author: PER CURIAM. ENGLAND, Justice,

text:
    In re WORKMEN’S COMPENSATION RULES OF PROCEDURE.
    No. 50633.
    Supreme Court of Florida.
    March 17, 1977.

      Elmer 0. Friday, Jr., Chairman, Leander J. Shaw, Jr., Commissioner, and Arthur C. Canaday, Commissioner of the Industrial Relations Commission of Florida, for petitioner.
   PER CURIAM.

By petition the Chairman and members of the Industrial Relations Commission of Florida request this Court to adopt Workmen’s Compensation Rules of Practice and Procedure before the Commission and the Judges of Industrial Claims. This petition is authorized under the provisions of Section 440.29(3), Florida Statutes, which was enacted by the Legislature in 1974, Ch. 74-197, § 16, Laws of Florida, and reads as follows:

“The practice and procedure before the commission and the judges of industrial claims shall be governed by rules adopted by the Supreme Court.”

The petition describes the method and manner of the development of these rules by alleging:

“In the spring of 1976, at an assembly of the Judges of Industrial Claims, a committee of three of the Judges was designated to represent them and act as liaison with them in this project, pursuant to which Judges Arthur Seppi, Elwyn Akins, and Alan Kuker were nominated and did serve in that capacity. The Honorable Stephen Marc Slepin, former Chairman of this Commission and as Chairman of the Workmen’s Compensation Section of The Florida Bar, actively participated in the development of these rules, and further nominated Steven Rissman to serve as Chairman of the Rules Committee of that Section, with members John Tomlinson and Richard Schwartz, who did serve diligently in behalf of the several hundred members of their Section. The Senior Judge of Industrial Claims of Florida, Thomas J. Carroll, and the members of the Industrial Relations Commission also served as a part of this Joint Rules Committee, the work product of which was, on several occasions, evaluated, debated, modified and thereafter distributed anew for further evaluation' and recommendation.
“The Chairman and Members of the Industrial Relations Commission thereafter held public hearings, after notice, in the cities of Fort Lauderdale, Tampa and Tallahassee. After these hearings additional meetings of the Joint Rules Committee were held, and these proposed Rules, in substantially the attached form and format, were approved for recommendation to this Honorable Court for adoption.”

The following Workmen’s Compensation Rules of Procedure are hereby adopted and shall govern all proceedings within their scope after 12:01 a. m., July 1, 1977. These rules shall supersede all prior Workmen’s Compensation Rules of Practice and Procedure.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice,

dissenting.

I respectfully dissent from the Court’s adoption of these rules of procedure. In so doing I am well aware that I may incur the enmity of innumerable members of the workmen’s compensation trial bar and hosts of well-meaning officials in all branches of state government. Most of these people have had far more familiarity with the law of workmen’s compensation than I, and have lived through torturous years developing procedures designed to provide benefits to injured claimants in a thorough, fair and expeditious manner. I am not insensitive to their desire to create a system of adjudicating workmen’s compensation claims which is free of executive branch controls, judicious in its procedures, and administered by persons of dignity and competence. My concern is simply that these goals be achieved within the imperatives of the Florida Constitution.

The Constitution states in terms which are unequivocal that the judicial power of the state shall be vested in the Supreme Court, district courts of appeal, circuit courts and county courts. It goes on to state that “no other courts may be established by the state . . . .” As if this were not sufficient to limit a diffusion of the state’s judicial power, the same provision pointedly extends “quasi-judicial” power to commissions and administrative officers created by law, of which the most pertinent here are the judges of industrial claims and the Industrial Relations Commission. I discern a clear constitutional declaration that these officers have no “judicial power”, and that the bodies in which they sit are not “courts”.

By what authority, then, do we derive the power to adopt rules of procedure for these administrative tribunals? Article V, Section 2(a) of the Florida Constitution states that:

“The supreme court shall adopt rules for the practice and procedure in all courts . .” (emphasis added)

In 1973 this Court purported to adopt a predecessor set of rules for the Commission on the authority of this provision. The justification for this action was the Court’s view that litigation in workmen’s compensation cases seems “more judicial than quasi-judicial”. (emphasis in the original) It seems clear to me, however, that this provision supplies no authority to adopt the Commission’s rules notwithstanding the Court’s characterization of the decisional process in this class of suits. The effect is directly contrary to the Constitution, for if this Court can determine at will which of the state’s commissions, administrative officers or bodies are exercising powers “more judicial” than “quasi-judicial”, Article V, Section 1 has no meaning.

Undoubtedly in part to quell the uncertainty surrounding the status of Commission rules, the 1974 Legislature purported to confer on this Court the authority to adopt rules for workmen’s compensation matters. But without constitutional underpinning the statute could not validly confer responsibility here. Article II, Section 3 of the Florida Constitution prohibits the exercise of any power pertaining to one of the three branches of government by any person belonging to one of the other branches.

As stated, an underpinning is not found in Article V, Section 2(a), which limits our rule-adopting authority to “courts”. Thus, the 1974 statute is an invalid attempt to delegate non-judicial power to the judiciary unless there exists in the Constitution some other source of authority. My examination of that document reveals none.

I am aware, of course, that Article V, Section 3(b)(7) provides that the Court

“Shall have the power of direct review of administrative action prescribed by general law.”

It is arguable that this language is broad enough to provide the missing legislative authority since the term “administrative action” generally includes the promulgation of agency rules. The adoption of procedural rules by the Industrial Relations Commission, then, would seem to be a form of “administrative action” directly reviewable here.

The problem with this view is that the Commission did not adopt these rules; they presented them to us for adoption. The notion that “direct review” in the Constitution can mean wholesale “adoption” of an integrated set of procedures is seriously defective. If “review” connotes “adoption” for this agency, then our court could by legislative will be vested with responsibility for the adoption of procedural rules for every administrative or executive agency in the state. Further, if we are assigned adoption powers they necessarily carry with them amendment and repeal powers. This mass of non-judicial business, which is now largely dispatched in the executive branch through the office of the Secretary of State and the Division of Administrative Hearings of the Department of Administration, could exhaust our resources if assignable here by legislative whim. More significantly, these activities are wholly inconsistent with the separation of powers and highly impractical. A division of rule-making authority between the Court and the executive branch on an agency-by-agency basis, subject to random legislative additions or withdrawals for each, simply makes no governmental sense.

A more sensible view of the term “review” in Section 3(b)(7) is that it holds the same significance there as in Section 3(b)(3). There it describes the traditional judicial function of appellate courts to assure that the individual acts of agencies and lower courts comport with current notions of fairness, such as meeting the essential requirements of law. Individual agency rules may also be evaluated by these standards, of course. But the basis for evaluation in all these cases is (1) a challenge by someone aggrieved by the agency’s action who (2) invokes our jurisdiction to “review” what was done below for arbitrariness or the like. No such contested proceeding attends the wholesale adoption of rules.

For the reasons expressed, I cannot find valid authority for the action we are asked to take. Even were these propositions debatable, the same reasons would persuade me to decline to exercise whatever discretionary authority I might have.

FLORIDA WORKMEN’S COMPENSATION

RULES OF PROCEDURE

(W.C.R.P.)

RULE 1. SCOPE AND TITLE

These rules, adopted and promulgated pursuant to the legal authority of the Supreme Court of Florida, shall govern all workmen’s compensation proceedings in and before Judges of Industrial Claims and the Industrial Relations Commission.

These rules shall be cited as Workmen’s Compensation Rules of Procedure, and may be abbreviated W.C.R.P.

RULE 2. DEFINITIONS

Throughout these rules, unless the context or subject matter otherwise requires:

(a) “Bureau” means the Bureau of Workmen’s Compensation of the Division of Labor in Leon County, Florida.
(b) “Clerk” means the Clerk of the Industrial Relations Commission.
(c) “Commission” means the Industrial Relations Commission in Leon County, Florida.
(d) “Division” means the Division of Labor of the Florida Department of Commerce in Leon County, Florida.
(e) “Filing” means actual placement with the Commission, a Judge of Industrial Claims, or Bureau, as the context of the applicable statute or rule requires.
(f) “Judge” means a Judge of Industrial Claims.
(g) “Senior Judge” means the Senior Judge of Industrial Claims, as appointed by the Governor, and headquartered in Leon County, Florida.
(h) “Service” shall be as provided in the Florida Rules of Civil Procedure.
(i) In construing these rules, where the context indicates, the singular includes the plural and vice versa, and the masculine includes the feminine and neuter and vice versa.

