author: KEHOE, Judge.

text:
    SOUTH FLORIDA REGIONAL PLANNING COUNCIL, Appellant, v. STATE of Florida LAND AND WATER ADJUDICATORY COMMISSION et al., Appellees.
    No. 78-1600.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.

      Milledge & Hermelee and Earl G. Gallop and Allan Milledge, Miami, for appellant.
    Jim Smith, Atty. Gen. and Barry L. Sil-ber, Asst. Atty. Gen., Tallahassee, Stuart L. Simon, County Atty. and Stanley B. Price, Asst. County Atty., Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel Wolff and Alan S. Gold, Miami, C. Lawrence Keesey, Tallahassee, for appellees.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E., (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, the South Florida Regional Planning Council (SFRPC), pursuant to the provisions of Sections 120.68(2) and 380.07(5), Florida Statutes (1977), appeals a final order of the State of Florida Land and Water Adjudicatory Commission (Fla.WAC) which dismissed its petition to review an alleged development order issued by the Dade County Board of Commissioners (Dade Commissioners). Appellees are Dade County (Dade); Fisher Island, Inc., and Fisher Island Associates, Ltd., the property owners (Fisher); and Fla.WAC.

The recommended order of dismissal submitted to Fla.WAC by the hearing officer, which order was adopted by Fla.WAC as its final order, contains a summation of the facts of this cause; that order reads as follows:

“1. On April 10,1978, the Department of Administration received Notice of Appeal and a Petition filed by the South Florida Regional Planning Council (SFRPC) wherein it seeks to appeal, pursuant to Section 380.07, Florida Statutes, a ‘Development Order’ issued by the Dade County Board of County Commissioners (Dade County) on February 9, 1978, relative to proposed development of land on Fisher Island which is located South of Government Cut between Miami Beach and Virginia Key, Dade County, Florida. The SFRPC alleges in its Petition that a zoning resolution issued by the Board of County Commissioners on that date constitutes a development order as contemplated under Chapter 380.
“2. By letter of April 11, 1978, the Secretary of Administration, on behalf of the Florida Land and Water Adjudicatory Commission, referred the Notice of Appeal and Petition to the Division of Administrative Hearings for the appointment of a Hearing Officer, pursuant to Section 380.07, Florida Statutes, and Rule 22G-1.07, Florida Administrative Code.
“3. The owner of the land, Fisher’s Island, Inc., a Florida Corporation, and its lessee, Fisher’s Island Associates, Limited, a Florida limited partnership (Fisher), thereafter filed its Answer to the Petition denying, inter alia, that the zoning resolution is a development order and claiming that Chapter 380 is inapplicable, together with various affirmative defenses. It also filed a Motion to Dismiss the Petition wherein it asserted that the Florida Land and Water Adjudicatory Commission lacks jurisdiction over the subject matter and that the Petition does not state facts sufficient to serve as a basis for appeal. The Motion is predicated on the fact that the Division of State Planning, Department of Administration, on November 24, 1975, issued a ‘Binding Letter of Interpretation’ under Section 380.06(4), Florida Statutes, that the proposed project is not a development of regional impact. Dade County also filed an Answer to the Petition along similar lines, together with a ‘Suggestion of Lack of Jurisdiction’ which was essentially based on the same grounds as Fisher’s Motion to Dismiss.
“4. A prehearing conference was held to consider the various motions on May 15, 1978, at which time the Hearing Officer withheld ruling thereon pending receipt of pertinent documentary materials from the parties,and submission of memorandums of law.
“5. The following is a summary of the sequence of events which preceded filing of the Petition herein:
“a. Fisher’s Island, Inc. owns a parcel of land consisting of 179.23 acres on Fisher Island. In 1973, the parcel of land was leased with option to purchase to Fisher’s Island Associates, Limited.
“b. On April 10, 1974, Fisher filed an application to Dade County for rezoning of the land to permit the development of approximately 5,000 condominium units and 1,500 hotel units.
“c. On April 11, 1975, Fisher filed an Application for Development Approval (ADA) for a development of regional impact with the SFRPC.
“d. Pursuant to Section 380.06(8), Florida Statutes, the SFRPC, in July 1975, issued and referred its report and recommendations on the development proposal to Dade County. In its report, it identified potentially adverse regional impacts resulting from the proposed development, but recommended denial of the application because of an alleged refusal of Fisher to provide sufficient information concerning development plans, methods and technology. In consideration of the adverse nature of the SFRPC report and of the fact that Dade County had adopted a new Comprehensive Development Water Plan, Fisher thereafter scaled down its original proposal to call for a maximum of 1,200 individual housing units and 200 hotel dwelling units,, plus various ancillary facilities. This was in the form of a revised Letter of Intent to Dade County.
“e. On October 27, 1975, Fisher wrote to the Division of State Planning stating that it did not believe its revised proposal constituted a development of regional impact and requested a binding letter of interpretation by the Division to that effect. By letter of November 7, 1975 to the Division of State Planning, legal counsel for the SFRPC stated its position that Fisher’s request for a binding letter of interpretation was inappropriate and should not be issued merely because the revised plan might bring the project below the numerical threshold guidelines for developments of regional impact based on county population as contained in Chapter 22F, Florida Administrative Code, and that the Division could not properly intervene in an ongoing DRI process by the issuance of a binding letter of interpretation. Additionally, by letter of November 12, 1975, SFRPC’s counsel wrote to Dade County recommending denial of the ADA and enclosing a copy of its letter to the Division of State Planning.
“f. Nevertheless, the Acting Director of the Division of State Planning issued such a binding letter on November 24, 1975, which stated that the proposed development consisting of 1,200 dwelling units and 200 hotel units is not a residential development of regional impact as legally defined in Chapter 22F-2.20, Florida Administrative Code, and therefore would not be required to comply with the provisions of Section 380.06, Florida Statutes. The letter noted, however, that if any time in the future the development met such standards, it would then be subject to the DRI review and approval requirements.
“g. On November 26, 1975, Dade County deferred action on the application to obtain an opinion of the Attorney General as to whether the SFRPC still had jurisdiction to review the revised application. On January 9, 1976, the Attorney General advised the Dade County Attorney that since Section 380.06(4)(a), Florida Statutes, as amended, provides that a binding letter of interpretation ‘shall bind all state, regional and local agencies as well as the developer,’ and in the absence of judicial guidance to the contrary, both Dade County and the SFRPC must treat the proposal as not being a development of regional impact and that the approval procedures in Section 380.06 were not applicable.
“h. Subsequent dealings between Fisher and various Dade County agencies preceded Dade County action on the amended application on November 23, 1976. It was found that the basic question to be answered was whether Dade County’s Comprehensive Development Master Plan which designated Fisher Island for park and recreational uses in the future, should be amended to permit urban development as requested by Fisher. In April 1976, Fisher filed an application to so amend the Master Plan appropriately to change the land use designation of Fisher Island to ‘medium density up to 11.0 dwellings per gross residential acre).’ In addition, although Dade County was considering the possibility of State or local acquisition of the undeveloped portion of Fisher Island for park and recreation purposes, this plan was later abandoned. In October, 1976, Dade County did change its identification of Fisher Island on its Master Plan from ‘parks and recreation’ to ‘low density (up to 1.5 units per acre),’ and at the November 23rd meeting, denied Fisher’s application as not being in conformance with such plan. At that time, the County Commission also voted to dismiss Fisher’s DRI application from its agenda in view of the binding letter of interpretation and the opinion of the Attorney General.
“i. Fisher then filed a Petition for Writ of Certiorari to review the unfavorable zoning resolution in the Circuit Court of the Eleventh Judicial Circuit, Dade County, Case No. 76-40104. On November 1, 1977, the Court rendered an opinion granting the Petition, quashing the zoning resolution as being invalid and unconstitutional, and remanding the cause to the County Commission for further action. In its opinion, the Court stated that any zoning restriction on Fisher’s property that is more restrictive than medium density would exceed the bounds of public necessity and be an invasion of constitutional rights. Although Dade County appealed to the Third District Court of Appeal, the appeal was later dismissed after the County Commission proceeded to hold public hearings in the matter and, by Resolution Z-33-78 of February 9, 1978, approved the application. The approval was subject to certain restrictive covenants executed by Fisher to insure it would abide by various undertakings contained therein, including one that the maximum number of dwelling units would be permanently fixed and established at a total of 1,200 apartment units and 200 hotel units.
“6. The pending Motion raises the question of whether a binding letter of interpretation issued by the Division of Land Planning to a developer under Section 380.06(4)(a), Florida Statutes, that a revised proposed project does not constitute a development of regional impact effectively terminates an ongoing DRI process and bars a regional planning agency from pursuing an appeal of favorable local government action under Section 380.07(2), to the Florida Land and Water Adjudicatory commission. SFRPC maintains that the question should be answered in the negative here in that (a) the Division of State Planning based its binding letter solely on a numerical count of the proposed dwelling units and failed to consider the character and location of the development, and (b) in that the Division failed to comply with Chapter 120, Florida Statutes, because it had not adopted rules of practice and procedure governing the issuance of such letters of decision which would afford an interested party the right to be heard in such a process, nor did the letter itself conform with the requirements of Section 120.59, Florida Statutes, which requires that such orders include findings of fact and conclusions of law. Fisher’s argument to the contrary, which has been adopted by Dade County, asserts that the SFRPC had no standing to participate in or challenge the decision-making process of the Division of Land Planning and that, even if it had, it is now foreclosed from challenging the binding letter because it took no action to pursue a timely challenge thereto under Chapter 120. It is further maintained by Fisher that the binding letter on its face shows that consideration was given by the Division of State Planning to matters other than the numbers of dwelling units proposed for the project.
“7. It is considered that the Florida Land and Water Adjudicatory Commission has no jurisdiction under Chapter 380 to consider the action taken by the Dade County Commission because the Division of State Planning has determined by its binding letter of interpretation to the developer that the revised proposed project is not a development of regional impact. Section 380.06(4)(a), Florida Statutes, provides that such letters of interpretation ‘shall bind all State, regional, and local agencies, as well as the developer.’ A binding letter was issued in this case and it is deemed dispositive of the matter. It is unnecessary to determine whether the Division applied proper criteria in arriving at its determination or afforded the SFRPC appropriate procedural rights under the Administrative Procedure Act. Issuance of the binding letter of interpretation constituted a final agency order which cannot now be contested in this forum. Any deficiencies in its substantive formulation or in the procedural manner in which the decision was made could have been raised in an appropriate and timely judicial proceeding. (See General Development Corporation v. Division of State Planning, 353 So.2d 1199 at p. 1209 (Fla. 1st DCA 1977).
“8. In view of the above; it also is considered unnecessary to determine whether or not the Dade County resolution constituted a ‘development order.’ Consequently, the Motions on that subject filed subsequent to the prehearing conference by the SFRPC, including a Motion to Stay these proceedings pending a judicial decision in a current case bearing on the legality of the Dade County zoning resolution, are denied. Additionally, SFRPC’s Motion for Oral Argument on the instant Motion to Dismiss and Suggestion of Lack of Jurisdiction is denied because opportunity for such argument was provided at the prehearing conference.
“9. It is recommended that the Florida Land and Water Adjudicatory Commission grant the Motion to Dismiss and dismiss the Petition herein for the above-stated reasons.”

