissioners concerning the lands involved in Tract Two of the said lands, to D. S. Lovett. On the said 25th day of November, 1925, the Court made a further decree fixing the attorney's fees in the said cause and directing the commissioners to execute proper deeds of conveyance, and to pay the purchase money from the aforesaid sale into the registry of the Court, to be divided according to the interests of the parties involved.\\nOn February 27th, 1926, D. S. Lovett and H. W. Lovett filed a notice of appeal, which appeal was from the decree of the Court of February 14th, 1924, determining the interest of the parties before the Court in the lands considered in said decree, and appointing commissioners to make a partition of the said lands; from the decree of the Court of June 13th, 1925, sustaining the exceptions of George Allen, to the report of the majority of the commissioners appointed to make a partition of the lands described in the decree of February 14th, 1924; from the decree of the Court of September 20th, 1925, confirming the report of the commissioners that the lands considered could not be partitioned, and directing that all of the lands described in the decree of February 14th, 1924, should be sold at public sale; from the decree of November 16, 1925, requiring D. S. Lovett to pay into the registry of the Court One Thousand Dollars ($1,000.00) to be devoted to the payment of the costs of the original cause as a consideration upon which the report of sale submitted by the commissioners should not be confirmed ; from the decree of November 25th, 1925, confirming the report of the commissioners that the lands described in the original bill of complaint and the separate answer of George Allen were sold at public sale on November 2nd, 1925; and from the decree of November 25th, 1925, fixing the attorney's fees in the cause and requiring D. S. Lovett to pay more than his proportionate share of the costs of the said cause. This appeal was prosecuted in the name of all of the complainants as described in the bill of complaint, but was in fact instituted by D. S. Lovett and H. \\\"W. Lovett.\\nOn the said 27th day of February, 1926, the appellants filed an assignment of errors and application for a transcript of record, together with written directions to the clerk for making up the said transcript of record.\\nOn or about the 5th of March, of this year, the appellants, H. W. Lovett and D. S. Lovett, applied to this Court for an order of severance, allowing the said H. W. Lovett and D. S. Lovett to prosecute this appeal without the same being joined in by C. C. Lovett, Mrs. H. B. Neel, Mrs. Eunice Burnett and Mrs. Julia Bragdon, who are named as complainants in the bill of complaint, and praying for process to issue from this Court directed to the said parties and requiring them to show cause on the return day of the appeal why the said motion should not be granted. Such process issued from the Court on the 10th day of March of this year, and was duly served upon the parties, and an order of severance was subsequ\\u00e9ntly granted by this Court as prayed for.\\nThe appellants have assigned as error each of the orders and decrees of the Court below mentioned in the notice of appeal above referred to. The only briefs that have been filed in.this Court were filed in behalf of appellants, H. W. and D. S. Lovett, in support of their assignments of error; and, in opposition thereto, by two of their co-complainants in the Court below against whom severance was granted, C. C. Lovett and Mrs. Eunice Burnett, who argue for an affirmance.\\nBrown, J., after stating facts:\\nIt is contended by the appellants that the decree of the lower Court taking jurisdiction of the land not included in the bill of complaint, but only before the Court, if at all, upon the separate answer of George Allen, and decreeing the partition of all of said lands as a unit, and all the subsequent orders and decrees appealed from were fundamentally erroneous, and without jurisdiction and void. The proposition underlying this contention is that the tract of land described in the answer, not being legally brought before the Court, and being by it included as a portion of the entire tract decreed to be partitioned, rendered the proceedings void as to both tracts, among others, for the reason that if the tract in the answer had not been included by the Court in its decree, the commissioners might have reported that the tract described in the bill could be fairly and equitably partitioned without a sale, and that this fundamental error likewise affected the interest of each of the parties in the proceeds of the sale.\\nBut it is contended by appellees that the several orders and decrees of the court below which are complained of here by the appellants, who were complainants in the court below, were made either at the instance of and for the benefit of the appellants, or with their tacit consent and without objections or exceptions by them, and that appellants are therefore not in a position to complain or assign error thereon. It is particularly pointed out that appellants took no exception in the court below to the said answer of George AY. Allen and that it was upon the motion of all the complainants, including these two appellants, that an examiner was appointed to take testimony after this answer was filed; and that the commissioners appointed by the Court included in their report all the lands, those described in the answer as well as in the bill, which the Court had decreed to be partitioned, and that it was on appellants ' motion that this report was confirmed and the property ordered sold at public auction, as shown by the recital in the Court's decree on page 143 of the transcript.\\nAppellees cite the case of Farrell v. Frost Investment Company, 73 Fla. 191, 74 So. 217. In that case it was held, that where a Court of equity hears and determines a controversy of such character that jurisdiction may be given by consent, when the parties, without objection or question as to the mode of procedure, go on to a hearing, neither should be heard to complain afterwards as to the Court's jurisdiction. It was consented before this Court in that case that the bill was so mulitifarious as to show that the Court was without jurisdiction, but this contention was held untenable by this Court. In the opinion, Mr. Justice Ellis, speaking for the Court, also held that appellant was not in a position to raise the question, and said: \\\"If the Court was not wholly incompetent to grant the relief sought in the bill, the method pursued to question the form of the bill, or the Court's jurisdiction, we think, would not avail. No question was raised until after the testimony was taken (if then) as to whether the Court had jurisdiction to entertain a bill for partition, to establish a resulting trust, and for an accounting. There are subjects which a Court of equity has no power to hear and determine, even by consent of parties, but if the subject-matter be of such character that jurisdiction may be conferred by consent, the defendant will not be heard to complain if he makes no objection to a hearing, but participates in it. In this case a Master was appointed, much testimony was taken and a decree rendered upon the merits against the defendant who then makes objection here to the Court's jurisdiction. ' '\\nIt was further held in that case that in considering the question of multifariousness, the matter particularly involved is convenience in the administration of justice, and if this can be accomplished by the mode of procedure adopted, an objection for multifariousness should not be allowed. The Court obviously had jurisdiction of the subject'matter and of the parties in that ease, and in holding that a party-defendant could not wait until the hearing before raising the question of the expendiency of including all of the related matters in the single litigation, this Court announced a sound principle of law. See also Decottes et al. v. Clarkson, 43 Fla. 1, 29 So. 442; Rivas v. Summers, 33 Fla. 539, 15 So. 319; Jones v. Fox, 23 Fla. 454, 2 So. 700.\\nIt is contended, however, by appellants that the above cases are not in point in the instant case, but that there was here a jurisdictional defect which could not be waived \\u2014 \\u2022 that is, a defect going to the subject matter of the cause.\\nThere is some confusion in the use of this term ' ' subject matter\\\" in some of the eases dealing with the question of jurisdiction. Sometimes it is applied with reference to the power of the Court to deal with the class of cases to which the particular case belongs, and sometimes it is applied to the res within the Court's control or under its jurisdiction, or to the rights \\u2014 that is the question of personal or property rights, the controversy \\u2014 before the Court in the particular case. The rule that judisdietion of the subject matter in the general abstract sense \\u2014 the power of the Court to adjudicate the class of cases to which the particular case belongs \\u2014cannot be conferred by Hie acquiescence or consent of the parties is so universally recognized as to require no citation of authority. The kind of jurisdiction referred to by this rule is the power conferred on the Court by the sovereign\\u2014 which means with us the Constitution or statute, or both\\u2014 to take cognizance of the subject matter of a litigation and the parties brought before it, and to hear and determine the issues and render judgment upon the issues joined. Brown on Jurisdiction, Sec. 2, 2nd Ed.; 35 C. J. 426; 16 C. J. 723, 734. \\\"The power to hear and determine a cause is jurisdiction; it is coram judice whenever a case is presented which brings this power into action. ' ' United States v. Arrodondo, 6 Peters 709. ' \\\"Jurisdiction of the subject matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power.\\\" Foltz v. St. Louis, etc. R. Co., 60 Fed. 316, 8 C. C. A. 635. But before this potential jurisdiction of the subject matter \\u2014 this power to hear and determine \\u2014 can be exercised, it must be lawfully invoiced and called into action \\u2014 the parties and the subject matter of the particular case must be brought before the Court in. such a way that it acquires the jurisdiction and the power to act. There must be a right in dispute between two or more parties; a proceeding commenced under the proper rules of law; process must be served on the opposite party or parties in order that they may have an opportunity to be heard, or the property, if that be the subject matter of the action, must be within such jurisdiction, and the owner or person having the right +o claim it, or to be heard, must be notified as required by law of the pendency of the proceeding. Brown on Jurisdiction, Secs. 2 and 9; 15 C. J. 734, 797. The jurisdiction and power of a Court remain at rest until called into action by some suitor; it cannot by its own action institute a proceeding sue sponte. The action of a Court must be called into exercise by pleading and process, prescribed or recognized by law, procured or obtained by some suitor by filing a declaration, complaint, petition, cross-bill, or in some form requesting the exercise of the power of the Court. If a Court should render a judgment in a case where it had jurisdiction of the parties, upon a matter entirely outside of the issues made, it would of necessity be arbitrary and unjust as being outside the jurisdiction of the subject-matter of the particular case, and such judgment would be void and would not withstand a collateral attack, for upon such matter a presumption would arise that the parties had had no opportunity to be heard. The pleading bringing tbe matter before the Court need not necessarily be sufficient in law to withstand the test of a demurrer, but as a general rule it must state, at least inferentially, each material fact necessary to warrant the Court to deliberate thereon and grant the relief accorded, which must usually be the relief prayed, or at least not foreign thereto \\u2014though as to the latter, the form of relief, when different from that asked the judgment or decree may be merely voidable, but not void. Brown on Jurisdiction, Sec. 2a; Ingram-Dekle Lumber Company v. Geiger, 71 Fla. 390, 71 So. 552. So that, when it is said that a Court has jurisdiction of the subject-matter of any given cause, if these words are to be given their full meaning, they imply, generally speaking, (1) that the Court has jurisdictional power to adjudicate the class of cases to which such case belongs; and (2) that its jurisdiction has been invoked in the particular ease by lawfully bringing before it the necessary parties to the controversy, and (3) the controversy itself by pleading of some sort sufficient to that end; and (4) when the cause is one in rem, the Court must have judicial power or control over the res, the thing which is the subject of the controversy. This, in a general way, is what we mean when we say that a Court has \\\"jurisdiction of the subject-matter and the parties\\\" to a cause.\\nAs shown by the statement of facts, the only pleading by which the additional tract of land described in the answer of George Allen was brought before the Court was such answer itself. This pleading purported to be the separate answer of the defendant George Allen to the bill of complaint. It admitted that the parties named in the bill owned in co-tenancy the property described in the bill, but further alleged that at the time \\u00a1of his death the common ancestor was the owner of an undivided two-thirds interest in other lands, describing them, the other one-third interest being owned by one of the complainants, D. S. Lovett, which rendered the moieties or fractional interests owned therein by the parties to the suit somewhat different from their several interests in the property described in the bill. It is not alleged that these additional lands were contiguous or adjacent to the lands described in the bill, or that the lands described in the bill and those described in the answer combined to form one tract of land; though the description indicates that some of the lands contained in the answer adjoined at least a portion of the land described in the bill. It cannot be said that any reason appears upon the face of the pleadings why all of these lands should not have been included in the bill for partition. Neither does it appear that they together constituted one entire tract. The so-called answer does allege that a partition or division of the lands described therein, owned by the complainants and the defendants, should be made, and prayed that in adjudicating the rights and interests of the several parties to the suit, that a division or partition not only of the lands described in the bill, but also of the lands described in the answer, be made between the parties according to the course of practice in the Court and the statute for such cases made and provided and according to the respective rights and interests of the parties interested therein. This document designated itself as the separate answer of George Allen, and did not pray that it be considered as a cross-bill or counter-claim, nor did it pray that the bill be amended so as to include these lands, nor did it pray any process against any of the parties to the suit. It cannot be considered in a mere negative sense, that is, as setting up merely defensive matter to defeat the bill which is the ordinary function of a mere answer. It was the evident purpose of this document that the Court should grant the relief prayed in the bill, but in addition thereto it asserted a right to the partition, and division at the same time of all the lands owned by the parties as tenants in common, those included in the answer as well as those included in the bill, and contained a prayer for affirmative relief in this, that it prayed the Court to malte a division or partition in the same suit of the lands described in the answer along with those described in the bill. It must, therefore, be considered as an answer in the nature of a cross-bill, or as an answer attempting to set up, under the statute, a counterclaim against the complainants of such a nature as might have been the subject of an independent suit in equity against them, as well as the -other parties to the suit, so as to enable the Court to pronounce a decree in the same suit \\\"both on the original and the cross-claim.\\\" See Sec. 3120, Revised General Statutes.\\nWe do not mean to say that where a bill seeks a partition of a tract of land held in co-tenancy that a defendant co-tenant can not, by way of answer, which is ordinarily a defensive pleading, set up as a defense against the bill the failure to pray for partition of the entire tract. Ordinarily, such a suit should include all the lands of the co-tenancy, and if it does not do so, any party defendant may insist that the omitted land or lands be embraced in the suit and that the persons be made parties thereto whose presence is necessary to the proceedings. 30 Cyc. 176; 20 R. C. L. 732; Koon v. Koon, 55 Fla. 834, 46 So. 633. Whether this rule applies where separate and distinct tracts of land are owned by the same tenants in common as contradistinguished from a single connected tract does not seem to have been made clear by the authorities. However, the cases where this rule has been invoked appear to be cases involving a single and distinct tract of land. The underlying principle of this rule seems to be stated in See. 508 of Freeman on Co-tenancy and Partition, where it is said: \\\"A tract held in. common cannot be partitioned by fragments. Hence the grantee under a deed from one of the co-tenants purporting to convey by metes and bounds a part of the larger tract, cannot enforce a partition of the portion in which alone he has any interest. The suit for partition should always embrace the whole tract held by the co-tenancy. ' ' This would seem to apply to cases involving a particular, single and connected tract. If it be conceded that the lands here involved all constitute a single and contiguous tract of land, or substantially so, we think it must be conceded that the defendant co-tenant, George Allen, could have interposed by way of answer as a good defense to the bill the fact that such bill did not embrace the entire tract held in co-tenancy by the parties. This defense could not have been set up by demurrer, for, to have thus made the point, it would have been a speaking demurrer. That this defense could be made by answer to the bill is also supported by the language of Sec. 3118 of Revised General Statutes. When so set up, the Chancellor coiild require the complainant to so amend his bill as to include the additional lands, or in default thereof dismiss the bill. However, as above stated, this so-called answer, by its terms did not set up these additional lands of the co-tenancy in order to defeat the bill, nor as a defense against.it, but manifestly for the purpose of having the Court adjudicate and decree a partition of such lands along with the other lands described in the bill.\\nTurning, therefore, to a consideration of this pleading in its affirmative aspect, we will consider whether it was sufficient as a cross-bill to bring these additional lands before the Court, and, if not, whether it was sufficient under the Act of 1915 appearing as Sees. 3118-3123 of Revised General Statutes, to accomplish such purpose.\\nIn the very able brief of counsel for appellants it is con tended that said answer is not sufficient as a cross-bill, in that it did not state the purport of the original bill, called upon no one to answer it, did not make or name any persons as parties defendant thereto, and contained no prayer for process against any of the parties, especially the two minor co-defendants, and that no process of any kind was issued thereunder. That while a guardian ad litem had, on motion of complainants, been appointed, and had filed a formal answer to the original bill, this was done before the separate answer of George Allen was filed, and that such guardian ad litem never took any action with reference to such answer, nor was in any way called upon to do so. The general rule is that process should be prayed and served on all defendants to a cross-bill. 21 C. J. 353, 505; 10 R. C. L. 489-490, and cases cited; Indian River Mfg. Co. v. Wooten, 48 Fla. 271, 37 So. 731. The point is further made that the answer could not be regarded as a cross-bill, because a cross-bill, while it may and usually does introduce new facts and new issues not disclosed by the original bill, must be confined to such new facts and issues as relate to the subject matter of the original bill; whereas this document attempts to bring in a new subject matter, a tract of property not mentioned in any way in the original bill, 2 Daniel's Chanc. Pldg. & Prac. 1548, et seq.; 21 C. J. 508; Special Tax School District v. Smith, 61 Fla. 782, 54 So. 376; Mathews v. Lindsay, 20 Fla. 962; Mattair v. Payne, 15 Fla. 682; Buckmaster v. Kelley, 15 Fla. 180; Shipman Eq. Pldg. 304-8; Hogg v. Hogg, 107 Fed. 807, 814. \\\"It is a well settled rule of chancery practice that matters sought to be investigated by cross-bill must be germane to the subject involved in the original bill. New and distinct matters, not embraced in the original suit, should not be introduced. A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the Court, so that there may be a complete decree touching the subject matter of the suit.\\\" Fletcher )s Eq. Pldg. & Prac. 895. A cross-bill is a bill filed by a defendant in a suit against a plaintiff, or some other defendant, or both, in the same suit touching the matter in question in the original bill. Florida Chancery Practice (by Armstrong and Donahue, 1927) 229; Finlayson v. Lipscomb, 16 Fla. 751. After diligent search, we have not been able to find any case, quasi in rent, or involving questions concerning, or the disposition of, real property, in which a defendant was permitted to bring in by cross-bill entirely separate and distinct property from that described' in the original bill. \\\"Whether this could be done, in a partition proceeding where the parties to the original suit also held under the same co-tenancy an additional separate tract of land, is a difficult question which it is not necessary for us here to decide. It would probably depend to some extent upon the circumstances of each particular case. Where the bill sought to partition a part only of a single tract, any defendant could either defeat it by answer, or require amendment of the original bill so as to include the whole tract, or bring in the omitted lands by cross-bill. But where the bill covers all of a single tract, which could possibly be partitioned among the co-tenants without sale, the Court might not permit a defendant to bring in by cross-bill an entirely different and disconnected tract, though owned by the same parties as co-tenants, which might or would result in making a partition in specie impossible and thus requiring a sale for division. Such may have been the case here, though none of the parties make the point. But we do decide that this answer was defective as a cross-bill in that it did not state the purport of the original bill, made no one a party defendant thereto, contained no prayer for process, and no process was issued thereon. If it be con ceded that these defects in the cross-bill were waived by the appellants, even as to the lack of process, this cannot be said as to Allen's co-defendants, and the failure to serve the infant co-defendants with process or notice of any sort was not only waived by them or their guardian ad litem, but it could not have been.\\nCounsel for appellants make the further point that this additional land could not-have been brought in by cross-bill, or by answer in the nature of a cross-bill, or by answer setting up a counter-claim under See. 3120, Revised General Statutes, for two additional reasons: (1) It is not permissible by cross-bill to obtain relief which defendant can procure by insisting on the filing of a proper original bill, (30 Cyc. 228; Shipman's Eq. Pldg. 3061; Pritchard v. Littlejohn, 128 Ill. 123, 21 N. E. 10) and (2) that under our statutes, Sees. 3203-3209, Revised General Statutes, the Court had-no jurisdiction to decree partition, or sale for partition, of any lands unless they were described in the bill.\\nBefore entering upon a discussion of our statutes relating to partition, it might be observed that this Court has held that, as a general rule, a cross-bill in a partition suit is neither necessary nor proper. See Koon v. Koon, 55 Fla. 834, 841, 46 So. 663, citing 5 Encyc. Pldg. & Prac. 636; Fletcher's Eq. Pldg. & Prac., Sec. 888, and authorities cited in Note 5; 5 Current Law 1166, Note 45.\\nThis principle is particularly applicable under our practice in suits for partition. While the jurisdiction of equity to adjudicate such causes is of rather ancient origin and well established, independent of statute, our practice in dealing with partition suits is more or less statutory. Camp Phosphate Co. v. Anderson, 48 Fla. 226, \\u2014 So. \\u2014. The Legislature, as far back as 1844, adopted a rather comprehensive statute on the subject, consisting of eleven sections, vesting jurisdiction exclusively in the Chancery Courts and outlining the procedure, which, with a few minor changes, now appears as Secs. 3202 to 3209, Revised General Statutes, above cited. See. 3202 reads as follows: \\\"Suits for partition of real estate shall in all eases be by bill in Chancery, and all proceedings, except where herein otherwise provided, shall be as in other cases in Chancery.\\\" (Italics ours.) And Sec. 3205, which is entitled \\\"Form and Contents of the Bill,\\\" expressly provides that the bill \\\"shall set forth a description of the lands or premises of which partition is prayed,\\\" etc. Applying the well-known rule of statutory construction, expressio unius est exclusio alterius (25 C. J. and cases cited), as well as the former holding of this Court that in suits for partition cross-bills are as a rule both unnecessary and improper, it would appear to be a safe interpretation of the law to hold that, as a general rule, the only proper, way in which to bring lands before the Court for partition is by the bill. If any defendant has the right to have any additional lands brought in for partition in the same action, he. may take the proper steps to have the Court require the complainant to amend his bill so as to embrace such additional lands. We do not mean to say by this that, in no case, could a departure from this procedure be waived by the parties; but the method just mentioned is the proper practice for getting the property before the Court for adjudication.\\nAs appears from what has already been said, if the answer of defendant Allen be considered as a cross-bill, it would have been at least fatally insufficient to bring in the minor co-defendants as parties thereto, inasmuch as there was no process by publication or otherwise prayed for or served upon them, and they were not in any way called upon to defend as would have been necessary in the case of a cross-bill, and the record does not show any appearance for or waiver by them, or their guardian, ad litem for them, so as to cure this lack of process, if indeed such a thing was legally possible.\\nIt remains for us to question the effect of defendant Allen's answer construed in the light of Secs. 3120-21 of of Eev. Gen. Stats. These sections read as follows:\\n\\\"3120. May set out set-off or counter-claim. \\u2014 The answer must state, in short and simple form, any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit both on the original and cross-claims.\\n\\\"3121. When case deemed at issue. \\u2014 Unless an answer assert a set-off or counter-claim, no reply shall be required without special order of the Court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counter-claim, the party against whom it is asserted shall reply within twenty days after the filing of the answer, unless a longer time be allowed by the Court. If the counter-claim is one which affects the rights of other defendants, they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and 'the said defendants shall have twenty days after the service thereof within which to file a reply, unless the Court allow further time therefor. In default of a reply, a decree pro confesso on the counter-claim may be entered as in default of an answer to the bill.\\\"\\nThis Court has said, in Byrne Realty Co. v. South Florida Farms Co., 81 Fla. 805, 89 So. 318, that it was not the purpose of these statutes to forbid the use of cross-bills in proper cases, although they expressly provide for obtaining affirmative relief upon answers in classes of cases stated in the act.\\nIt would appear from these sections that if the answer merely sets up \\\"new affirmative matter,\\\" defensive in character, such as would be appropriate to an ordinary answer in equity, designed to defeat the purpose of the bill, without asserting any set-off or counter-claim, no reply shall be required without a special order from the Court, and the cause will be deemed at issue upon the filing of the answer. Morrill v. Burg, 80 Fla. 606, 86 So. 566. But if the answer includes a ' set-off or counter-claim, ' ' the party against whom it is asserted must reply thereto within twenty days as required by the act. This would indicate that no service is required when the set-off or counterclaim is asserted only against the complainant. But the statute goes on to provide that, if the counter-claim is one which affects the right of other defendants, they or their solicitors must be served with a copy of the same within ten days from the filing thereof, and the said defendant shall have twenty days after the service thereof within which to file reply, unless further time is allowed, and in default of a reply to decree pro confesso on the counterclaim may be entered as in default of an answer to the bill. As explained in Sec. 3120 such answer may, without cross crossbill, set out any \\\"set-off or counter-claim\\\" against the plaintiff which \\\"might be the subject of an independant suit in equity against him,\\\" and that such set-off or counter-claim, so set up, shall have \\\"the same effect as a cross-suit,\\\" so as to enable the Court to pronounce a final judgment in the same suit both on the orginial and cross-claims.