RULE 3. COMPUTATION OF TIME

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order or by applicable statute, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. If any act required to be done, or allowed to be done, falls upon a Saturday, Sunday, or legal holiday, performance of said act shall be required upon the next regular working day.

(b) Service by Mail When “service” is effectuated by mail, five (5) days shall be added to the time allowed for the performance of any act required to be done, or allowed to be done, within a certain time after service. [This sub-section does not apply to the “filing” requirements of applications for review or petitions for writ of certiorari.]

RULE 4. CLAIMS FOR COMPENSATION

Claims for compensation shall be filed with the Bureau, and shall contain the name, social security number, and address of the employee, the name and address of the employer, and a statement of the time, place (including county), nature and cause of the injury or such fairly equivalent information as will put the Bureau and the employer on notice concerning the identity of the parties, claimants, and the nature of the claim.

RULE 5. NOTICE TO CONTROVERT

If the right to compensation is controverted, the employer shall, on or before the twenty-first day after it has knowledge of the alleged injury or death, file with the Bureau a notice to controvert in accordance with § 440.20(4), Florida Statutes. The notice to controvert shall state the Bureau’s claim number, the name of the claimant, the name of the employer, the date of the alleged accident or death, that the claim is controverted, and the specific ground(s) upon which it is controverted. Copies of the notice shall be served upon all parties and a certificate of such service shall be made a part of the original notice filed with the Bureau. Failure to file notice to controvert shall be considered in assessing any penalties found to be due.

RULE 6. APPEARANCE AND WITHDRAWAL OF ATTORNEYS

(a) Appearance. Notice of appearance shall be filed by any successor, or associated attorney, prior to or concurrently with the filing of any, pleading or presentation of oral argument to or before a Judge or the Commission.

(b)' Withdrawal. An attorney who has filed a claim or has otherwise become an attorney of record for any party to a workmen’s compensation cause shall remain attorney of record in said cause and shall not be permitted to withdraw from the cause unless he shall first file with the Judge a written motion for withdrawal setting forth the reasons therefor, serving a copy of said motion upon the movant’s client and counsel for the adverse party, and shall then obtain from the Judge an order granting said motion for withdrawal. If an application for review is pending in the cause, the motion shall be filed with the Commission, which shall enter an appropriate order thereon.

RULE 7. APPLICATION FOR HEARING

An application for hearing concerning a claim, made pursuant to Chapter 440, Florida Statutes, shall state concisely in separate numbered paragraphs the reasons for requesting hearing, and the questions at issue or in dispute which the applicant expects the Judge to hear and determine, with sufficient particularity that the responding or opposing parties may be notified of the purpose of the hearing, including the issues to be heard and determined. Application for the first hearing or trial in a cause shall be filed with the Bureau at Tallahassee. Applications for any subsequent hearings or trials shall be filed with the Judge of Industrial Claims to whom the case has been assigned. A copy of the application shall be served on counsel for each party and a copy upon any party not represented by counsel. Failure to serve a copy of the application as required shall be grounds for a continuance or cancellation of the hearing.

RULE 8. NOTICE OF HEARING ON CLAIM

The Judge shall order a hearing upon application of any interested party. The Judge shall give the parties at least fifteen (15) days notice of the hearing, served upon the parties by mail. The notice of hearing shall state with particularity the questions at issue or in dispute which the Judge will hear and determine.

RULE 9. DISCOVERY

Depositions of witnesses or parties, residing within or without the state, may be taken and may be used in connection with proceedings under Chapter 440, Florida Statutes, either upon the order of a Judge, or at the instance of any party or prospective party to such proceedings. Depositions may be taken prior to the institution of a claim, if the claimant is represented by an attorney, or after the filing of the claim, in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure.

RULE 10. PRETRIAL PROCEDURE

(a) Generally. The Judge may, on his own motion, or on the motion of any party to the action, order a pretrial conference, at which the parties shall:

(1) State and simplify the claims, defenses, and issues.

(2) Make appropriate amendments to the claims and defenses.

(3) Stipulate and admit to such facts and documents as will avoid unnecessary proof.

(4) Present, examine, and mark for identification, all exhibits. Impeachment exhibits, and rebuttal exhibits thereto, need not be revealed.

(5) Furnish opposing counsel with names and addresses of all witnesses. Impeachment witnesses, and rebuttal witnesses thereto, need not be revealed.

(6) Exchange all available written reports of experts where expert opinion is to be offered at trial. The reports should clearly disclose the expert opinion and its basis on all subjects on which the expert will be called upon to testify. If stipulated into evidence, the parties shall present the reports to the Judge to be so marked. The parties shall consider and determine a limitation on the number of expert witnesses.

(7) Determine estimated trial time.

(8) Consider and determine such other matters as may aid in the disposition of the cause.

(b) Notice. The Judge shall, by Order, give the parties at least fifteen (15) days notice of the pretrial conference. Upon failure without good cause of a party to attend a conference, the Judge may dismiss the claim or strike the defenses or take such action as may be authorized by law. The Judge may cancel the pretrial conference upon submission of a signed pretrial stipulation with appropriate exhibits and medical reports attached.

(c) Record. The Judge shall make the pretrial conference a matter of record either by stenographic or electronic means, or by a written stipulation signed by the parties.

(d) Pretrial Order. The Judge shall promptly enter an order reciting the action taken at the conference, the amendments allowed to the claims and defenses, the agreements made by the parties about any of the matters considered, and limiting the issues for trial to those not disposed of by admissions or stipulations of the parties. The Judge shall serve the order upon the attorneys for the parties and upon any party not represented by counsel. The order shall control the subsequent course of the action unless the Judge modifies it to prevent injustice.

RULE 11. PROSECUTION OF CLAIM BEFORE JUDGE OF INDUSTRIAL CLAIMS

(a) When a trial has been set by a Judge, all parties shall diligently prosecute and defend the claim. The Judge may cancel or continue a trial on his own motion or on the motion of a party if he finds that the cancellation or continuance is for good cause which has not resulted from a lack of diligence in the prosecution or defense of the claim.

(b) Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Judge, payment of compensation, provision of medical care, or otherwise for a period of two years after filing, is subject to dismissal for lack of prosecution. Upon motion to dismiss filed by any interested party, or upon request of the Judge before whom the action is pending, the Senior Judge shall forward the case to the appropriate Judge who shall, after reasonable notice to the parties and opportunity for hearing, dismiss the claim or petition, unless a party shows good cause why the claim or petition should remain pending.

RULE 12. ADMISSIBILITY OF EVIDENCE; PROFFERS; EXHIBITS

(a) Admissibility. Whenever a question of the admissibility of evidence is presented for consideration of the Judge, he shall promptly rule on it. If an objection is made and not ruled upon by the Judge, the ruling shall be presumed to be adverse to the party making the objection.

(b) Proffers. Evidence which has been offered but ruled inadmissible may be proffered but shall be clearly identified as such by the Judge.

(c) Exhibits. Voluminous or cumbersome exhibits shall not be received in evidence unless their use is unavoidable. The Bureau file with respect to a claim, and any portion thereof, is not evidence until or unless offered and received as such. When any record, report, or other document is offered in evidence and it appears that request may be made later to withdraw same from the record (for example, hospital records for return to the hospital), the Judge may require the party offering such exhibit to furnish a photostatic copy or other acceptable copy thereof for the permanent record of the proceeding.

RULE IS. AGREEMENTS

No agreement or stipulation shall be valid unless: (1) in writing and signed by the parties or their attorneys, or (2) dictated on the record.