From Fla.WAC’s final order, adopting and incorporating the hearing officer’s recommended order of dismissal, appellant brings this appeal.

Among the points raised by appellant on appeal, two of them require discussion and may be summarized as follows: (1) ¡whether a binding letter of interpretation that a revised proposed project does not constitute a development of regional impact (DRI) issued pursuant to Section 380.06(4)(a), Florida Statutes (1977), by the Division of Land Planning (Division) to appellee Fisher binds SFRPC as to the determination by the Division and bars SFRPC from pursuing an appeal of favorable local government action under Section 380.07(2) to Fla.WAC; and (2) whether SFRPC is barred from collaterally attacking the validity of a binding letter of interpretation issued under Section 380.06(4)(a), Florida Statutes (1977), where it made an appearance in the proceedings, but failed to take judicial review therefrom.

The Florida Environmental Land and Water Management Act of 1972, Chapter 380, Florida Statutes (Act), represented a significant change in Florida’s land use regulatory process. For an overview of Chapter 380, as amended, see Finnell, Saving Paradise; The Florida Environmental Land and Water Management Act of 1972, 1973 Urban Law Annual 103 (1973). In the past, Florida, like other states, delegated its inherent power to regulate land use to local governments. The decision to rely on localities to regulate land use was entirely plausible at a time when the impact of development was thought to be wholly local. Now, however, little debate remains concerning a regional and statewide interest in certain kinds of development. Chapter 380 establishes a procedure whereby regional and state interests may be considered and represented in certain land use decisions of greater than local concern. Although written for the specific needs of Florida, Chapter 380 was patterned after Article VII of Tentative Draft No. 3 of the American Law Institute’s Model Land Development Code. This approach avoided the extremes of either total state preemption or reliance upon local governments by providing for the establishment of standards (and authorizing a state agency to establish standards) with which certain of the more important local decisions must comply, and authorizing appeal of those decisions to a state adjudicatory com^nission.

If a prospective developer is in doubt about whether his proposed development is a DRI or whether a proposed change to a project would divest rights grandfathered under Section 380.06(12), it may apply to the Division for a binding letter of interpretation. § 380.06(4)(a), Fla. Stat. (1977). This Section provides as follows:

“380.06 Developments of regional impact—
(4)(a) If any developer is in doubt whether his proposed development would be a development of regional impact, or whether his rights have vested pursuant to § 380.06(12), he may request a determination from the state land planning agency. Within sixty days of the receipt of such request, the state land planning agency shall issue a binding letter of interpretation with respect to the proposed development. Binding letters of interpretation issued by the state land planning agency shall bind all state, regional and local agencies, as well as the developer.”

The obvious purpose of the clear and unambiguous language of this Section was to insure uniformity of regulation and predictability in regard to what constituted a DRI on a statewide basis. Pursuant to this Section, if the Division issues a “binding letter” that the proposed development does not constitute a DRI, it is presumed to be exempt from the regulatory procedures of Section 380.06. In our opinion, a reading of Chapter 380 also discloses that a regional planning agency has no right or standing relative to the issuance of a binding letter of interpretation. The Florida Legislature delegated the entire responsibility in regard to binding letters to the State planning agency. The regional planning agency has only statutory power and authority to make recommendations to local government consistent with Section 380.06 and to file appeals from development orders by local government pursuant to Section 380.07. Chapter 380 is directed toward those decisions involving important state or regional interests, while allowing local control over those matters of only local concern. The language of Section 380.06(4)(a) is clear and unambiguous; accordingly, it should be construed according to the plain meaning of the words employed by the State Legislature. South Florida Regional Planning Counsel v. Florida Division of State Planning, 370 So.2d 447 (1st DCA, 1979); and see, e. g., Rinker Materials Corp. v. City of North Miami, 286 So.2d 552 (Fla.1973). Therefore, we believe that Fla.WAC properly dismissed the petition filed by SFRPC.

In considering appellant’s next point on appeal, reference should be made to Paragraphs 7 and 8 of the recommended order of dismissal, set forth above, incorporated in the final order appealed issued by Fla.WAC. Further, the record reflects the following salient facts: A “binding letter of interpretation” was issued by the Division on November 24, 1975, which letter was not appealed by SFRPC. The Dade Commissioners dismissed Fisher’s application for a DRI from its November 23, 1976, zoning agenda. SFRPC failed to seek review of the dismissal pursuant to Section 33-316 of the Code of Metropolitan Dade County, i. e., a timely filing of a petition for writ of certiorari. In our opinion, appellant’s failure to seek review of the administrative ruling is fatal to its cause. In Florida Welding & Erection Service, Inc. v. American Mutual Insurance Company of Boston, 285 So.2d 386 (Fla.1973), the Florida Supreme Court stated the following applicable rule:

“Where a method of appeal from an administrative ruling has been provided, such method must be followed to the exclusion of any other system of review. Where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act.” Id. at 389-90.

It was this basic tenet of law which resulted in this court’s decision in General Electric Credit Corp. v. Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977). Appellant has misconstrued the relevancy of the GECC case to this cause. Unlike GECC which altered its development plan and never sought a formal release of the requirements of Chapter 380, Fisher was officially removed from the provisions of Chapter 380 by receiving a “binding letter of interpretation” pursuant to Section 380.06(4)(a). The “binding letter” obviates further action by SFRPC and creates a presumption that zoning consistent with the provisions of the “binding letter” is not a “development order” as defined in Chapter 380. In the GECC case, SFRPC joined with Dade in dismissing a petition for writ of certiorari which sought to review a rejected development of regional impact. In the instant cause, SFRPC elected not to intercede in the circuit court proceedings in regard to the original rejection of Fisher’s zoning application in November of 1976. Failure to intervene in a prior suit affecting the validity of a governmental action acts as a waiver and precludes further review of the act of the government. Also, SFRPC failed to seek review of Dade’s dismissal of Fisher’s development of regional impact application. Such review is the only proper method of review in this type of matter. See Baker v. State Road Department of Florida, 79 So.2d 511 (Fla.1955); Kasser v. Dade County, 344 So.2d 928 (Fla. 3d DCA 1977); and Rose v. Dade County, 331 So.2d 136 (Fla. 3d DCA 1976).

Because SFRPC was not granted specific statutory authority under Chapter 380 to participate with the Division in regard to the issuance of binding letters of interpretation, the question arises as to whether SFRPC has that authority pursuant to Chapter 120, Florida Statutes (1977), when that Chapter is read in conjunction with Chapter 380. SFRPC contends that the subject binding letter of interpretation is in violation of the material provisions of Chapter 120. However, under Chapter 120 only a “party” who is adversely effected by a rule or order has statutory standing to challenge the rule or order. A “party” is specifically defined in Section 120.52(10) as follows:

“(a) Specifically named persons whose substantial interests are being determined in the proceeding.
“(b) Any other person who, as ^matter of constitutional right, provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.
“(c) Any other person, including an agency staff member, allowed by the agency to intervene or participate in the proceedings as a party. An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties.”

Whether SFRPC was a “party” within the meaning of Section 120.52(10) must be considered together with Chapter 380. Both the amendment in 1974 to Section 380.06(4)(a) and the revisions to Chapter 120, both being concurrently enacted statutes, should be construed in harmony with one another to determine the standing of SFRPC on matters of binding letters. We believe that the legislators deemed the “substantial interest,” if any, of SFRPC to be fully represented by the Division; therefore, it required binding letters to be binding on SFRPC without providing any right in the regional agency to be a party to or participate in the process. In our opinion, SFRPC lacks a kubstantial interest which is not otherwise represented by the Division; therefore, it is not a “party” under Chapter 120. Even if SFRPC could claim to be a “party,” it made an appearance before the Division by its letter of November 7, 1975. It follows that, if SFRPC was a party to what it contends to be final agency action, it was also a party for the purpose of seeking judicial review from that action pursuant to Section 120.68; however, no such review was sought. Accordingly, the agency action became final and is res judicata as to all of the parties and may not be challenged collaterally by SFRPC. Further/ even if SFRPC made no appearance by its letter of November 7,1975, but, pursuant to Section 120.52(10) had the right to do so, having had actual notice of the proceedings it waived the right and is estopped from challenging the binding letter. See Burger King Corporation v. Metropolitan Dade County, 349 So.2d 210 (Fla. 3d DCA 1977).