\\nDefendant Allen's answer manifestly did not assert a set-off, within the legal meaning of that term as usually understood, but assuming that it did in substance set out a counter-claim against the complainants, which might have been the subject af an independent suit in equity against them,\\\" and Allen's co- defendants as well, that is, a suit for the partition of the lands described in the answer, and that such, counter-claim might have had \\\"the same effect as a cross-suit so as to enable the Court to properly pronounce a final judgment in the same suit both on'the original bill and the counter-claim\\\" set up in the answer, the fact remains that the \\\"othep defendant\\\" whose rights were affected by such counter-claim, were not served with a copy of the same in the manner set forth in Sec. 3121. As a copy of the answer setting up the counter-claim was not served upon defendant Allen's co-defendants, the two infant defendants, ' or their solicitors ' ', as required by the statute, the property described in such counter-claim was not brought into Court as to them, and the decree for the sale of such lands was as to them, ineffective and void. As to the adult complainants, no service on the counter-claim was required by the statute. They were by the statute presumed to take cognizance of such answer and counterclaim and required to reply thereto within twenty days, and having failed to so reply without excuse they were subject to a decree pro confesso on such counter-claim; so they cannot now be heard to complain because of the Court's allowance thereof \\u2014 unless .this action of the Court was, for other reasons, fatally and fundamentally erroneous.\\nBut we must now recur to the question whether the answer, in setting up the ownership by the parties to the suit of these additional lands, and asking for their adjudication along with the lands des\\u00e9ribed in the bill, asserted a ' ' counter-claim\\\" within the meaning of the statute. This involves first an inquiry as to such meaning.\\nBouvier's Law Dictionary, Edition of 1897, defines counter-claim as \\\"A liberal practice introduced by the reformed codes of procedure in many of the United States, and comprehending recoupment and set-off, q. v., though broader than either. ' '\\nWebster's New International Dictionary gives the following definition: \\\"Counter, or opposing, claim; law, a claim of matter constituting a distinct cause of action made by a defendant in an action 'as an offset to a claim made on him, and distinct from his defense. The counter-claim is in effect a distinct action which is allowed to be brought in order to reduce the amount and cost of litigation. \\u2022 At the common law no counter-claim can be made, but each cause of action can bo sued only in a separate action. Counter-claim included both set-off and recoupment. In England, under the Judicature Acts, the defendant may set up any right or claim he may have against the plaintiff; in the United States set-off exists generally, but the wider counter-claim is allowed only in the code States, where the provisions vary. ' '\\nThis term seems to have been first introduced in this country by court procedure acts relating to actions at law, and its meaning in this connection is quite clearly and comprehensively stated in 25 Am. & Eng. Encyc. of Law, p. 568, as follows:\\n\\\"There is a plain distinction between a defense and a counter-claim. A counter-claim must be a cause of action, and seeks affirmative relief, while a defense merely defeats the plaintiff's cause of action by a denial or confession and avoidance, and does not admit of affirmative relief to the defendant, A defense cannot be turned into a counterclaim merely by attaching a prayer for relief. The same facts may, however, constitute both a defense and ground for a counter-claim. But in such a case, if it is intended to insist upon the matter as a counter-claim, it must be pleaded as such and not as a mere defense. A pleading cannot be at once both an answer and a counter-claim. In some States the statute requires counter-claims to be expressly so designated in the answer. In other States there is no such provision, and it is not necessary directly to aver the fact. If the answer sufficiently, in apt words, in substance and in fact sets up a counter-claim, it must be so treated. So if the facts stated constitute a defense, they will be so treated, regardless of the name given by the pleader. A prayer for affirmative relief is almost of controlling importance in determining whether a counter-claim or a defense is pleaded. Counter-claim as now used and understood includes both recoupment and set-off, and is broader than both, including matters which do not fall under either head, as, for example, equitable demands. A counter-claim is intended to secure to a defendant all the relief which either an action at law or a bill in equity or a cross-bill would have secured on the same state of facts. A counter-claim differs from a recoupment in that under a counter-claim the defendant may have an affirmative judgment where he establishes a demand in excess of the plaintiff's demand, whereas in the ease of recoupment, whatever the damages proven by the defendant, they can go only to reduce or extinguish the claim against him. Again, recoupment must arise out of the contract or transaction upon which the plaintiff's claim is founded, whereas, in most States, in actions upon contract, causes of action arising out of distinct contracts may be counter-claimed. Recoupment implies an admission of the plaintiff's claim; a counter-claim does not. The object of the statute authorizing counter-claims is to enable parties to settle and adjust all their cross-claims in a single action, thus avoiding circuity of action and a multiplicity of suits. The statute should be liberally construed to effect this end. ' '\\nSee also 24 R. C. L. 793-796; 34 Cyc. 629, et seq.; 2 Words and Phrases, 1645; Krausse v. Greenfield, 61 Ore. 502, 123 Pac. 392, Ann. Cases, 1914B, 115, and note on p. 119.\\nThese sections of the Revised General Statutes, derived from the Act of 1915, follow pretty closely the Rules of Court adopted in England following the Judicature Act of 1873. In the English Edition of Daniell's Chancery Practice, published in 1914, we find the following:\\n\\\"And by the Rules of Court it is provided that a defendant in an action may set off, or set up, by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim is not to have the same effect as a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the Court or a Judge may, on the application of the plaintiff before trial, if in the opinion of the Court or Judge such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.\\n\\\"The right to make a counter-claim is given and regulated by the above statutory provision and rule, and by other rules mentioned in this section. A counter-claim may seek relief either against the plaintiff solely, or against the plaintiff and any other person or persons, whether the latter be or be not already parties to the action; but in any case to constitute a counter-claim, relief must be claimed against the plaintiff.\\n\\\"A defendant is, prima facie, entitled to seek by way of counter-claim against the plaintiff, or against the plaintiff and any other person, jointly, severally, or in the alternative, any relief which he might have claimed in an action brought by himself against the plaintiff, or against the plaintiff and such third person respectively; but he cannot join a third person to be a joint plaintiff with himself in a counter-claim against the plaintiffs; and if it appear that the counter-claim cannot be conveniently disposed of in the action, it may, by order of the Court or a Judge, be excluded. ' '\\nIn the ease of Krumrine v. Krumrine, 106 So. 131, where in a divorce proceeding by a non-resident complainant against a resident defendant, relief was denied to the complainant, the question arose whether a divorce could be granted to the defendant where her answer not only d\\u00e9\\u00f1ied the grounds of divorce alleged against her in the bill, but alleged ample grounds for divorce as against the complainant, and concluded with a prayer for affirmative relief, that is, a prayer' that a divorce be granted to her from her husband. The Court below denied such relief to the defendant, and she appealed. This Court held that the affirmative relief prayed for in the answer should have been granted, and in the opinion by Mr. Justice Ellis in that connection said: \\\"If the Court has jurisdiction of the cause to administer complete justice between the parties, then the decree was erroneous, because under the Act of 1915, c. 6907 (Laws of Florida, Secs. 3118-3120, R. G. S.), the defendant in her answer could state any counter-claim arising out of the transaction which is the subject-matter of the suit without a cross-bill; such counter-claim being the subject of an independent suit in equity against the complainant, having the same effect as a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit both on the original and cross-claims. ' '\\nThe opinion in this case was unquestionably correct in holding that a defendant may by answer, and without cross-bill, set up any counter-claim arising out of the transaction which is the subject-matter of the suit, but the further question arises in this case whether or not a defendant may not also,'without cross-bill, set out any counter-claim against the complainant, \\\"which might be the subject-matter of an independent suit in equity against him, ' ' and having \\\"the same effect as a cross-suit,\\\" although such counter-claim may constitute an entirely distict cause of action and may not have arisen out of the transaction which is the subject-matter of the suit, nor have had any connection therewith. _ We think this question must be answered in the negative. Liberal as the decisions both in .this country and in England have been in giving' to the counter-claim a comprehensive force and effect, we think that, construing See. 3120 as a whole, it recognizes the fundamental and cardinal principle that there must be some legal or equitable connection between the matters pleaded as a counter-claim and the matters alleged in the original bill. Standley v. Northwestern Mutual Life Ins. Co., 95 Ind. 254; 25 Am. & Eng. Encyc. of Law, 574-5, 581; 34 Cyc. 631; 24 R. C. L. 794; Krausse v. Greenfield, supra; Davis v. Frederick, 12 Pac. 664; Slone v. Slone, 59 Ky. 339; Keifer v. Summers (Ind.), 25 N. E. 1103; Romaine v. Brewster, 27 N. Y. Supp. 138; Carpenter v. Manhattan Life Insurance Company, 93 N. Y. 552, 556-7; Minn. Threshing Machine Co. v. Darnall, 83 N. W. 266. Apparently tending to the contrary view, see Am. Mills Co. v. Am. Surety Co., 260 U. S. 360. The use, in the first clause of this section (3120 R. G. S.), of the words \\\"any counterclaim arising out of the transaction which is the subject-matter of the suit, we think underlies and gives color to the entire section, and that the further language regarding \\\"any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, ' ' is not in conflict therewith, for innumerable instances might be cited wherein the matter set up as a counter-claim (or by an ordinary cross-bill in equity), while connected with the subject-matter of the original bill, or arising out of the transaction which is the subject-matter of such bill, might also afford ample grounds for an independent suit in equity by the defendant against the complainant. Canstruing this statute as a whole, both in the light of the language used and the fundamental principles of equity practice obtaining in this jurisdiction both before and at the time of the passage of the act, while the term \\\"counter-claim\\\" probably covers a broader scope than the familiar cross-bill in chancery, we do not think that it can be said that, by this statute, the legislature intended to provide that a defendant can, in' an answer by way of counter-claim, set up a matter constituting and entirely distinct cause of action foreign to and not connected in any way with the matters stated in the original bill. It must set up matter arising out of or connected with the subject-matter of the original bill and germane thereto, as is the case with a cross-bill, or it must in the language of the statute, set out matter \\\"arising out of the transaction which is the subject-matter of the suit.\\\"\\nBut there is we think, ground for the contention here that the matter set up by the defendant Allen in his answer was connected with, or arose from, \\\"the transaction which is the subject-matter of the suit,\\\" that is, the cotenancy of the parties to the suit, arising from the death of the common ancestor, whi'ch made them, according to the pleadings, his heirs-at-law, and, as such, cotenants' of all the lands owned by him at the time of his death, both those described in the bill and the answer, and hence within the scope of the word counter-claim as used in the statute.\\nAlthough, as above shown, defendant Allen should have taken proper steps to have required the complainants to amend their bill so as to include all the lands held by the parties as eotenants as provided by Sections 3203, 3205, Revised General Statutes, which is the proper statutory-procedure, instead of attempting to bring in the additional lands by way of counter-claim in his answer, we are of the opinion that this point of procedure was waived by the complainants, as above shown, and that, as to them, construing the answer in the light of the remedial statute above quoted, such answer operated to bring the additional subject-matter therein described before the Court as to them, and that by reason of their acquiescence in this procedure, and in the action of the Court thereon, the said complainants are not in a position to raise the question in this Court so far as this mere form of procedure per se is concerned.\\nHowever, the answer and counter-claim was ineffective as to defendant Allen's co-defendants, the two minors, Mamie Lovett Fletcher and Ben Charles Allen; defendant Mrs. Susie Lovett having been shown to be without any interest. They were not made parties defendant thereto or served with a copy thereof as required by Section 3121. As there was neither actual nor constructive service upon them, and they were not given an opportunity to be heard, the additional property was not brought into Court so far as they were concerned, nor were they brought in as parties defendant by the pleading setting it up. It necessarily follows that as to them, and their interest in the property described in the counter-claim, the Court was without jurisdiction of the subject-matter set out in the counterclaim. Nor can it be said that this defect in the jurisdiction was in any way waived by the two infant co-defendants, or their guardian ad litem \\u2014 if such were possible. 31 C. J. 1132, 1143. Infants cannot be \\\"waived\\\" into court.\\nIn the well-reasoned case of Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 772, this Court said: \\\"The statute requires the suit to be brought by 'one or more of several joint tenants, tenants in common or coparceners, against their co-tenants, coparceners or others interested in the lands to be divided. ' It requires all of such co-tenants or coparceners to be made parties to the suit if known. In such suits the rights and interests of necessary and indispensable parties can not be adjudicated when they are not properly before the Court. Nelson v. Haisley, 39 Fla. 145, 22 So. 265. It was error, therefore, for the Court to decree \\u2022partition, or to determine that the defendant was the equitable owner of the interest to which W. N. Camp held the legal title, as W. N. Camp was not a party to the suit, and could not be bound by the decree. It (the statute) can not be construed as authorizing the Court to decree partition, and if that can not be had, a sale of the property, where only a part of the several known joint tenants, tenants in common or coparceners are parties to the suit, nor as authorizing it to decree that the equitable title to a portion of the property is in a defendant where the legal title stands in the name of a known person not a party to the suit. For this error in the decree it must be reversed.\\\" See also Yaeger v. N. & S. etc. Phosphate Co., 82 Fla. 38, 89 So. 340.\\nUnder the principle laid down in the cases just cited, it follows that although the lack of necessary parties was not insisted upon in the lower Court, this deprived the Court of authority to decree partition and hence constituted reversible error, and the decrees here appealed from are invalid. See also 30 Cyc. 201, 202, and cases cited. But we are at once confronted with the inquiry as to whether these appellants can here raise this question. The general rule is that a party is not entitled to appeal from a judgment or decree wholly in his favor. 2 R. C. L. 56. And it has been held by this Court that irregularities in chancery practice committed at the defendant's instance and by his consent, ar\\u00e9 not available to reverse a final decree entered against him. Thompson v. Kyle, 39 Fla. 582, 23 So. 12. Also, error complained of must have been of a prejudicial character to the complaining party.\\nIt will have been observed in this case that after the filing of the separate answer of George Allen, the lands set out in the bill and those described in the answer, were thereafter in every proceeding from the decree of the Court of February 14, 1924, decreeing a partition of the lands and. appointing commissioners to make partition, down through the decree of the Court of November 25, 1925, purporting to confirm the sale of the lands by the commissioners, except that they were ordered sold separately as Tracts 1 and 2 respectively, considered and treated as one group or unit of land. The first commissioners appointed by the decree of February 14, 1924, in attempting to make partition. considered them as one unit and the subject of partition proceedings. They then reported that they could not make a partition of the lands. The same subject-matter was before, and the same report was made by, the second group of commissioners appointed by the Court. It may be that it was the presence of the additional land submitted on the separate answer of George Allen, that influenced the commissioners in reporting to the Court that the lands could not be partitioned. It is impossible to say how much the presence of these additional lands in all of the proceedings in this cause influenced the coiir.se and determination of the cause. That error was committed is beyond doubt, and this error was inextricably interwoven in the entire progress of the cause in the Court below subsequent to the filing of such answer. If the inclusion of these additional lands prevented a partition of lands which should have been partitioned without resorting to a sale for division, then this error defeated the prime object of the suit, for in partition proceedings a sale of the lands should not be ordered unless it be first established to the satisfaction of the Court that a partition in specie can not be made without great prejudice to the owners. In the present case there were two sets of commissioners appointed to attempt a partition of the lands, showing an effort by the Court to distribute the lands by partition and allotment among the proper parties, before the Court finally entered a decree of sale. Furthermore, the money ordered distributed to each of the parties interested in the land involved in the partition, represented the share of such parties in all of the lands, the lands included in the bill and those set forth in the answer. It follows that the share which each has received is not his proper share, and the decrees of the Court below cannot be divided so as to make them effective concerning a part of the lands and not effective as to the others. In addition to this, one of the appellants was a purchaser of a part of the lands sold under the decree of the Court, and the invalidities in such decrees hereinabove pointed out must necessarily affect his interest as a purchaser. The error was therefore prejudicial in its nature. .\\nIn 2 R. C. L. 56, cited appellees, the general rule is laid down as above stated, but it will be observed that it was postulated upon the party appealing having received a judgment or decree wholly in his favor. But it is stated in the same paragraph that, \\\"A party may appeal from a judgment in his favor when the Court entering the judgment has committed some error prejudicial to him. For example, if the judgment in favor of the plaintiff is for a less amount than it ought to be, he may take an appeal or sue out a writ of error to review it. So, also, a plaintiff may obtain a reversal of his own judgment for irregularities which may have intervened in the Court below, in order that he may commence another suit and obtain a legal and valid judgment.\\\" In Hale et al. v. Crowell's Admrs., 2 Fla. 534, it was held: \\\"That a party may resort to a court of error to obtain the reversal of his own judgment, if it has been so rendered that he may sustain injury by it, is a principle too well settled to be now contested\\\" (citing authorities). It was also held in that case that, \\\"The rule that a party shall not take advantage of an error for his benefit does not apply to errors of the Court, as where it pronounced a wrong judgment.\\\" In the opinion, the following quotation from Beecher v. Shirley, 8 Coke 58, is quoted with approval: \\\"Without going further into the authorities, it is clear that a plaintiff may obtain a reversal of his own judgment, for irregularities which may have intervened in the Court below, in order that he may commence another suit, and obtain a legal and valid judgment, as well as where errors have been committed against him. ' ' This question is thoroughly treated in a note to the case of Williams v. Breitung, 3 Ann. Cases 506, 510. It is there said: \\\"A party may prosecute a writ of error to obtain a reversal of his own judgment if it has been so rendered that he may sustain injury by it.\\\" And again: \\\"When the judgment is in favor of the party objecting, he may prosecute a writ of error when the judgment is one not authorized by law and which can in no way be enforced by legal process. ' ' And further: ' Error may. be prosecuted by a plaintiff when judgment was entered in his favor against one only of several defendants.\\\" \\u2022\\nA decree rendered in the absence of an indispensable party will be reversed, and an objection of this character can be urged for the first time in an appellate Court, or be considered by the Court of its own motion. Rawls v. Tallahassee Hotel Co., 43 Fla. 288, 31 So. 237. In Craver et al. v. Spencer, 40 Fla. 135, 23 So. 880, it was held that \\\"this Court will of its own motion reverse a decree rendered in the absence of necessary parties.\\\" In Yaeger v. N. & S. Phosphate Co., supra, it was said in the opinion by Mr. Justice Ellis on page 44 of 82nd. Fla., \\\"If there had been a decree in complainant's favor, it would have been reversed on appeal because of the absence of a necessary party. ' ' And it was held in that ease that a decree awarding a partition of land in which a person interested was not made a party will be reversed on appeal. This is also held in Nelson v. Haisley, 39 Fla. 145, 22 So. 265, and in Lyon v. Register, 36 Fla. 273, 18 So. 589.\\nOur conclusion is, therefore, that these appellants can in this Court raise the questions above mentioned going to the jurisdiction of the Court and affecting the validity of the decrees appealed from.\\nAs complainants in the court below, they were entitled to an effective decree of partition. One of the defendants brought in additional lands in an irregular manner by way of answer and counter-claim, and without bringing in the minor co-defendants as parties thereto, as above pointed out. This error was not cured in any way so as to make the decree valid as to such infants. By reason of this error, the court below could not render an effective decree of partition, and, unless this error can yet be remedied as hereinafter outlined, appellants will be entitled to a reversal of such decree and the other decrees appealed from which were affected by the same fundamental error.\\nIt is contended by counsel for appellees that this Court cannot consider certain other decrees appealed from, namely, the decree of February 14, 1924, ascertaining the interests of the parties and appointing commissioners to make partition, and the decree of June 13, 1925, for the reason that the appeal in this cause was not entered within six months after the recordation of said decrees, under Sec. 3168, .Rev. Gen. Stats. This ease presents an appeal from a final decree and from all the interlocutory decrees in the cause, as contemplated by Sec. 3169, Rev. Gen. Stats., which entitles a party to defer \\\"the entry of his appeal from interlocutory orders and decrees until after the entry of the final decree or the end of the cause as prescribed by law.\\\" The final decree in the present case is a decree of the Court dated September 30, 1925, confirming the report of the commissioners that there could be no. partition, ordering a sale of the lands, and appointing commissioners to make such sale, and the notice o \\u00a3 appeal was filed within six months from the entry of such decree. This not only entitled the appellants to appeal from the interlocutory decrees entered before such final decree, but on an appeal from the final decree alone they could have assigned errors upon such interlocutory decrees, though not embraced in the entry of appeal. However, they are so embraced in this ease. This question is squarely decided in Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722, and Jacksonville M. & R. Ry. Co. v. Bradley, 38 Fla. 139, 20 So. 821, and Banks v. Guinyard, 63 Fla. 334, 58 So. 229. This contention of appellees is, therefore, not well founded.\\nWe might call attention to the fact that the order of the chancellor, rendered November 25, 1925, confirming the report of sale, while probably intending to confirm the sale of both tracts of land, does not expressly confirm the sale except as to one tract, to-wit, that part of the land designated as tract No. 1, and fails to definitely confirm the sale of tract No. 2 as reported by the commissioners.\\nAs the fundamental error in this case'was the failure to bring in as parties defendant to the counter-claim set up in the answer of George Allen the two minor co-defendants, the mere procedural errors above pointed out having-been waived by all the ad.ult parties to the cause, and the court having erroneously proceeded to adjudicate with reference to the interest of said minors in and to the additional lands brought in by said answer and counter claim, this error can still he cured in such a way as to validate the proceedings as to all parties if the said minors have become of age or had their disabilities of non-age removed since the trial of this case in the court below. If within ninety days from the going down of the mandate of this case, the said Mamie Lovett Fletcher and Ben Charles Allen, the infant defendants to the original bill above referred to, shall have become sui juris, i. e., shall have become twenty-one years of age or shall have had their disabilities of non-age legally removed, and shall enter an appearance in the cause and file a reply to the counter-claim set up in the answer of defendant George Allen, consenting in effect to the granting of the relief prayed in such counter-claim as to the additional lands in which they were interested, and shall also file in the court below a formal ratification of the orders and decrees rendered by the chancellor in said cause, and adopting the reports of the commissioners filed September 16th, 1925, and November 2nd, 1925, respectively, and accepting their share of the proceeds of the sale of the lands described in both the bill and the said answer as full compensation for their interest in said lands and the proceeds thereof, then the orders and decrees appealed from in this case shall stand and be considered as affirmed; but if said Mamie Lovett Fletcher and Ben Charles Allen shall not have become sui juris and shall not have taken the action above set forth within said period of ninety days, the orders and decrees appealed from in this ease shall stand reversed. Kentucky Land Co. v. Elliott et al. (Ky.), 15 S. W. 518; Blue v. Waters, 71 S. W. 889.\\nCertain objections made by appellants to some of the orders and decrees appealed from, but not above discussed are not considered meritorious, and our disposition of this case makes their discussion unnecessary.\\nWe express our appreciation of the able and carefully prepared briefs submitted by counsel for both sides which have been of material assistance to us in our consideration of the important questions presented.\\nThis cause is ordered remanded to the lower court and the decrees appealed from to be considered and to stand as reversed unless the errors pointed out are eifred by the action of the infant defendants as above outlined within ninety days from the going down of the mandate of this Court.\\nEllis, C. J., and Strum, J., concur.\\nWhitfield, P. J., and Terrell and Buford, J. J., concur in the opinion.\"}"