RULE 14. APPLICATION AND CROSS-APPLICATION FOR REVIEW; PROOF OF SERVICE

(a) Application and cross-application for review. Application for review of an order of a Judge by the Commission shall be filed with the Commission or a Judge within twenty (20) days after the date copies of the Judge’s order are mailed to the parties at the last known address of each. Any appellee who desires review of any adverse ruling by the Judge shall file his cross-application for review with the Commission or a Judge within ten (10) days after filing of the application for review. Applications and cross-applications for review shall state concisely and particularly the grounds upon which the parties rely. Failure to comply with this section may be grounds for dismissal.

(b) Proof of service. A copy of all applications and cross-applications for review shall be served on all interested parties and proof of service thereof shall accompany all applications and cross-applications when filed.

RULE 15. APPROVAL OF APPEAL BONDS

Any employer required to file a superse-deas bond in an appeal shall file the bond with the Judge or Commission along with the application for review. The Commission shall promptly serve notice on each party of its approval or disapproval of the bond. A notice of disapproval shall include the reasons for the disapproval. A party whose bond is disapproved is allowed ten (10) days from service of notice of disapproval to comply with the objections contained in the notice of disapproval. The Commission shall dismiss the application for review for failure to file a required superse-deas bond or comply with objections contained in a notice of disapproval within the time allowed.

RULE 16. RECORD ON APPEAL

(a) What Constitutes. The record on appeal shall consist of the claim, Bureau’s claim acknowledgment letter, notice to controvert, application(s) for hearing, notice(s) of hearing or trial, pretrial order, order on appeal, interim motions and orders, petitions for extension of time to file the record on appeal and orders related thereto, and the transcript of proceedings before the Judge, including the exhibits and other matters of record that are certified by the Judge as constituting the appellate record in the proceeding.

(b) Abbreviated Record. Within the time provided for filing his application for review, the appellant may file designations to the Judge identifying those portions of the proceedings and evidence appellant wishes to have omitted as unnecessary from the record on appeal. Appellant shall serve a copy of the designations, together with proof of service thereof, on each opposing party. Within ten (10) days after service of designations, each opposing party may file cross-designations identifying any parts of the omitted record deemed necessary and they shall be included in the record on appeal. Each opposing party shall serve a copy of those cross-designations, together with proof of service thereof, on each other opposing party.

(c) Stipulated Record. When the issues on appeal can be determined without an examination of the entire proceedings in the cause, the parties may prepare a stipulated statement showing how the issues to be presented arose and were decided by the Judge, setting forth or attaching as much of the record before the Judge as is necessary to a determination of the issues by the Commission. A stipulated statement and a copy of the Judge’s order may then be certified by the Judge as the record on appeal.

(d) Costs. Within five (5) days after the content of the record on appeal has been determined, the Judge shall serve notice upon the appellant or his attorney of the amount of costs required for the preparation of the record on appeal and the necessary copies thereof and appellant shall, within fifteen (15) days of the date of such service, deposit, at the office of the Judge, the sum so required. If the appellant fails to deposit the amount of the costs within the time allotted by this section, the Judge shall promptly notify the Commission of this fact. Thereafter, the Commission may dismiss the application for review.

(e) Insolvency. Appellant may be relieved of making a deposit and paying all or a part of the cost of the preparation of the record on appeal and copies required under this section, provided within fifteen (15) days after the date of service by the Judge as to the amount of the costs so required, he files a Petition to be Relieved of Costs with the Bureau (with an information copy provided to the Judge). The forty-five-day period for the preparation and filing of the record bn appeal and, in the case of a denial of said Petition, the fifteen-day period for depositing the amount of record costs required, will then commence when the Bureau’s order thereon, which has become final, has been filed with the Judge (with an information copy provided to the Commission).

(f) Preparation of Record. Upon direction from the Judge, the court reporter who stenographically reported the proceeding, or a transcriber designated by the Judge, shall transcribe, prepare, certify, and deliver to the Judge a record on appeal prepared in accordance with this Rule. The court reporter or transcriber shall deliver the record on appeal to the Judge in sufficient time to allow review and certification by the Judge and timely filing with the Commission. The court reporter or transcriber shall promptly notify the parties in writing of the date of such delivery. The Judge or the Commission may, sua sponte, or on motion of a party, secure compliance with this section by invoking the authority of § 440.33, Florida Statutes.

(g) Format. The record on appeal shall be bound and securely fastened in one or more volumes containing no more than 200 pages per volume. The pages of the record shall be numbered consecutively, and each volume shall include a cover page, the volume number, and a complete index containing the names of the witnesses, a list of exhibits offered and introduced in evidence, including the pages where offered and where each may be found. Volume one shall include a complete index of the entire record on appeal. Proffered evidence shall be clearly identified and located in a separate section of the record on appeal.

(h) Time to File. The appellant shall, pursuant to the directions of the Judge, have the original and one copy of the record on appeal filed with the Commission within forty-five (45) days from the date of filing of the application for review, unless the Commission or Judge for good cause shown by petition filed prior to the expiration of said period, and after notice and opportunity for hearing, shall extend the time therefor. The appellant shall have a copy of the record on appeal served on each party or his attorney, and shall have a certificate of such service filed with the record on appeal when filed with the Commission. Unless the nature of the litigation dictates otherwise, service of a copy of the record on appeal on any one of the following: (1) the employer, (2) attorney for employer, (3) the carrier or servicing agent, (4) attorney for carrier or servicing agent, shall be service of a copy of the record on appeal on the employer and carrier. The Commission may dismiss the application for review if appellant fails to comply with the provisions of this section.

RULE 17. CORRECTIONS TO RECORD

(a) Corrections. The Judge shall, pursuant to Order of the Commission remanding the cause to him for such purpose, have the record on appeal corrected, amended, or supplemented to reflect the true state of the record, with costs of the record to be assessed against the appellant. The Judge shall certify the corrected, amended, or supplemented record to the Commission as the record on appeal. Absent specific directions from the Commission, if the Judge determines, on remand, that the record as originally certified is correct, he shall enter an order advising the Commission of his decision, whereupon jurisdiction shall revest in the Commission. The parties may file an application for review of the Judge’s Order by the Commission.

(b) Costs. If the appellant fails to deposit the additional costs within the time ordered by the Judge, or in the case of a denial of Petition to be Relieved of Costs, within fifteen (15) days after the date the Bureau’s order thereon, which has become final, has been filed with the Judge, the Judge shall promptly notify the Commission and parties thereof. Thereafter, the Commission may dismiss the application for review.

RULE 18. JURISDICTION; PROPOSED SETTLEMENT; MOTION FOR REMAND

(a) Jurisdiction. Upon application to the Commission for review of an order of a Judge, jurisdiction of the cause to the extent of the issues raised is vested in the Commission and the Judge shall have no further jurisdiction, in respect thereof, save with respect to preparation of the record on appeal, cost of said preparation, and extension of time for filing of same. A party may, however, file a motion with the Commission or Supreme Court requesting remand of the cause to the Judge for further proceedings.

(b) Proposed Settlement. Upon stipulation of the parties, the Judge may take testimony or cause to be investigated a proposal for settlement of all or any part of the cause before the Commission or Supreme Court on review with the objective of determining whether or not, upon remand, he would approve such settlement proposal. Any order approving such settlement which is entered while an application for review or petition for writ of certiorari is pending and prior to the remand of the cause to the Judge shall be null and void.

(c) Motion for Remand. Upon joint motion of the parties stating that a proposed settlement agreement has been reached, the Commission or Supreme Court may remand the cause to the Judge for consideration of the proposed settlement and the entry of an appropriate order.

RULE 19. BRIEFS — WHEN TO BE FILED AND CONTENTS

(a) Appellant’s Main Brief. Within thirty (30) days after the filing of the record on appeal, the appellant shall serve a copy of his brief upon the appellee and he shall file the original and one copy of his brief with the Commission, together with proof of service of a copy thereof upon the appellee, unless the Commission for good cause shown by motion filed prior to the expiration of said period shall extend the time therefor. If the appellant fails to file a brief, together with proof of service, within the thirty (30) day period specified or within an extension of time allowed by the Commission, appellant shall forfeit oral argument, unless the Commission orders otherwise. In addition, the Commission may, sua sponte or upon motion of any party, dismiss the application for review.