We have carefully reviewed each of the other points raised by appellant on appeal and find them to be without merit. Accordingly, for the reasons set forth above, it is our opinion that the final order of Fla.WAC appealed should be affirmed.

Affirmed.

      . An agency designated by the State land planning agency to exercise responsibilities under Chapter 380, Florida Statutes (1977) in the south Florida area. See § 380.03(13), Fla.Stat. (1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lou POLLER, etc., et al., Appellants, v. FIRST VIRGINIA MORTGAGE & REAL ESTATE INVESTMENT TRUST et al., Appellees.
    No. 79-66.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Rehearing Denied July 13, 1979.
    Leo Greenfield, North Miami, for appellants. ■
    Kelly, Black, Black, Wright & Earle, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Unterman v. Brown, 169 So.2d 522 (Fla.2d DCA 1964); Boyd v. Boulevard National Bank, 306 So.2d 551 (Fla.3rd DCA 1975), and Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla.2d DCA 1976).


text:
    Harry Franklin PHILLIPS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-992.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Rehearing Denied July 13, 1979.

      Harry Franklin Phillips, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: LETTS, Judge.

text:
    Maureen T. MULLANE and John J. Dunne, Appellants, v. Twylah M. LORENZ, Appellee.
    No. 77-2034.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.
    Rehearing Denied July 17, 1979.
    Victoria Wood Chulock, of Diaz-Asper, Chulock & Chulock, Coral Gables, for appellants.
    Donald A. Wich, Jr., of Sullivan, Cochran, Ranaghan, Bailey & Gleason, P. A., Pompano Beach, for appellee.
   LETTS, Judge.

This case arises out of a mortgage, foreclosure based on failure to pay taxes and insurance. The defendant filed an offer of judgment which was accepted leaving open only the question of “reasonable attorney’s fees.” The court awarded $4,000. We reverse.

The problem in this case is that at the hearing on attorney’s fees, no expert testimony was adduced other than from the lawyer himself claiming the fees. This is clearly inadequate as we held in Lamar v. Lamar, 323 So.2d 43 (Fla. 4th DCA 1975). As was stated in Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964),

We are not concerned with the amount of the fee, but with the manner in which it was awarded. The appellant lays much stress on the need for expert testimony in addition to the statement made by [his] wife’s attorney and we agree with his contention. . Aside from the principle that the value of personal services is proven by expert witnesses, the self-serving nature of the testimony given by the attorney who performs the services precludes the court from making an award based solely on his testimony. The evidence in this cause is insufficient to meet the foregoing requirements.

Accordingly, the award of the attorney’s fees is hereby reversed and this cause is remanded to the trial court for a further hearing thereon.

The appellant’s other contention, that the court had no basis to award any attorney’s fees, is rejected. The appellant made an offer of judgment, which offer included “reasonable attorney’s fees . the amount of same to be determined by the court.” This offer of judgment was duly accepted and the appellant may not now be heard to complain.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

CROSS and MOORE, JJ., concur.


author: ANSTEAD, Judge.

text:
    BREVARD FEDERATION OF TEACHERS, LOCAL 2098, FEA/UNITED, AFL-CIO, Appellants, v. The SCHOOL BOARD OF BREVARD COUNTY, Appellee.
    No. 78-672.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.
    Rehearing Denied July 17, 1979.
    Sidney L. Matthew and Gene L. Johnson, Tallahassee, for appellants.
    William C. Walker, Jr., Titusville, for ap-pellee.
   ANSTEAD, Judge.

This appeal is from a final judgment setting aside an arbitrator’s order entered pursuant to the provisions of Section 447.401, Florida Statutes (1977). The parties resorted to binding arbitration under that section following their failure to agree on the interpretation to be given a provision of their collective bargaining agreement relating to extra compensation for teachers required to work beyond the normal workday. The arbitrator conducted a hearing and issued a well reasoned order finding in favor of the appellants. The appellee then filed an action in circuit court claiming that the arbitrator exceeded his authority and acted beyond the provisions of the parties’ agreement. After hearing, the trial court ruled that the arbitrator had altered the terms of the parties’ agreement and the arbitration order was set aside. We reverse.

The issue before the arbitrator involved construction of a provision of the parties’ agreement defining a teacher’s normal workday. Both parties submitted evidence and contended for different constructions. The arbitrator found for the teachers, and there is abundant evidence to support his conclusion. We find no evidence that the issue being arbitrated was beyond the scope of the parties’ agreement and the arbitrator’s authority. That being so, his decision is binding. Lake County Education Association v. School Board of Lake County, 360 So.2d 1280 (Fla.2d DCA 1978). In West Des Moines Community School District v. West Des Moines Educational Support Personnel, 265 N.W.2d 625 (Iowa 1978), the Iowa Supreme Court commented in a similar case:

As is typical in an action arising from an arbitration decision, the complaining party urges the arbitrator exceeded his authority and altered terms of the employment contract. However we believe it is clear the arbitrator merely interpreted the contract in a way the school district would not and in a manner we might not. But this does not render the arbitrator’s interpretation an alteration. (Id. at 626)

In addition, the appellee, while making no direct claim that Section 447.401 is unconstitutional, contends that it cannot be held responsible for compensation to teachers for which it made no specific provision in its budget. While sympathizing with its planning and budgetary problems, it is our conclusion that the answers to such problems rest within the authority of the legislature rather than with the courts.

Accordingly, the judgment of the trial court is reversed with directions that judgment be entered in accordance with the terms of this opinion.

DAUKSCH, J., concurs.

CROSS, J., dissents without opinion.


author: HOBSON, Acting Chief Judge.

text:
    Virginia WEST, Appellant, v. Richard B. WEST, Appellee.
    No. 78-617.
    District Court of Appeal of Florida, Second District.
    June 13, 1979.
    Richard H. Langley, Clermont, for appellant.
    Arthur E. Roberts, Groveland, for appel-lee.
   HOBSON, Acting Chief Judge.

Appellant Virginia West appeals from the dismissal of her complaint for damages against appellee Richard West. The complaint, filed January 16, 1978, alleged that the parties were married on June 25, 1976. On June 26,1977, appellee, in a fit of anger, intentionally caused permanent injury to appellant by throwing her violently to the floor. The marriage between the parties was dissolved January 3, 1978. Appellee moved to dismiss the complaint for failure to state a cause of action on the ground of interspousal immunity. The trial court granted the motion and dismissed the complaint without leave to amend.

Appellant ably argues for the abolition of the doctrine of interspousal immunity in Florida. She also suggests that if this court is unwilling to wholly abolish the doctrine, then it should at least hold the doctrine inapplicable to cases involving intentional torts. While we are sympathetic to appellant’s point of view, we are bound by the majority opinion in Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967), which reaffirmed that the doctrine of interspousal immunity is the law of Florida. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, we think circumstances call for a re-examination of the issue by our supreme court.

Dean Prosser notes that at least nineteen jurisdictions have completely abolished the concept of marital immunity and some sixteen more jurisdictions have made serious inroads by way of “exceptions” to the rule. Prosser on Torts, 4th Ed., pp. 863, 864. This trend follows the general realization that the common law unity theory is no longer viable in our society.

Here in Florida our sister appellate court, while upholding the immunity doctrine, has revealed dissatisfaction with it. In a dissent to Doyle v. Doyle, 307 So.2d 862 (Fla. 4th DCA 1975), Judge Mager wrote:

The basic arguments for the abolition of the interspousal immunity doctrine, in certain instances, is extremely persuasive. It would seem that the potential liability of either spouse after the marriage is dissolved for tortious acts committed during the marriage might have a salutary, if not actual, effect of minimizing physical abuses occurring during the existence of the marital relationship.

307 So.2d at 864.

Moreover, Florida’s courts, in an effort to bring the law into step with modern judicial views, have circumvented the immunity obstacle by the use of several legal theories. Webster v. Snyder, 103 Fla. 1131, 138 So. 755 (1932), (plaintiff’s marriage to the servant who caused her injuries abated her cause of action against the servant/spouse but did not abate her cause of action against the servant’s employer on the theory of respondeat superior); May v. Palm Beach Chemical Company, 77 So.2d 468 (Fla.1955), (wife can bring suit against negligent husband’s employer); Gaston v. Pittman, 224 So.2d 326 (Fla.1969), (a former wife can bring a cause of action against her former husband for a tort committed by him prior to marriage); Orefice v. Albert, 237 So.2d 142 (Fla.1970), (mother of .deceased minor, as administratrix, can bring suit against the non-negligent co-owner of an airplane under “dangerous instrumentality” theory where the minor’s death resulted from the negligence of his father, a co-owner of the airplane); Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977), (a joint tortfeasor may seek contribution from the wife of the injured plaintiff).

Interspousal immunity was also held inapplicable where the wife’s surviving children brought suit under the Wrongful Death Act against the estate of their stepfather who had killed the wife and then himself. Shiver v. Sessions, 80 So.2d 905 (Fla.1955). In Shiver, Justice Roberts cited with approval May v. Palm Beach Chemical Company, supra, in which that court quoted Schubert v. August Schubert Wagon Company, 249 N.Y. 253, 164 N.E. 42, 43 as follows:

A trespass, negligent or wilful, upon the person of a wife, does not cease to be an unlawful act, though the las exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity.

The cases we have set out illustrate the efforts of courts everywhere to allow plaintiffs remedies which would otherwise be denied them because of marital immunity. Although these cases discuss the broad issue of marital immunity, the facts of this case lend themselves to a narrower question. Thus, we affirm the trial court in its dismissal of appellant’s suit, but we certify the following question to the Supreme Court of Florida for consideration:

WHETHER A FORMER SPOUSE CAN MAINTAIN AN ACTION IN TORT AGAINST THE OTHER SPOUSE FOR AN INTENTIONAL TORT ALLEGEDLY COMMITTED DURING MARRIAGE WHERE SUCH MARRIAGE HAS SINCE BEEN DISSOLVED BY DIVORCE.