florida/1288246.json

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+"{\"id\": \"1288246\", \"name\": \"Thomas B. Glass, Plaintiff in Error, v. Continental Guaranty Corporation, a Corporation, Etc., Formerly Guaranty Securities Corporation, a Corporation, Etc., Defendant in Error\", \"name_abbreviation\": \"Glass v. Continental Guaranty Corp.\", \"decision_date\": \"1921-05-07\", \"docket_number\": \"\", \"first_page\": \"687\", \"last_page\": \"699\", \"citations\": \"81 Fla. 687\", \"volume\": \"81\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T23:12:04.428250+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas B. Glass, Plaintiff in Error, v. Continental Guaranty Corporation, a Corporation, Etc., Formerly Guaranty Securities Corporation, a Corporation, Etc., Defendant in Error.\", \"head_matter\": \"Thomas B. Glass, Plaintiff in Error, v. Continental Guaranty Corporation, a Corporation, Etc., Formerly Guaranty Securities Corporation, a Corporation, Etc., Defendant in Error.\\nOpinion Filed May 7, 1921.\\nPetition for Rehearing Denied June 11, 1921.\\n1. The defendant in a replevin action may take a writ of error separate from his sureties on a forthcoming bond.\\n2. It is a general principle applicable to traffic in personal property, that no one can transfer or confer a better title than he has, unless some principle of estoppel operates to bar a claim under an otherwise better title.\\n3. In England, at common law, a sale in market overt confers a title upon a Kona fide purchaser, though the seller had no title whatever; but in this country there are no such markets and the principle of title acquired by purchase and sale in market overt does not obtain.\\n4. The mere possession of personal property is only prima facie evidence of title; and a purchaser of personal property from one who has only the possession of the-property under an incomplete conditional sale cannot in general defeat a recovery by the true owner', although such purchaser bought for value and without notice.\\n5i Where an owner consigns personal property to a dealer in such goods with express or implied authority to sell, or delivers or consigns to another personal property with indicia of ownership or of authority to sell, but with title reserved in the owner until the payment of the \\u25a0 purchase price, a purchaser, who pays value for such goods and gets possession thereof without notice of the terms or conditions of the original delivery, consignment or sale, obtains a good title as against the original owner, which will in general prevail against the latter\\u2019s reserved title. '\\n<3. Where one of two innocent parties must suffer through the act or negligence of a third person, the loss should fall upon the one who by his conduct created the circumstances which enabled the third party to perpetrate the wrong or cause the loss.\\n7. An alleged owner of an automobile under a secret trust, who permits a dealer in automobiles to have the car at his sales place under circumstances' that indicated authority to sell, is estopped to assert his title against a bona fide purchaser for value and without notice of the secret claim.\\nA Writ of Error to the Circuit Court for St. Johns County; George Couper Gibbs, Judge.\\nReversed.\\nGeorge W. Bassett, Jr., for Plaintiff in Error;\\nGeorge M. Powell and Milan & Milan, for Defendant in Error.\", \"word_count\": \"3128\", \"char_count\": \"18780\", \"text\": \"Whitfield, J.\\nThe defendant in error brought replevin against Glass involving an automobile. A demurrer to the declaration was. overruled. The defendant pleaded not guilty, and the case was tried on the following : \\\"Stipulation.\\\"\\n\\\"Comes now Milam & Milam and Mac Williams & Bassett, attorneys for the respective parties as above, and hereby stipulate and agree as follows:\\n\\\"1. That jury be waived and this cause submitted to the court on the stipulation of fact hereinafter contained.\\n\\\"2. That the facts admitted as true in said cause, and which would be adduced before a jury had said cause been tried, are as follows:\\n\\\"The plaintiff corporation, organized under the banking laws of the State of New York, has its principal office in New York City, and according to the powers and practices of such banking institutions, it finances commercial transactions, including the shipment of goods from one point to another, and is represented for certain purposes in such transactions by local corresponding bank.\\n\\\"Calvin Zimmerman on February 21st, 1918, was trading and doing business in Jacksonville, Florida, under the trade name and style of National Motor Company, and in keeping with the custom and usual methods of doing business as such distributor, purchased National automobiles from the manufacturer, which automobiles when purchased were offered for sale on his own responsibility, all in keeping with the customs and usages controlling in the automobile distribution industry, which said customs and usages as aforesaid were entirely unknown to defendant, T. B. Glass.\\n\\\"During January, 1918, the plaintiff corporation financed a shipment of automobiles from the manufacturer, the Rational Motor Car and Vehicle Company of Indianapolis, Indiana, to Calvin Zimmerman of Jacksonville, Florida, trading under the name of Rational Motor Company, one of which automobiles is replevied' in this action, being Rational Automobile, Serial Ro. 23819. The facts concerning said automobile are as follows: Said Zimmerman agreed to purchase certain automobiles from the Rational Motor Car & Vehicle Company of Indianapolis, the manufacturer, and the said manufacturer shipped two automobiles, one being said automobile No. 23819 in Pa. R. R. Car 17317, sending the bill of lading with sight draft attached forward to the Atlantic Rational Bank of Florida, the bill of lading to be surrendered' to Zimmerman only upon his payment of the sight draft. Before the shipment reached Florida, Zimmerman requested both the manufacturer and the plaintiff corporation to handle this shipment on a time draft in accordance with the customary banking credit trust receipt plan.\\n\\\"Under this banking agreement the Rational Motor Car and Vehicle Company, the manufacturers, drew a four months draft on Zimmerman, which the plaintiff corporation discounted and' paid to the Rational Motor Car and Vehicle Company the amount thereof, to-wit, $2,758.19, and the Rational Motor Car and Vehicle Company thereupon withdrew its sight draft and instructed the Atlantic Rational Bank at Jacksonville to hold the bill of lading for the plaintiff corporation. The plaintiff corporation then forwarded the time draft to the Atlantic Rational Bank and said bank following the instructions of the plaintiff corporation delivered' the bill of lading to Zim-' merman, having first secured Zimmerman's acceptance of the time draft and his execution of a trust receipt, disclaiming acquisition of title by him, reading as follows:\\n\\\"TRUST RECEIPT\\nGuaranty Identification No. 10 38\\nAlways quote this number when reporting.\\nJacksonville, Fla., Jany-14-1918.\\n\\\"Received of ATLANTIC NATIONAL BANK of Jacksonville, Fla., for\\n\\\"GUARANTY SECURITIES CORPORATION\\nNew York City\\nBill of Lading for Car No. 47317 Initials PA for One Carload of 2 Motor Vehicles.\\n(Model Nos. (AF ) (AF )\\nMake National ( (6-CYL) (6-CYL)\\n(Serial Nos. (23819 ) (23897 )\\nIn consideration thereof I (we) hereby agree to take and hold said Motor Vehicles as the property op said guaranty securities corporation, for the purpose of storing said property; and I (we) hereby agree to keep said Motor Vehicles brand new and not to operate them for demonstration or otherwise, and to return said Motor Vehicles to said bank or to said Guaranty Securities Corporation upon demand. I (we) agree not to sell, loan, rent, deliver, mortgage, pledge or otherwise dispose of any of said Motor Vehicles to any other person except upon written order from Guaranty Securities Corpora tion from release from trust, upon payment to said bank of the amount required by said order, and upon the endorsement on the back of this Trust Receipt by said bank of a release from trust.\\nNATIONAL MOTOR CO.\\nBy Calvin Zimmerman.\\n\\\"(On one side of Trust Receipt is the following) :\\n\\\"TAKE NOTICE: 'PROPERTY IN TRUST: No one has any authority to vary the terms of this Trust Receipt. '\\nwhich said trust receipt has not been recorded in the State of Florida; and the defendant reserves the right at any time before final hearing to require proper proof' of the execution of said trust receipt before same shall be admitted in evidence.\\n\\\"Thereafter, on or about February 21st, 1918, before the maturity of said time draft and -without the permission or consent of the plaintiff corporation, but contrary to the express terms of said trust receipt, Zimmerman, trading under the name National Motor Company, disposed of said automobile to the defendant, Glass, and the defendant paid said Zimmerman the sum of $1,00'0.00 and delivered to said Zimmerman one Chandler Clover Leaf Roadster, valued at $1,350.00, making a total purchase price .paid by the, defendant to Zimmerman $2,350.00.\\n\\\"The defendant, 'Glass, on February 21st, \\u2022 1918, purchased- from- the said Calvin Zimmerman, doing business in Jacksonville, -Florida, as National Motor Company, the National automobile Serial No. 23819, as above described, for the sum of $2,350.00, which amount was paid'by delivery to the said Zimmerman of One Chandler Clover Leaf Roadster, valued at $1,350.00, and two notes in the sum of $500.00 each, which notes were subsequently-paid by the defendant.\\n\\\"4. The defendant Glass made no personal inquiries or investigation as to the ownership of the car in question, but-was of the opinion that' the said Calvin Zimmerman was the owner thereof, on account of the following factsi \\u2014 \\u2022\\n\\\"(a) That one Jack O'Neal, a resident of the City of Jacksonville, stated to him that the said Calvin Zimmerman was agent for the National Motor Car.\\n\\\"(b) That the said Calvin Zimmerman stated to the defendant that he was the state agent for the said National Motor Car.\\n\\\"(c) That the said Calvin Zimmerman had in his possession and.showed to the defendant the advertising literature supplied by the makers of the National Car.\\n\\\"(d) That Galvin Zimmerman appeared to have a complete knowledge of the mechanism and operation and advantages of the car in question.\\n\\\"(e) That the defendant knew and had knowledge of the fact that the said Calvin Zimmerman operated a garage on Adams Street in the -City of Jacksonville, Florida.\\n\\\"(f) That the said Calvin Zimmerman told the defendant that he would make any adjustments on the said car without cost to him, at his garage in Jacksonville, Florida.\\n\\\"(g) That the said Calvin Zimmerman-made arrangements with the Hastings Auto & Supply Company to take care of minor adjustments of t-he defendant -at the cost of the said Calvin -Zimmerman.\\n\\\"(h) That the defendant on two occasions visited the garage of the said Calvin Zimmerman located on Adams Street in the City of Jacksonville, and had two adjustment's made on his said car, after the purchase thereof had been concluded, and at that time and at that place there appeared a sign on the front window of the building advertising the National car for sale by the said Calvin Zimmerman.\\n\\\"3. That upon the submission of this stipulation, the respective parties shall file such briefs on the law as they may be advised, and should the defendant file a responsive brief to plaintiff's brief, then the plaintiff shall have the additional period of ten days to file a responsive brief to that filed by the defendant, and upon a decision being rendered by the court same shall to all effect and purposes be binding in the same manner as if a jury had rendered the finding as a verdict in the case.\\n\\\"GEORGE M. POWELL,\\n\\\"MILAM & MILAM,\\n\\\"Attorneys for Plaintiff.\\n\\\"W. A. Mac WILLIAMS,\\n\\\"G. W. BASSETT, JR.,\\n\\\"Attorneys for Defendant.\\\"\\nThe court rendered the following:\\n\\\"FINAL JUDGMENT.\\n\\\"This cause coming on this day to be heard upon the pleadings herein, and the stipulation as to facts entered into by the respective parties and filed herein on February 13th, 1920, and the matter having been briefed by counsel for the respective parties and submitted to the court, and it appearing that under the stipulation jury was waived and the cause submitted to the court on said stipulation, and that such final judgment as might be rendered by this court should to all effect and purposes be binding in the same manner as if the jury had rendered the finding as a verdict in this cause, upon consideration thereof,\\n\\\"IT IS FOUND by the court that at the time of the institution of this suit the defendant, Thos. B. Glass, wrongfully detained and withheld from the plaintiff the possession of One Six-Cylinder National Motor Car, Serial No. 23819, as described in the declaration, of the value of Thirteen Hundred and Seventy-nine ($1,379.00) Dollars; and that the plaintiff was then and is now lawfully entitled to possession thereof; and that the damages for the detention of said car are found and assessed to be interest at legal rate upon the value of the car since the date of institution of suit.\\n\\\"AND IT FURTHER APPEARING that the said property was redelivered to the defendant, Thos. B. Glass, upon forthcoming bond signed by himself as principal, and The U. S. Fidelity & Guaranty Company, of Baltimore, Maryland, as surety;\\n\\\"IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED BY THE court that the plaintiff, Continental Guaranty Corporation, a corporation, etc., formerly Guaranty Securities Corporation, a corporation, etc., plaintiff, do have and recover of and from the defendant, Thos. B. Glass, the property described in plaintiff's declaration, to-wit;\\n\\\"One Six-Cylinder National Motor Car.\\n\\\"Serial No. 23819.\\n\\\"IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that the plaintiff, Continental Guaranty Corporation, a corporation, etc., formerly Guaranty Securities Corporation, a corporation, etc., do have and recover of and from the defendant, Thos. B. Glass, and The \\u00fc. B.'Fidelity & Gtm'mty Company of Baltimore, Maryland, defendant's surety upon his forthcoming bond,, the sum of $1,379.00, thq, value of the property redelivered to the defendant, and the further sum of $232.52 as damages for its detention, total $1,612.52, besides its costs in this behalf expended and herein taxed at , for which let execution issue.\\n\\\"DONE AND ORDERED at St. Augustine, Florida, this 9th day of November, A. D. 1920.\\n\\\"GEORGE COUPER GIBBS, Judge,\\n\\\"Circuit Court, Fourth Judicial Circuit,\\nSt. Johns County, Florida.\\\"\\nMotions in arrest of judgment and for new trial were overruled, and the defendant Glass alone took writ of error.\\nThe defendant in a replevin action may take a writ of error separate from his sureties on a forthcoming bond. Henry v. Whitehead, 66 Fla. 567, 64 South. Rep. 233; Halliday v. Wright, 43 Fla. 46, 29 South. Rep. 534.\\nIt is a general principle applicable to traffic in personal property that no one can transfer or confer a better title than he has, unless some principle of estoppel operates to bar a claim under an otherwise better title. The mere possession of chattels, by whatever means acquired, if there is no other evidence of property rights therein or of authority to sell given by or for the true owner, will not enable the possessor to give a good title. 24 R. C. L. 374-7. But the true owner may under some circumstances be estopped to claim against a hona fide purchaser for value. See Edwards v. Baldwin Piano Co., 79 Fla. 143, 83 South. Rep. 915.\\nIn England, at common law, a sale in market overt confers a title upon a tona fide purchaser though the seller had no title whatever; but in this country there are no such market's and the principle of title acquired by purchase and sale in market overt does not obtain. 24 R. C. L. 378.\\nThe mere possession of personal property is only prima facie evidence of title; and a purchaser of personal property from one who has only the possession of the property under an incomplete conditional sale cannot in general defeat a recovery by the true owner, although such purchaser bought for value and without' notice. See Campbell Printing Press & Mfg. Co. v. Walker, 22 Fla. 412, 1 South. Rep. 59; Fairbanks, Morse & Co. v. Eureka Company, 67 Ala. 109; Marvin Safe Co. v. Norton, 48 N. J. L. 410, 7 Atl. Rep. 418; Roof v. Chattanooga Wood Split Pulley Co., 36 Fla. 284, 18 South. Rep. 597; Lanier v. Chancy, 76 Fla. 443, 80 South. Rep. 312.\\nBut where an owner consigns personal property to a dealer in such goods with express or implied authority to sell, or delivers or consigns to another personal property with indicia of ownership, or of authoriy to sell, but with title reserved in the owner until the payment of the purchase price, a purchaser, who pays value for such goods and gets possession thereof without notice of the terms or conditions of the original delivery, consignment or sale, obtains a good title as against the original owner, which will in general prevail against the latter's reserved title. See Bent v. Jerkins, 112 Ala. 485, 24 Am. & Eng. Ency. Law (2nd ed.) 1165; Mechem on Sales, Sections 157, 166; 35 Cyc. 680; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, text 120, 47 South. Rep. 942.\\n\\u2022 Where one oil two innocent parties must suffer .through the act or negligence of a third person, the loss should fall upon the'one'who by his conduct created the circumstances which enabled the third party to perpetuate the wrong or cause the loss. American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, text 121, 47 South. Rep. 942.\\nIn this case the defendant in error made it possible for the third-party to make an unauthorized Sale to the plaintiff in error without fault on the part of the latter. The bill' of lading, presumably naming the dealer as consignee, was delivered to the dealer, upon his signing the receipt set out above. The receipt was not recorded or otherwise brought to the actual or constructive notice of the purchaser Glass. The dealer was known to be engaged in 'selling this make of automobiles and the car in controversy was designed to go to the dealer's place of business. There was presumably nothing on the bill of lading to indicate that the consignee was not the owner of the automobile, or that the consignee dealer had given a trust receipt for the bill of lading in the name of .any one else or that the dealer consignee had by such trust receipt disclaimed title and agreed to hold the automobile as the property of another who had advanced money to get the bill of lading released by the vendor, or that' the dealer had not paid for the car or that the car was not consigned to the dealer for sale in his well known business as dealer. Under these circumstances the party who advanced money and took a secret trust receipt for the bill of lading and delivered the bill of lading to the dealer under the circumstances stated above, without taking any steps to acquaint purchasers from the dealer that the latter had no right to sell, when the party taking the trust receipt knew of the 'dealer's selling business, and the circumstances clearly indicate that the dealer had a right to sell, the party taking the trust receipt is estopped from claiming title as against' a bona, fide purchaser from the dealer without actual or constructive notice of the trust receipt or of the conditions on which the bill of lading was delivered to the consignee dealer. See American Process Co. v. Florida White Pressed Brick Co., supra; Edwards v. Baldwin Piano Co., supra.\\nReversed.\\nBeowne, C. J., and Tayloe, Ellis and West, J. J., concur.\"}"

florida/1305159.json

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+"{\"id\": \"1305159\", \"name\": \"John S. Phipps, Appellant, v. Porte F. Quinn, et al., Appelles\", \"name_abbreviation\": \"Phipps v. Quinn\", \"decision_date\": \"1930-06-09\", \"docket_number\": \"\", \"first_page\": \"1340\", \"last_page\": \"1347\", \"citations\": \"99 Fla. 1340\", \"volume\": \"99\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:44:11.595156+00:00\", \"provenance\": \"CAP\", \"judges\": \"Whitfield, P. J., and Buford, J., concur.\", \"parties\": \"John S. Phipps, Appellant, v. Porte F. Quinn, et al., Appelles.\", \"head_matter\": \"John S. Phipps, Appellant, v. Porte F. Quinn, et al., Appelles.\\nDivision B.\\nOpinion filed June 9, 1930.\\nAn Appeal from the Circuit Court for Palm Beach County; Hon. C. E. Chillingworth, Judge.\\nR. C. Alley and Loftm> Stokes \\u00e9 Calkins, for Appellant;\\nGeorge M. Powell, for Appellees.\", \"word_count\": \"2094\", \"char_count\": \"12477\", \"text\": \"Strum, J.\\nIn 1922 John S. Phipps filed a bill against Porte F. Quinn and Jennie E. \\\"Watson, seeking to impose a trust in favor of Phipps upon certain real estate the title to which had been conveyed by Mrs. Watson to Quinn, and upon which a purchase money mortgage had been executed by Quinn to Mrs. Watson. John C. Gregory intervened, claiming a half interest in the land through Quinn. Final decree awarding Phipps the relief prayed for was entered in the circuit court on August 6, 1924, which decree was affirmed by this Court on April 21, 1927. Quinn v. Phipps, 113 So. R. 419. In that litigation Jerome Wideman and Frank Wideman, under the firm name of Wideman and Wideman, were attorneys of record for Phipps, the complainant.\\nOn August 16, 1927, the complainant, Phipps, acting through other attorneys, filed in the above mentioned cause a pleading called a \\\"petition,\\\" in which it is alleged in effect that during the progress of said cause the complainant, Phipps, tendered to the defendants therein and deposited in the registry of the court $50,000 to be paid to the defendants upon the execution by them of a conveyance of the lands in question to Phipps and a satisfaction of the Watson mortgage; that the Clerk of said court deposited said funds in Farmers Bank & Trust Company, which bank became insolvent and suspended business on June 15, 1927; that in order that there would be no question as to the continued efficacy of his tender, the complainant, Phipps, acting through his then attorneys, Wideman & Wideman, deposited with the clerk a second $50,000, at which time the clerk executed to Phipps and delivered to Wideman & Wideman, as his attorneys, an assignment of the clerk's claim to the first deposit and also a deposit agreement between the clerk and the bank evidencing the terms and conditions of the deposit of the first $50,000, which documents it is alleged are now held by Wideman & Wideman, respondents in the present proceeding. The petition further alleges that complainant, Phipps, has terminated the employment of Wideman & Wideman as his attorneys, has paid them their compensation, and has demanded the delivery to him of the documents just mentioned, which demand has not been complied with. The petition further alleges that Quinn and Gregory have failed to convey to complainant-petitioner, Phipps, the lands involved in the prinicpal suit, and that \\u2022the representative of Mrs. Watson, who is now deceased, has failed to execute a satisfaction of the Watson mortgage as commanded by the final decree.\\nThe petition \\\"prays\\\": (1) That the assignment by the clerk of the claim against the Farmers Bank & Trust Company for moneys deposited in said bank representing the first $50,000 deposited in the registry of the court be declared void; (2) that Wideman & Wideman be required to return into court the instrument in their possession evidencing the deposit of said sum of $50,000 in said bank, and the said assignment thereof; (3) that the clerk be commanded to refund to petitioner the second deposit of $50,000; that Quinn and Gregory be commanded to forthwith deliver deeds of conveyance to the lands, and that Mrs. Watson's executor execute and deliver a satisfaction of the Watson mortgage; and (5) for general relief.\\nThe respondents, Wideman & Wideman, filed an answer in which was incorporated a demurrer and a counter claim. The answer of said respondents, while admitting that they held the evidence of deposit, and the assignment thereof to Phipps, further alleges in effect that the taking by the respondents of said assignment and of the deposit agreement was upon the suggestion of Phipps, through his business representative, and not by the suggestion of the respondents; that said assignment was executed and delivered to Wideman & Wideman, together with the deposit agreement, with the \\\"knowledge, acquiescence and consent of Phipps, and under his instructions; ' ' that by the filing of this petition through other counsel, but not otherwise, the petitioner, Phipps, had discharged the respondent's, Wideman & Wideman, as his attorneys without cause on the part of said respondents, and notwithstanding they had faithfully and efficiently performed and discharged their duties and functions as attorneys for Phipps in and about this litigation, and that said discharge was \\\"without just cause, legal warrant, or ethical formality;\\\" that Phipps has not paid respondents for their services in his behalf in this litigation, but on the contrary is still indebted to respondents in a large sum of money for their professional services in procuring the decree in his favor in the principal litigation, which sum Phipps had not paid nor offered to pay them, and that although they originally took possession of said evidence of deposit and assignment thereof under Phipps' instructions, they now hold the same, in view of their wrongful discharge, against the payment to them of reasonable compensation for their services, to secure which indebtedness respondents allege that they are entitled to a lien upon said instruments and are entitled to hold the same until such lien be satisfied by payment, inasmuch as the documents in question are not a part of the files or record in the cause. Respondents further allege, however, that they do not assert, claim or hold said lien or the possession of said documents in such manner as to prevent the complainant from receiving all and singular the benefits to which he may be entitled under said final decree, but that they subordinate their claim against the said moneys, and the documents representing the same, to the purpose for which it was originally deposited in the registry of the court by the complainant, that is, to he paid to the principal defendants as directed by the final decree. By way of counter claim, said respondents pray that the amount of the fee to which they are entitled may he ascertained, that they may be decreed to hold a lien upon the documents aforesaid to secure the same, and that if necessary the lien be foreclosed and the documents sold under the direction of the court.\\nIt further appears from the respondents' answer that the evidence of the first deposit, which petitioner seeks to recover herein, was not a mere receipt held by the clerk amongst the files and records of this cause, and evidencing the simple deposit by the clerk in the bank of the sum of $50,000, hut that the petitioner, Phipps, caused to be delivered to the clerk a certified check payable, to the order of said clerk in the sum of $50,000, which check was drawn by the Palm Beach Company on and certified by said Farmers Bank and Trust Company, under an agreement between the bank and the clerk that said certified check was not to be cashed, but was to be held by said clerk until the funds were needed for disbursement.\\nThe chancellor overruled a motion to strike that part of respondents' answer constituting a counter claim for services and asserting a lien on the documents mentioned, from which order this appeal is taken.\\nFrom the foregoing facts, it is appaient that this is more than a mere summary proceeding to compel an attorney to restore court records withheld by him without authority. If this were merely a proceeding of that character, the only appropriate or necessary inquiry would be whether the documents are in fact a part of the court records, and whether their possession by the attorneys is with the sanction of the court, as it is settled that an attorney has no lien for services upon public documents. 6 C. J. 786.\\nThe chancellor has found that the documents in question are not a part of the court records or files. Whether they are such, or not, this petition invites issues upon other justiciable questions immaterial to a summary proceeding of the character just stated, and which questions are foreign to the issues of the principal suit.\\nThis petition invites an issue, amongst other things, upon the discharge of Wideman & Wideman as attorneys for the original complainant; the payment in full of their compensation ; whether or not they advised the deposit of the second $50,000; whether the second deposit was necessary as a matter of law; whether the loss of the first deposit would fall upon the complainant, Phipps, or upon the defendants; the authority of the clerk to assign the first deposit; and other matters. None of those matters would be pertinent in a summary proceeding brought merely to compel restoration of court files withheld without authority. The respondents, Wideman & Wideman, have put these matters in issue, as they were entitled to do1 in view of the allegations of the petition. Having been called upon to answer whether or not they have received their compensation, they answer that they have not, and claim a lien upon the documents in question to secure the same, further claiming the right to hold the documents in enforcement of the lien. The issues tendered by the respondents are appropriate responses to the allegations of the petition itself (See 6 C. J. 803), but are wholly extraneous to the issues in the principal suit.\\nIn appropriate eases, an attorney may proceed to recover his fees by supplemental petition in the original suit. Fuller v. Clemons (Ala.), 48 So. R. 101. The proceeding here before us, however, is unlike one in which an attorney, by supplementary petition, undertakes, to enforce his lien for services upon a judgment, or the proceeds thereof, or upon funds in the registry of the court. See 6 C. J. 797. Here the petition brought by the aUent is for the purpose, amongst others, of recovering certain collateral documents, but it also asserts the payment of his attorney's compensation, and embraces allegations upon divers collateral matters. To this the attorney interposes a defense, denying the payment of his compensation, asserting a lien upon the documents, and raising other isues of both fact and law appropriate to the allegations of the petition but foreign to the purposes of the principal suit. The scope of the petition is such that an appropriate defense thereto by the several respondents entails a variety of unrelated issues which should not be grouped in one proceeding. As to the respondents Wideman & Wideman, the issues \\u00e1re of such a nature that it would be inappropriate to litigate them upon a mere rule nisi issued upon a summary petition filed as an appendage to the principal suit.\\nWhile the pleading in question is styled a \\\"petition,\\\" it bears many characteristics of a supplemental bill. Considered as a supplemental bill, however, the pleading is equally out of place in this suit. The proceeding is not in aid of the principal decree, nor is the purpose thereof to remedy a mistake or omission therein, nor do the matters presented for adjudication by the petition in any wise affect the matters adjudicated in the final decree. See Knott v. Fuquay, decided May 15, 1930, 128 So. R. 493.\\nThe situation here presented differs essentially from that in McPherson v. Cox, 96 U. S. 404, 24 L. Ed. 746. That was a suit brought against an attorney by a former client to remove the attorney from his place as trustee under a deed of trust to secure a bond payable to the complainant-client, and to compel delivery of the bond to the complainant. Those being the objects of the principal suit, it was held that the question of the client's indebtedness to the attorney for services, and the attorney's lien upon the document to secure such indebtedness, could be litigated therein, as those,,questions were germane to the subject matter of the bill of complaint.\\nThis is not an appeal from an order on the demurrer to the petition. The order appealed from apparently assumes that the petition is properly filed in this cause as that question does not seem to have been urged below. In its present form, however, the petition violates established rules of procedure, and therefore cannot be entertained as a supplemental proceeding in this cause. It is, therefore, ordered that the cause be remanded with directions to dismiss the petition.\\nWhitfield, P. J., and Buford, J., concur.\\nTerrell, C. J., and Ellis and Brown, J. J., concur in tbe opinion and judgment.\"}"