(b) Appellee’s Brief. Within twenty (20) days after service of a copy of appellant’s brief, the appellee shall serve a copy of his brief upon the appellant and file the original and one copy of his brief with the Commission together with proof of service of a copy thereof upon the appellant unless the Commission for good cause shown by motion filed prior to the expiration of said period shall extend the time therefor. If the appellee fails to file a brief, together with proof of service, within the twenty (20) day period specified or within an extension of time allowed by the Commission, appellee shall forfeit oral argument, unless the Commission orders otherwise.

(c) Appellant’s Reply Brief. If the appellant desires to submit a reply brief, he shall serve a copy of his reply brief upon the appellee, and he shall file the original and one copy of his reply brief with the Commission, together with proof of service of a copy thereof upon the appellee, within twenty (20) days after service of a copy of appellee’s brief.

(d) Cross-appeal. Cross-appellant shall include his argument on the cross-appeal in his appellee’s brief in the manner authorized in the Florida Appellate Rules. Appellant/cross-appellee shall include his argument on the cross-appeal in his appellant’s reply brief, which shall be filed within twenty (20) days after service of appel-lee/cross-appellant’s brief. Within twenty (20) days after service of appellant/cross-appellee’s reply brief, cross-appellant may file reply brief to the cross-ap-pellee’s brief, together with proof of service of a copy thereof upon cross-appellee. Argument as to the cross-appeal shall be clearly designated in a separate section of the briefs.

(e) Party not Represented by Attorney. An appellant or appellee not represented by an attorney may be excused by the Commission, in its discretion, from the filing of a brief.

(f) Filing. Briefs shall be filed with the Commission at its office in Leon County, Florida. The Commission may, sua sponte, or upon motion of any party, strike any late filed brief.

(g) Points not Argued are Abandoned. Grounds stated in the application for review or cross-application which are not argued in the briefs are deemed abandoned and may not be argued orally.

(h) Style and Contents of Briefs. The style and contents of briefs shall conform to the requirements of the Florida Appellate Rules.

RULE 20. MOTION PRACTICE ON APPEAL

(a) Purpose: Motions raising bona fide issues of law and procedure may be filed with the Commission at its office in Leon County, Florida.

(b) Content. Each motion filed with the Commission shall contain:

(1) The caption, designation of the moving party and the nature of the motion;

(2) Facts relevant to the relief sought by the motion;

(3) Argument, including citation and statement of authority;

(4) A request for the relief sought; and

(5) Any applicable affidavit or other supporting document.

(c) Response. Within ten (10) days after service of a motion, any other party may serve a response to the motion with or without supporting documents.

(d) Briefs and oral argument. Briefs and oral argument shall not be permitted unless ordered by the Commission.

(e)Time. A motion shall, within the limitations of § 440.25(4)(a), Florida Statutes, and unless otherwise ordered, toll the time for the performance of a required act (other than the preparation and filing of the record on appeal) from the date of filing until the date an order is entered on the motion. The time for preparation and filing of the record on appeal shall be tolled only by the filing of a motion directed thereto. If the time remaining for the next affirmative act is less than five (5) days after entry of the order, the act shall be performed within five (5) days from the date of the order.

RULE 21. ORAL ARGUMENTS — WHEN REQUESTED AND WHEN HEARD

(a) Application. Oral argument in aid of the Commission’s deliberations may be allowed or required at the discretion of the Commission. If oral argument is desired, it shall be requested in writing at or prior to the time that the brief is filed.

(b) Time. Oral arguments shall be heard as determined by the Commission. In the event oral argument is allowed, the parties shall be limited to fifteen (15) minutes to each side, unless further time is granted by the Commission. Appellant(s) shall reserve rebuttal time at the beginning of appellants)’ argument. Failure to do so shall constitute a waiver of rebuttal.

(c) Presentation. Appellant’s argument shall be organized and presented in the following order:

(1) Nature of order appealed from.
(2) A brief statement of the issue(s) raised on appeal.
(3) A brief, explanatory statement of the material facts.
(4) The argument.

      . Art. V, § 1, Fla.Const.

      . These conclusions are further buttressed by the voters’ rejection in 1970, just two years before Article V was adopted, of a proposed constitutional amendment which would have created a court for compensation appeals. See Levinson, Court of Administrative Appeals: Alternatives Available to Legislature Following Defeat of 1970 Proposed Amendment of Judiciary Article of Florida Constitution, 23 U.Fla.L. Rev. 261 (1971).

      . In re Florida Workmen’s Compensation Rules of Procedure, 285 So.2d 601 (Fla.1973).

      . 285 So.2d at 601. The Court’s approval, however, was granted only “to the extent authorized in the Constitution . . . 285 So.2d at 602.

      . Ch. 74-197, § 16, Laws of Florida. The present § 440.29(3), Fla.Stat. (1975), reads:
      “The practice and procedure before the commission and the judges of industrial claims shall be governed by rules adopted by the Supreme Court.”

      . See § 120.52(2), Fla.Stat. (1975); Levinson, note 2 above at p. 270.

      . Sections 120.54 and 120.56, Fla.Stat. (1975).

      . See Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974).

      . See Gulf Power Co. v. Bevis, 296 So.2d 482 (Fla.1974).

      .By what standard does the Court decide these rules are suitable for adoption? Is it sufficient that all segments of the workmen’s compensation field were represented in the formulation process? By what criteria will we test a proposal to amend these rules? Can anyone petition us to amend at any time?


source: Caselaw Access Project

author: BOYER, Chief Judge. BOYER, Chief Judge. McCORD, J.,

license: Public Domain

text:
    Richard P. SMITH et al., Appellants, v. VENUS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. DD-250.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1976.
    Rehearing Denied April 13, 1977.
    Michael William Mead, of Middleton & Mead, Fort Walton Beach, for appellants.
    Mark E. Walker, Fort Walton Beach, for appellee.
   BOYER, Chief Judge.

By this appeal we are requested to determine whether the recording of an original final judgment in the Official Records Book of a county which has adopted the single record method of recording and in which county the judgment was entered is sufficient to render such judgment a lien on real estate in that county owned by the judgment debtor; or whether Section 55.10, Florida Statutes 1975, is literally construed to require the recordation of a certified copy of such judgment in lieu of, or in addition to, the original.

An interesting and most informative historical discussion of F.S. 55.10 and related statutes may be found in Dade Fed. Sav. & L. Ass’n v. Miami Title & Abstract Div., Fla.App.3d 1969, 217 So.2d 873. When that opinion was written, the subject statute had been amended to read:

“Judgments and decrees become a lien on real estate in the county where rendered when the judgment or decree is recorded in the proper record of such county and in other counties when a certified copy thereof is recorded in the proper record of other counties.” (Please see Chapter 67-254, Section 9, General Laws 1967)

The issue before the court in the above-mentioned case was “whether the words ‘judgment or decree’ may be properly construed to mean a certified copy”. That court held affirmatively.

In an attempt to alleviate the confusion, but in actuality compounding it, the legislature in 1971 (Chapter 71 — 56) amended F.S. 55.10 to read as follows:

“A judgment or decree becomes a lien on real estate in any county when a certified copy of it is recorded in the official records or judgment lien record of the county, whichever is maintained at the time of recordation.”

In May of 1976, a deficiency judgment was rendered in the Circuit Court in and for Okaloosa County in favor of Venus Condominium Association, Inc., against Henry W. Foley, et ux. That judgment was recorded in the Official Records Book of that county. In June of 1976, appellants, by separate deeds, acquired from Foleys certain real properties in Okaloosa County. Thereafter, at the instance of appellee, a writ of execution was issued and the Sheriff of Okaloosa County was directed to sell said properties pursuant thereto. Appellants’ motion to stay the sale resulted in an adverse order here appealed. In that order, the learned trial judge held:

“The Court takes judicial notice of the fact that Okaloosa County has adopted the Official Record Book as the only book in which to record Final Judgments. In a county in which the Official Record Book has been adopted as the only book or the exclusive book for the recording of Final Judgments, the recording of a Final Judgment in the Official Record Book of that county, when rendered by a court of that county, complies with the provisions of Chapter 55.10, Florida Statutes 1975, so as to create a lien on all real estate owned by the judgment debtor in that county as of the date of recording of the original of the Final Judgment, and it is not necessary, in order to comply with Chapter 55.10, Florida Statutes, in order to create a lien on real estate in that particular county owned by the judgment debtor, to additionally record a certified copy of that same Final Judgment in the Official Record Book of that county.”