BOARDMAN and SCHEB, JJ., concur.

      . We note the possible argument that, in view of the changes in the 1968 Florida Constitution, the Bencomo decision filed in 1967 might not be controlling on this point.

      . All 50 states have enacted statutes similar to Sections 708.08 and 708.09, Florida Statutes (1977), the Married Women’s Act, which extend to the wife the right to sue her husband for breaches of contract and other causes of action arising from her property. The courts of at least 16 jurisdictions have further held that the Married Women’s Acts abrogate the unity theory. 43 A.L.R.2d 647 (1955); A.L.R.2d Later Case Summary.

      .Dean Prosser recognized these efforts and stated, “Any such precarious structure, subject to this type of long-continued critical hammering, is likely sooner or later to develop cracks. . It is difficult not to regard these decisions as bites at the cherry, which will ultimately succeed in nibbling it away." Prosser on Torts, 4th Ed. pp. 863, 864.


text:
    AETNA INSURANCE COMPANY, Appellant, v. Robert M. BUCHANAN, Jr., Appellee.
    No. 78-649.
    District Court of Appeal of Florida, Second District.
    June 13, 1979.
    John A. Curtiss of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Steven D. Merryday, William H. McBride, Jr., Tallahassee and Julian Clarkson of Holland & Knight, Fort Myers, for appellee.
   ON MOTION TO REVIEW STAY

PER CURIAM.

This court issued an opinion on February 23, 1979, reversing the summary judgment entered in the trial court against appellant and remanding the case for further proceedings not inconsistent with the opinion 369 So.2d 351. On April 24, 1979, this court issued its mandate to the trial court commanding that further proceedings be had in the cause in accordance with the opinion of this court and with the rules of procedure and laws of the State of Florida. Notwithstanding that mandate, the trial judge entered an order on May 18, 1979, staying further proceedings in the cause pending a final determination by the Supreme Court of Florida on appellee’s notice invoking the certiorari jurisdiction of the supreme court to review this court’s decision. Appellant has filed with this court a motion for review of that stay order.

The stay order entered by the trial judge is, in effect, an attempt to stay the effectiveness of this court’s mandate pending review by the supreme court. Clearly the trial judge is without authority under Fla. R.App.P. 9.310 to issue such an order, since this court, not the trial court, is now the “lower tribunal” for purposes of the rule. Accordingly, we entered an order pointing out that the trial judge was without authority to enter the stay sought to be reviewed and that this court has continuing jurisdiction under Rule 9.310 to enter a stay of the effectiveness of its mandate pending review by the supreme court. We directed appel-lee to present to this court, in writing, the question whether this court should stay the effectiveness of its mandate issued pursuant to its opinion of February 23, 1979.

Appellee has declined to comply with our order. Instead, appellee has filed herein a reply to appellant’s motion to review the stay order of the trial judge. In that reply appellee contends that the stay order was not entered pursuant to Rule 9.310, but pursuant to Section 59.13, Florida Statutes (1977). Appellee argues that, since Rule 9.310 does not apply to a stay granted pursuant to the provision of a general law, the stay order in question is not reviewable by this court upon motion as provided in Rule 9.310. Appellee further argues that, in any event, the stay order was properly entered in the exercise of the discretion of the trial judge under Section 59.13 and should not be disturbed.

Appellant has filed herein a responsive memorandum to appellee’s reply, in which appellant correctly points out that under Rule 9.310, only this court has authority to stay the effectiveness of its mandate. Appellant says that, therefore, Section 59.13 is in conflict with Rule 9.310 and must fall as unconstitutional.

It is not necessary for this court to consider the constitutionality of Section 59.13. That statute clearly does not authorize the stay order which has been entered by the trial judge in this cause. Section 59.13 reads as follows:

When it appears to the trial court that a petition for certiorari has been or is about to be applied for in an appellate court, the trial court may grant a supersedeas upon petitioner giving a good and sufficient bond, conditioned that the petition shall be duly presented to the appellate court within the time prescribed by the Florida appellate rules and to pay all costs, damages, and expenses occasioned by reason of the stay of proceedings with such other and further conditions as may be fixed by the trial court in the event the order or judgment for which a review is sought is not quashed, modified, or reversed.

The statute obviously contemplates that there be a judgment or order entered in the trial court which is the subject of a petition for certiorari and provides that the trial court may grant a supersedeas with respect to that judgment or order pending a final determination on the petition for certiorari. That is not the situation which now exists in the trial court in this cause. The summary judgment entered in the trial court has been reversed by this court; it is not the subject of the certiorari review initiated by appellee in the supreme court. The trial court has no direct concern with that review and the trial judge may not suspend further proceedings in this cause pending the outcome of that review. Such action is in direct conflict with the appellate jurisdiction of this court invoked and exercised in this case.

This court has power to take action necessary to the complete exercise of its jurisdiction. Art. V, § 4(b)(3), Fla.Const. Pursuant thereto, we hereby vacate the stay order of May 18, 1979, entered by the trial judge in this cause and direct that further proceedings be had in accordance with the mandate we have issued.

OTT, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. Donald J. HART and Board of Review, Respondents.
    No. 78-1490.
    District Court of Appeal of Florida, Second District.
    June 13, 1979.
    Kenneth H. Hart, Jr., Tallahassee, for petitioner.
    James R. Parks and John D. Maher, Tallahassee, for respondent Board of Review.
   BOARDMAN, Judge.

The Department of Commerce, Division of Employment Security (Division) petitions for review of a decision of the Board of Review (Board) awarding unemployment compensation benefits to respondent Donald J. Hart. For the reasons hereinafter set forth, we reverse.

Due to a reduction in force, Hart was terminated from his position as a security guard with the Pinellas County School Board, and he filed a timely claim for unemployment compensation benefits. Several months later, the Florida State Employment Service (FSES) referred Hart to an available opening for a security guard. Hart declined to pursue the referral because the pay and hours were less attractive than those of his previous employment and because he was no longer interested in working as a security guard.

A claims examiner disqualified Hart from further benefits because of his refusal to take the referral, citing Section 443.06(2), Florida Statutes (1977), which pertains to disqualification for benefits. The decision of the claims examiner was upheld by an appeals referee, but reversed by the Board. The Board noted as grounds for the reversal and argues before this court that following the amendment of Section 443.06(2) by Chapter 77-399, Laws of Florida, failure to pursue a job referral from the FSES is no longer among the enumerated grounds for disqualification for benefits. The Division strongly disagrees with this interpretation.

Section 443.06(2), as amended, with inter-lineations indicating deleted portions and italicized portions indicating new material, reads in pertinent part:

If the division finds that the individual has failed without good cause either to apply for available suitable work with the Division when so directed by the employ ment office or tho division, or to accept suitable work when offered to him by an employment office, division, or employing unit or to return to his customary self-employment, when so directed by the division, such disqualification [for benefits] . under this subsection shall continue for the full period of unemployment next ensuing after he has failed without good cause either to apply for available suitable work, or to accept suitable work, or to return to his customary self-employment, pursuant to this subsection, and until such individual has become reemployed and has earned wages equal to or in excess of 10 times his weekly benefit amount.

The phrase “to apply for available suitable work with the Division,” standing alone, may appear ambiguous, since it is unclear whether the claimant need apply only for an available opening when the Division itself is the prospective employer or whether he must apply for any suitable position with any employer when given a referral by the FSES. We shall therefore look to the Unemployment Compensation Act as a whole in order to arrive at a reasonable interpretation of this phrase. See State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977); Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, 274 So.2d 522 (Fla.1973).

Section 443.05(l)(b), Florida Statutes was also amended by Chapter 77-399, Laws of Florida to provide that the Division must notify the FSES of a claimant’s availability:

(1) An unemployed individual shall be eligible to receive benefits with respect to any week only as the division finds that:
(b) He has registered for work at, and thereafter continued to report at the Division which shall be responsible for notification of the Florida State Employment Service, an unemployment compensation claims office in accordance with such regulations as the division commission may prescribe; except, that the division commission may, by regulation not inconsistent with the purposes of this law, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs; provided, that no such regulation shall conflict with s. 443.04(1).

As we construe Section 443.06(2) in light of Section 443.05(l)(b), a claimant, in order to receive unemployment compensation benefits, is required to register for work with the Division, which in turn notifies its subsidiary employment service, the FSES, and to pursue any job referrals given him by the FSES.

We are mindful of the rule of law that “ ‘when a statute is amended, it is presumed that the legislature intended it to have a meaning different from that accorded to it before the amendment.’ ” Reino v. State, 352 So.2d 853, 861 (Fla.1977); Arnold v. Shumpert, 217 So.2d 116, 119 (Fla.1968). However, the intent behind the amendment of Section 443.06(2) in issue here is readily apparent. Section 443.05(l)(b) was amended to provide that the Division notify the FSES, while employment offices have been deleted from the entities named in Section 443.06(2) to which a claimant must apply for work. Under the two sections read together, a claimant is no longer required to register with an employment office. Rather the employment office (FSES) is contacted by the Division. This interpretation of the amendments is consistent with Section 443.13, which establishes the FSES as an agency within the Division.