florida/1883623.json

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+"{\"id\": \"1883623\", \"name\": \"State, ex rel. H. E. Gandy, v. Harvey E. Page, County Judge of Escambia County, B. L. Davis, Supervisor of Registration of Escambia County, and H. A. Brosnaham, Chairman of County Commissioners of Escambia County, as and Constituting the County Canvassing Board of Escambia County\", \"name_abbreviation\": \"State ex rel. Gandy v. Page\", \"decision_date\": \"1936-09-28\", \"docket_number\": \"\", \"first_page\": \"348\", \"last_page\": \"359\", \"citations\": \"125 Fla. 348\", \"volume\": \"125\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T00:00:58.496410+00:00\", \"provenance\": \"CAP\", \"judges\": \"Ellis, P. J., and Terrell, Brown and Buford, J. J., concur.\", \"parties\": \"State, ex rel. H. E. Gandy, v. Harvey E. Page, County Judge of Escambia County, B. L. Davis, Supervisor of Registration of Escambia County, and H. A. Brosnaham, Chairman of County Commissioners of Escambia County, as and Constituting the County Canvassing Board of Escambia County.\", \"head_matter\": \"State, ex rel. H. E. Gandy, v. Harvey E. Page, County Judge of Escambia County, B. L. Davis, Supervisor of Registration of Escambia County, and H. A. Brosnaham, Chairman of County Commissioners of Escambia County, as and Constituting the County Canvassing Board of Escambia County.\\n169 So. 854.\\nOpinion Filed September 28, 1936.\\nI. McHenry Jones, John L. Reese and Henry Botts, for Relator;\\nPhilip D. Beall and William Fisher, for Respondents;\\nR. Pope Reese, as amicus curiae. \\u25a0\", \"word_count\": \"2052\", \"char_count\": \"12584\", \"text\": \"Davis, J.\\n\\u2014 Gandy and Mays were candidates for nomination to the office of Sh\\u00e9riff of Escambia County at the second Democratic primary election held June 23, 1936. Gandy polled 5,828 votes and Mays polled 5,807 votes, ex- elusive of certain \\\"absentee\\\" ballots! that have been brought into controversy in this proceeding. Said absentee ballots were objected to and challenged by written protest signed and filed with the County Canvassing Board of Escambia County prior to the completion of the County canvass of votes cast for the office of sheriff and the object of this proceeding is to make such challenge and protest effective by means of a judicial command per mandamus to coerce the respondent members of the County Canvassing Board to reject the \\\"absentee\\\" ballots according to the ground of objection urged in the written challenges interposed thereto.\\nAttached to the alternative writ and made a part thereof is a list of challenged voters described as \\\"Exhibit 1-A.\\\" Such list is as follows:\\n\\\"Exhibit T-A.'\\n\\\"Precinct \\\"Name and Address.\\n30 \\\"Mrs. Ermelinda Rosasco, Washington.\\n30 Henry P. Rosasco, Washington.\\n14 L. F. Giarette, Hattiesburg, Miss.\\n26 Louise Smallwood Burd, Bethesda, Maryland.\\n46 T. E. Bledsoe, Washington.\\n29 Madge M. Cushman, Washington.\\n42 Dorothy Roberts, Washington.\\n39 Tom E. Williams, Hyattsville, Maryland.\\n41 James A. White, Washington.\\n39 Herbert Lindsay, Washington.\\n27 Wm. R. Mayes, Washington.\\n39 Mabel R. Robartson, Washington.\\n39 C. R. Swett, Washington.\\n30 Harry J. White, Washington.\\n14 D. C. Thornton, Washington.\\n13 Margaret R. Johnston, Washington.\\n14 Marion C. Hall, Washington.\\n29 Howland A. Sarra, Washington.\\n13 John C. Greene, Washington.\\n13 Bertha C. Greene, Washington.\\n32 Charles H. Cope, Washington.\\n31 Herman Engel, Washington.\\n27 Lois K. Mayes, Washington.\\n27 Charles A. Mayes, Washington.\\n26 Lena B. Hertner, Washington.\\n34 Annie T. Townsend, Washington, D. C.\\n34 EdgaP W. Townsend, Washington.\\n39 Lucile Robertson, Washington.\\n34 Wm. J. Anderson, Washington.\\n34 ' Laura May Anderson, Washington.\\n42 Sherry T. McAdams, Jr., Washington.\\n27 Faith Binkley, Washington.\\n13 Hazel D. Johnston, Miller, Washington.\\n14 Anna G. Ehrlich, Washington.\\n14 A. M. Ehrlich, Washington.\\n27 L. Grey Bell, Camden, N. J.\\\"\\nThe particular ground upon which the foregoing votes were challenged, and upon which they are contested in this proceeding is that each of the parties named in said list and whose ballots are involved in this contest were registered solely upon the provisions of Chapter 16987, Acts 1935, which Act relator alleges is unconstitutional and void because (a) said Act requires the registration of persons without the State of Florida by filing of an affidavit which does not comply with Section 3 of Article VI of the Constitution of Florida; (b) said Act requires registration of persons without the State of Florida in any primary, general, school, municipal or special election pursuant to a form of affidavit prescribed therein that does not contain any provision for an oath by the elector to protect and defend the Constitution of the State of Florida nor any affirmation or oath that the elector is twenty-one years of age and entitled to vote under the Constitution and laws of the State of Florida; (c) that said Act is in conflict with Section 3 of Article' VI of the Constitution of Florida. It is further alleged that none of the listed voters actually took or subscribed to the elector's oath required by Section 3 of Article VI of the Constitution of Florida.\\nThe primary election laws are a part of the general election machinery of the State. Under their present effect as interpreted by this Court, no candidate is eligible to have his name printed on the general election ballot as a candidate for elective office in opposition to major parties' candidates, if the latter have been nominated in the general June biennial primary elections. Primary elections are, therefore, the beginning of the operation of the general election laws that must ultimately result in the actual choice of our elective public officers. As such our primary election law amounts to a policing and regulation of the method and means by which the political activities of the qualified electors defined by Section 1 of Article VI of the Constitution (who are bona fide members of the recognized major political parties of the State) are ultimately exerted in the final choice of elective officers.\\nThe Constitution of Florida defines the qualifications of electors who may participate in general elections. Section 1 of Article VI. It likewise requires an official registration of all such qualified electors before they can be permitted to vote. Section 2 of Article VI. And as a condition precedent to such constitutionally required registration the Constitution further provides that all qualified voters who present themselves for registration under the law shall personally appear before the registration officer and there take and subscribe before such officer the following oath set forth in Section 3 of Article VI:\\n\\\"I do solemnly swear or affirm that I will protect and defend the Constitution of the United States and of the State of Florida, that I am twenty-one years of age, and have been a resident of the State of Florida for twelve months and of this county for six months, and I am qualified to vote under the Constitution and laws of the State of Florida.\\\"\\nThat personal appearance before registration officers is required is clearly indicated in the) last clause of Section 1 of Article VI which requires that in the event the person tendering himself to be registered shall be a naturalized citizen of the United States, that such applicant for registration shall produce \\\"to\\\" the registration officers his certificate of naturalization, etc. The registration officers contemplated by the Constitution are those who have been officially appointed and commissioned as such and who have qualified as public registration officers by taking the oath of office prescribed by Section 2 of Article XVI of the Constitution and whose acts are designed by law to be performed within the territorial limits of the State of Florida under the .sanction and penalties of its laws and not mere official registrars.\\nUnder Section 26 of Article III the Legislature is required to pass laws regulating elections and prohibiting under adequate penalties all undue influence thereon from power, bribery, tumult or other improper practice. As has been held by this Court, such section of the Constitution contemplates' laws regulating primary elections as well as general elections because of the inevitable relationship of the two classes of elections to each other. Thus, the Legislature is authorized by said section of the Constitution to enact laws designed to confine participations in party primary elections to bona fide recognized members of the po litical parties required by law to participate in such legally sanctioned and regulated primary elections as may be provided for by statute. But the constitutional predicate for the authority of the State to deal at all by statute with the conduct of party primary elections is to be found only in the recognized fact that primary elections are merely a species of preliminary election set up by political parties to be participated in by party members who are otherwise qualified electors for the subsequent general elections by supporting therein the nominees selected at the primaries of their respective parties.\\nThe act of registration of an elector is the first step in the process of voting, which is a sovereign act, in fact, the highest act of sovereignty that can be exercised by an American citizen. By taking that step, the applicant for registration vouches for his qualification to vote under the Constitution and laws of this State. It is contemplated by the Constitution, in the sections and articles hereinbefore cited, that such initial act of sovereignty on the eligible citizen's part shall be performed, like all other acts of State sovereignty, within the territorial jurisdiction of the 'State wherein registration is to be accomplished.\\nOnly by taking that step, and by his acceptance and acknowledgment by the State through its duly constituted and qualified registration officers, that he is qualified under the Constitution and laws of the State to vote, can the citizen become an \\\"elector,\\\" and thereby stand entitled to exercise his suffrage as such, on condition, however, that he comply with such other requirements of law as may be imposed upon him as a matter of policing the process by which he is authorized to cast his vote at a place and within the time, and subject to the regulations, provided by law to govern the elections themselves.\\nChapter 16987, Acts of 1935, in terms authorizes the act of registration to be performed outside the territorial jurisdiction of the State of Florida and therefore beyond the ability to enforce against the registrant the sanction of, the laws that are required to be passed by the Legislature under Section 9 of Article VI and under Section 26 of Article III of the Constitution to protect the \\\"purity\\\" of the ballot. Under that Act persons outside the constitutional jurisdicion of the State of Florida to sanction oaths and to enforce its criminal laws relating to the act of registration, are permitted to perform the act of registration as an \\\"elector,\\\" which is a sovereign act, absent the contemplated supervision of the State's registration officers. In addition to that, the Act in terms prescribes a form of elector's oath wholly at variance with that prescribed and required by Section 3 of Article VI of the Constitution, and thereby entitles persons taking such unauthorized form of oath to the privilege of an elector that could not be acquired by the same applicant were the identical oath t\\u00f3 be taken before a Supervisor of Registration within the State.\\nSo whether primary elections are in all respects to be considered constitutional elections or not within the purview of some of the constitutional provisions relating to elections as such, the citizen's act of registration as an \\\"elector\\\" is a constitutional prerequisite to his becoming such elector. Moreover, the act of registration is a sovereign act because it is the citizen's initial step in the process of acquiring the right to vote, as well as the' elector's first step in the act of voting be done at primary elections or general elections.\\nRegistration of electors therefore being a sovereign act contemplated to be performed in the acquirement of an official State status, namely, that of a \\\"qualified elector\\\" under the Constitution of Florida, must be performed within the territorial limits of the State and cannot be authorized to be performed outside the State and beyond the reach of enforcement of its laws' required by its Constitution to be passed in order to secure the citizens in their constitutional right to an undefiled suffrage. Such registration is certainly not authorized to be performed outside the State on less exacting requirements of the registrant, or absent the constitutional form of oath, that is required of persons registering in the State for like purposes.\\nWe hold, therefore, that Chapter 16987, Acts of 1935, is unconstitutional and void in the particulars specified in the objections and challenges referred to in these proceedings and that the votes affected by each such protest and challenge, if the protest and challenge be found by the respondents well founded in fact, should be sustained and the votes affected thereby rejected in the final canvass.\\nThe alternative writ is good at least as to that part of the relief sought with reference to objections based on the alleged invalidity of Chapter 16987, so the general demurrer to same will be overruled with leave to both relator and respondents to file such amendments and pleadings as they may be advised, relating to matters in issue, same to be done within ten days from this date.\\nEllis, P. J., and Terrell, Brown and Buford, J. J., concur.\"}"

florida/1970775.json

@@ -0,0 +1 @@
+"{\"id\": \"1970775\", \"name\": \"THE SURF CLUB, a corporation not for profit, organized and existing under the Laws of the State of Florida, v. TATEM SURF CLUB, INC., a corporation for profit, organized and existing under the Laws of the State of Florida\", \"name_abbreviation\": \"Surf Club v. Tatem Surf Club, Inc.\", \"decision_date\": \"1942-04-10\", \"docket_number\": \"\", \"first_page\": \"406\", \"last_page\": \"422\", \"citations\": \"151 Fla. 406\", \"volume\": \"151\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:20:56.849578+00:00\", \"provenance\": \"CAP\", \"judges\": \"BROWN, C. J., TERRELL, and CHAPMAN, JJ., concur.\", \"parties\": \"THE SURF CLUB, a corporation not for profit, organized and existing under the Laws of the State of Florida, v. TATEM SURF CLUB, INC., a corporation for profit, organized and existing under the Laws of the State of Florida.\", \"head_matter\": \"THE SURF CLUB, a corporation not for profit, organized and existing under the Laws of the State of Florida, v. TATEM SURF CLUB, INC., a corporation for profit, organized and existing under the Laws of the State of Florida.\\n10 So. (2nd) 554\\nDivision B\\nApril 10, 1942\\nOn Petition for Rehearing July 10, 1942\\nRehearing Granted En Banc November 17, 1942\\nFurther Rehearing Denied December 11, 1942\\nMcKay, Dixon & DeJarnette, for appellant.\\nFrancis M. Miller and George H. Salley, for appellee.\", \"word_count\": \"3730\", \"char_count\": \"21990\", \"text\": \"THOMAS, J.:\\nAppeal was taken from an order granting a motion to dismiss the amended bill of complaint filed by The Surf Club, a corporation not for profit, against Tatem Surf Club, Inc., a corporation for profit, containing a prayer for a decree restraining the use by the latter of \\\"the words 'Surf Club' or the word 'Surf' as applied to a social or purportedly social organization. . . .\\\"\\nAllegations which plaintiff proposed to prove as a foundation for the relief sought were: that it had been in existence and operation as an exclusive social club for many years and owned and maintained vari ous facilities for the pleasure, entertainment and comfort of its members; that it had a proprietary interest in the words \\\"surf club\\\" by which it had long been known; and that membership in the association carried with it great prestige. It was averred that the defendant was chartered in 1940 and was engaged in maintaining facilities of a type similar to those of the plaintiff which are available to the public for a charge and to the patrons of The Tatem Hotel.\\nIt was alleged that the use by th\\u00e9 defendant of the words \\\"surf club,\\\" \\\"tends to produce confusion in the minds of persons having business dealings with the plaintiff and in the minds of the general public, and tends to and does identify the plaintiff and its members with activities . . . and persons not actually connected with the plaintiff . . . and such confusion tends to and does disparage and destroy the prestige connected with the membership in the plaintiff . . . .\\\" Succinctly stated, the damage claimed is the loss of prestige by reason of the confusion which the use of the words \\\"surf club\\\" by defendant causes or tends to cause. It cannot be deducted from the allegations that the parties were competitors, one being purposely exclusive, the other seeking the patronage of the public.\\nThe primary question is the right of the defendant to use the word \\\"surf\\\" which is variously referred to as generic, geographic and descriptive. The Court recognized in Addison v. Hooks, 91 Fla. 337, 107 So. 623, cited by both parties in their briefs, the general rule that geographic names are considered common property and may not in ordinary circumstances be appropriated as trade names. The case dealt with the use of the name of a city in designating- a certain manufacturing business located in it. In the same opinion' a qualification to the rule was recognized, that is, that such a name may acquire a secondary significance or meaning entitling the user to protection if the use has been so connected with a patricular type or kind of business as to have come to denote not only the place and the name of the manufacturer but also the excellence of a product. It is the contention of the appellant that by the long use of the words in its title they have attained a secondary meaning under the exception to the rule and that, therefore, they are entitled to a decree of the court enjoining the use of-the words by the defendant.\\nWe have the impression from an examination of many authorities that the purpose of the exception is the protection of the public. If a corporation has so long used words of geographic definition that they have become identified with a product of fine quality later use of the same or a similar title might result in there being foisted on the public goods of an inferior quality.\\nThe generic word \\\"surf\\\" is so comprehensive as to designate any place where the waves break on the shore and the word \\\"club\\\" is as broad in its use or application. Under the general rule that we have stated we are of the opinion that the plaintiff could not have been protected in the use of these words.\\nWe have met much difficulty in our search for a decision involving facts resembling those stated in the present bill. There are numerous opinions dealing with the exception where business corporations are involved but here, of course, the controversy exists between a social organization purposely exclusive and not catering to the public and one offering like ad vantages but openly seeking public patronage. It is fairly clear that the basis for the concept \\\"secondary meaning\\\" was the prevention of deception of the public but in the cases we have studied involving social or recreational organizations that factor is not emphasized and the principal element seems to be the effect on the prior user of the adoption of a similar name by a newer association of the same character. Benevolent & P.O.E. v. Improved Benev. & P.O.E., 205 N. Y. 459, 98 N.E. 756, L.R.A. 1915B, 1074, Ann. Cas. 1913E, 639.\\nWhen it is considered that the word \\\"surf\\\" could be used to describe numberless miles of beaches and the word \\\"club\\\" countless associations of great variety, it seems to us that joining with them the article \\\"the\\\" could not, regardless of the length of the use, invoke the general rule. These generic words immediately suggest recreational and social advantages available at a beach resort and the plaintiff did not have the pre-emptive right to employ them as title. Moreover, when the defendant used as a prefix the proper name \\\"Tatem\\\" it did all that could be expected of it to distinguish its activities from those of the plaintiff and this in itself created a dissimilarity which should preclude any confusion which would culminate in injury to any of ihe rights of the plaintiff.\\nIn fine, we have the conviction that the words are descriptive of the location of both the plaintiff and the defendant and of the activities of the litigants also, therefore, the one may not employ them to the exclusion of the other. (See Restatement of the Law of Torts, American Law Institute, page 579.) It is our view also that had the plaintiff the right to their use it was not entitled to injunction against the de fendant in view of the incorporation in its title of the proper name.\\nThe decree is affirmed.\\nBROWN, C. J., TERRELL, and CHAPMAN, JJ., concur.\"}"

florida/1975895.json

@@ -0,0 +1 @@
+"{\"id\": \"1975895\", \"name\": \"Earnest A. Warren v. Elizabeth G. Warren\", \"name_abbreviation\": \"Warren v. Warren\", \"decision_date\": \"1941-11-12\", \"docket_number\": \"\", \"first_page\": \"439\", \"last_page\": \"439\", \"citations\": \"148 Fla. 439\", \"volume\": \"148\", \"reporter\": \"Florida Reports\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T01:05:21.297419+00:00\", \"provenance\": \"CAP\", \"judges\": \"Brown, C. J., Whitfield, Terrell, Chapman and Thomas, J. J., concur.\", \"parties\": \"Earnest A. Warren v. Elizabeth G. Warren\", \"head_matter\": \"Earnest A. Warren v. Elizabeth G. Warren\\n4 So. (2nd) 524\\nEn Banc\\nOpinion Filed November 12, 1941\\nGeorge Campbell, for Petitioner;\\nClement L. Theed, for Respondent.\", \"word_count\": \"87\", \"char_count\": \"517\", \"text\": \"Per Curiam.\\nNo error is clearly apparent from an examination of the file and the briefs in this cause, therefore, the petition for certiorari to review an order of the chancellor denying a motion to dismiss the bill of complaint is denied.\\nBrown, C. J., Whitfield, Terrell, Chapman and Thomas, J. J., concur.\\nBuford and Adams, J. J., not participating.\"}"

florida/2019118.json

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+"{\"id\": \"2019118\", \"name\": \"MURRIN v. MURRIN\", \"name_abbreviation\": \"Murrin v. Murrin\", \"decision_date\": \"1990-07-20\", \"docket_number\": \"Case No. 87-1124-CA\", \"first_page\": \"153\", \"last_page\": \"155\", \"citations\": \"43 Fla. Supp. 2d 153\", \"volume\": \"43\", \"reporter\": \"Florida Supplement Second\", \"court\": \"Florida Circuit Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T18:19:13.627073+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MURRIN v MURRIN\", \"head_matter\": \"MURRIN v MURRIN\\nCase No. 87-1124-CA\\nNineteenth Judicial Circuit, Martin County\\nJuly 20, 1990\\nAPPEARANCES OF COUNSEL\\nDavid J. Chesnut, Esquire.\\nRussell J. Ferraro, Jr., Esquire.\", \"word_count\": \"745\", \"char_count\": \"4436\", \"text\": \"OPINION OF THE COURT\\nJOHN E. FENNELLY, Circuit Judge.\\nFINAL JUDGMENT AFTER REMAND\\nTHIS MATTER is before this Court pursuant to the Mandate of the Fourth District Court of Appeal. That Mandate directed the trial Court to determine an appropriate level of permanent periodic alimony based on the undisputed showing of need by the Former Wife and ability by the Former Husband. The District Court, while affirming all other aspects of Judge Ciancia's decision, specifically indicated that the Court court reconsider those decisions in light of the Mandate. The Amended Final Judgment specifically found that the Former Husband's stocks, bonds, and C.D.'s, in the amount of $39,000 were his separate property. The judgment also found that the Former Husband \\\"proved a special equity\\\" in assets titled jointly in both the Former Husband and Former Wife's names. Those assets were a $40,000 C.D., a 1986 Mercury Marquis, and the marital resident with a gross equity of $44,000.\\nFactually, this was an approximately eight year marriage, the second for both parties. The Former Wife is permanently disabled, has little income, and brought almost no property to the marriage. A review of the trial transcript and testimony at the hearing conducted pursuant to the Appellate Mandate, and the depositions, reveal that the Former Husband and Former Wife kept their finances totally separate. The Former Husband paid all marital bills including house payments from his separate funds. The Former Wife, on the other hand, used her limited income for purposes unrelated to the marriage.\\nThe first issue to be decided, in light of the Mandate, is the effect of an award of permanent periodic alimony upon the lump sum award given in the first trial. In the Court's view the determinations in Paragraph 3 and Paragraph 4, as indicated by the record, and the opinion of the Fourth District Court, are supported by competent and substantial evidence and are the law of the case.\\nAnother issue is presented by the award of $36,000 in lump sum alimony. A review of the record indicated this award was in the nature of a support award and not intended as a vehicle for equitable distribution. In the Court's view, this award must be revisited in view of the unique factual posture of this case. The Former Husband has almost $260,000 in separate non-marital assets. He enjoys income in an amount of roughly $2,400 per month. The Former Wife, on the other hand, receives roughly. $534.00 per month. It should be emphasized, however, that almost 33 Vs% of the Former Husband's income is generated by his interest income from what is non-marital property. To continue the lump sum periodic payments would result in depletion of assets available for payment of permanent periodic alimony. This in turn would create a lesser ability to pay on his part. Thus, the Court is faced with a real dilemma. If the present lump sum award is left untouched the Former Husband's ability to pay the Former Wife legitimate needs will be impaired. This because, as amply indicated by the record, he will be forced to liquidate the assets that generate his ability to pay permanent periodic alimony. It is, of course, true that the former marital home could be sold for payment of a lump sum award. That, in this Court's view, would be draconian and self defeating. The monthly mortgage payment is low and allows funds to be available for support. If the Former Husband sells his home he would surely need to obtain housing. Any rental arrangement would certainly be more expensive and thus again impact on his ability to pay (See Former Husband's Financial Affidavit). Based on the foregoing and in view of the Appellate Mandate, the Court is of the view that the present case is controlled by Marshall v Marshall, 445 So.2d 706 (Fla. 4th DCA 1984).\\nBased on the foregoing the lump sum alimony award is vacated and the Former Wife is awarded permanent periodic alimony in the amount of $600 per month, retroactive to the date of the Final Judgment. The Former Husband will receive credit for all payments made. Attorney's fees are awarded to the Former Wife in the amount of $8,000 with costs of $771.99.\\nDONE AND ORDERED in Chambers, Stuart, Martin Company, Florida, on this 20th day of July, 1990.\"}"

florida/6794861.json

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+"{\"id\": \"6794861\", \"name\": \"FLORIDA BOARD OF BAR EXAMINERS RE R.W.S.\", \"name_abbreviation\": \"Florida Board of Bar Examiners re R.W.S.\", \"decision_date\": \"2016-07-07\", \"docket_number\": \"No. SC16-1159\", \"first_page\": \"1018\", \"last_page\": \"1020\", \"citations\": \"194 So. 3d 1018\", \"volume\": \"194\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T02:22:58.312939+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FLORIDA BOARD OF BAR EXAMINERS RE R.W.S.\", \"head_matter\": \"FLORIDA BOARD OF BAR EXAMINERS RE R.W.S.\\nNo. SC16-1159.\\nSupreme Court of Florida.\\nJuly 7, 2016.\", \"word_count\": \"821\", \"char_count\": \"5069\", \"text\": \"Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and R.W.S. shall be admitted to The Florida Bar subject to the following conditions:\\n1. The applicant's license to practice law shall be placed on probation for a period of 4 years and 6 months.\\n2. During the period of probation, the applicant shall:\\n(a) abstain from the consumption of alcoholic beverages;\\n(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;\\n(c) participate actively in the program offered by Florida Lawyers Assistance, Inc., during the entire probationary period by complying with the rehabilitation contract with that organization executed on November 25, 2015, and by extending the contract to cover the entire period of probation if necessary;\\n(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other substance dependent individuals;\\n(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;\\n(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.; and\\n(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (e), (d) and (e) above.\\n3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1 \\u2014 3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.\\n4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.\\n5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.\\n6. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance \\u2022with the rules and regulations governing admission to The Florida Bar.\\n7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is \\u2022 timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.\\n8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.\\n9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The 'Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either . paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for- a minimum of three, up to five years.\\n10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials, in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.\"}"