We are of the view, and so hold, that the trial judge was correct. Appellants’ reliance on Dade Fed. Sav. & L. Ass’n v. Miami Title & Abstract Div., supra, is misplaced. The situation in that case is exactly opposite to that sub judice. There the court held that the statute, as then worded, requiring the recordation of “the judgment or decree” meant the recordation of “a certified copy”. Sub judice, the statute having now been amended to provide for the recording of a certified copy,.the trial judge, held, as do we, that the recording of the original judgment has the same effect as would the recording of a certified copy thereof. As stated in the above-mentioned opinion:

“No literal interpretation should be given a statute which leads to an unreasonable or ridiculous conclusion or result obviously not designed by the legislators. (Citations omitted) (217 So.2d 873)
# * * * # *
“Clearly, the language ‘judgment or decree’ used in the 1967 amendatory act here under consideration must be held to mean a certified copy of such judgment or decree. To attempt to apply in unyielding literal interpretation of the words used would lead to a ridiculous absurdity.” (217 So.2d 878)

The above-quoted words are equally applicable here. It would be absurd indeed to conclude that the legislature intended for a certified copy of a judgment to enjoy a higher dignity or be more effective than the original.

Appellants’ second point being novel, though without merit, justifies our attention. Appellant urges that a trial court located within the jurisdiction of the District Court of Appeal, First District of Florida, is bound by decisions of other district courts and that failure to follow decisions of other district courts should require reversal. Such a holding could lead to utter chaos were two of our sister courts to be in conflict on a point of law raised in a trial court in this district. Also, an anomalous situation would result were we to reverse a trial court in this district for failing to follow a decision of one of our sister courts with which we disagreed. The fact is that trial courts, as appellate courts, have the duty and obligation to follow and apply the law. We are not unaware that determining what is “the law” may sometimes be difficult.

AFFIRMED.

RAWLS and McCORD, JJ., concur.

ON PETITION FOR REHEARING

BOYER, Chief Judge.

The original opinion in this case predated oral argument in Meadows Development Company v. George Ihle, Case No. CC-215, Opinion filed this date (Fla. 1st DCA 1977). Appellants have filed a Petition for Rehearing and numerous motions have been filed by interested parties seeking to appear ami-cus curiae. We therefore delayed consideration of the motion for rehearing filed in this case until after hearing and determination of Meadows Development, wherein the identical points were urged as now urged by appellants in their Petition for Rehearing sub judice, but which points were neither raised nor briefed prior to entry of our opinion herein.

The specter of Rhea v. Smith, 274 U.S. 434, 47 S.Ct. 698, 71 L.Ed. 1139 (1927) and its progeny has now been raised for the first time on petition for rehearing. Although now considerably enlightened, not only by the declarations contained in the Petition for Rehearing but also by the opinion of our brothers in Meadows Development Company v. Ihle, we nevertheless adhere to the holding announced in our foregoing opinion.

We do not intend to belittle the goblins paraded by appellants in their belated Petition for Rehearing. Although we were not initially made aware of the horribles which might well result were our opinion to be construed, as creating a disparity between state judgments and those of federal courts, all of which we now recognize and appreciate, we do not construe our opinion as creating such a disparity. Our reasons for so determining are the same as so ably explained by our brothers in part three of their opinion in Meadows Development and no useful purpose will be attained by repetition here.

Nor are we willing, in order to avoid any possibility of our opinion being misinterpreted so as to create a disparity, to sacrifice the rights of appellee who apparently construed the statute as have we. We are not unmindful of the assertion that no injustice would result were appellee to be rendered a sacrificial lamb in the interest of a construction of the statute in such a manner as to absolutely assure no interpretation of disparity because a simple reading of the statute, as amended in 1972, would have informed appellee in the very beginning that the recording of the certified copy of judgment in addition to the original was required. Such a simplistic approach would have more validity were it not for the fact that the three senior members of this court faced with the identical statute and after having repeatedly read same and after having heard oral argument by able counsel and following post-argument conference, albeit then ignorant of the parity argument (as perhaps was appellee), nevertheless construed the identical statute as requiring the recordation of either the original judgment or a copy thereof. It is clear, it appears to us, that to hold otherwise in the interest of assured parity would constitute a compromise of appellee’s rights in order to achieve what is now, urged as a desirable result. That we are unwilling to do.

We are unwilling to recede from our opinion for the further reason that to do so, viz: To hold that the legislature intended for a certified copy of a judgment to enjoy a higher dignity or be more effective than the original, would create an absurdity. Absurdities in the law foster disrespect for the law and certainly few would gainsay the absurdity of holding a copy superior to the original and that it is necessay to record a copy in the same book as the original, thereby duplicating the number of pages in the book with no real nor logical purpose. Certainly any title examiner examining the official records of a county can see an original judgment as readily as a copy thereof. Appellate courts have repeatedly paid lip service to the proposition that statutes will not be interpreted so as to obtain an absurd result. Sharon v. State, 156 So.2d 677 (Fla. 3rd DCA 1963); State v. Willis, 124 So.2d 48 (Fla. 1st DCA 1960); State v. Sullivan, 95 Fla. 191, 116 So. 255 (1928); Dade Fed. Sav. & L. Ass’n v. Miami Title & Abstract Div., 217 So.2d 873 (Fla. 3rd DCA 1969). . It would now be absurd, in our view, to pay lip service to the principle yet all the while apply an absurd construction to arrive at an absurd result. It is not a matter of whether the legislature has the right and authority to act absurdly, but whether this Court, under the law long since announced, should place a construction on the acts of the legislature such as to create an absurdity, when the act is susceptible of a logical, valid and reasonable contruction and interpretation.

In Dade Federal, supra, the court recited: “ * * * Pursuant to such determination, the lower court held that Miami Title fulfilled its contractual obligation to furnish a complete abstract of title, insofar as judgment liens were concerned, when it conveyed such information pursuant to search only of the Official Record Book in the Dade County Circuit Clerk’s office. We agree with the lower court.” (217 So.2d 879)

Such is the effect of our holding sub judice.

As stated in Meadows Development, F.S. 55.10 expresses no evidentiary preference for either “original” or “certified copies” of judgments when it makes judgments rendered in a county a lien on land in that county when recorded in the Official Records. The statute is indifferent as to whether the federal judgment presented as the basis for a lien is an authenticated original, borrowed temporarily for recordation, or a certified copy. That is so whether considering the statute before or after amendment. Therefore, for that further reason, our holding creates no disparity between judgments rendered by state courts and federal courts.

Nor is our holding in this case necessarily in conflict with that of our brethern in Meadows Development. In that case the Court construed F.S. 55.10 as it existed prior to 1972. Any recitation in the case to the contrary, the subsequent amendment had no effect on that case whatsoever. Sub judice we construe the statute as amended. While the statute prior to amendment is of historical interest it has no application here. Our holding in this case is confined to the statute as amended..

It has been suggested that the legislature should revisit the problem and explicitly require double recording in order to achieve assured parity of treatment between state and federal judgments. Whether or not the legislature should further consider the matter is uniquely within its discretion in its infinite wisdom. However, should it elect so tó do, we observe that equality or parity (should there be any doubt about its existence under our holding here) may be more logically and realistically achieved, and certainly with less expense to the litigants and taxpayers alike, by simply requiring that the clerk make a charge for the recording of all judgments, whether original or copy or in the alternative that he be directed to record without charge all original judgments coming into his possession or control for recordation. By so providing there could be no possible question of disparity and the absurity of double recording would be avoided. Likewise, the enormous cost to the taxpayer of maintaining double records in the same book would be avoided.