Section 443.06(2) not only requires a claimant to register with the Division, but also requires him to accept suitable work when offered by the employment office, Division, or employer. We cannot accept the Board’s contention that claimants may avoid disqualification from receipt of benefits by merely registering with the Division and then refusing to accept job referrals from the FSES. In order to be entitled to receive benefits, claimants must actively seek work. They cannot sit back and rely on employers to approach them with offers, as would follow under the Board’s interpretation. On the contrary, they must pursue any leads available to them, including any FSES referrals. From its very inception the fundamental principle and purpose of the Unemployment Compensation Act have been to compensate those individuals who are unable to find suitable work after earnest effort. Newkirk v. Florida Industrial Commission, 142 So.2d 750 (Fla. 2d DCA 1962). As was so well stated by the late Chief Judge Kanner of this court in Teague v. Florida Industrial Commission, 104 So.2d 612, 616 (Fla. 2d DCA 1958):

No one should be denied a meritorious claim for unemployment benefits. Neither should the purpose of the act be perverted, at the expense of others who are compelled to contribute to the fund, with the bizarre result of paying benefits derived from it to persons who are voluntarily idle or indolent and who indicate no sincere desire to work.

The decision of the Board is reversed, and the cause is remanded with instructions to reinstate the decision of the appeals referee.

REVERSED and REMANDED.

GRIMES, C. J., and RYDER, J., concur.

      . The Division of Employment Security has now been transferred from the Department of Commerce to the newly established Department of Labor and Employment Security. § 20.171, Fla.Stat. (1978 Supp.).

      ., The Board of Review is now denominated the Unemployment Appeals Commission. § 20.17, Fla.Stat. (1978 Supp.).


author: PER CURIAM. ANSTEAD, Judge,

text:
    Alvin WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 79-710.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.
    Alvin Walker, pro se.

      Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., concurs specially.

ANSTEAD, Judge,

specially concurring:

I concur in the majority’s affirmance of the trial court’s denial of appellant’s motion for post-conviction relief. However, I note from the limited record before us that there may be an issue, not properly raised by the appellant in the motion filed in the trial court, as to whether appellant was in actual possession of a firearm so as to authorize the mandatory minimum sentencing provisions of Section 775.087(2), Florida Statutes (1977). See Brown v. State, 358 So.2d 92 (Fla. 4th DCA 1978). If there is such an issue it must be raised by a proper motion for post-conviction relief in the trial court.


author: PEARSON, Judge.

text:
    Willie BEMBRY, Petitioner, v. The Honorable Ellen Morphonios GABLE, and N. Joseph Durant, as Judges of the Circuit Court of Dade County, Respondents.
    No. 79-604.
    District Court of Appeal of Florida, Third District.
    June 14, 1979.
    Rehearing Denied July 13, 1979.
    Long & Smith and Harold Long, Jr., Miami, for petitioner.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for respondents.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

We are presented with a petition for writ of prohibition and a response thereto. The petitioner asserts that on March 3, 1978, he was arrested and charged and, therefore, would be entitled to discharge under Florida Rule of Criminal Procedure 3.191(d)(1) except for an invalid order entered by the trial court which extended the time for speedy trial pursuant to Florida Rule of Criminal Procedure 3.191(d)(2). The order was entered on the ground that the trial court was awaiting an appellate decision in another case. It purported to extend the speedy trial time until ninety days from the receipt of the mandate in the separate case, which the court deemed would be determinative in its ruling on a motion to dismiss in the present case.

We hold that the fact that an appellate decision in another case may be helpful in the disposition of the present case is not an “exceptional circumstance” contemplated by Florida Rule of Criminal Procedure 3.191(d)(2). Therefore, we direct that the information filed in this cause, styled “State of Florida vs. Willie Bembry,” case number 78-3330 in the Criminal Division of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, should be dismissed and the defendant discharged. In full confidence that our decision will be followed, we have withheld the issuance of the formal writ and will await the State’s certificate that our directions have been complied with.

      . Fla.R.Crim.P. 3.191(f).


author: BOARDMAN, Acting Chief Judge.

text:
    Cecil E. NICHOLSON, Appellant, v. Glynn C. NICHOLSON, Appellee.
    No. 78-1456.
    District Court of Appeal of Florida, Second District.
    June 15, 1979.
    Ira M. Seidler, St. Petersburg, for appellant.
    Wayne O. Smith of Wallace & Smith, St. Petersburg, for appellee.
   BOARDMAN, Acting Chief Judge.

On this appeal appellant husband challenges several provisions of the final judgment of dissolution. Specifically, he asserts that the trial court erred in awarding appel-lee wife $100 per week rehabilitative alimony for 104 weeks, awarding child support in the amount of $50 per week, awarding as lump sum alimony a 1976 Mazda automobile and the marital residence held as tenants by the entirety, and requiring the husband to pay the marital debts including the unpaid balance on the automobile.

Upon review of the record and briefs and having considered the legal issues presented at oral argument, we find one point to have merit. The trial court erred in awarding the wife rehabilitative alimony. While we are hesitant to tread in those areas in which the trial court is accorded a wide latitude of discretion, we are compelled to do so in this ease. The financial obligation of approximately $240 per week imposed upon the husband by the court is 86% of his income as shown on his financial statement and about 96% of his present income, which he testified had decreased since the filing of his financial statement due to increased withholding taxes. He is left with $10.50 per week to live on. The alimony award is clearly excessive and constitutes an abuse of discretion. DeHart v. DeHart, 360 So.2d 1285 (Fla. 2d DCA 1978); Santacroce v. Santacroce, 347 So.2d 815 (Fla. 2d DCA 1977); Nevins v. Nevins, 305 So.2d 63 (Fla. 3d DCA 1975), cert. denied, 327 So.2d 33 (Fla.1976). The parties have accumulated no marital assets other than the home awarded to the wife, which is worth at least $60,000 and has two outstanding mortgages in the amount of $8,500. Thus the wife has over $50,000 equity in the house. In addition she owns fifty-five acres of land in Kentucky, acquired during a prior marriage. There is no question that the wife needs financial assistance from her husband to support herself and their minor child. However, his financial resources are limited to his weekly salary. Under the factual circumstances presented, we conclude that the husband should not be required to pay the wife rehabilitative alimony.

Accordingly, the following paragraph of the trial court’s final judgment is stricken:

ORDERED AND ADJUDGED that Glynn C. Nicholson be and she is hereby granted rehabilitative alimony in the amount of $100 per week for a term of 104 weeks, the first of such payments to be made on or before one week from the date of this Final Judgment. . .

Otherwise the judgment is affirmed.

SCHEB and OTT, JJ., concur.

      . We recognize that the husband has made several alimony payments under this paragraph as originally entered and as modified pending appeal. However, in view of the circumstances here, this opinion is not to be construed as giving the husband the right to recover any monies so paid prior to the issuance of our mandate in this cause.


author: DANAHY, Judge.

text:
    MALIBU PARTNERS, LTD., et al., Appellants, v. Harry SCHOOLEY et al., Appellees.
    No. 78-1682.
    District Court of Appeal of Florida, Second District.
    June 15, 1979.

      Michael A. Gennaro of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, and Steven A. Schultz, Miami, for appellants.
    Jim Smith, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for appellee Harry L. Coe, Jr.
    William A. Keyes, Jr. of Stewart, Stewart, Jackson & Keyes, Fort Myers, for ap-pellees Harry Schooley and Dawson McDaniel.
   DANAHY, Judge.

We hold that a partnership has the capacity to bring a suit without joinder of its partners for the purpose of contesting the ad valorem tax assessment of real property held of record in the partnership name. We reverse a summary judgment in this case based on a ruling by the trial judge to the contrary.

Appellant Malibu, a limited partnership and the record title holder of a piece of real property in Lee County, wished to contest the 1977 assessment of the property for tax purposes. Section 194.171(2), Florida Statutes (1977), provides that a suit to contest a property tax assessment must be brought within 60 days following the date the assessment being contested is certified for collection. In this casé the 60 days expired on January 1, 1978. Appellant brought this suit against appellees (the property appraiser and the tax collector of Lee County) in its limited partnership name on December 20, 1977. Subsequent to January 1, 1978, appellant filed an amended complaint adding its general partners as plaintiffs.

Appellees filed a motion for summary judgment on the ground that the action was not legally commenced within the time period provided by Section 194.171(2) because the suit was originally filed by an entity not empowered by the laws of Florida to sue or be sued and appellant’s general partners were made parties plaintiff after the limitations period had expired. That motion was granted and summary judgment was entered in favor of appellees. This appeal followed.-

Appellant concedes that Florida follows the common law rule that a partnership cannot sue or be sued in its partnership name because it has no identity apart from its members and is not a person, either natural or artificial. Appellant argues, however, that we should apply to this case our holding in Pinellas County v. Lake Padgett Pines, 333 So.2d 472 (Fla. 2d DCA 1976). In that case we observed that since 1972, partnerships have been authorized by statute in Florida to acquire and convey real property in the partnership name contrary to the common law rule that a partnership can neither take nor hold legal title to real estate. Sections 620.081 and 620.-595, Florida Statutes (1977). Based on that statutory authority, we held in the Lake Padgett Pines case that a partnership holding title to real property in its partnership name may initiate litigation in its name to protect its interest in that property. Specifically, we held that Lake Padgett Pines, a partnership, had capacity to bring suit without joinder of all its partners and had the requisite standing to seek an injunction against governmental activity which it claimed to be improper and potentially damaging to its lands.

We agree with appellant that the principle of the Lake Padgett Pines case applies here. Certainly a suit contesting an assessment for ad valorem tax purposes is a suit to protect an interest in the real property subject to the tax. Accordingly, appellant had capacity to file this suit in its limited partnership name and the suit was timely filed.