florida/6795647.json

@@ -0,0 +1 @@
+"{\"id\": \"6795647\", \"name\": \"John C. ODOM, Petitioner, v. STATE of Florida, Respondent\", \"name_abbreviation\": \"Odom v. State\", \"decision_date\": \"2016-06-17\", \"docket_number\": \"No. 5D16-478\", \"first_page\": \"1082\", \"last_page\": \"1082\", \"citations\": \"193 So. 3d 1082\", \"volume\": \"193\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T02:08:59.950665+00:00\", \"provenance\": \"CAP\", \"judges\": \"COHEN, BERGER, and LAMBERT, JJ., concur.\", \"parties\": \"John C. ODOM, Petitioner, v. STATE of Florida, Respondent.\", \"head_matter\": \"John C. ODOM, Petitioner, v. STATE of Florida, Respondent.\\nNo. 5D16-478.\\nDistrict Court of Appeal of Florida, Fifth District.\\nJune 17, 2016.\\nJohn C. \\u00a1Odom, Century, pro se.\\nPamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General,- Daytona Beach, for Respondent.\", \"word_count\": \"89\", \"char_count\": \"615\", \"text\": \"PER CURIAM.\\nThe petition for writ of habeas corpus alleging ineffective assistance of appellate counsel is denied without prejudice to petitioner timely filing a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.\\nPETITION DENIED.\\nCOHEN, BERGER, and LAMBERT, JJ., concur.\"}"

florida/6819482.json

@@ -0,0 +1 @@
+"{\"id\": \"6819482\", \"name\": \"PREWITT ENTERPRISES, LLC, Appellant, v. TOMMY CONSTANTINE RACING, LLC, a foreign limited liability company, and Tommy Constantine, a/k/a Thomas Constantine, individually, Appellees\", \"name_abbreviation\": \"Prewitt Enterprises, LLC v. Tommy Constantine Racing, LLC\", \"decision_date\": \"2016-01-27\", \"docket_number\": \"No. 4D11-4208\", \"first_page\": \"566\", \"last_page\": \"571\", \"citations\": \"185 So. 3d 566\", \"volume\": \"185\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T23:39:06.179022+00:00\", \"provenance\": \"CAP\", \"judges\": \"WARNER and STEVENSON, JJ., concur.\", \"parties\": \"PREWITT ENTERPRISES, LLC, Appellant, v. TOMMY CONSTANTINE RACING, LLC, a foreign limited liability company, and Tommy Constantine, a/k/a Thomas Constantine, individually, Appellees.\", \"head_matter\": \"PREWITT ENTERPRISES, LLC, Appellant, v. TOMMY CONSTANTINE RACING, LLC, a foreign limited liability company, and Tommy Constantine, a/k/a Thomas Constantine, individually, Appellees.\\nNo. 4D11-4208.\\nDistrict Court of Appeal of Florida, Fourth District.\\nJan. 27, 2016.\\nRehearing Denied March 3, 2016.\\nJames D. Tittle of Tittle, Kairalla & Logan, P.L., West Palm Beach, for appellant.\\nThomas L. Hunker of The Hunker Law Group, P.A., Miami, for appellees.\", \"word_count\": \"2471\", \"char_count\": \"15742\", \"text\": \"FORST, J.\\nThis case concerns an agreement and subsequent disagreement between two members of the auto-racing community. The jury rendered a verdict in favor of plaintiff/Appellant Prewitt Enterprises, LLC and awarded damages for breach of contract and fraudulent inducement.' However, the fraudulent inducement verdict was reversed by the trial court, in favor of defendants/Appellees Tommy Constantine Racing, LLC and Tommy Constantine. As set forth below, we reverse the trial court's judgment notwithstanding the verdict and remand for the trial court to reinstate the jury's award of damages for fraudulent inducement in favor of Appellant. Our decision renders.Appellee's first cross-appeal argument for new trial \\u2014 improper evidence \\u2014 moot. We also affirm on Appellee's second argument for new trial, .the denial of out-of-state attorney Dennis Wilenchik's motion.to appear pro hac vice. \\\\ .\\nBackground\\nAppellant' desired to join a championship-level auto-racing team, but wanted to find a team that was already fully funded. According to the testimony at trial, Appel-lee offered Appellant the opportunity to join his team. He specifically told Appellant that he did not need his money in order to run the team under the Tommy Constantine Racing name. Appellee indicated that he was already fully funded through sales of sponsorships. At one point, Appellee even suggested that he might not want to partner with Appellant because he did not actually need him. Appellant took the bait and agreed to work with Appellee.\\nAppellant and Appellee drafted . and signed a written agreement after six weeks of discussions. The written agreement contained a .requirement that Appellant pay Appellee nearly one million dollars in four installments. The written agreement specified that the payments, \\\"shall [be] use[d] . to provide\\\" various racing programs and made no comment about Appel-lee's ability to pay for the program. , The agreement also referenced associate-level sponsorships that Appellant could use to generate funds. The agreement did not contain an integration clause, and instead included a provision indicating that it would only be binding \\\"until such time that [the parties] may execute a formal contract ('Definitive Agreement').\\\"\\nBefore the first race, Appellee called Appellant to let him know there were problems with some of the vehicles and the team would not race. Appellant later learned that the reason for \\\"the problems\\\" was that Appellee did not have the money necessary to pay for certain components of the cars being built. Appellant terminated the contract when he learned that Appellee lacked .the money to fund the team.\\n: Appellant sued Appellee to recover his lost initial payment. Appellant proceeded on two claims; (1) a fraudulent inducement claim based on Appellee's alleged-misrepresentation of his finances, and (2) a breach of contract claim for the failure to actually provide a team. Appellee filed counterclaims for breach of contract and replevin.\\nBefore trial, the parties entered into a Joint Pretrial Stipulation. In that stipulation, the parties agreed that \\\"[Appellee] did not have the ability to fund, independent of contribution of funds from [Appellant], a five car racing team.... \\\"\\nAbout five weeks before trial, out-of-state attorney Dennis Wilenchik f\\u00edl\\u00e9d \\u00e1 pro hac vice motion, to appear on behalf of Appellee. Wilenchik had been .practicing law in Arizona for thirty-three years and held multiple certifications, ratings, awards, and the like. The motion revealed that Wilenchik had recently received a letter of admonition from the Arizona Bar because of an inappropriate letter sent by Wilenchik- to a court. The motion also noted that \\\"[a]ny other prior investigations were fully dismissed without any complaint.\\\"\\nThe trial court denied Wilenchik's motion based in part on its incompleteness, but did so without prejudice so that Wilen-chik could more fully complete the application. A week and a half before trial, Wil-enchik submitted a new application. Along with the application, Wilenchik submitted an affidavit describing his credentials and impeaching the credibility of various articles that Appellant had cited in the hearing on the first motion. He also submitted a complete discipline record history from Arizona and copies of a number of the items referenced in the first hearing.\\nThe court again denied Wilenchik's motion. The order stated that \\\"[t]he Court [found] that this appearance is likely to adversely effect [sic] the administration of justice and disrupt these proceedings.... \\\" This conclusion came after the court reviewed and described the materials included in Wilenchik's affidavit.\\nOn the morning of the first day of trial, Appellee requested that the court reconsider Wilenchik's motion. The trial court refused, saying .\\\"I'm not going to rehear that motion. I mean, there are several reasons why I didn't think it was appropriate in this case to admit anyone at the 11th hour. That's why I did it.\\\" As a result of Wilenchik not being able to appear, Appel-lee was represented by a different attorney who had never previously sat first-chair for a.jury trial and who, according to Appellee, \\\"made repeated blunders which severely prejudiced\\\" his case.\\nThe jury found for Appellant on both of his counts. The jury specifically found that Appellee made \\\"materially false statements . that induced [Appellant]\\\" to enter into the agreement.\\nAppellee made various post-trial motions, including a motion for judgment notwithstanding the verdict and a motion for new trial based both on improper evidence being admitted and the denial of Wilen-chik's pro hac vice motion. The court granted Appellee's motion for judgment notwithstanding the verdict but denied the other motions. Appellant appealed the grant of judgment notwithstanding the verdict and Appellee cross-appealed the denial of his motion for new trial and the denial of the piro hac vice motion.\\nAnalysis\\n1. Judgment Notwithstanding the Verdict\\nJudgments notwithstanding the verdict are reviewed de novo. Atkinson v. Anderson, 77 So.3d 768, 769 (Fla. 4th DCA 2011). \\\"[This] [C]ourt must view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made.\\\" Collins v. Sch. Bd. of Broward Cnty., 471 So.2d 560, 563 (Fla. 4th DCA 1985). \\\"Only where there, is no evidence upon which a jury could properly rely, in finding for the plaintiff, should a directed verdict be granted.\\\" Id.\\nAlthough the trial court relied on the economic loss rule in granting Appellee's motion for judgment notwithstanding the verdict, both parties agree on appeal that the economic loss rule no longer applies to this case. See Tiara Condo. Ass'n v. Marsh & McLennan Cos., 110 So.3d 399 (Fla.2013) (limiting the economic loss rule to only product liability claims). However, Appellee relies on Justice Pariente's concurrence in- that case, which made clear that a tort still must be independent from a contractual breach under the common law. Id. at 409; see also Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (allowing tipsy-coaeh-man affirmances).\\nThe question on appeal therefore turns on the distinction between fraud in the inducement (a false representation is made and relied upon in forming the contract) and fraud in, the performance (a party to the. contract claims to have performed but has. actually just tricked the other party into believing that they have). For the reasons described below, we hold that Appellee's fraudulent (\\\"knowingly false\\\") representations in this case were of a present fact and therefore constituted fraud in the inducement.\\nBecause Appellee relies most heavily on Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74 (Fla. 3d DCA 1997), we use that case to help draw the distinction between the two types of fraud at issue. In Key Largo, the three representations made were that the plaintiffs \\\"would become part of the Radisson Hotels family\\\"; the plaintiffs \\\"were promised, to be .the sole beneficiaries of [a] reservation system\\\"; and the plaintiffs were assured that \\\"more than 40% of [plaintiffs'] room reservations would be derived from the reservation system.\\\" Id. at 76. These were all representations of future conduct and circumstances. The Third District therefore correctly found that the fraud claim was not independent of the contract. Id. at 78.\\nIn the instant case, viewing the evidence in the light most favorable to Appellant, Appellee represented that he already had the funding for the team and did not need Appellant's money. As such, his representations were about present circumstances, i.e., bis -present funding ability, verifiably true or false at the time the representation was made. The fraudulent misrepresentation claim therefore did not merge with the breach of contract claim and the independent tort rule does not support the trial court's grant of Appellee's motion for judgment notwithstanding the verdict. In line with the Fifth District in La Pesca Grande Charters, Inc. v. Moran, 704 So.2d 710, 713 (Fla. 5th DCA 1998), and consistent with the Third District in Key Largo, Appellee's knowingly false statements of present circumstances constitute fraud in the inducement if the other elements of that tort were met (which they were).\\nIf Appellee had represented that he would have the money come race time, or that he would be able to pay, he would have been making a representation of future ability, circumstances, or performance, which would merge with an underlying breach of contract claim. The difference is between telling someone that you have a $10 bill in your pocket right now to pay for lunch (present) as opposed to promising to gladly pay them Tuesday for' a hamburger today (future). Intervening circumstances would be able to affect the latter, but the former is either true or false at the time the representation is made.\\nIn the instant case, Appellee stated that he had far more than $10 in his pocket, enough to fund a full racing team, and Appellant was induced to.act in reliance on Appellee's fraudulent representations about present circumstances. Accordingly, we reverse the trial court's grant of Appel-lee's motion for judgment notwithstanding the verdict and remand for entry of judgment consistent with the jury's verdict.\\nII. Motion for New Trial based on Pro Hae Vice Motion\\nTrial court rulings on motions to appear pro hac vice are reviewed for abuse of discretion. Huff v. State, 569 So.2d 1247, 1249 (Fla.1990). \\\" 'Discretion . is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.'\\\" Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)).\\nA pro hac vice motion should normally- be granted, but may be denied if there exists a legally permissible basis for doing so. THI Holdings, LLC v. Shattuck, 93 So.3d 419, 423-24 (Fla. 2d DCA 2012). One proper reason for denying a pro hac vice motion is if granting it will \\\" 'adversely impact[ ] -the administration of justice.' \\\" Brooks v. AMP Servs. Ltd., 979 So.2d 435, 438 (Fla. 4th DCA 2008) (quoting State Indus., Inc. v. Jernigan, 751 So.2d 680, 682 (Fla. 5th DCA 2000)).\\nHere, the trial court specifically found that Wilerichik's appearance would adversely affect the administration of justice and disrupt the proceedings. It based this conclusion- on Wilenchik's motion and attached exhibits. In particular, the court described how Wilenchik appeared to be boasting about having obtained a mistrial in the past and explained how Wilenehik's Bar complaints from. Arizona concerned the court. Although Wilenchik was only-disciplined once by the Arizona Bar,- his documents indicate the Arizona Bar had a \\\"robust debate\\\" over whether to proceed with investigations on other charges. The potential offenses described include insulting a judge (calling him \\\"a-danger to public safety\\\")-and attempting .to improperly contact a judge presiding over a case. The trial court- found that- \\\"it appears that if a Florida attorney had committed-these acts which have been disclosed,\\\" three Disciplinary Rules \\\"would be violated.\\\"\\nWilenchik apparently has a long-standing disagreement with the website on which most of the articles used by the trial court were posted. These articles were submitted to the court by Wilenchik. . Although he urged 'the court to give little weight to the \\\"tabloid,\\\" his affidavit in support of his motion does not deny the contents of the articles nor highlight the deficiencies; it simply characterized them as \\\"biased\\\" and \\\"trumped up.\\\"\\nWe do not necessarily agree the evidence relied upon by the trial court actually established that Wilenchik's appearance would adversely impact the administration of justice or disrupt the proceedings. However, the question on \\u00e1ppeal is not whether the evidence established problems with Wilenchik's motion being granted in our minds, but whether \\\"'no reasonable [person] would take the view' \\\" that Wilen-chik's appearance would affect the administration of justice. Canakaris, 382 So.2d at 1203 (quoting Delno, 124 F.2d at 967). We cannot say that the trial court's 'determination of this issue was., unreasonable, even if we might have come to a different determination. For that reason, we-hold that the trial court did not abuse its discretion in denying Appellee's motion for new trial based on the denial of Wilenchik's pro hac vice motion. We therefore affirm this issue.\\nConclusion\\nBecause the statements made in this base were of a present circumstance rather than & future one, they may properly serve as the basis of an independent tort based in fraud without merging into the breach of contract claim also asserted. Additionally, we find no abuse of discretion with the trial court's denying Wilenchik's pro hac vice motion.\\nWe therefore reverse the trial court's grant of Appellee's motion for judgment notwithstanding the verdict and affirm the trial court's denial of Appellee's motion for new trial. Accordingly, we remand with instructions for the trial..court to enter judgment in favor of Appellant, consistent with the jury's verdict.\\nReversed and remanded for proceedings consistent with'this opinion.\\nWARNER and STEVENSON, JJ., concur.\\n, \\\"Appellant\\\" will be used to represent Prew-itt Enterprises, LLC and its managing member, Hal Prewitt. \\\"Appellee\\\" will be used to represent Tommy Constantine Racing, LLC and its president, Tommy Constantine. Both parties will be referred to in the singular.\\n. We note that this appears to be where the trial court erred. The court recognized that Appellee's statements \\\"could be argued to be independent,of performance,\\\" but interpreted it otherwise. When presented with a motion for judgment notwithstanding the verdict, however, a court must view all evidence in the light most favorable to the non-movant. Had the trial court viewed the evidence through the proper lens, it seems from the order that it would have reached the same conclusion we reach today.\"}"

florida/6884871.json

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+"{\"id\": \"6884871\", \"name\": \"In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.520\", \"name_abbreviation\": \"In re Amendments to Florida Rule of Judicial Administration 2.520\", \"decision_date\": \"2015-04-02\", \"docket_number\": \"No. SC14-721\", \"first_page\": \"1254\", \"last_page\": \"1257\", \"citations\": \"161 So. 3d 1254\", \"volume\": \"161\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T23:14:26.704100+00:00\", \"provenance\": \"CAP\", \"judges\": \"LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.\", \"parties\": \"In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.520.\", \"head_matter\": \"In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.520.\\nNo. SC14-721.\\nSupreme Court of Florida.\\nApril 2, 2015.\\nMurray Bruce Silverstein, Chair, Rules of Judicial Administration Committee, Greenberg Traurig, P.A., Tampa, FL, Judge Jon Berkley Morgan, Past Chair, Rules of Judicial Administration Committee, Kissimmee, Florida, John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.\", \"word_count\": \"1319\", \"char_count\": \"8193\", \"text\": \"REVISED OPINION\\nPER CURIAM.\\nConsistent with the order entered in this case on April 2, 2015, the opinion dated November 26, 2014, is withdrawn and the following revised opinion is substituted in its place.\\nWe have for consideration an out-of-cycle report proposing amendments to Florida Rule of Judicial Administration 2.520 (Documents) filed by The Florida Bar's Rules of Judicial Administration Committee (Committee). See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction and adopt the amendments as proposed.\\nBACKGROUND\\nAccording to the Committee's report, the more significant amendments address format requirements for paper documents filed with the court and the use of margins by the clerks of court, which are issues of great concern to the clerks. The proposed amendments were approved by the Committee by a vote of 36-1 and were unanimously approved by the Board of Governors of The Florida Bar. The Committee did not publish the proposals before filing them with the Court. The Court published the proposals for comment after they were filed. But, no comments were filed.\\nAMENDMENTS\\nThe more significant amendments are to subdivisions (b) (Type and Size) and (d) (Recording Space) of the rule. In order to make it easier for clerks to scan paper documents, subdivision (b) is amended, as proposed,- to require paper documents filed with the court to be legibly typewritten or printed, on only one side of letter-sized white recycled paper with one-inch margins and consecutively numbered pages. Subdivision (b) also is amended, as proposed, to clarify that all documents electronically filed must be filed in a format capable of being electronically searched consistent with state and federal accessibility requirements. Subdivision (d) (Recording Space) is amended, as proposed, to add a one-inch margin requirement and format, location, and font-size requirements for the date and time stamp on electronically filed documents. New subdivision (d)(2)(C), as proposed in the Committee's motion for reconsideration, provides a procedure for docketing paper filings, which clerks of court continue to receive, especially from self-represented parties, as authorized by rule 2.525(d).\\nCONCLUSION\\nAccordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. New subdivision (d)(2)(C) shall become effective immediately upon the release of this revised opinion. The remainder of the amendments shall become effective nunc pro tunc January 1, 2015, at 12:01 a.m. to the extent they apply to electronic filings. The Court recognizes that clerks of court may have had to vary from the requirements of those amendments when docketing paper filings after January 1, 2015. Therefore, as clarified with the addition of new subdivision (d)(2)(C), the remainder of the amendments shall become effective as they apply to paper filings immediately upon the release of this revised opinion.\\nIt is so ordered.\\nLABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.\\nAPPENDIX\\nRULE 2.520. DOCUMENTS\\n(a) Electronic Filing Mandatory: A1 documents filed in any court shall be filed by electronic transmission in accordance with rule 2.525. \\\"Documents\\\" means pleadings, motions, petitions, memoranda, briefs, notices, exhibits, declarations, affidavits, orders, judgments, decrees, writs, opinions, and any other paper or writing submitted to a court.\\n(b) Type and Size. Documents subject to the exceptions set forth in rule 2.525(d) shall be legibly typewritten or printed, on only one side of letter sized (8 1/2 by 11 inch) white recycled paper with one inch margins and consecutively numbered pages filed on recycled paper measuring 8\\u00bd-\\u215b-1-1-\\u215b<\\u215b0\\u215c. For purposes of this rule, paper is recycled if it contains a minimum content of 50 percent waste paper. Xerographic rReduction of legal-size (8 1/2 by 14 inches) documents to letter size (8 1/2 by 11 inches) is prohibited. A1 other documents filed by electronic transmission shall comply with rule 2.526 and be filed in a format capable of being electronically searched and printed in a format consistent with the provisions of this rule.\\n(c) Exhibits. Any exhibit or attachment filed-with pleadings or papersto any document may be filed in its original size.\\n(d) Recording Space and Space for Date and Time Stamps.\\n(1) On all papers and documents prepared and filed by the court or by any party to a proceeding which are to be recorded in the public records of any county, including but not limited to final money judgments and notices of lis pendens, a 3-inch by 3-inch space at the top right-hand corner on the first page and a 1-inch by 3-inch space at the top right-hand corner on each subsequent page shall be left blank and reserved for use by the clerk of court.\\n(2) On all documents filed with the court, a 1-inch margin on all sides must be left blank for date and time stamps.\\n(A) Format. Date and time stamp formats must include a single line detailing the name of the court or Portal and shall not include clerk seals. Date stamps must be 8 numerical digits separated by slashes with 2 digits for the month, 2 digits for the day, and 4 digits for the year. Time stamps must be formatted in 12 hour time frames with a.m. or p.m. included. The font size and type must meet the Americans with Disabilities Act requirements.\\n(B) Location. The Portal stamp shall be on the top left of the document. The Florida Supreme Court and district courts of appeal stamps shall be on the left margin horizontally. Any administrative agency stamp shall be on the right margin horizontally. The clerk's stamp for circuit and county courts shall be on the bottom of the document.\\n(C) Paper Filings. When a document is filed in paper as authorized by rule, the clerk may stamp the paper document in ink with the date and time of filing instead of, or in addition to, placing the electronic stamp as described in subdivision (B). The ink stamp on a paper document must be legible on the electronic version of the document, and must neither obscure the content or other date stamp, nor occupy space otherwise reserved by subdivision (B).\\n(e) Exceptions to Recording Space. Any papers or documents created by persons or entities over which the filing party has no control, including but not limited to wills, codicils, trusts, or other testamentary documents; documents prepared or executed by any public officer; documents prepared, executed, acknowledged, or proved outside of the State of Florida; or documents created by State or Federal government agencies, may be filed without the space required by this rule.\\n(f) Noncompliance. No clerk of court shall refuse-for filingto file any document or-paper- because of noncompliance with this rule. However, upon request of the clerk of court, noncomplying documents shall be resubmitted in accordance with this rule.\\nCourt Commentary\\n[No Change]\\n.We issue the revised opinion in response to a \\\"Motion for Reconsideration\\\" filed by the Rules of Judicial Administration Committee asking the Court to add new subdivision (d)(2)(C) (Paper Filings) to rule 2.520 to clarify the implementation of the amendments to the rule adopted in the November 26, 2014, opinion, with respect to paper filings and to make several technical corrections to the amendments to subdivision (d)(2)(A) (Format). In re Amend. to Fla. Rule of Jud. Admin. 2.520, No. SC14-721 (motion filed Feb. 27, 2015).\\n. See art. V, \\u00a7 2(a), Fla. Const.\\n. The Committee approved proposed new subdivision (d)(2)(C) by a vote of 31-0 and the Board of Governors Executive Committee unanimously approved the proposal.\"}"