Notwithstanding our confidence in our holding, in order that the Supreme Court of Florida may review same in the light of the fears expressed in appellant’s Petition for Rehearing, and in the several motions for permission to appear amicus curiae, we here certify, as did our brethern in Meadows Development, that this decision passes upon a question of great public interest.

The Petition for Rehearing and the several motions to appear amicus curiae are each severally denied.

RAWLS, J., Concurs.

McCORD, J., Dissents.

McCORD, J.,

Dissenting.

From the history of this legislation as set forth in the opinion of another panel of this court in Meadows Development Company v. George Ihle, Fla.App., Case No. CC-215, opinion filed this date, it is clear that the legislature meant what it said in its amendment of section 55.10 by Chapter 71-56, Laws of Florida, effective January 1, 1972. Such amendment requires recordation of “a certified copy ... in the official records or judgment lien record of the county . . .” This is further borne out by the amendment of Section 28.29 by Chapter 72-320, Laws of Florida, effective April 1, 1972, to provide:

“The certified copy of a judgment required under § 55.10 to become a lien on real property, shall be recorded only when presented for recording with the statutory service charge.”

I would, therefore, grant the petition for rehearing, vacate our previous affirmance, and reverse.


author: PER CURIAM. PEARSON, Judge

text:
    Arthur C. KLARISH, Appellant, v. Stephen H. CYPEN, Appellee.
    No. 75-1301.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 18, 1977.
    Greene, Layne & Immer, Friedman & Britton and Edward A. Kaufman, Miami, for appellant.
    Podhurst, Orseck & Parks, Miami, for ap-pellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Arthur G. Klarish, defendant in the trial court, appeals a final judgment awarding plaintiff, Stephen H. Cypen, a reasonable attorney’s fee of $30,000.

The questions presented for our consideration are whether an agreement existed between the parties as to an attorney’s fee and secondly, if an agreement did not exist, is an attorney limited to the amount stated in the agreement believed by him to be valid or may he recover the reasonable value of his services when that value exceeded the amount in the alleged agreement.

Appellant Klarish retained Irvin Cypen to represent him in a dissolution of marriage action. It was initially agreed that in the event the proceeding was uncontested Cy-pen’s fee would be $1,000 plus costs and Klarish paid Cypen a $1,000 retainer. However, the action was contested and on June 6, 1973 Cypen sent Klarish a letter setting out a minimum fee of $5,000 plus an incentive fee schedule based upon the duration of the alimony payments, i. e. the shorter the alimony period, the higher the fee. This letter also required an additional $1,500 retainer which Klarish paid. A dissolution of marriage judgment was entered with a four-year alimony provision. Irvin Cypen assigned his claim for services to Stephen Cypen who, pursuant to the fee schedule in the June 6 letter, rendered a statement for $13,111.03 to Klarish. Klarish refused to pay the bill contending that he and Irvin Cypen had agreed to a $5,000 fee. Thereupon, Stephen Cypen filed suit to recover for the legal services rendered. He declared on the express agreement as evidenced by the June 6, 1973 letter in the first count of his complaint and in the alternative on quantum meruit in the second count. The cause was tried non-jury and the trial judge found that there was not a meeting of the minds with respect to the amount of the fee and, therefore, there was no express agreement between the parties. Thus, plaintiff was permitted to proceed in quantum meruit. Based upon the evidence as to the reasonable value of the legal services rendered, Cypen was awarded $30,000 (less the $2,500 retainer) plus the costs incurred in the dissolution proceeding.

Going to the first question as to whether an agreement existed between the parties as to an attorney’s fee, the record reveals that the parties' were hopelessly in conflict as to the amount of Cypen’s fee and, therefore, we find no error in the judge’s determination that no valid fee agreement existed between them. The existence of a contract for legal services, its terms, conditions and nature are issues for the trier of the fact. Lamoureux v. Lamoureux, 59 So.2d 9 (Fla.1951).

Turning to the second issue presented, appellant Klarish contends that the amount of recovery is limited to the amount stated in the disputed contract and in support cites to Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928);. Solutec Corporation v. Young & Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). These cases are factually distinguishable from the case at bar and are not controlling. In Hazen, supra and Solutec Corporation, supra, there was no disagreement as to the contract price and the contracts were only partially performed. In Ballard, supra, the plaintiff abandoned his count declaring an express contract. In the instant case there being no agreement as to the fee, we find the following statement of law in 66 Am.Jur.2d, Restitution and Implied Contracts § 63 at 1009 (1973) to be dispositive of this issue:

“63. — Indefinite agreements; failure of minds to meet.

“One who performs services in reliance upon an agreement which is void for indefiniteness, but which he believes to be valid, is entitled to recover the reasonable value of the services upon an implied contract arising out of their rendition upon request, and in the known expectation of receiving compensation therefor. The generally recognized doctrine is that although there was no contract, because the minds of the parties did not meet as to some of the essential' terms thereof, a party thereto who furnishes material or renders services to the other party, relying on the terms as he understood them and thinking there was an express contract, is entitled to recover what the labor or material furnished was reasonable worth, even though it is in excess of the specified price. This is true where the minds fail to meet as to the compensation to be paid, . . . ”

We find no error in the trial judge’s determination that no valid agreement existed and the award of $30,000 is within the limits of the expert testimony. Therefore, it would not be appropriate for us to reevaluate, and we will not, the evidence on the record and substitute our judgment for that of the trial court. See Shaw v. Shaw, 334 So .2d 13, 16 (Fla.1976).

Affirmed.

PEARSON, Judge

(dissenting).

It seems to me that the question presented is: May an attorney perform legal services under a claimed contract of employment specifying a definite charge for the service and, after having rendered a statement of amount due under the contract and upon the client’s denial of the contract amount, recover the reasonable value of his services when that reasonable value exceeds the amount specified in the claimed contract? I would hold that the amount of the recovery is limited to the amount recoverable under the claimed contract of employment.

I think that in a case such as this, where the plaintiff has declared upon the express contract and has gone to the jury on his proof of that contract, that the value therein that the plaintiff has set upon his services is the maximum amount that he can recover without proof of additional damages. See Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928); Solutec Corporation v. Young & Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971); and Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). A recovery of an additional amount for the same services performed under the contract would be a reward to the plaintiff in the nature of punitive damages against the defendant because of the defendant’s denial of the contract for services.

Therefore, the judgment should be reversed in part as to the amount of damages awarded, and the cause remanded with directions to enter an amended final judgment awarding the plaintiff $11,833.00 as the balance due upon his fee for services rendered to the defendant and, in addition, to award plaintiff the costs advanced in the original proceedings as well as costs in the trial court.


author: PER CURIAM.

text:
    Arnold Roy LONGSHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 75-2010.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 18, 1977.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The appellant was charged in a two-count information with possession and sale of a controlled substance. At the time of trial an undercover agent testified to the purchase of four packets, the contents of which were not described. The packets were marked for identification. Thereafter, the State produced an expert on chemical analysis, who testified that he had examined four packets and they contained a controlled substance sufficient in quantity to warrant a felony prosecution. He did not identify the four packets as being the same ones referred to by the undercover officer in his testimony.

At the conclusion of the State’s case, defense counsel made a proper motion for acquittal, which motion was denied. Thereafter, the defendant put on a defense and, subsequent to the conclusion of all the evidence and further motions for acquittal, the trial judge (non-jury) found the appellant guilty as charged, adjudicated him guilty, and sentenced him accordingly. This appeal ensued. The principal point on appeal is that the trial court erred in denying the motion for acquittal at the close of the State’s case.