Appellees maintain that this case is distinguishable from Lake Padgett Pines in that here the liability of appellant’s general partners is a material issue, whereas in Lake Padgett Pines the liability of the individual partners of the partnership was not an issue. Appellees say that although unpaid taxes usually are no more than a lien on the property against which the taxes are assessed and are not a personal debt of the property owner, that situation changes if the property owner elects to file a suit challenging the assessment or the collection of the tax. Appellees argue that in such a case, the property owner subjects himself to the jurisdiction of the court and to the entry of a deficiency judgment if the court finds that the amount of tax owed is greater than the amount the'property owner has in good faith admitted and paid. That deficiency judgment, appellees assert, would be a lien against all of the property owners’ property in the county, not just the property subject to the contested tax. Section 194.192(2).

Assuming, but not deciding, that appel-lees’ interpretation of Section 194.192(2) is correct, their argument must be rejected in light of the fact that general partners would be personally liable for any deficiency judgment entered against their limited partnership. Sections 620.09 and 620.63, Florida Statutes (1977). Therefore, permitting a limited partnership to sue in its partnership name could not frustrate the statutory purpose. The general partners would be liable to the same extent as if they had been originally named as parties plaintiff.

Appellant advances an alternative argument that its amended complaint, which added its general partners as plaintiffs, related back to the date on which the original complaint was filed, so that the addition of the general partners as plaintiffs was made within the time provided for in Section 194.-171(2). In view of our decision on the first point raised by appellant, we need not address this question.

The summary judgment in favor of ap-pellees is reversed and this case remanded for further proceedings not inconsistent with this opinion.

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


author: SCHEB, Judge.

text:
    The CITY OF SANIBEL, a Florida Municipal Corporation, Appellant, v. John R. GOODE, Appellee.
    No. 78-1700.
    District Court of Appeal of Florida, Second District.
    June 15, 1979.

      Charles L. Siemon of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., and Neal D. Bowen, City Atty., Sanibel, for appellant.
    William T. Haverfield of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellee.
   SCHEB, Judge.

The City of Sanibel attacks the trial court’s judgment invalidating the application of the City’s zoning ordinance to appel-lee' Goode’s property. We reject the attack and affirm the trial court.

In 1974 appellee Goode purchased a .88-acre lot on Periwinkle Way, the main thoroughfare on Sanibel Island. At the time Goode purchased his property the area was unincorporated and the land zoned by Lee County for commercial use. Subsequently, in November 1974, Sanibel became an incorporated municipality, and in July 1976 adopted a comprehensive land-use plan. In implementing its comprehensive plan the newly incorporated municipality zoned certain parts of Periwinkle Way as commercial. A substantial segment of Periwinkle Way, including appellee Goode’s property, however, was classified as residential.

Goode challenged the zoning change. The trial court found that as applied to Goode’s property the City’s zoning ordinance was unreasonable, arbitrary, and discriminatory, and therefore void. The court ordered the City to reclassify the land to commercial use.

The City forcefully argues that the trial court failed to accord proper credence to the City’s comprehensive plan'. The court, however, did afford proper credence by weighing the plan’s protection of the public health, safety, and welfare against the harm caused to Goode by the plan’s application to his property. Moreover, the plan itself was not being challenged. Rather, the trial court concluded, and we agree, that this case devolves into a question of whether the application of Sani-bel’s plan to this specific parcel of real estate is arbitrary and unreasonable.

The evidence reveals that Goode’s vacant parcel of land is virtually surrounded by commercial establishments. See Stokes v. Jacksonville, 276 So.2d 200 (Fla. 1st DCA 1973); Clearwater v. College Properties, Inc., 239 So.2d 515 (Fla. 2d DCA 1970). For example, immediately to the west of Goode’s property is a retail store. A shopping center with boat sales and repairs, a service station with a car wash, a restaurant, retail stores, and a motel are located within 1100 feet to the west of the property. Within 1100 feet to the east are located a fast-foods store, two clothing stores, a bait sales shop, offices, and a service station. There is no scheduled phase out or amortization of these existing nonconforming uses.

An expert in the real estate field, a real estate broker located in Sanibel, testified that there has been no market demand for single family residences along Periwinkle Way in the last four years. See generally, William Murray Builders, Inc. v. Jacksonville, 254 So.2d 364 (Fla. 1st DCA 1971), cert. denied, 261 So.2d 845 (1972). Presumably this is because of heavy traffic on Periwinkle Way, generated by the existing permanent commercial establishments, and the noise and fumes accompanying the traffic. The City’s appraiser testified that the property had a residential market value of $26,000 based on his comparison of recent sales of several parcels with similar characteristics. The appraiser conceded, however, that good comparables were difficult, if not impossible, to find. For example, none of the comparables relied upon were on heavily traveled arterial roads such as Periwinkle Way. Indeed, the appraiser could not recall any residential sales on Periwinkle Way in the last several years. Consequently, by limiting Goode’s property to residential use, the City has deprived him of the only beneficial use to which his property is suited, i. e., commercial. Stokes v. Jacksonville, 276 So.2d 200 (Fla. 1st DCA 1973). See also, Forde v. Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941); Dugan v. Jacksonville, 343 So.2d 103 (Fla. 1st DCA 1977).

As noted, Goode purchased his property prior to consideration of the City’s new zoning plan. And, while diminution in value does not by itself invalidate an otherwise valid zoning ordinance, we cannot ignore the testimony before the court which showed a decrease in value, from $105,000 for Goode’s property as commercially zoned, to $17,500 for it as residentially zoned property.

Finally, we reject the City’s contention that the trial court erred in directing the City to reclassify the property for commercial use. This was not an instance where a court has directed a city to change the zoning of property to a specific zoning category which we condemned in Town of Long Boat Key v. Kirstein, 352 So.2d 924 (Fla. 2d DCA 1978). Rather, the trial judge merely ordered the City to reclassify the property to commercial use without designating any specific commercial classification.

Affirmed.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


author: HOBSON, Judge.

text:
    STATE of Florida, Appellant, v. Cathy HIRES, Appellee.
    No. 79-202.
    District Court of Appeal of Florida, Second District.
    June 15, 1979.

      Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellee.
   HOBSON, Judge.

The state charged appellant by information with the crime of grand theft in violation of Section 812.014, Florida Statutes (1977). The trial court dismissed the charge upon appellant’s motion under Fla.R. Crim.P. 3.190(c)(4). The state appeals and contends that the motion was improperly granted.

We note that a motion to dismiss by a criminal defendant should be granted only where the most favorable construction to the state would not establish a prima facie case of guilt. State v. Smith, 348 So.2d 637 (Fla.2d DCA 1977). If there is any evidence upon which a jury of reasonable men could find guilt, a jury question results and the motion to dismiss must be denied. State v. DeJerinett, 283 So.2d 126 (Fla.2d DCA 1973).

We find the facts alleged before the lower court sufficient to establish a prima facie case.

Reversed and remanded to the trial court for further proceedings.

GRIMES, C. J., and DANAHY, J., concur.


text:
    B. G. LEASING, INC., etc., et al., Appellants, v. Marion HEIDER, et ux., Appellees.
    No. 78-789.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Adams & Ward and Amy Shield Levine, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Bernard H. Butts, Hialeah, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

A party was injured by an automobile owned by B. G. Leasing, Inc., leased to Arthur Manners and driven by his wife, Blanche Gordon Manners. The Manners were insured by Travelers Insurance Company.

Suit was instituted by the injured party and her husband against the lessor and the Manners, together with Travelers. After an adverse jury verdict, final judgment was entered against the insureds (B. G. Leasing, Inc. and the Manners) and their insurer. See: Hertz Corporation v. Pugh, 354 So.2d 966 (Fla. 1st DCA 1978). Thereafter, the trial court entered an amended final judgment, deleting two of the three insureds (the Manners). This appeal was taken more than thirty days from the original final judgment, but within thirty days of the amended final judgment.

No error is urged in the amended final judgment by the appellants. The amended final judgment did not change the status of the remaining insured and Travelers from the original final judgment. Therefore, the appeal is untimely as to the original final judgment and same is dismissed. See: Betts v. Fowelin, 203 So.2d 630 (Fla. 4th DCA 1967), wherein the following is found:

“. . . Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment had been plainly and properly settled with finality.”

Also see: Salinger v. Salinger, 100 So.2d 393 (Fla.1958).

Appeal dismissed.


text:
    Celestina PEREZ and Armando Perez, her husband, Appellants, v. MIAMI DADE WATER & SEWER AUTHORITY, a sub-division of Metropolitan Dade County, Florida, and Metropolitan Dade County, Appellees.
    No. 78-1560.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.

      Jon W. Burke and Linda Dakis, Miami, for appellants.
    Ponzoli & Wassenberg and Richard L. Wassenberg, Miami, for appellees.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from an order entered by the trial court dismissing their complaint with prejudice. We reverse.

Appellant Celestina Perez was injured while walking on a sidewalk when she stepped on a concrete cover of a water meter. The cover allegedly gave way causing her to-fall and incur personal injuries. Subsequently she filed suit against the City of Miami, Metropolitan Dade County (County), and the Miami Dade Water and Sewer Authority (Authority). Pursuant to its motion for summary judgment, the City of Miami was eliminated from the action and is not a party to this appeal. Thereafter, the remaining parties, appellees Dade and the Authority, filed motions to dismiss contending that appellants’ amended complaint failed to state a cause of action because it failed to show compliance by them with Section 2-2 of the Code of Metropolitan Dade County (Code), i. e., the giving of the required notice of claim within 60 days after the accident. This Section provides as follows:

“SEC. 2-2. SUITS FOR DAMAGES AGAINST COUNTY, NOTICE.
“No suits shall be maintained against the county for damages to persons or property or for wrongful death arising out of any tort unless written notice of claim shall first have been given to the clerk of the commission, 240 Dade County Courthouse, within sixty (60) days after the date of receiving the injury or damage alleged, specifying the name and address of the person injured or of the owner of the property damaged, the date, time, place and circumstances of the injury or damage, the nature of the injury or damage and the amount claimed as damages.”