florida/6908548.json

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+"{\"id\": \"6908548\", \"name\": \"Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee\", \"name_abbreviation\": \"Williams v. State\", \"decision_date\": \"2014-11-14\", \"docket_number\": \"No. 2D14-2125\", \"first_page\": \"1212\", \"last_page\": \"1213\", \"citations\": \"150 So. 3d 1212\", \"volume\": \"150\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:02:38.860150+00:00\", \"provenance\": \"CAP\", \"judges\": \"MORRIS and SLEET, JJ., Concur.\", \"parties\": \"Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.\", \"head_matter\": \"Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.\\nNo. 2D14-2125.\\nDistrict Court of Appeal of Florida, Second District.\\nNov. 14, 2014.\", \"word_count\": \"318\", \"char_count\": \"1814\", \"text\": \"SILBERMAN, Judge.\\nAnthony Williams appeals the order summarily denying his motion to correct jail credit filed under Florida Rule of Criminal Procedure 3.801. We reverse.\\nWilliams was arrested on May 27, 2011, and later charged with criminal mischief, burglary of a structure, possession of burglary tools, and grand theft. On June 1, 2011, he bonded out of jail. After Williams failed to appear, a warrant for his arrest was issued, and it was served on March 15, 2013. Williams pleaded to the offenses and was sentenced on July 12, 2013. He was awarded 125 days of jail credit, 5 days for the time he spent in jail after his original arrest and 120 days for the time he spent in jail after he was arrested for failing to appear.\\nIn his motion to correct jail credit, Williams argued that under these facts he was entitled to one more day of jail credit for a total of 126 days. The State asserted that Williams was entitled to only four days' credit for the time he spent in jail from May 27, 2011, to June 1, 2011, and that he should have been awarded a total of 124 days' credit. The postconviction court concurred with the State's calculations and denied Williams' motion. But May 27 to June 1 is 6 days. See Bronk v. State, 25 So.3d 701, 703 (Fla. 2d DCA 2010) (noting that the statutory entitlement to jail credit starts with the initial arrest and continues until the actual release from custody). Thus, Williams is entitled to one more day of jail credit. Accordingly, we reverse and remand for the postconviction court to award Williams one more day of jail credit for a total of 126 days. Reversed and remanded with directions.\\nMORRIS and SLEET, JJ., Concur.\"}"

florida/6977927.json

@@ -0,0 +1 @@
+"{\"id\": \"6977927\", \"name\": \"Diane Bolvin HANCHEY, Petitioner, v. Edward LEAFFER, as Guardian of Owen Eugene Hanchey, Ward, Respondent\", \"name_abbreviation\": \"Hanchey v. Leaffer\", \"decision_date\": \"2014-05-07\", \"docket_number\": \"No. 2D13-5482\", \"first_page\": \"1091\", \"last_page\": \"1093\", \"citations\": \"138 So. 3d 1091\", \"volume\": \"138\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T00:57:04.028107+00:00\", \"provenance\": \"CAP\", \"judges\": \"NORTHCUTT and LaROSE, JJ., Concur.\", \"parties\": \"Diane Bolvin HANCHEY, Petitioner, v. Edward LEAFFER, as Guardian of Owen Eugene Hanchey, Ward, Respondent.\", \"head_matter\": \"Diane Bolvin HANCHEY, Petitioner, v. Edward LEAFFER, as Guardian of Owen Eugene Hanchey, Ward, Respondent.\\nNo. 2D13-5482.\\nDistrict Court of Appeal of Florida, Second District.\\nMay 7, 2014.\\nScott E. Siverson, Orlando, for Petitioner.\\nPamela D. Keller of Keller Law Office, P.A., Punta Gorda, for Respondent.\", \"word_count\": \"645\", \"char_count\": \"4029\", \"text\": \"CRENSHAW, Judge.\\nDiane Hanchey petitions for a writ of certiorari and requests review of two circuit court orders adopting the report and recommendations of a magistrate. One order authorizes Owen Hanchey's guardian to initiate legal proceedings against Ms. Hanchey, Owen Hanchey's wife. The other order denies Ms. Hanchey's motion for contact with Mr. Hanchey. Ms. Han-chey argues that the trial court departed from the essential requirements of the law by adopting the magistrate's report and recommendations on each of these matters without conducting an evidentiary hearing to address Ms. Hanchey's objections. Ms. Hanchey's petition is dismissed as to the authorization order because she has failed to establish any material injury that could serve as a basis for the exercise of this court's extraordinary writ jurisdiction. And Ms. Hanchey's petition is granted as to the contact order because she has been denied both contact with her ailing husband and due process.\\n\\\"[A] writ of certiorari will issue where there is a departure from the essential requirements of law which will cause material injury to the petitioner throughout the proceeding and which cannot be adequately redressed on appeal.\\\" In re Guardianship of Anderson, 568 So.2d 958, 958-59 (Fla. 4th DCA 1990) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)). \\\"The second two parts of the test are jurisdictional.\\\" Hagopian v. Justice Admin. Comm'n, 18 So.3d 625, 637 (Fla. 2d DCA 2009).\\nAt the outset we note that the only injury Ms. Hanchey argues will occur as a result of the authorization order is \\\"that she could be subjected to claims and discovery that may otherwise not be permitted.\\\" However, \\\"the fact that [Ms. Hanchey] may have to incur the expense and inconvenience of going through a [trial] is not grounds for the appellate court to exercise its extraordinary writ jurisdiction.\\\" Anderson, 568 So.2d at 959 (citing Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So.2d 998 (Fla. 4th DCA 1987)). Consequently, we are without jurisdiction to consider Ms. Hanchey's petition as to the authorization order.\\nWe do, however, have jurisdiction to consider Ms. Hanchey's petition for review of the contact order, see Murison v. Coral Park Props., Inc., 64 So.3d 1288, 1289-90 (Fla. 4th DCA 2011), because Ms. Hanchey is being denied contact with Mr. Hanchey, whose health is declining. Moreover, the trial court departed from the essential requirements of the law by failing to conduct a hearing on Ms. Han-chey's objections to the magistrate's report and recommendation on her motion for contact. See Fla. Prob. R. 5.095(h) (\\\"The parties may serve exceptions to the report within 10 days from the time it is served on them.... All timely filed exceptions shall be heard on reasonable notice by either party.\\\"); see also Fla. R. Civ. P. 1.490(i). Ms. Hanchey's objections were timely filed \\u2014 the magistrate's report was issued on October 4, 2013, and the objections were filed on October 8, 2013. See Murison, 64 So.3d at 1290 (\\\"The trial court's denial of the [petitioners'] timely exceptions without a hearing deprived them of due process and constituted a departure from the essential requirements of the law.\\\"). Additionally, she requested a hearing thereon.\\nThe guardian notes that Ms. Hanchey had not yet provided the transcript from the hearing before the magistrate when the contact order was issued, but this did not permit the trial court to ignore Ms. Hanchey's objections. See id. Therefore, we grant the petition for writ of certiorari and, insofar as it seeks review of the contact order, quash the contact order.\\nDismissed in part; granted in part; contact order quashed.\\nNORTHCUTT and LaROSE, JJ., Concur.\"}"

florida/7006086.json

@@ -0,0 +1 @@
+"{\"id\": \"7006086\", \"name\": \"Carol GILES, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Paycheck Business Solutions Inc., Appellees\", \"name_abbreviation\": \"Giles v. Reemployment Assistance Appeals Commission\", \"decision_date\": \"2012-12-05\", \"docket_number\": \"No. 1D12-469\", \"first_page\": \"427\", \"last_page\": \"428\", \"citations\": \"101 So. 3d 427\", \"volume\": \"101\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:30:22.219392+00:00\", \"provenance\": \"CAP\", \"judges\": \"DAVIS, VAN NORTWTCK, and ROWE, JJ., concur.\", \"parties\": \"Carol GILES, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Paycheck Business Solutions Inc., Appellees.\", \"head_matter\": \"Carol GILES, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Paycheck Business Solutions Inc., Appellees.\\nNo. 1D12-469.\\nDistrict Court of Appeal of Florida, First District.\\nDec. 5, 2012.\\nCarol Giles, pro se, Appellant.\\nA. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.\", \"word_count\": \"367\", \"char_count\": \"2345\", \"text\": \"PER CURIAM.\\nCarol Giles appeals a final order of the Reemployment Assistance Appeals Commission (\\\"Commission\\\"). The Commission's order dismissed as untimely Giles' appeal of a decision of a reemployment assistance appeals referee which reversed an initial determination finding that Giles qualified for reemployment assistance benefits. Before dismissing the appeal, the Commission issued an order for Giles to show cause why the appeal should not be considered untimely because of her failure to file the appeal within twenty days of the appeals referee's decision. In response, Giles alleged that she did not understand the contents of the documents she received from the Commission and that when she contacted the Commission to seek clarification, she was misinformed by employees of the Commission regarding the disposition of the appeal to the appeals referee. Giles alleged that she contacted the Commission by phone on three occasions and was informed each time that she had won the appeal and that there was nothing else she needed to do. She alleged that she contacted the Commission for a fourth time and, at that time, was told by an employee of the Commission that the appeal was actually decided adversely to her. Later that day, Giles filed an appeal with the Commission, one day past the twenty-day deadline.\\nDue process and fairness concerns are implicated where \\\"the delay in filing the notice of appeal 'was occasioned by the actions of the Commission.' \\\" Pollett v. Florida Unemployment Appeals Comm'n, 928 So.2d 469, 470 (Fla. 1st DCA 2006) (quoting Thurman v. Florida Unemployment Appeals Comm'n, 881 So.2d 89, 91 (Fla. 1st DCA 2004)). Here, as in Pollett, Giles is entitled to a hearing to determine whether she received erroneous information from the Commission, and if so, what bearing it had on the timeliness of her appeal. Id.\\nAccordingly, we REVERSE and REMAND for an evidentiary hearing.\\nDAVIS, VAN NORTWTCK, and ROWE, JJ., concur.\"}"

florida/7022353.json

@@ -0,0 +1 @@
+"{\"id\": \"7022353\", \"name\": \"LOWER FEES, INC., Appellant, v. BANKRATE, INC. and Thomas Evans, Appellees\", \"name_abbreviation\": \"Lower Fees, Inc. v. Bankrate, Inc.\", \"decision_date\": \"2011-10-19\", \"docket_number\": \"No. 4D10-1695\", \"first_page\": \"517\", \"last_page\": \"520\", \"citations\": \"74 So. 3d 517\", \"volume\": \"74\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T23:15:19.722483+00:00\", \"provenance\": \"CAP\", \"judges\": \"MAY, C.J., and TUTER, JACK B., JR., Associate Judge, concur.\", \"parties\": \"LOWER FEES, INC., Appellant, v. BANKRATE, INC. and Thomas Evans, Appellees.\", \"head_matter\": \"LOWER FEES, INC., Appellant, v. BANKRATE, INC. and Thomas Evans, Appellees.\\nNo. 4D10-1695.\\nDistrict Court of Appeal of Florida, Fourth District.\\nOct. 19, 2011.\\nRehearing Denied Dec. 8, 2011.\\nBeverly A. Pohl of Broad and Cassel, Fort Lauderdale, and David B. Rosemberg of Broad and Cassel, Miami, for appellant.\\nJack J. Aiello and John F. Mariani of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees.\", \"word_count\": \"1879\", \"char_count\": \"11878\", \"text\": \"CONNER, J.\\nLower Fees, Inc. (\\\"Lower Fees\\\") appeals the dismissal of its third amended complaint with prejudice. The issue presented by this appeal is whether a \\\"no-reliance\\\" clause in a purchase contract precludes a claim of fraud in the inducement as grounds for rescinding the contract. Although Appellee, Bankrate, Inc. (\\\"Bank-rate\\\"), contends the issue is a matter of first impression in Florida, we determine that our supreme court has already spoken on the issue and reversal is required.\\nLower Fees is a corporation that provided comprehensive closing cost information to consumers and real estate and mortgage professionals, as well as a unique listing service for real estate service providers. As part of its business, Lower Fees created an internet-based system called the \\\"Lower Fees System\\\" and sold memberships in the system to real estate service providers. The Lower Fees System was designed using a group of four software systems and programming languages collectively called \\\"LAMP\\\".\\nBankrate entered into an asset purchase agreement with Lower Fees to purchase the Lower Fees System and other assets. In addition to a cash payment and assumption of certain liabilities, Bankrate hired Lower Fees's president and promised to pay Lower Fees a portion of the net revenue from membership sales in the Lower Fees System over a five-year period. The parties contemplated that the Lower Fees System would be integrated and merged into the main computer operating system maintained by Bankrate. The asset purchase agreement was forty-seven pages in length with seventy-six pages of attachments and related agreements. The largest section of the agreement contained more than two hundred representations upon which the parties relied. Both parties consider themselves \\\"sophisticated\\\" business entities, and both were represented by skilled attorneys in negotiating and preparing the agreement.\\nAt issue in this case is the effect of Section 7.17 of the asset purchase agreement, titled \\\"Entire Agreement\\\" but referred' to by the parties as the \\\"no-reliance clause,\\\" which states:\\nThis Agreement and the Ancillary Agreements constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition, or warranty not set forth in this Agreement has been made or relied upon by the Parties. None of the provisions of this Agreement and the Ancillary Agreements is intended to confer upon any Person other than the Parties to this Agreement any rights or remedies under the Terms of this Agreement.\\n(emphasis added). Lower Fees contends the emphasized language is nothing more than a \\\"merger and integration\\\" clause; Bankrate contends the emphasized language is much more.\\nDuring negotiations and prior to entering into the asset purchase agreement, Lower Fees became concerned about Bankrate's experience with LAMP technology and Bankrate's ability to develop and operate the LAMP-based Lower Fees System. A conference call was arranged between Lower Fees's chief executive officer and Bankrate's chief technology officer and senior software engineers so that Lower Fees could determine whether Bankrate had the experience and expertise with LAMP technology to successfully operate and integrate the Lower Fees System. Bankrate's chief technology officer told Lower Fees's chief executive officer that Bankrate had extensive experience with LAMP-based systems and Bankrate's technology department was trained in and highly skilled in working on LAMP-based systems.\\nAfter completing the purchase, Bank-rate's chief executive officer admitted to Lower Fees's former president that Bank-rate did not have any personnel capable of using LAMP technology and therefore memberships in the Lower Fees System could not be sold. When Bankrate tried to merge the Lower Fees System into its own non-LAMP based platform, the Lower Fees System was destroyed.\\nLower Fees filed suit against Bankrate and its chief executive officer. After amending its complaint several times, Lower Fees ultimately sought rescission of the asset purchase agreement on the grounds that Bankrate fraudulently in duced Lower Fees to enter into the agreement by its representations that Bankrate had the expertise to operate its LAMP-based Lower Fees System. Bankrate moved to dismiss the third amended complaint on several grounds, one of which was that a \\\"no-reliance clause\\\" in the contract precluded rescission. The trial court granted the motion to dismiss with prejudice, holding the \\\"no-reliance clause\\\" of the asset purchase agreement barred the fraudulent inducement claim.\\nAppellate review of a trial court decision granting a motion to dismiss is de novo. Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009).\\nLower Fees argues that Section 7.17 of the asset purchase agreement does not bar its claim for rescission based on fraudulent inducement because (1) the asset purchase agreement in its entirety was procured by fraud; (2) the claimed misrepresentations do not concern the subject matter of the agreement; (3) the claimed misrepresentations are not expressly contradicted by the agreement; and (4) the \\\"no-reliance clause\\\" does not specifically bar fraud claims. Most of the Florida case law upon which Lower Fees relies in support of its arguments deals with what are commonly referred to as \\\"merger and integration\\\" clauses. However, in support of its last argument, Lower Fees relies on a supreme court case we find controlling. Although Bankrate contends the contract provision at issue is a \\\"no-reliance\\\" clause and there are no Florida cases addressing a \\\"no-reliance\\\" clause, our supreme court has declared one can avoid a fraudulent inducement claim only by contract language which specifically and explicitly negates the right to bring such a claim.\\nAs early as 1941, our supreme court held in Oceanic Villas, Inc. v. Godson, 148 Fla. 454, 4 So.2d 689 (1941), that a fraudulent inducement claim cannot be defeated by a contractual agreement unless the contract specifically states a fraud claim is not sufficient to negate the contract. In Oceanic Villas, a lessee sought rescission of a 99-year lease on grounds the lessor induced the lessee to execute the lease by misrepresenting the gross earnings of the property. The lease contained a provision stating \\\"no verbal agreements, stipulations, representations, exceptions or conditions whatsoever have been made or entered into in regard to the above described property which will in any way vary, contradict or impair the validity of this lease, or of any of the terms and conditions herein contained.\\\" Id. at 690. The court held that the clause did not bar the fraudulent inducement claim because\\n[i]f the lease was procured by fraud and misrepresentation as to a material fact, the truth or falsity of which was known only to the lessor (and it is so alleged in the bill of complaint), and which misrepresentations, if proved, would be sufficient basis for a decree of rescission, then such fraudulent misrepresentation vitiated every part of the lease contract and the Lessee was not bound by the above quoted clause.\\nId. Further, the court stated that interpreting the clause to hold that the lessee is bound by the fraud of the lessor \\\"would be against the fundamental principles of law, equity, good morals, public policy and fair dealing.\\\" The court went on to say:\\nWe recognize the rule to be that fraud in the procurement of a contract is ground for rescission and cancellation of any contract unless for consideration or expediency the parties agree that the contract . may be made incontestable on account of fraud, or for any other reason.\\nId. (citations omitted). The court also interpreted the clause to be a \\\"stipulation\\\" that no fraud had been committed and not a provision to make the contract incontestable because of fraud.\\nBankrate cites numerous authorities from other jurisdictions in an attempt to persuade us there is a distinction between a \\\"merger and integration\\\" clause and a \\\"no-reliance\\\" clause, and we should follow the precedents of other jurisdictions that a \\\"no-reliance\\\" clause precludes rescission based on fraud in the inducement. However, we conclude our supreme court has spoken clearly that no contract provision can preclude rescission on the basis of fraud in the inducement unless the contract provision explicitly states that fraud is not a ground for rescission.\\nThe facts of this case rather strongly suggest that there is some logic to the argument that allowing Lower Fees to proceed with its suit condones a fraud. When one-third of a lengthy written contract is a listing of over two hundred representations the parties relied upon in entering the contract and there is an explicit provision that \\\"No representation, inducement, promise, understanding, condition, or warranty not set forth in this Agreement has been made or relied upon by the PaHies,\\\" one can forcefully argue the party who seeks to use a representation that is not made in the contract as grounds to rescind the contract stated a lie when signing the contract. However, there is a countervailing logic to the position taken by our supreme court: the lies one tells to get a contract signed trumps the lie one tells when signing the contract itself.\\nIt may also appear troublesome that if Lower Fees felt it so important for Bank-rate to be knowledgeable and skilled in LAMP technology, a representation that Bankrate had such knowledge and skill could have easily been added to the list of over two hundred representations relied upon by the parties. Moreover, the asset purchase agreement could have easily specified that Bankrate had made no representations that it had expertise with LAMP-based systems or that Bankrate had made no guarantees that it would successfully integrate and operate the Lower Fees System. Such specific statements would have placed Lower Fees on notice whether it could or could not rely on the Bankrate chief technology officer's assurances to Lower Fees that Bankrate's technology staff could handle the operation of the Lower Fees System. A generic disclaimer is not sufficient to do that. It has been the law of this state for some time that a claim of fraud in the inducement will not be defeated by contract clauses. If Bankrate wanted to contractually avoid a fraud claim, it should have specifically stated that in the contract it signed.\\nFor the reasons stated, we reverse and remand the case for further proceedings.\\nMAY, C.J., and TUTER, JACK B., JR., Associate Judge, concur.\\n. The representations were divided into two separate sections, one for each party. Pages 18-33 of the agreement listed the representations and warranties by Lower Fees, followed by two pages of representations and warranties by Bankrate.\\n. The supreme court stated, \\\"We think there is clearly a distinction in the effect of a stipulation of a contract which recognizes that fraud may have been committed and stipulates that such fraud, if found to have been committed, should not vitiate the contract, and one in which the parties merely stipulate that no fraud has been committed and that neither party has relied upon the representations of the other party made prior to the execution of the contract.\\\" Id. at 691.\"}"

florida/7040453.json

@@ -0,0 +1 @@
+"{\"id\": \"7040453\", \"name\": \"Eric Lamont SEIGLER, Appellant, v. RMC AMERICAS OF FLORIDA, LLC and Chartis Claims, Inc., Appellees\", \"name_abbreviation\": \"Seigler v. RMC Americas of Florida, LLC\", \"decision_date\": \"2011-03-22\", \"docket_number\": \"No. 1D10-4509\", \"first_page\": \"913\", \"last_page\": \"914\", \"citations\": \"57 So. 3d 913\", \"volume\": \"57\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-11T00:26:47.666039+00:00\", \"provenance\": \"CAP\", \"judges\": \"ROBERTS, CLARK, and WETHERELL, JJ., concur.\", \"parties\": \"Eric Lamont SEIGLER, Appellant, v. RMC AMERICAS OF FLORIDA, LLC and Chartis Claims, Inc., Appellees.\", \"head_matter\": \"Eric Lamont SEIGLER, Appellant, v. RMC AMERICAS OF FLORIDA, LLC and Chartis Claims, Inc., Appellees.\\nNo. 1D10-4509.\\nDistrict Court of Appeal of Florida, First District.\\nMarch 22, 2011.\\nBill McCabe, Longwood, and David Rickey, Orlando, for Appellant.\\nChristine Davis Graves of Carlton Fields, P.A., Tallahassee, for Appellees.\", \"word_count\": \"149\", \"char_count\": \"998\", \"text\": \"PER CURIAM.\\nIn this workers' compensation appeal, the Judge of Compensation Claims (JCC) erred in concluding the Employer/Carrier (E/C) timely responded to Claimant's request for a change in physician under section 440.13(2)(f), Florida Statutes (2008). See Harrell v. Citrus County Sch. Bd., 25 So.3d 675 (Fla. 1st DCA 2010). Consequently, the JCC erred in denying Claimant the right to select his change in physician, denying attorney's fees and costs, and taxing prevailing party costs against Claimant. Accordingly, .the order on appeal is REVERSED, and this matter is REMANDED for proceedings consistent with this opinion.\\nROBERTS, CLARK, and WETHERELL, JJ., concur.\"}"

florida/7430263.json

@@ -0,0 +1 @@
+"{\"id\": \"7430263\", \"name\": \"Elisa FERNANDES, Appellant, v. Donna BOISVERT, n/k/a Donna Loving, Alan Boisvert, Teresa Boisvert, Donald Hough, II, Andrew Boisvert, Estate of Mary Hensberry, and Margaret Loving, Appellees\", \"name_abbreviation\": \"Fernandes v. Boisvert\", \"decision_date\": \"1995-08-04\", \"docket_number\": \"No. 93-04000\", \"first_page\": \"412\", \"last_page\": \"413\", \"citations\": \"659 So. 2d 412\", \"volume\": \"659\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:21:02.576915+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER, A.C.J., and QUINCE, J., concur.\", \"parties\": \"Elisa FERNANDES, Appellant, v. Donna BOISVERT, n/k/a Donna Loving, Alan Boisvert, Teresa Boisvert, Donald Hough, II, Andrew Boisvert, Estate of Mary Hensberry, and Margaret Loving, Appellees.\", \"head_matter\": \"Elisa FERNANDES, Appellant, v. Donna BOISVERT, n/k/a Donna Loving, Alan Boisvert, Teresa Boisvert, Donald Hough, II, Andrew Boisvert, Estate of Mary Hensberry, and Margaret Loving, Appellees.\\nNo. 93-04000.\\nDistrict Court of Appeal of Florida, Second District.\\nAug. 4, 1995.\\nRehearings Denied Sept. 1, 1995.\\nDavid Solomon, Clearwater, for appellant.\\nKathryn Marie Welsh, Clearwater, for ap-pellee Donna Boisvert.\\nNo appearance for remaining appellees.\", \"word_count\": \"813\", \"char_count\": \"5136\", \"text\": \"PATTERSON, Judge.\\nElisa Fernandes appeals from a final summary judgment rendered in favor of the ap-pellees. We reverse.\\nIn January 1993, Fernandes' attorney filed on Fernandes' behalf a complaint for personal injuries in the Hillsborough County Circuit Court. The complaint asserted that while Fernandes was an invitee of the appellees' residential property in Pinellas County she was severely beaten by her former boyfriend, Tod Loving. The complaint contended that the appellees failed to warn Fernandes of Loving's unstable emotional condition and failed to intervene or otherwise assist Fer-nandes during the beating. Appellee Donna Boisvert answered, asserting defenses of im proper venue, failure to state a cause of action, and the running of the statute of limitations.\\nBoisvert served a motion for summary judgment supported by an affidavit in proper form which asserted that she had no knowledge of Tod Loving's emotional condition and was not aware of the incident until after it had occurred. In response, Fer-nandes' attorney filed an ambiguous writing entitled \\\"Notice of Filing\\\" to which he attached an affidavit of a \\\"security consultant\\\" relating to the duty of care of a landowner and a two-paragraph statement handwritten by Fernandes which was taped to a piece of paper and notarized. The statement related to Fernandes' residence on the date of the incident. Although bearing the seal and signature of a notary public, the writing bears no resemblance to an affidavit. Fernandes' attorney did not file or serve an affidavit pursuant to Florida Rule of Civil Procedure 1.510 seeking additional time to obtain an affidavit from Fernandes or move for a continuance of the hearing on the motion. Confronted with the disarray of Fernandes' \\\"pleadings,\\\" the trial court understandably granted summary judgment in Boisvert's favor.\\nFernandes' attorney then filed a vague and rambling \\\"Request for Reconsideration\\\" which the trial court graciously treated as a motion for rehearing pursuant to Florida Rule of Civil Procedure 1.5B0. In support of this \\\"motion,\\\" the attorney then filed an affidavit by Fernandes which controverted Bois-vert's affidavit. If this affidavit had been filed and served pursuant to rule 1.510 prior to the hearing on Boisvert's motion for summary judgment, it would have raised an issue of material fact precluding summary judgment. Upon rehearing, the trial court de-dined to consider this affidavit and denied the motion.\\nWe are thus confronted with the question of whether the trial court abused its discretion in refusing to rescue Fernandes from the apparent incompetence of her lawyer. We recognize the broad discretion of the trial court in matters of this kind. While we do not know the underlying reasons which compelled the attorney to pursue this matter in the way he did, it is apparent to us that something has gone awry. Therefore, in light of the unique circumstances presented here, we determine that the trial court abused its discretion in refusing to consider Fernandes' affidavit on rehearing. See Coastal States Mortgage Corp. v. Commonwealth Sav. & Loan Ass'n, 497 So.2d 917 (Fla. 3d DCA 1986); Wiskeman v. First Bank of Hollywood Beach, 405 So.2d 1044 (Fla. 3d DCA 1981); see also Tooke v. Downing, 564 So.2d 250 (Fla. 1st DCA 1990). Accordingly, we vacate the final judgment and remand this case for disposition on the merits.\\nReversed and remanded.\\nPARKER, A.C.J., and QUINCE, J., concur.\\n. This one-page single-spaced pleading, although marginally stating a cause of action, failed to contain allegations of special damages as required by Florida Rule of Civil Procedure 1.120(g).\\n. The record reflects that Hillsborough County is not a proper venue. The appellees challenged venue by motion, but did not pursue the motion to a hearing.\\n. There was no hearing on these defenses as is permitted by Florida Rule of Civil Procedure 1.140(d).\\n. Although the record is incomplete, it appears that none of the other defendants appearing in the style of the case were served or made an appearance.\\n. We have had the opportunity to observe Fer-nandes' attorney, who has been a member of the Florida Bar since 1983, in the oral argument of this case and do not question his sincerity in attempting to represent his client. This court, however, has imposed sanctions against this attorney in the form of required completion of ten hours of CLE credit in appellate practice for his repeated violation of the appellate rules. See Keene v. Nudera, 20 Fla.L.Weekly D1232, - So.2d - (Fla. 2d DCA May 19, 1995). We know of no CLE program which would address the errors of the fundamentals of pleading and procedure that appear here.\"}"