The alleged packets of marijuana could not have been admitted into evidence because the chain of possession was not sufficiently established. Novak v. District of Columbia, 82 U.S.App.D.C. 95, 160 F.2d 588 (1947), compare Urga v. State, 155 So.2d 719 (Fla. 2nd D.C.A.1963). Therefore, testimony as to the chemical analysis of the contents of the packets would not serve to sustain a conviction. The undercover agent could have established the nature of the substance, which he allegedly purchased from the defendant, had he been qualified as an expert in some fashion. However, he did not. Cali v. State, 111 So.2d 703 (Fla. 2nd D.C.A.1959); Koran v. State, 213 So.2d 735 (Fla. 3rd D.C.A.1968); Salas v. State, 246 So.2d 621 (Fla. 3rd D.C.A.1971).

In the State’s brief, it is conceded that the police chemist testified concerning the contents of the packets without directly connecting them to the undercover officer or the defendant. Without a' connection, however, there is nothing to establish a necessary link between the chemist’s testimony as to the contraband and the defendant.

Therefore, the conviction, adjudication, and sentence under review be and they are reversed with directions to discharge the appellant.

Reversed and remanded, with directions.


author: HENDRY, Chief Judge.

text:
    Samuel MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-610.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 18, 1977.
    Max B. Kogen and Geoffrey C. Fleck, Miami, for appellant.
    Robert L. Shevin, A tty. Gen., and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   HENDRY, Chief Judge.

Appellant, Samuel Miller, was charged by indictment on February 26, 1975, with first degree murder in violation of Section 782.-04, Florida Statutes (1975). The case proceeded to trial, non-jury, whereupon, at its conclusion, the court adjudicated appellant guilty of second degree murder. Thereafter, appellant was sentenced to fifteen years imprisonment. Motion for new trial was denied and this appeal follows.

Appellant raises the following points on appeal: (1) that the trial court erred in failing to grant appellant a new trial in that the court had read the depositions of prosecution witnesses before being apprised of appellant’s intention to waive jury trial and had thus developed preconceived conceptions as to the proper outcome of the trial, thereby denying appellant a fair and impartial trial; (2) that the evidence was insufficient, as a matter of law, to sustain a second degree murder conviction, thus establishing error of the trial court in refusing to grant appellant’s motion for judgment of acquittal, made at the conclusion of the state’s case, and motion for new trial; (3) that reversible error was committed in allowing the state to use a prior statement of a prosecution witness that had not been made available to appellant, pursuant to Rule 3.220, Fla.R.Crim.P.; (4) and that the court erred in denying appellant’s motion for mistrial when the state sought to impeach appellant on cross-examination by the use of his silence at the time of his arrest and in the face of accusation, in violation of his fifth amendment right against self-incrimination.

For the following reasons, we believe the above contentions to be without merit and affirm appellant’s conviction.

Regarding appellant’s initial point, we note that upon appellant’s request for waiver of trial by jury, the trial judge volunteered to appellant that he had read the depositions in the court file of prosecution witnesses. Nevertheless, upon being interrogated by the trial judge a second time, appellant persisted in his wish for non-jury trial.

Appellant argues that the trial judge had developed a preconceived notion of the applicability of certain case law to the case sub judice, however, such contention is completely unsubstantiated by the record. As the judge stated before allowing appellant to sign the waiver: “I have no preconceived notions of the matter, but I do want you to know that I am familiar with it.” In sum, we are satisfied that appellant exercised a knowing and intelligent waiver of his right to trial by jury and was adjudged by a fair and objective trier of facts.

Appellant’s second point is addressed to the sufficiency of the evidence as inadequate to sustain a conviction for second degree murder. We disagree; the record reveals substantial competent evidence to support appellant’s conviction for the above crime. Wetherington v. State, 263 So.2d 294 (Fla. 3d DCA 1972).

Appellant’s third point concerns the use of a written statement by the state’s witness, to refresh his recollection. Appellant contends that his failure to receive a copy of the statement, pursuant to Rule 3.220, Fla.R.Crim.P. amounted to reversible error. In that the statement appeared in the court file, the certificate of service suggested that the statement was in fact mailed to appellant’s counsel and appellant’s deposition of the witness revealed the substantially identical statement, we are of the opinion that no harm or prejudice to appellant occurred. Pizzo v. State, 289 So.2d 26 (Fla. 2d DCA 1974); see State v. Coney, 272 So.2d 650 (Fla. 1st DCA 1973).

Appellant’s final point concerns an alleged violation of his fifth amendment right against self-incrimination. In the case at bar, appellant was asked during cross-examination:

“Did you ever tell anybody on February 15, 1975, what you told the Court today, that Kaplan grabbed your hand and jerked it away and that is what caused the gun to go off?”

The defendant responded:

“I said Kaplan pushed his hand against here. I distinctly recall telling somebody.”

Thereafter, a rebuttal witness, one of the arresting officers, was called by the state and testified that appellant had not stated the above exculpatory story at the time of his arrest.

In light of the fact that appellant chose not to remain silent at the time of his arrest, but allegedly offered the above story to the police, we do not see how appellant’s fifth amendment rights were violated by the state’s challenge to that exculpatory testimony. Cf. United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975) and see footnote eleven (11), Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

After having carefully considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, we conclude that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment and sentence appealed is affirmed.

Affirmed.


text:
    STATE of Florida ex rel. Harold DeGREGORY, Appellant, v. E. Wilson PURDY, Sheriff of Dade County, Florida, Appellee.
    No. 76-700.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 18, 1977.
    Richard J. Beamish, III, Hollywood, for appellant.
    Richard E. Gerstein, State Atty., and John Lipinski, Asst. State Atty., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed upon the rule stated in State v. Starr, 65 So.2d 67 (Fla.1953); and Graziano v. State, 305 So.2d 867 (Fla. 3d DCA 1975).


text:
    Josephine Marie JACKSON, Appellant, v. James H. JACKSON, Appellee.
    No. 76-1067.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 18, 1977.
    Jules R. Israel, Opa Locka, for appellant.
    Melvin Wolfe, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Gleim v. Gleim, 176 So.2d 610 (Fla.3d DCA 1965); Cohen v. Cohen, 321 So.2d 97 (Fla.4th DCA 1975); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


author: McNULTY, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Terry TRAAS, Appellee.
    Nos. 76-600, 76-601.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Rehearing Denied April 21, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    James D. Eckert, St. Petersburg, for ap-pellee.
   McNULTY, Acting Chief Judge.

Only one point merits discussion in the state’s consolidated interlocutory appeals herein, and that relating to an order suppressing certain evidence. We think the point is well taken and reverse the order to suppress.

Appellee Traas was employed as a nurse in Operation P.A.R., a facility receiving federal-grant funds for the treatment of patients with heroin addiction. John Raleigh, a confidential informant, was a bona fide patient at Operation P.A.R. receiving methadone for his heroin habit. He testified that he was commissioned as an undercover informant for work “on the street” and at the time of such commission neither he nor the police who hired him knew of any illegal involvement with narcotics by anyone employed in P.A.R.

Eventually, Raleigh suspected that Traas was involved illegally in narcotics and reported his suspicions and observations to the police. A buy was ultimately set up and consummated on August 6, 1975, at Traas’ home, giving rise to the single transaction charges of sale and possession in the instant case.

Traas’ principal contention in the motion to suppress filed below, apparently agreed to by the trial judge, was that since Operation P.A.R. was a federally funded narcotics treatment center, and because the regulations of the United States Department of Health, Education and Welfare, pursuant to the Drug Abuse Office and Treatment Act of 1972 prohibit enrollment of an undercover agent or informant in any drug abuse treatment “program” without court order (the fact here), the information obtained through the informant Raleigh was illegally obtained. Thus, she argues, under the “poison fruit” doctrine the evidence obtained herein during the ensuing alleged sale charged was tainted. We can’t agree.

In the first place, the.“poison fruit” doctrine presupposes wrongful acts of the police. Here, Raleigh was a paid “street informant”, not hired to spy or inform regarding illegal narcotic activity within P.A.R. Neither he nor the police who recruited-him were aware of any such illegal activity. When he found out about the possibility of such activity he then, informed his employers. Such information was neither solicited nor anticipated. To that point, therefore, the police had done no wrong. If they did any wrong thereafter, assuming the validity of the argument that Federal Regulations precluded as, unlawful an undercover agent within the “program”, it was in not “de-commissioning” Raleigh. In any event, that “wrong” was after they received the information upon which they acted; and, the record reflects that no other evidence was obtained through-. Raleigh’s surveillance prior to the alleged sale, which we discuss below. In short, we know of no rule which would apply retrospectively the “poison fruit” doctrine so as to “taint” prior legally and innocently discovered evidence.