After a hearing, etc., the trial court entered an order granting the motions to dismiss. From this order appellant appeals.

Appellants sole point on appeal is that they were not required to comply with the notice requirements of Section 2-2 because of the following provision of Section 768.28, Florida Statutes (1977):

“(6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the department of insurance, within three years such claim accrues and the department of insurance or the appropriate agency denies the claim in writing. The failure of the department of insurance or the appropriate agency to make final disposition of a claim within six (6) months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to section 768.14, Florida Statutes.”

In our recent opinion in Scavella v. Fernandez, 371 So.2d 535 (Fla. 3d DCA 1979), this court reasoned that the 60 day notice provision of Section 2-2 of the Code is in conflict with the three year notice period provided by Section 768.28(6).

Based upon such conflict, this court held the 60 day notice provision of Section 2-2 to be invalid.

Because the Scavello case is on point with the issue presented by this appeal, the order entered by the trial court dismissing appellants’ complaint with prejudice must be reversed.

Reversed.


text:
    PATRIOT GENERAL INSURANCE COMPANY CONCORD, MASSACHUSETTS, Appellant, v. AUTOMOBILE SALES, INC., d/b/a Toyota Automobile Sales, Appellee.
    No. 78-1681.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and David S. Currie, Miami, for appellant.
    Walton & Garrick and Edward L. Walton, Miami, for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., (Ret.), Associate Judge.
   PER CURIAM.

Patriot General Insurance Company, defendant below in a declaratory action on a contract of insurance, takes this appeal from a final judgment ruling that it had an obligation to defend the appellee, Automobile Sales, Inc. [Toyota], in a lawsuit filed against Toyota by a third party. We reverse and hold that the insurance policy at issue prescribed no such duty to defend under these circumstances.

In 1973 Melvin Rappaport was involved in an automobile accident. The impact to his vehicle apparently caused the seat lock mechanism supporting the back of the driver’s seat to collapse, throwing Rappaport into the rear seat of the car. Rappaport’s automobile was transported to appellee Toyota for repairs. He allegedly instructed Toyota not to remove or repair the seat lock mechanism since he intended to use that device as evidence in a warranty action against the manufacturer. Despite these instructions, the seat lock mechanism was replaced and the allegedly defective mechanism was apparently lost or destroyed while the automobile was in Toyota’s custody.

Rappaport sued Toyota alleging that the loss of the seat lock mechanism had deprived'him of any viable cause of action based upon breach of warranty, product liability or negligence. He alleged in his complaint that Toyota’s conduct was intentional, malicious and had essentially limited his claim on the defective seat lock to one for personal injuries and incidental damages.

Toyota demanded that appellant Patriot defend it in the Rappaport case. Patriot declined, claiming that it had no obligation to defend Toyota under the provisions of a Garage Liability policy issued to Toyota by Patriot. Toyota defended the Rappaport lawsuit and prevailed on a motion for summary judgment. Summary final judgment was later affirmed on appeal. Rappaport v. Southeast Toyota Distributors, 363 So.2d 881 (Fla. 3d DCA 1978).

Toyota then brought the instant declaratory action against Patriot seeking a declaration of its rights under the applicable insurance policy to determine whether Patriot was obligated to defend the Rappaport lawsuit on behalf of Toyota. Both parties moved for summary judgment on the pleadings. The trial court granted summary judgment in favor of Toyota and against Patriot and entered a final judgment in which it concluded that the allegations of Toyota’s complaint did fairly bring that cause within the coverage provided by the Patriot policy and that Patriot was under a legal duty to defend on behalf of Toyota.

We reverse on the ground that the allegations contained in the Rappaport complaint were not sufficient to bring that cause within the coverage provided Toyota by the Patriot policy. We hold that Patriot was under no duty to defend Toyota in that action.

The duty of an insurance carrier to defend a claim depends solely upon the allegations in the complaint filed against the insured. In order to trigger that duty to defend, the complaint must allege facts which fairly bring the cause within the coverage provided for in the policy. National Union Fire Insurance Co. v. Lenox Liquors, 358 So.2d 533 (Fla.1977); Tropical Park v. United States Fidelity & Guaranty Co., 357 So.2d 253 (Fla. 3d DCA 1978).

That' portion of the policy upon which Toyota relies is designated “Garage Liability”. It defines the scope of insurance coverage and the duty to defend as follows;

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by .an occurrence and arising out of garage operations, including only the automobile hazard for which insurance is afforded . . and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless . . ”

We agree with the appellant that the Rappaport complaint failed to allege a loss within the garage liability coverage. Rap-paport’s complaint alleged that Toyota’s agents or employees destroyed or lost the seat lock mechanism that he intended to use as evidence in an unrelated warranty claim. This is not a claim based upon property damage as contemplated within the policy and cannot fairly be said to have given rise to a duty to defend.

Appellee cites authorities for the general proposition that an insurer must defend any action where the complaint contains allegations which are partially within and partially without the scope of coverage. These authorities are inapplicable in this case where the losses complained of by Rappa-port were wholly outside the coverage afforded by the Patriot policy.

We therefore reverse the final judgment entered below and remand with directions to grant the appellant’s motion for summary judgment and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

      . American Hardware Mutual Ins. Co. v. Miami Leasing & Rentals, 362 So.2d 28 (Fla. 3d DCA 1978); Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1975); Employers Commercial Union Ins. Co. v. Kottmeier, 323 So.2d 605 (Fla. 2d DCA 1975); Travelers Indemnity Co. v. Thomas, 315 So.2d 111 (Fla. 1st DCA 1975), cert. denied, 336 So.2d 108 (Fla.1976).


text:
    Donald L. GREENE, Appellant, v. Jean Barbara GREENE, Appellee.
    No. 78-1944.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Ray H. Pearson, Miami, for appellant.
    Melvin I. Muroff, Miami, and Eli Breger, North Miami Beach, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, respondent below, brings this appeal from an order entered by the trial court modifying the amount of alimony set forth in the final judgment of divorce between him and appellee, petitioner below. This order modified the final judgment of divorce to include $2000 per month as permanent periodic alimony. We reverse.

The final judgment of divorce in this cause was entered on October 29, 1970. In February of 1978, appellee petitioned the trial court, which pursuant to our opinion in Greene v. Greene, 256 So.2d 258 (Fla. 3d DCA 1972), reserved jurisdiction to award periodic alimony, to amend the final judgment of divorce to include $2000 per month as permanent alimony. The grounds for the petition were (1) that the original award of alimony did not contemplate the devaluation of the dollar’s purchasing power; and (2) that the original award of alimony did not contemplate factors which made appellee unemployable, and without resources for the rest of her life.

The record reflects that the sole basis upon which the trial court increased the original award of alimony, by the amount of $2000 per month as permanent alimony, was that because of inflation and the reduction in the purchasing power of the dollar appellee was entitled to the increase. In making this determination, heavy reliance was placed on Pope v. Pope, 342 So.2d 1000 (Fla. 4th DCA 1977). We note that the record also reflects that appellee refused any inquiry into her financial needs, and that there was no evidence in regard to any change in appellant’s financial circumstances.

We agree with Pope that the loss in the purchasing power of the dollar is a factor to be considered in modifying an award of alimony; however, in our opinion, it is only one factor to be considered and, by itself, is insufficient to establish a change of conditions sufficient to justify an increase in an award of alimony. See generally Taplin v. Taplin, 341 So.2d 1064 (Fla. 3d DCA 1977); and Carmel v. Carmel, 282 So.2d 6 (Fla. 3d DCA 1973). Because the loss of the purchasing power of the dollar was the only factor shown in the instant case to justify the trial court’s order increasing original award of alimony, the order- must be reversed.

Reversed.


text:
    Gregory Lee HOLLAND, Family Auto Leasing and American Manufacturers Mutual Insurance Company, Appellants, v. Gary James SAFREED and Susan E. Safreed, his wife, Appellees.
    No. 78-1945.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 13, 1979.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. Sam Holland, Miami, for appellants.
    Schoninger & Siegfried and Steven M. Siegfried, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Maryland National Insurance Co. v. State, 243 So.2d 183 (Fla. 3d DCA 1977).


text:
    Imogene GAULDEN et al., Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INCORPORATED, Appellee.
    No. 78-1949.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Elliot L. Miller, Miami, for appellants.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellee.

      Before PEARSON and SCHWARTZ, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

The issue presented is simply whether the Florida Insurance Guaranty Association, Incorporated, may be served as a private corporation pursuant to Section 48.081, Florida Statutes (1977). The Association is created by statute and has been held to be “a public corporation of statewide authority created for public purposes relevantly connected with the administration of government.” O’Malley v. Florida Insurance Guaranty Association, Inc., 257 So.2d 9 (Fla.1971). As such, it is not amenable to service under Section 48.081, Florida Statutes (1977), which is by its terms limited to service upon private corporations.

As a non-profit corporation, the Association has complied with Section 617.023, Florida Statutes (1977), by naming a resident agent. This agent may be served with process. It is in keeping with its character and duties that service of process should be made at one place, just as in the case of insurance companies when sued individually. See Section 624.422, Florida Statutes (1977).

Affirmed.

      . See Section 631.55, Florida Statutes (1977).


text:
    James Walter HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2086.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 13, 1979.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975); Shapiro v. State, 345 So.2d 361 (Fla. 3d DCA 1977); Thompson v. State, 368 So.2d 670 (Fla. 3d DCA 1979); United States v. Dearden, 546 F.2d 622 (5th Cir. 1977).


text:
    Francis T. O’DONNELL, Jr., Petitioner, v. Norine White CHAMBERLAIN and Colonial Penn Insurance Co., et al., Respondents.
    No. 79-347.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.