florida/7454888.json

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+"{\"id\": \"7454888\", \"name\": \"STATE of Florida, Appellant, v. Bruce G. COLLIER, Appellee\", \"name_abbreviation\": \"State v. Collier\", \"decision_date\": \"1995-09-08\", \"docket_number\": \"No. 94-01003\", \"first_page\": \"1371\", \"last_page\": \"1372\", \"citations\": \"659 So. 2d 1371\", \"volume\": \"659\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:21:02.576915+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER, A.C.J., and LAZZARA and QUINCE, JJ., concur.\", \"parties\": \"STATE of Florida, Appellant, v. Bruce G. COLLIER, Appellee.\", \"head_matter\": \"STATE of Florida, Appellant, v. Bruce G. COLLIER, Appellee.\\nNo. 94-01003.\\nDistrict Court of Appeal of Florida, Second District.\\nSept. 8, 1995.\\nRobert A. Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, As sistant Attorney General, Tampa, for appellant.\\nTimothy A. Freeland, Sarasota, for appel-lee.\", \"word_count\": \"226\", \"char_count\": \"1383\", \"text\": \"PER CURIAM.\\nAppellee was arrested for attempted kidnapping, false imprisonment and burglary on September 4, 1993. On February 28, 1994, appellee filed a Notice of Expiration of Speedy Trial Rule. At the hearing on the notice, the state indicated it was prepared to go to trial within ten days. However, the trial judge held that appellee had not been brought to trial within 175 days of the date of the arrest and discharged appellee.\\nAs the state argues, and appellee concedes, under the present speedy trial rule, if there is no evidence of a waiver of speedy trial, the trial must be set within ten days from the hearing on the notice. See Rule 3.191(p)(3), Florida Rules of Criminal Procedure. Appel-lee would have been entitled to absolute discharge only if the state had been unable to bring him to trial within that \\\"window of recapture\\\" time. State v. Howard, 599 So.2d 1043 (Fla. 2d DCA 1992).\\nAccordingly, the order of discharge is reversed and the cause remanded for further proceedings.\\nReversed.\\nPARKER, A.C.J., and LAZZARA and QUINCE, JJ., concur.\"}"

florida/7471907.json

@@ -0,0 +1 @@
+"{\"id\": \"7471907\", \"name\": \"HUBBARD CONSTRUCTION COMPANY, Appellant, v. ORLANDO/ORANGE COUNTY EXPRESSWAY AUTHORITY, Hunter Services, Inc., and Jammal and Associates, Inc., Appellee\", \"name_abbreviation\": \"Hubbard Construction Co. v. Orlando/Orange County Expressway Authority\", \"decision_date\": \"1994-03-18\", \"docket_number\": \"No. 93-1365\", \"first_page\": \"1154\", \"last_page\": \"1155\", \"citations\": \"633 So. 2d 1154\", \"volume\": \"633\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T20:18:26.142971+00:00\", \"provenance\": \"CAP\", \"judges\": \"DAUKSCH, J., concurs.\", \"parties\": \"HUBBARD CONSTRUCTION COMPANY, Appellant, v. ORLANDO/ORANGE COUNTY EXPRESSWAY AUTHORITY, Hunter Services, Inc., and Jammal and Associates, Inc., Appellee.\", \"head_matter\": \"HUBBARD CONSTRUCTION COMPANY, Appellant, v. ORLANDO/ORANGE COUNTY EXPRESSWAY AUTHORITY, Hunter Services, Inc., and Jammal and Associates, Inc., Appellee.\\nNo. 93-1365.\\nDistrict Court of Appeal of Florida, Fifth District.\\nMarch 18, 1994.\\nF. Alan Cummings, W. Robert Vezina, III, and Mary M. Piccard, of Cummings, Lawrence & Vezina, P.A., Tallahassee, for appellant.\\nJohn A. Leklem of Sparks, Cooper, Lek-lem & Webber, P.A., Orlando, for appellee, Orlando/Orange County Expressway Authority.\\nNo appearance for appellees, Hunter Services, Inc. and Jammal and Associates, Inc.\", \"word_count\": \"698\", \"char_count\": \"4656\", \"text\": \"HARRIS, Chief Judge.\\nHubbard Construction Company appeals the grant of summary judgment against it in its action against the Orlando/Orange County Expressway Authority. We reverse.\\nHubbard Construction Company entered into a contract with the Orlando/Orange County Expressway Authority (OOCEA) to construct approximately 1.9 miles of the Orlando/Orange County Expressway. The work included an estimated 587,250 cubic yards of embankment. The contract specified that OOCEA would provide on-site sources for the embankment material and that Hubbard was to compact this material in twelve-inch layers. Each layer was to be compacted to a density of at least 100 percent of the maximum density as determined by AASHTO T 99, Method C, also known, and hereinafter referred to, as the Standard Proctor test. OOCEA assigned the responsibility of conducting the density testing to its designated Project Engineer.\\nThus, as Hubbard installed and compacted the fill dirt, OOCEA's representative tested the layers at random locations to determine whether the required density was achieved. If the layer failed the density test, Hubbard was required to rework that layer.\\nHubbard experienced repeated difficulty satisfying the density tests, which resulted in severe loss of construction productivity and efficiency. Hubbard brought in additional equipment and employed extraordinary compaction methods in a continuing effort to attain OOCEA density criteria as mandated by OOCEA. When these methods failed to produce an effective level of productivity, Hubbard arranged for more costly imported embankment material from an off-site source. After about eighty percent of the embankment work had been completed, in frustration at the continued problems it was experiencing in achieving the required compaction density, Hubbard sought a second opinion regarding the embankment material's suitability.\\nThe results of these tests revealed that OOCEA (through its representative) had been applying the wrong standard. Rather than the Standard Proctor to which OOCEA and Hubbard had agreed in their contract, the more severe Modified Proctor standard had been applied. This error was compounded by the fact that Hubbard was still held to a one hundred percent maximum density requirement although the industry standard requires only ninety-five percent maximum density when the more stringent Modified Proctor is used. The problem was corrected, but Hubbard had already completed eighty percent of the embankment and had sacrificed efficiency and productivity to achieve the improperly required more strict Modified Proctor standard.\\nHubbard sued OOCEA for breach of contract, claiming that the use of the incorrect test forced Hubbard to perform additional work and incur additional costs for which it was not paid.\\nIt appears that the trial judge granted summary judgment based on the argument that because a principal cannot be liable for the acts of an independent contractor, OOCEA had no liability to Hubbard. Although it is true that an employer normally is not liable for the torts of an independent contractor, this principle has no application in a contract action. Here we find that OOCEA had a nondelegable contractual obligation to apply the appropriate standard, whether it did so in-house or by independent contractor. The summary judgment is reversed and the cause remanded for further action consistent with this opinion.\\nREVERSED and REMANDED.\\nDAUKSCH, J., concurs.\\nGOSHORN, J., concurs specially, with opinion.\\n. A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973), involved a negligence action.\"}"

florida/7490688.json

@@ -0,0 +1 @@
+"{\"id\": \"7490688\", \"name\": \"Joseph Issac BRABANT, Appellant, v. STATE of Florida, Appellee\", \"name_abbreviation\": \"Brabant v. State\", \"decision_date\": \"1993-04-14\", \"docket_number\": \"No. 93-01006\", \"first_page\": \"1151\", \"last_page\": \"1151\", \"citations\": \"616 So. 2d 1151\", \"volume\": \"616\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T23:30:19.223807+00:00\", \"provenance\": \"CAP\", \"judges\": \"THREADGILL and BLUE, JJ., concur.\", \"parties\": \"Joseph Issac BRABANT, Appellant, v. STATE of Florida, Appellee.\", \"head_matter\": \"Joseph Issac BRABANT, Appellant, v. STATE of Florida, Appellee.\\nNo. 93-01006.\\nDistrict Court of Appeal of Florida, Second District.\\nApril 14, 1993.\\nRehearing Denied April 28, 1993.\", \"word_count\": \"289\", \"char_count\": \"1858\", \"text\": \"HALL, Judge.\\nJoseph Brabant appeals the summary denial of his motion to correct sentence. We reverse and remand for further proceedings.\\nBrabant was convicted of three counts of sexual battery and three counts of incest in 1986. He was sentenced to 27 years' imprisonment pursuant to a scoresheet which included 240 points for victim injury (40 points for each offense). He now alleges error in the scoring of points for victim injury based on Karchesky v. State, 591 So.2d 930 (Fla.1992). In that case the supreme court held that only ascertainable physical injury may be scored, and penetration is not necessarily synonymous with injury. Brabant contends that he inflicted no ascertainable physical injury on the victim.\\nThe trial court denied Brabant's motion to correct sentence based on the legislature's clarification of its intent regarding the scoring of victim injury points on category 2 scoresheets. Ch. 92-135, \\u00a7 1, Laws of Fla. The legislature amended section 921.001(8), Florida Statutes (1992), to reflect its intention that penetration must be scored regardless of whether it involved any physical injury. This amendment may not be applied retroactively. Harrelson v. State, 616 So.2d 128 (Fla. 2d DCA 1993).\\nThe trial court also stated that it would not retroactively apply the Karchesky ruling. This court has held that \\\"the Karche-sky issue may be raised in any case where the 'fundamentally flawed' Category 2 scoresheet was employed.\\\" Harrelson.\\nAccordingly, we must remand this case for further proceedings consistent with Harrelson to determine whether physical injury was inflicted in this case.\\nReversed and remanded.\\nTHREADGILL and BLUE, JJ., concur.\"}"

florida/7493483.json

@@ -0,0 +1 @@
+"{\"id\": \"7493483\", \"name\": \"Robert T. BERGIN, Jr., and J. Burke Culler, Jr., Appellants/Cross-Appellees, v. Daniel H. JONES, Appellee/Cross-Appellant\", \"name_abbreviation\": \"Bergin v. Jones\", \"decision_date\": \"1992-04-01\", \"docket_number\": \"Nos. 89-3282, 89-3283, 90-0841, 90-1161, 90-1415 and 90-1449\", \"first_page\": \"589\", \"last_page\": \"589\", \"citations\": \"595 So. 2d 589\", \"volume\": \"595\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:46:55.481597+00:00\", \"provenance\": \"CAP\", \"judges\": \"LETTS and FARMER, JJ., concur.\", \"parties\": \"Robert T. BERGIN, Jr., and J. Burke Culler, Jr., Appellants/Cross-Appellees, v. Daniel H. JONES, Appellee/Cross-Appellant.\", \"head_matter\": \"Robert T. BERGIN, Jr., and J. Burke Culler, Jr., Appellants/Cross-Appellees, v. Daniel H. JONES, Appellee/Cross-Appellant.\\nNos. 89-3282, 89-3283, 90-0841, 90-1161, 90-1415 and 90-1449.\\nDistrict Court of Appeal of Florida, Fourth District.\\nApril 1, 1992.\\nD. Culver Smith, III, Jones, Foster, Johnston & Stubbs, P.A., for appellants/cross-appellees.\\nJohn A. Gentry, III, Law Offices of John A. Gentry, III, P.A., West Palm Beach, for appellee/cross-appellant.\", \"word_count\": \"185\", \"char_count\": \"1256\", \"text\": \"PER CURIAM.\\nAFFIRMED.\\nLETTS and FARMER, JJ., concur.\\nANSTEAD, J., concurring specially with opinion.\"}"

florida/7495514.json

@@ -0,0 +1 @@
+"{\"id\": \"7495514\", \"name\": \"Frank S. ROBINSON, Appellant, v. STATE of Florida, Appellee\", \"name_abbreviation\": \"Robinson v. State\", \"decision_date\": \"1991-10-09\", \"docket_number\": \"No. 91-1038\", \"first_page\": \"266\", \"last_page\": \"269\", \"citations\": \"591 So. 2d 266\", \"volume\": \"591\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:44:27.152415+00:00\", \"provenance\": \"CAP\", \"judges\": \"HERSEY and POLEN, JJ., concur.\", \"parties\": \"Frank S. ROBINSON, Appellant, v. STATE of Florida, Appellee.\", \"head_matter\": \"Frank S. ROBINSON, Appellant, v. STATE of Florida, Appellee.\\nNo. 91-1038.\\nDistrict Court of Appeal of Florida, Fourth District.\\nOct. 9, 1991.\\nFrank S. Robinson, pro se.\\nRobert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellee.\", \"word_count\": \"1197\", \"char_count\": \"7463\", \"text\": \"FARMER, Judge.\\nThis is an appeal from an order denying relief under rule 3.850 to correct an illegal sentence and other grounds. Appellant was convicted of a burglary of a dwelling and petit theft committed January 30,1984. He was sentenced to 30 years imprisonment as a habitual offender but his sentence was reversed on appeal for failing to include written reasons for a departure from the sentencing guidelines. Robinson v. State, 497 So.2d 1355 (Fla. 4th DCA 1986). After remand he was again sentenced to the same 30 years, and that sentence was affirmed. Robinson v. State, 530 So.2d 1085 (Fla. 4th DCA 1988), rev. denied, 542 So.2d 989 (Fla.1989). In his rule 3.850 motion, which the trial court denied, he argues that it was error to sentence him under the guidelines without first giving him the right to make an affirmative selection, which he says he never made, to be sentenced without the guidelines, i.e. under the law as it existed before the guidelines. We agree and reverse.\\nAlthough he was originally sentenced on June 21, 1984, his resentencing after remand took place on February 10, 1987. At that hearing the trial judge discussed appellant's guidelines scoresheet and habitual offender status, saying that he could still sentence him to 30 years as a habitual offender. He then asked if the defense had anything to say in mitigation, but appellant and his attorney remained silent. The judge thereupon sentenced appellant to 30 years in prison as a habitual offender, saying that an upward departure was proper because appellant had a complete lack of regard for the law, was incorrigible, and prison had not rehabilitated him. Defense counsel then objected to the departure, as well as the calculation of the guidelines score, saying that appellant \\\"should have been sentenced under the guidelines at the time of the offense.\\\"\\nAppellant's central point is that he was never given the option at resentencing of being sentenced without the guidelines. He correctly points out that under Smith v. State, 537 So.2d 982 (Fla.1989), the sentencing guidelines were constitutionally invalid until adopted by the legislature on July 1, 1984, and that a defendant who is sentenced after the guidelines became effective for a crime committed before their effectiveness can \\\"affirmatively select\\\" (or reject) sentencing under the guidelines. He was resentenced, he argues, after July 1, 1984, and therefore should have been given an opportunity by the trial court to select his own basis for sentencing \\u2014 i.e. without the sentencing guidelines.\\nIn Wahl v. State, 543 So.2d 299 (Fla. 2nd DCA), rev. denied, 551 So.2d 463 (Fla.1989), the court held that a guidelines sentence was illegal because it had been imposed for crimes committed on January 29, 1984, with sentencing held on September 29, 1984. As here, defendant was originally deemed a habitual offender and given a departure sentence, the effect of which was to make defendant ineligible for parole. Even though he could be sentenced without the guidelines to the same maximum term, he would then be eligible for parole and thus could be released from prison earlier than he would under the guidelines.\\nAs the supreme court pointed out in Smith:\\nWhere does this leave appellant? If the sentencing guidelines were invalid when he was sentenced, presumably he should have been sentenced under the old procedure in which the trial court had absolute discretion to impose a sentence within the statutory maximum. Under these circumstances, however, he would clearly be entitled to seek parole because elimination of parole was an integral part of the sentencing guidelines legislation, and we are convinced that it could not be severed from the statute.\\nOrdinarily, this would mean that appellant would be resentenced as if the guidelines had never been enacted. However, appellant is in a unique posture. His original sentence was vacated by the district court of appeal and the trial court was directed to resentence appellant. At this point, while the date of his crime continued to predate the effective date of the guidelines (now determined to be July 1, 1984), the new sentencing took place after the guidelines became effective. Under section 921.001(4)(a), a person whose crime was committed before the effective date of the guidelines but sentenced thereafter may affirmatively select to be sentenced under the guidelines. When appellant appeared for resentencing in 1988, his effort to be sentenced under the guidelines effectively constituted the affirmative selection contemplated by section 921.001(4)(a). Therefore, appellant should have been sentenced under the guidelines which were effective on that date.\\n537 So.2d at 987.\\nIt is obvious from the facts in the present case that appellant is in the same unique posture that Smith was. His crimes were committed before the new effective date of the statute, July 1, 1984, and his resentencing pursuant to our mandate took place in February 1987. The only remaining question is whether his counsel's arguments after the court imposed the sentence operated as an \\\"affirmative selection\\\" of guidelines sentencing.\\nAfter the trial judge announced the sentence, appellant's lawyer objected to the rescoring under the revised guidelines. He argued that the guidelines in effect at the time of the offense should control. He also argued that Whitehead v. State, 498 So.2d 863 (Fla.1986), precluded appellant from being treated as a habitual felony offender.\\nWe are unable to find any affirmative selection of the guidelines treatment as opposed to non-guidelines treatment. We are especially unwilling to construe his argument, that the guidelines in effect at the date of the crime should control, to constitute an affirmative selection, when it could be reasonably understood as little more than the preservation of an objection to the length of sentence as being illegal.\\nThere is no denying that no one apprised appellant at the resentencing of his right under Smith make an affirmative selection of non-guidelines treatment. By the term \\\"affirmative selection\\\", we understand the legislature and the Court to mean a known and intentional selection, rather than acquiescence by silence or waiver. Here there was no mention at the hearing that appellant had the right to choose, and thus we could not possibly find a known and inten tional selection about something that was never even brought up.\\nAccordingly we reverse the trial court's denial of rule 3.850 relief and remand for resentencing, at which appellant must be given the right to \\\"affirmatively select\\\" sentencing under the guidelines or without them. We reject all other grounds for relief.\\nREVERSED AND REMANDED WITH DIRECTIONS.\\nHERSEY and POLEN, JJ., concur.\\n. Section 921.001(4)(a), Florida Statutes (1989), says in part:\\nThe guidelines shall be applied to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of this act.\"}"

florida/7495968.json

@@ -0,0 +1 @@
+"{\"id\": \"7495968\", \"name\": \"CITY OF MIAMI, Appellant, v. Richard JONES, Appellee\", \"name_abbreviation\": \"City of Miami v. Jones\", \"decision_date\": \"1992-01-17\", \"docket_number\": \"No. 90-3854\", \"first_page\": \"544\", \"last_page\": \"547\", \"citations\": \"593 So. 2d 544\", \"volume\": \"593\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T19:21:51.330105+00:00\", \"provenance\": \"CAP\", \"judges\": \"BOOTH and BARFIELD, JJ., concur.\", \"parties\": \"CITY OF MIAMI, Appellant, v. Richard JONES, Appellee.\", \"head_matter\": \"CITY OF MIAMI, Appellant, v. Richard JONES, Appellee.\\nNo. 90-3854.\\nDistrict Court of Appeal of Florida, First District.\\nJan. 17, 1992.\\nRehearing Denied Feb. 14, 1992.\\nJorge L. Fernandez, City Atty., Ramon Irizarri and Kathryn S. Pecko, Asst. City Attys., and Jay M. Levy, Miami, for appellant.\\nMark L. Zientz of Williams & Zientz, Richard A. Sicking, Miami, for appellee.\", \"word_count\": \"1916\", \"char_count\": \"11849\", \"text\": \"SMITH, Judge.\\nThe City appeals an order of the Judge of Compensation Claims (JCC) determining that it must reimburse claimant for offsets, in the amount of claimant's weekly compensation benefits, which were taken from claimant's monthly pension benefits for the period July 1,1973 through August 1,1989. The City contends that section 440.09(4), Florida Statutes, in effect at the time of claimant's accident, permitted the offsets. Although the statute was repealed, effective July 1,1973, the City contends it was a substantive enactment and its repeal did not affect the City's entitlement to take the offsets. We agree and reverse.\\nClaimant, a former City of Miami police officer, suffered a compensable injury in the course of his employment on March 16, 1966. The City and claimant entered a stipulation on March 19, 1970, subsequently approved by the deputy commissioner, in which the parties agreed that claimant was permanently totally disabled (PTD), and that claimant was entitled to compensation at the rate of $42 per week commencing July 12, 1969. Prior to entry of this order, the City had granted claimant a disability pension effective July 12, 1969, in the amount of $648 a month. The City commenced payment of benefits effective July 12, 1969; however, the City offset the amount of claimant's weekly workers' compensation benefits from his monthly disability pension benefits so that his net income remained $648 per month. The City continued to take this offset through August 1, 1989, when the City stopped taking the offset following the supreme court's decision in Barragan v. City of Miami, 545 So.2d 252 (Fla.1989).\\nAt the time of claimant's injury and the subsequent commencement of benefits, section 440.09(4) provided:\\n(4) When any employee of the state or of any political subdivision thereof or of any public or quasi-public corporation therein, or any person entitled thereto on account of dependency upon such employee, receives compensation under the provisions of this chapter by reason of disability or death of such employee resulting from an injury arising out of and in the course of employment with such employer, and such employee or dependent is entitled to receive any sum from any pension or other benefit fund to which the same employer may contribute, the amount of any payment from such pension or benefit fund allocable to any week with respect to which such employee or dependent receives compensation under this chapter shall be reduced by the amount of the compensation for such week; provided that if the amount of the payment from such pension or benefit fund alloca-ble to any week is less than the amount of such compensation for such week only the amount of the pension or benefit payment allocable to such week shall be affected and the amount of the difference between the compensation and the pension or benefit payment allocable to one week shall not reduce the pension or benefit payment allocable to any subsequent week.\\nThe effect of the statute was that when a public employee, entitled to a pension, was awarded workers' compensation, the compensation was deducted from the pension amount, if the pension was greater than the amount of compensation awarded; and where the pension was less than the amount of compensation awarded, the employer was required to pay only the amount of compensation awarded the employee. City of Miami v. Graham, 138 So.2d 751, 754 (Fla.1962).\\nIn addition to the statute, the City had an ordinance, in effect since 1940, which also permitted the offset. When the legislature repealed section 440.09(4) effective July 1, 1973, the City relied upon its ordinance to continue taking the offsets for accidents occurring subsequent to July 1, 1973. However, in Barragan, the Florida Supreme Court ruled that Miami's city ordinance was preempted by the workers' compensation law and that section 440.21, Flor ida Statutes, which provides that no agreement by an employee to waive his right to compensation shall be valid, prohibited the City from deducting workers' compensation benefits. In so holding, the court stated that Hoffkins v. City of Miami, 339 So.2d 1145 (Fla. 3d DCA 1976), which had permitted the City to take the offset pursuant to its ordinance, after the repeal of section 440.09(4), was wrongly decided. The Bar-ragan decision does not purport to adjudicate the right of the City to take an offset for pre-July 1, 1973 accidents.\\nClaimant filed a claim for benefits on October 27, 1989 seeking reimbursement for the pension offset which the City had taken for the period July 1, 1973 through August 1, 1989, amounting to approximately $48,000, as well as penalties, interests, costs and attorney's fees. With regard to the City's contention that section 440.09(4), in effect at the time of claimant's injury, gave the City the substantive right to take the offset, the JCC ruled that section 440.-09(4) was a remedial statute which merely governed the manner in which monies are distributed and was procedural, so that when the statute was repealed in 1973, the City's right to take the offset ceased, pursuant to the Florida Supreme Court's decision in Barragan. In so ruling, the JCC determined that the Barragan decision had retroactive application.\\nIn Sullivan v. Mayo, 121 So.2d 424, 428 (Fla.1960) the Florida Supreme Court said:\\n. It is well established in Florida that the substantive rights of the respective parties under the Workmen's Compensation Law are fixed as of the time of the injury to the employee. This is so because the acceptance of the provisions of the Workmen's Compensation Law by the employer, the employee, and the insurance carrier constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury. Consequently, a subsequent enactment could not impair the substantive rights of the parties established by this contractual relationship....\\nWhile this case involved the repeal of a part of the Workers' Compensation Act, rather than an amendment to the Act, we believe the principle stated is no less applicable here.\\nIt is well established that the amount of compensation or rate of compensation paid to a claimant is substantive in nature. Recon Paving, Inc. v. Cook, 439 So.2d 1019, 1021 (Fla. 1st DCA 1983) (by any standard, increasing or decreasing the dollar benefits payable for an industrial injury is substantive legislation). Claimant contends that the language allowing the offset on a week-to-week basis makes the statute remedial, and that the right of the parties would thus be governed by the law as it existed following the statute's repeal. We do not agree. In our view, the language of past Florida Supreme Court decisions makes it clear that the effect of section 440.09(4) was to require a reduction in compensation benefits. Accordingly, the statute is necessarily substantive in nature.\\nIn City of Miami v. Graham, 138 So.2d at 754, the Florida Supreme Court explained the import of section 440.09(4) thusly:\\nConsidering \\u00a7 440.09(4), Florida Statutes, F.S.A., in its entirety, the legislative intent seems clear: That an employee shall not receive both a pension and workmen's compensation from his employer when the employer is the state or any political subdivision thereof or a quasi-public corporation therein.\\nAgain in Barragan, 545 So.2d at 254 the supreme court summarized \\u00a7 440.09(4):\\nThe Court [in Graham ] based its holding on section 440.09(4), Florida Statutes (1957), which provided that any workers' compensation benefits payable to injured public employees should be reduced by the amount of pension benefits which were also payable.\\nThese decisions recognize that section 440.-09(4) provided for a reduction in compensation benefits.\\nClaimant's reliance on this court's decision in Letcavage v. John Biggie & Co., 418 So.2d 417 (Fla. 1st DCA 1982), permitting retroactive application of the social security offset provision, section 440.15(10)(a), is misplaced. It is true that section 440.-15(10)(a), providing for an employer offset for the amount of social security benefits received by the employee, and the 1979 amendment to the statute, which permitted the amount of social security benefits paid for the employee's dependents to be included in the offset, were held procedural, and thus applicable to accidents occurring prior to the statutes' effective dates. However, as the Florida Supreme Court explained in American Bankers Insurance Co. v. Little, 393 So.2d 1063 (Fla.1980), federal law already permitted the Social Security Administration to take the offset. The change in the law merely permitted the state to take the offset the federal government had previously taken. The law changed the source from which the claimants received benefits \\u2014 from predominantly state-generated payments to federally-generated payments \\u2014 not the amounts received.\\nUnlike the situation in the social security offset cases, section 440.09(4) directly impacted the amount of benefits placed in claimant's hands, and the substantive nature of this statute cannot be escaped. If the converse were true in this case \\u2014 if section 440.09(4) permitted a claimant to collect both pension and workers' compensation benefits, but then in 1973, the statute was amended to permit the offset \\u2014 it is without question that the amendment would be deemed substantive and not applicable to pre-1973 accidents.\\nIn urging the contrary result, claimant relies in part upon Lister v. Walker, 409 So.2d 1153 (Fla. 1st DCA 1982). In Lister, the claimant's accident occurred in 1958 and he was found permanently partially disabled. Section 440.15(1)(d), Florida Statutes, enacted approximately one year after the claimant's injury but several years before the claimant was adjudicated PTD, allowed for a calculation to be done after the compensation rate was determined to offset from PTD benefits claimant's actual earnings. The claimant in that case contended the statute was substantive and did not apply because it was enacted after the date of injury, while the E/C maintained that it was procedural and did apply to the claimant. In rejecting the claimant's position, the court commented that the statute would be applicable because it applied only to PTD and the claimant became PTD while the statute was in force. The court declined, however, to decide the procedural/substantive question. In view of the absence of discussion on this issue, we can only surmise that the court was of the view that the claimant had failed to demonstrate a vested right to the continued receipt of full disability benefits in addition to the amounts he was able to earn through his own employment. No such issue is presented in this case before us. We note, however, that although the Lister court approved the E/C's suspension of payments to the claimant, the court declined to allow the E/C to apply the offset to recover past payments made to the claimant. Similarly, we are of the view that the City may not apply this decision to recover the gratuitous payments made to claimant subsequent to the Barragan decision.\\nREVERSED and REMANDED for further proceedings consistent with this opinion.\\nBOOTH and BARFIELD, JJ., concur.\\n. On appeal, the City contends that the JCC erred in applying Barragan retroactively. Because the decision in this case turns on the substantive nature of section 440.09(4), we do not reach the issue of the retroactivity of Barra-gan to the facts of this case.\"}"

florida/7507149.json

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+"{\"id\": \"7507149\", \"name\": \"Lavaughn BOGGS, Appellant, v. STATE of Florida, Appellee\", \"name_abbreviation\": \"Boggs v. State\", \"decision_date\": \"1990-02-21\", \"docket_number\": \"No. 89-00754\", \"first_page\": \"203\", \"last_page\": \"203\", \"citations\": \"557 So. 2d 203\", \"volume\": \"557\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T23:28:20.333124+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEHAN and THREADGILL, JJ., concur.\", \"parties\": \"Lavaughn BOGGS, Appellant, v. STATE of Florida, Appellee.\", \"head_matter\": \"Lavaughn BOGGS, Appellant, v. STATE of Florida, Appellee.\\nNo. 89-00754.\\nDistrict Court of Appeal of Florida, Second District.\\nFeb. 21, 1990.\\nJames Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.\\nRobert A. Butterworth, Atty. Gen., Tallahassee, and Anne Y. Swing, Asst. Atty. Gen., Tampa, for appellee.\", \"word_count\": \"218\", \"char_count\": \"1406\", \"text\": \"SCHEB, Acting Chief Judge.\\nThe defendant, Lavaughn Boggs, appeals the order revoking his probation. The state sought to revoke probation on several grounds. Although the trial court made oral findings that the defendant had violated probation by possessing a firearm while a felon and by failing to report to his probation officer, the court's written order did not recite which conditions were violated. The defendant does not challenge the sufficiency of the evidence supporting the judge's oral findings, only that the written order does not conform to the court's oral pronouncement. We agree that the defendant is entitled to have the order corrected. Brookshire v. State, 473 So.2d 14 (Fla. 2d DCA 1985).\\nAccordingly, we affirm the revocation of the defendant's probation but remand for correction of the written order to reflect the court's oral pronouncement as to the probation conditions violated. The defendant need not be present for this purpose. See Dunlap v. State, 405 So.2d 796 (Fla. 2d DCA 1981).\\nLEHAN and THREADGILL, JJ., concur.\"}"

florida/7520097.json

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+"{\"id\": \"7520097\", \"name\": \"Deborah WARREN, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee\", \"name_abbreviation\": \"Warren v. State, Department of Transportation\", \"decision_date\": \"1990-04-10\", \"docket_number\": \"No. 89-2484\", \"first_page\": \"387\", \"last_page\": \"388\", \"citations\": \"559 So. 2d 387\", \"volume\": \"559\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T21:26:58.473466+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ.\", \"parties\": \"Deborah WARREN, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.\", \"head_matter\": \"Deborah WARREN, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.\\nNo. 89-2484.\\nDistrict Court of Appeal of Florida, Third District.\\nApril 10, 1990.\\nGerald Piken and Larry Jay Safron, for appellant.\\nStuzin and Camner and Wesley R. Parson, for appellee.\\nBefore SCHWARTZ, C.J., and JORGENSON and GODERICH, JJ.\", \"word_count\": \"602\", \"char_count\": \"3532\", \"text\": \"SCHWARTZ, Chief Judge.\\nThe plaintiff, Deborah Warren, was riding her bicycle on a sidewalk in North Dade County which was in the control of the Department of Transportation. As she approached an area under repair, several pieces of concrete left on the sidewalk impeded her progress. Although she attempted to keep her bike on the walkway, she was unable to do so, and went off the sidewalk into an adjacent ditch from which the sod had been removed and soft sand left in its place. The sand caused the bicycle to go out of control and she was injured. This appeal is from a summary judgment rendered for the DOT apparently on the ground that the pieces of concrete were so \\\"open and obvious\\\" as to render the defective condition of the sidewalk and the adjacent ditch nonactionable as a matter of law. We disagree and reverse.\\nIt seems perfectly clear, given the momentum provided by the plaintiffs bicycle, which made it \\u2014 or so a jury could say \\u2014 not reasonably possible for her safely to avoid the hazard presented by the pieces of concrete, that the mere fact that they were there to be seen does not render her own conduct in approaching them the sole legal cause of the accident. Stahl v. Metropolitan Dade County, 438 So.2d 14, 22-23 (Fla. 3d DCA 1983); see Camillo v. Department of Transp., 546 So.2d 4 (Fla. 3d DCA 1988), review denied, 547 So.2d 1209 (Fla.1989). Compare Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980) (pedestrian). Compare also Gloris v. Williams Paving Co., 556 So.2d 748 (Fla. 3d DCA 1989) (pedestrian). The record thus presents jury questions as to whether her riding the bike was either only comparatively negligent, or not contributorily negligent at all, and whether, conversely, the DOT's negligence as to the sidewalk was a, or the sole legal cause of the accident. See Bryant v. Lucky Stores, Inc. (Fla. 2d DCA Case no. 89-01761, opinion filed, March 9, 1990) [15 FLW D659]; Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980), reviewed denied, 389 So.2d 1113 (Fla.1980); Isenberg v. Ortona Park Recreational Center, Inc., 160 So.2d 132 (Fla. 1st DCA 1964).\\nIn addition, a factual issue was raised as to whether the defendant breached a duty of due care to those on the sidewalk by maintaining the immediately adjacent ditch in a negligent condition which would present a foreseeable danger to them. City of Pensacola v. Stamm, 448 So.2d 39 (Fla. 1st DCA 1984), pet. for review denied, 456 So.2d 1181 (Fla.1984); State Dep't of Transp. v. Manning, 288 So.2d 289, 291 (Fla. 2d DCA 1974) (\\\"The drop off was of such a nature and sufficiently close to the travelled surface as to permit the jury to conclude that it constituted an unreasonable hazard.\\\"), cert. denied, 295 So.2d 307 (Fla.1974); see Gloris, 556 So.2d at 748.\\nReversed.\\n. Indeed, it is open and obvious.\\n. There is no doubt that a jury could find that the condition of the sidewalk was a legal cause of the injury resulting from the natural instinctive reaction in avoiding the danger on the sidewalk and encountering the defective condition of the adjacent ditch. See Stahl v. Metropolitan Dade County, 438 So.2d at 14; Cantillo v. Department of Transp., 546 So.2d at 4.\"}"

florida/7545826.json

@@ -0,0 +1 @@
+"{\"id\": \"7545826\", \"name\": \"Robert SUTTER, Appellant, v. Sister Sheila HAMMOND, a Catholic Nun, By and Through Barbara Hammond SUTTER, Trustee, Barbara Hammond Sutter, individually, and First National in Palm Beach, a division of Southeast Bank, N.A., Appellees\", \"name_abbreviation\": \"Sutter v. Hammond\", \"decision_date\": \"1989-06-28\", \"docket_number\": \"No. 87-2755\", \"first_page\": \"497\", \"last_page\": \"498\", \"citations\": \"545 So. 2d 497\", \"volume\": \"545\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida District Court of Appeal\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T18:32:46.178402+00:00\", \"provenance\": \"CAP\", \"judges\": \"ANSTEAD, GUNTHER and WARNER, JJ., concur.\", \"parties\": \"Robert SUTTER, Appellant, v. Sister Sheila HAMMOND, a Catholic Nun, By and Through Barbara Hammond SUTTER, Trustee, Barbara Hammond Sutter, individually, and First National in Palm Beach, a division of Southeast Bank, N.A., Appellees.\", \"head_matter\": \"Robert SUTTER, Appellant, v. Sister Sheila HAMMOND, a Catholic Nun, By and Through Barbara Hammond SUTTER, Trustee, Barbara Hammond Sutter, individually, and First National in Palm Beach, a division of Southeast Bank, N.A., Appellees.\\nNo. 87-2755.\\nDistrict Court of Appeal of Florida, Fourth District.\\nJune 28, 1989.\\nCharles A. Nugent, Jr., of Cone, Wagner, Nugent, Johnson, Roth and Romano, P.A., West Palm Beach, for appellant.\\nP. Gregory Barnhart of Montgomery, Se-arcy & Denney, P.A., West Palm Beach, for appellee-Sister Sheila Hammond, Trustee.\\nRobert G. Post of Alex Hofrichter, P.A., Miami, for appellee-First Nat. in Palm Beach.\", \"word_count\": \"309\", \"char_count\": \"1916\", \"text\": \"PER CURIAM.\\nIn this appeal, the appellant contends that the punitive damage award of $4.5 million is clearly excessive in light of the evidence presented as to the appellant's financial status. Having reviewed the record submitted by the appellant, and the portions designated by the appellee with which appellant has provided the court, it is clear that an award of $4.5 million is greatly in excess of any measure of value of appellant's financial ability in this case. Punitive damages may not be assessed in an amount which will bankrupt or destroy the appellant. Arab Termite and Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039 (Fla.1982); Hockensmith v. Waxier, 524 So.2d 714 (Fla. 2d DCA 1988).\\nHowever, rather than ordering a new trial, it is appropriate to consider a remit-titur. Since the trial court judge is much more familiar with this case than we are, we remand to the trial court to enter an appropriate amount of remittitur. If, after reviewing this case, the trial court determines that it is impossible to determine an appropriate amount of remittitur, then he is directed to order a new trial on the issue of punitive damages. See University Community Hospital v. Martin, 328 So.2d 858 (Fla. 2d DCA 1976).\\nANSTEAD, GUNTHER and WARNER, JJ., concur.\"}"

florida/7547877.json

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+"{\"id\": \"7547877\", \"name\": \"Barbara Ann MAGAW, Petitioner, v. STATE of Florida, Respondent\", \"name_abbreviation\": \"Magaw v. State\", \"decision_date\": \"1989-01-12\", \"docket_number\": \"No. 72419\", \"first_page\": \"564\", \"last_page\": \"567\", \"citations\": \"537 So. 2d 564\", \"volume\": \"537\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Florida Supreme Court\", \"jurisdiction\": \"Florida\", \"last_updated\": \"2021-08-10T23:27:25.782685+00:00\", \"provenance\": \"CAP\", \"judges\": \"EHRLICH, C.J., and OVERTON, MCDONALD, SHAW, BARKETT and KOGAN, JJ., concur.\", \"parties\": \"Barbara Ann MAGAW, Petitioner, v. STATE of Florida, Respondent.\", \"head_matter\": \"Barbara Ann MAGAW, Petitioner, v. STATE of Florida, Respondent.\\nNo. 72419.\\nSupreme Court of Florida.\\nJan. 12, 1989.\\nKeith D. Cooper, Pensacola, for petitioner.\\nRobert A. Butterworth, Atty. Gen. and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for respondent.\", \"word_count\": \"1884\", \"char_count\": \"11648\", \"text\": \"GRIMES, Justice.\\nWe review Magaw v. State, 523 So.2d 762 (Fla. 1st DCA 1988), in which the district court of appeal certified a question to be of great public importance. Our jurisdiction is predicated upon article V, section 3(b)(4), of the Florida Constitution.\\nMagaw was convicted of manslaughter by intoxication as a result of an accident which occurred on July 2, 1986. She complained that the court denied her request to argue causation to the jury. The district court of appeal relied upon Armenia v. State, 497 So.2d 638 (Fla.1986), to reject this argument and affirmed the conviction. The court said:\\nIn Armenia, the Florida Supreme Court held that it is not necessary to prove a causal relationship between the manner of operation of defendant's motor vehicle due to intoxication and the death of the victim, in order to convict under section 316.1931, Florida Statutes (1983), and Baker v. State, 377 So.2d 17 (Fla.1979). In Baker the court held that DWI/manslaughter was a strict liability offense.\\n523 So.2d at 763. However, because of a 1986 amendment to the statute, the district court certified the following question:\\nIs the holding of Armenia v. State, 497 So.2d 638 (Fla.1986) still valid in light of section 316.193(3)(c) Florida Statutes (Supp.1986)?\\n523 So.2d at 764.\\nIn Baker v. State, 377 So.2d 17 (Fla. 1979), this Court sustained the validity of the manslaughter by intoxication statute (then section 860.01(2), Florida Statutes (1977)) against the contention that it was unconstitutional because it did not require a causal connection between the intoxication and the resulting death. The Court observed:\\nThat the legislature intended section 860.01(2) to have strict liability consequences is beyond peradventure. Cannon v. State [91 Fla. 214, 107 So. 360] was decided by this Court in 1926. Decisions of this Court and of the district courts of appeal since that date have consistently held that negligence and proximate causation are not elements of the crime described in section 860.01(2). The legislature's reluctance to revisit the statute, in spite of ample opportunity, leads to the conclusion that the judicial construction of section 860.01(2) accurately reflects legislative intent.\\n377 So.2d at 19. While recognizing that strict criminal liability statutes were not favored, the Court reasoned that the legislature had not acted irrationally in enacting the statute as a deterrent to the serious social problem of drunken driving. In a sharp dissent, Justice Boyd argued that the statutory language should be construed to require for conviction a causal connection between the intoxication and the death.\\nIn response to a certified question, this Court in Armenia reaffirmed the holding in Baker that it was unnecessary to prove a causal relationship between the manner of operation of the defendant's motor vehicle and the death of the victim in order to sustain a conviction for manslaughter by intoxication. The Court observed that nothing had occurred since the decision in Baker which would warrant receding from that case.\\nBy 1986, the manslaughter by intoxication statute construed in Baker had been renumbered as section 316.1931, but its wording remained essentially the same. Immediately before the 1986 amendment, the statute read, in pertinent part:\\n316.1931 Driving automobile while intoxicated; punishment.\\u2014\\n(1) It is unlawful for any person, while in an intoxicated condition or under the influence of alcoholic beverages, any chemical substance set forth in s. 877.-111, or any substance controlled under chapter 893 to such extent as to deprive him of full possession of his normal faculties, to drive, be in actual physical control of, or operate within this state any automobile, truck, motorcycle, or other vehicle....\\n(2) .\\n(c) If the death of any human being is caused by the operation of a motor vehicle by any person while so intoxicated, such person shall be deemed guilty of manslaughter and on conviction shall be punished as provided by existing law relating to manslaughter.\\n(3) A conviction under the provisions of this section shall not be a bar to any civil suit for damages against the person so convicted.\\nThe pertinent portion of the manslaughter by intoxication statute, as amended by chapter 86-296, Laws of Florida, now reads:\\n316.193 Driving under the influence; penalties.\\u2014\\n(1)A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection\\n(2)if such person is driving or in actual physical control of a vehicle within this state and:\\n(a)The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired;\\n(3)Any person:\\n(a) Who is in violation of subsection (i);\\n(b) Who operates a vehicle; and\\n(c) Who, by reason of such operation, causes:\\n3. The death of any human being is guilty of DUI manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.\\nNot surprisingly, Magaw contends that the amended statute has added an element of causation to the crime, whereas the state suggests that the amendment was merely cosmetic and made no substantive changes. There is some merit in both arguments because the meaning of the statute both before and after the amendment has not been entirely clear. In order to convict under the new statute, it is necessary to prove that the operation of a vehicle by a person under the influence caused the death of another, thereby suggesting the requirement of causation. On the other hand, the old statute which provided for conviction if the death of any human being was caused by the operation of a motor vehicle by an intoxicated person has been consistently construed as not requiring proof of causation.\\nIn construing a statute which is susceptible to more than one interpretation, it is often helpful to refer to legislative history. Foley v. State ex rel. Gordon, 50 So.2d 179 (Fla.1951). In this case, the legislative history is most persuasive. The staff analysis prepared by the House of Representatives Committee on Criminal Justice with reference to the 1986 amendment stated in part:\\nThis bill repeals the DWI statute altogether. There would only be one standard for courts to follow. The provisions for penalties for manslaughter and accidents with serious bodily injury would now fall under DUI.\\nThe changes are significant in two ways. First, intoxication or deprivation of full possession of normal faculties is no longer an element to be proved for a manslaughter conviction; it would be sufficient to prove that a person was under the influence of alcohol to the extent his normal faculties were impaired. Secondly, there now must be a \\\"causal connection\\\" between the operation of the vehicle by the offender and the resulting death.\\nThis legislation requires a causal connection between the driver's conduct (the operation of a motor vehicle) and the resulting accident. Since Cannon v. State was decided in 1926 the Florida Supreme Court has consistently held the offense of DWI manslaughter to be a strict liability crime. In Baker v. State, 377 So.2d 17 (1979) the Florida Supreme Court stated \\\"statutes which impose strict criminal liability, although not favored, are nonetheless constitutional.\\\" However, as Justice Boyd pointed out in his dissenting opinion in that case,\\n\\\"Under this law as construed by the Court today, the following application is possible. An intoxicated person drives an automobile to an intersection and properly stops at a stop light. While there in a stationary position, the vehicle is struck from behind by another automobile due to negligent operation by the driver. The negligent driver dies from injuries received in the collision. The completely passive, nonnegligent but intoxicated motorist can be convicted of DWI manslaughter and imprisoned for fifteen years.\\\"\\nThis bill would insert the element of causation into the definitions of DUI crimes which call for increased penalties due to accidents involving serious bodily injury or death.\\nStaff of Fla.H.R.Comm. on CrimJust., DUI [HB 8-B] Staff Analysis 4, 7-8 (June 18, 1986). The debate on the floor when the Senate adopted this bill on June 19,1986, is also instructive.\\nSENATOR LANGLEY: There was one intent question we needed on the bill I wanted to address to Senator Weinstein, Mr. President.\\nMR. PRESIDENT: Okay. Senator Weinstein takes the floor and yields to a question.\\nSENATOR LANGLEY: Senator Wein-stein, the bill analysis says, and I understand the language on page three, I believe, is supposed to put into the new law that causation is necessary rather than just intoxication on vehicle homicide. Is that correct, sir?\\nSENATOR WEINSTEIN: Senator Langley, that\\u2014page five I think you're referring to.\\nSENATOR LANGLEY: Yes, sir.\\nSENATOR WEINSTEIN: The new language does have the word cause, and I think it's the intent of the drafters of the bill that causation be a factor in a DUI manslaughter conviction.\\nFla.S., transcript of proceedings at 4 (June 19, 1986) (HB 8-B). We also note that Senate Bill 1218 which specified that negligence and proximate cause were not elements of manslaughter under section 316.-193 was introduced during the 1986 legislative session but failed to pass.\\nIn view of the history of chapter 86-296, the legislative intent is clear. We conclude that the 1986 amendment introduced causation as an element of the crimes proscribed by section 316.193(3). We caution, however, that the statute does not say that the operator of the vehicle must be the sole cause of the fatal accident. Moreover, the state is not required to prove that the operator's drinking caused the accident. The statute requires only that the operation of the vehicle should have caused the accident. Therefore, any deviation or lack of care on the part of a driver under the influence to which the fatal accident can be attributed will suffice.\\nNotwithstanding our interpretation of the new statute, Magaw cannot prevail. The amendment to the statute did not become effective until October 1, 1986, almost three months after the date of Ma-gaw's accident. Magaw's contention that, in passing the 1986 amendment, the legislature simply made clear what it always intended the statute to mean is totally unpersuasive. On several occasions this Court specifically ruled that the old statute did not require causation and invited the legislature to make the change if it were deemed advisable. By amending the statute in 1986, the legislature has now chosen to do so. This does not affect accidents which occurred prior to the effective date of the amendment.\\nWe answer the certified question in the negative but affirm Magaw's conviction.\\nIt is so ordered.\\nEHRLICH, C.J., and OVERTON, MCDONALD, SHAW, BARKETT and KOGAN, JJ., concur.\\n. Actually, the amendment to the statute at issue in the instant case became effective the day before the Armenia opinion was released. However, the amendment was not mentioned in the opinion because it did not bear on the disposition of the case.\\n. While this opinion has discussed only manslaughter by intoxication, our construction of the current statute necessarily encompasses the proof required to convict of the lesser crimes under section 316.913(3).\"}"