      Martin M. Dernis, Miami, for petitioner.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for respondents.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PEARSON, Judge.

Plaintiff Francis T. O’Donnell, Jr., has petitioned this court for a writ of certiorari to review an order denying arbitration on a claim of uninsured motorist coverage. Because of the unusual aspects of this case, we have, in the exercise of our discretion, entertained the petition for the writ and hold that the trial court has departed from the essential requirements of law in that, by its order, it has deprived the plaintiff of a valuable contract right without due process of law.

The unusual circumstances referred to above are that plaintiff O’Donnell first sued the alleged tort-feasor, appellee Norine White Chamberlain, and then filed a demand for arbitration of his claim for uninsured motorist coverage with his own insurance company, appellee Colonial Penn Insurance Company. The basis of this claim was the fact that Chamberlain had coverage less than that provided by his own policy. Thereafter, the plaintiff instituted a second suit against Colonial Penn claiming personal injury protection benefits.

Chamberlain, the defendant in the first suit, filed a motion to join Colonial Penn (the plaintiff’s insurer) as an indispensable party. The plaintiff filed a motion entitled “Motion for Declaratory Judgment” in which he asked that the court enter an order allowing him to proceed with the arbitration of his uninsured motorist claim against Colonial Penn. The court denied this motion but granted defendant Chamberlain’s motion to join Colonial Penn.

It appears to us that the trial judge departed from the essential requirements of law in each instance. First, with regard to the joinder of Colonial Penn, defendant Chamberlain has no ground to bring the plaintiff’s insurance company into the plaintiff’s suit. That insurance company was in no way involved in the merits of the plaintiff’s claim against the defendant and was not an “indispensable party,” as referred to in the defendant’s motion. See Bernstein v. Dwork, 320 So.2d 472 (Fla. 3d DCA 1975).

The joinder of the plaintiff’s own insurance company was harmful error to him in that it made him proceed against a defendant against whom he had a separate claim upon which he had filed a demand for arbitration.

The order denying the plaintiff’s motion for declaratory judgment was not of itself a departure from the essential requirements of law. Because the ruling was combined with the improper joinder of Colonial Penn, it amounted to an injunction against the arbitration proceeding. ■ We know of no authority which requires the plaintiff in an automobile tort action to secure permission from a trial court in order to proceed with the arbitration of his uninsured motorist claim. Nevertheless, the plaintiff asked for such permission and ■the permission was denied, apparently on the ground that the plaintiff’s own insurance company was now a defendant in the trial court.

It should be pointed out that the trial court properly refused to abate the action against Chamberlain until the plaintiff could proceed with his arbitration. If the plaintiff undertakes an action in the trial court and an action outside the trial court, the trial court may proceed with its action as the rules provide, and there is no provision of the law requiring a court to stay proceedings before it in order to accommodate the plaintiff in a separate proceeding.

Accordingly, we hold that the petition for writ of certiorari should be granted and that the portion of the order joining Colonial Penn Insurance Company as an indispensable party is quashed. Further, the order denying the plaintiff’s petition foy' permission to proceed to arbitration is quashed insofar as it constitutes an injunction against the plaintiff proceeding with any legal remedy that he may have, including arbitration.

It is so ordered.


author: BARKDULL, Judge.

text:
    Gerald Lee DATEMA, Petitioner, v. The Honorable Frederick N. BARAD, Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 79-570.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for petitioner.
    Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for respondent.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   BARKDULL, Judge.

On August 1, 1978, Datema was arrested on a burglary charge. An information was filed but the State, without announcing the intention of refiling, nolle prossed the information. About two weeks later, the State refiled the information and mailed notice of same to Datema, which was returned and he did not receive the notice.

No capias was issued and Datema’s trial counsel, over counsel’s objection, was ordered to enter a plea of not guilty. The case came on for trial on January 22, 1979 and the defendant, still having no notice of the proceedings, did not appear. An alias capias was issued then. About a month later, Datema contacted his counsel, was informed of the new information and appeared for trial. The alias capias was quashed.

On March 1, Datema moved for discharge on the grounds that more than 180 days had elapsed since his arrest and further proceedings would violate his speedy trial rights. The trial court denied the motion to discharge, granted the State’s motion to void the time periods, and set trial.

When the first information was nolle prossed, Datema was no longer an accused released on bond; he was free. Thus, the prosecution, upon refiling the second information (the State), should have issued a capias for his arrest. Under these circumstances, Datema’s nonappearance is no evidence of non-availability for speedy trial purposes. See: State ex rel. Barber v. Satin, 296 So.2d 636 (Fla. 3d DCA 1974); State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978).

Thereupon, the defendant filed a suggestion for writ of prohibition in this court and, finding that same presented a prima facie case, a rule nisi in prohibition was issued. Therefore, the rule nisi in prohibition will be made absolute.

Assuming that the trial judge will follow the dictates of this opinion, the rule absolute will not be served unless necessary.


text:
    Betty BLOUIN, Petitioner, v. Honorable John V. FERGUSON, as Circuit Judge of the Eleventh Judicial Circuit, Respondent.
    No. 79-584.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Penzell & Diamond, Miami, Barry J. Cly-man, Coral Gables, for petitioner.
    Janet Reno, State’s Atty., for respondent.
    George & Thompson, Miami, for Nilze Kallos, M.D., amicus curiae.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The judicial referee lost jurisdiction after the expiration of the time limits of a medical mediation proceeding and he, sitting alone, could not commence the proceeding within the time period for purposes of extending the time. See: Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979); Grossman v. Duncan, 371 So.2d 142 (Fla. 1st DCA 1979); Hewitt v. Caffee, 368 So.2d 1342 (Fla. 3d DCA 1979).

Therefore, the rule nisi in prohibition issued heretofore is made absolute. Assuming that the trial judge will follow the dictates of this opinion, the rule absolute will not be served unless necessary.


author: PACK, R. WALLACE, Associate Judge.

text:
    Kenneth KRIBS, Appellant, v. CITY OF BOYNTON BEACH, a Municipal Corporation, and Frank Kohl, Individually and as City Manager of the City of Boynton Beach, Florida, a Municipal Corporation, Appellees.
    No. 77-2425.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    Bennett S. Cohn, Lake Worth, for appellant.
    Gene Moore, Boyton Beach, for appellees.
   PACK, R. WALLACE, Associate Judge.

This is an appeal timely filed from an Order dismissing the appellant’s second amended complaint with prejudice. The allegations contained in the complaint were that the appellees (City of Boynton Beach and City Manager) libeled and slandered the appellant by releasing to the press the contents of a letter dismissing the appellant from his position as finance director of the City of Boynton Beach. By a letter dated March 4, 1977, the appellant, Kenneth Kribs, received notice that his employment as finance director of the City of Boynton Beach was being terminated. The reasons stated in the letter for the termination were that Mr. Kribs had been guilty of gross misfeasance and dereliction of duty. Copies of this letter were then forwarded to the mayor, city council, personnel director, chairman of the Civil Service Appeals Board and the city attorney. A copy of the letter was also placed in the appellant’s personnel file.

Shortly thereafter, Frank Kohl, the city manager and author of the letter, released the contents of the letter to the press.

Kribs then sued the City of Boynton •Beach and Frank Kohl for libel and slander contending that the letter, as part of his personnel file, was confidential information and not subject to public inspection.

We find no merit in the appellant’s position.

In McNayr v. Kelly, 184 So.2d 428 (Fla.1966) our Supreme Court gave absolute immunity to executive officials with respect to defamatory publications made in the performance of their official duties. In McNayr the county manager of Dade County was recognized as possessing absolute privilege with reference to public statements made in discharging the county public safety director.

The appellant has also argued that public policy requires personnel reports of this nature to be withheld from public scrutiny. Our Supreme Court had addressed itself to this point in the case of News-Press Publishing Co. v. Wisher, 345 So.2d 646. At page 648 the Court stated:

No policy of the state protects a public employee from the embarrassment which results from his or her public employer’s discussion or action on the employee’s failure to perform his or her duties properly.

In the case in Densmore v. City of Boca Raton, 368 So.2d 945 (Fla. 4th DCA 1979), a casé factually similar to this, this court stated in its concluding paragraph:

[T]he city manager enjoyed an absolute privilege in disclosing the reasons for his discharge of Densmore; and the filing of a copy of a letter containing those reasons in the employee’s personnel file did not remove the privilege.

AFFIRMED.

MOORE and BERANEK, JJ., concur.


text:
    Robert K. GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-1828, 78-2162.
    District Court of Appeal of Florida, Second District.
    June 20, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We remand so that the lower court may correct the written order revoking appellant’s probation to conform to the court’s oral pronouncement, by striking the finding of violation of condition 4. We otherwise affirm the order of revocation, and the judgments and sentences.

OTT, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    Joseph James BARRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 79-20.
    District Court of Appeal of Florida, Second District.
    June 20, 1979.
    Jack 0. Johnson, Public Defender and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee and William I. Munsey, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Barringer appeals the sentences imposed on resentencing, alleging that the court imposed punishment harsher than the original sentences, contrary to the dictates of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Appellant pled guilty to four counts of burglary, and one count each of sale and possession of marijuana. The court sentenced appellant to consecutive four year terms on each of the burglary counts, and another consecutive four year term for sale and possession. This court reversed in an earlier appeal because the single sentence imposed for sale and possession was an illegal general sentence. Barringer v. State, 362 So.2d 166 (Fla. 2d DCA 1978).

On remand, the trial court again imposed consecutive four year sentences on each of the burglary counts, and another consecutive four year sentence for sale of marijuana. The court did not impose a sentence for possession of marijuana, finding that it merged into sale.

We reject the contention that the identical sentences imposed on remand were harsher, and find no merit in the other points raised.

AFFIRMED.

GRIMES, C. J., and OTT, J., concur.