But even if we assume “poisoned” information, the doctrine admits a purging thereof by sufficiently independent circumstances. Here, the alleged subsequent, independent illegal sale, at this point presumably voluntarily entered into by appellee Traas (from which sale the possession charge herein also arose), sufficiently in our view stands on its own feet and supports the admissibility of the evidence suppressed. Stated concisely otherwise, any preexisting taint was purged by the sale.

In view whereof, the order appealed from should be and it is hereby vacated and set aside and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.

      . 21 U.S.C. § 1175.

      . 40 Fed.Reg. 27809 (1975). The obvious laudable purpose of the rule is to encourage participation in the program by heroin addicts and to allay fears of police “spying” or intimidation.

      . Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . Wong Sun, supra.

      . State v. Smail, 337 So.2d 421 (Fla.2d DCA 1976).


text:
    CAMACHO ENTERPRISES, INC., a Florida Corporation, Appellant, v. BETTER CONSTRUCTION, INC., a Florida Corporation, Appellee.
    No. 75-2002.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Rehearing Denied April 18, 1977.

      Lopez & Harris, Miami, for appellant.
    Seymour M. Litman, Miami, and Charles D. Bernard, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, appeals from a final judgment entered in favor of appel-lee, plaintiff below, in an action to obtain distribution of a share of profits from a joint venture agreement.

On March 28, 1970, the parties entered into a written joint venture agreement whereby appellee was to construct nine houses upon the property of appellant. The contract provided that the nine houses were to be completed within six months from the date of the agreement “barring strikes, non-availability of materials or other causes beyond control of second party (Better Construction).”

Shortly thereafter, construction was commenced on five houses, which were timely completed pursuant to the agreement. Construction was later commenced on the other four houses; however, due to a heart attack suffered by the president of appel-lee, work was not completed until January or February of 1971.

Appellant contends that due to the untimely completion of the remaining four homes, the joint venture agreement was abandoned by appellee, thus precluding ap-pellee from sharing in the profits from the sale of those unfinished homes.

In addition, appellant contends that, even assuming the continued existence of the joint venture, the court appointed auditor’s calculations of the respective contributions of the parties to the joint venture and his calculations of profits earned by the joint venture were not supported by competent substantial evidence. As such, appellant argues that any distribution of profits to ap-pellee based upon said calculations was error.

Finally, appellant contends that the court erred in awarding the auditor a fee for work done in the case in that appellant was not present to contest the amount awarded by the court.

We find appellant’s contentions to be without merit and affirm.

It is an elementary principle of law that a judgment from the trial court comes to an appellate court clothed with a presumption of correctness and will not be disturbed unless there is a lack of substantial competent evidence to support such judgment. Peacock v. Carver, 315 So.2d 214 (Fla. 1st DCA 1975).

We find that the record reveals substantial competent evidence to support the judgment of the trial court that the joint venture agreement was not abandoned by appellee after its president suffered a heart attack and that any delay in the completion of the project was “beyond the control” of appellee, thus entitling appellee to share in the profits of the four remaining homes pursuant to the joint venture agreement.

In addition, we also find substantial competent evidence to support the calculations of the auditor concerning both the initial contributions of the parties to the joint venture and the profits realized therefrom.

As for the amount of fees awarded the auditor for work done in the case, we note that appellant neither sought an opportunity to be heard on the question, nor objected to the amount awarded in the trial court. This failure to raise the issue below precludes our review of the matter for the first time on appeal. See Barton v. Keyes Co., 305 So.2d 269 (Fla. 3d DCA 1974). Nevertheless, we are of the opinion that the award was grounded upon competent substantial evidence and should therefore be affirmed.

After having carefully reviewed the record, all points in the briefs and arguments of counsel, in light of the controlling principles of law, we are of the opinion that no error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed.

Affirmed.


author: PER CURIAM. McNULTY, Judge,

text:
    Willie THOMAS and Annie Thomas, his wife, d/b/a Bon’s Laundry # I, Appellants, v. WESTERN WORLD INSURANCE COMPANY, a Florida Corporation, Appellee.
    No. 76-197.
    District Court of Appeal of Florida, Second District.
    March 23, 1977.
    Rehearing Denied April 21, 1977.

      Richard A. Zacur and Richard Mensh, of Mensh & Mensh, St. Petersburg, for appellants.
    Donald M. Spangler, of Marlow, Mitzel, Ortmayer & Shofi, Tampa, for appellee.
   PER CURIAM.

The issue in this appeal is whether appellants who are insureds are entitled to seek recovery against their liability carrier for an amount in excess of the policy limits where their insurance carrier has wrongfully refused to defend a negligence action against them. The trial court answered the question in the negative and entered summary judgment in favor of the appellee insurer. We reverse.

It is undisputed that at the time material herein, appellants Willie and Annie Thomas owned and were doing business as Bon’s Laundry # 1. The liability for personal injuries was insured by appellee Western World Insurance Company for a limit of $5,000 for a single injury. In September 1973, one Michael Hancock was injured on appellants’ business premises when appellants’ agent, Kenny, who was in sole charge of their premises, allegedly threw acid on him. Hancock filed suit against the Thom-ases on November 26,1973, and process was served on appellants on November 27, 1973.

Three days after being served with process, appellant Willie Thomas went to the carrier’s local agent to make á loss report which the agent reduced to writing saying, in material part, “Kids banging on doors using abusive language. Said they were going to break in and take money. Kenny chased them out and threw sulphuric acid on one kid. Kenny said the same boys had been there before bugging him.” The written report was thereupon, that same day, forwarded to the appellee carrier’s home office together with — and this is significant — a copy of the summons and complaint filed in the case of Hancock v. Thomas, et al.

The significance of the forwarding to the carrier of Hancock’s pleading is that Hancock’s suit sounded in simple negligence, and no punitive damages were sought. Nevertheless, though chargeable with notice of this fact, the carrier’s vice president of claims sent the Thomases a letter by certified mail on December 13, 1973, notifying them that the policy “does not cover the occurrence” and “that this policy excludes claims arising out of assault and battery.” This notice was delivered on December 17, 1973, the twentieth day following service of the complaint upon appellants and the day on or before which appellants were required to respond to Hancock’s complaint against them.

Counsel for both parties have stipulated that the carrier never investigated the claim (beyond taking the aforesaid loss report); that it never attempted to settle Hancock’s claim within policy limits (nor does it appear that an offer to so settle the claim was ever ma'de on behalf of Hancock); that default was entered against the Thom-ases in the Hancock suit on January 18, 1974; and that on July 11, 1974, a final judgment was entered in favor of Hancock and against the Thomases in the , sum of $18,459.73. It is further stipulated that after making the aforesaid loss report the Thomases had no further communications or contacts with the carrier or its agents regarding this matter prior to the instant suit, which was filed on January 14, 1975.

In this suit the Thomases seek the full amount of the judgment against them in favor of Hancock alleging that the carrier had wrongfully refused to defend. While the carrier answered denying liability, it nevertheless thereafter conceded its wrongful refusal to defend and filed an offer of judgment in the sum of $5,000, representing its policy limits. On April 23, 1975, it paid the $5,000 policy limits to Hancock pursuant to a garnishment order in Hancock’s case. The carrier then moved for summary judgment in the instant case and, on January 23, 1976, the motion was granted and a final summary judgment was entered, the trial court finding in pertinent part:

“The contract sued upon clearly excluded assault and battery and suits arising from the infliction of intentional torts. The stipulated facts proved that the defendant’s decision to deny coverage and refuse to defend the matter of Hancock v. Thomas was made with no more information available other than the aforementioned loss report alleging the infliction of intentional acts, and the summons and complaint, which alleged negligence.
“While the court recognizes that the decision to deny coverage and refuse to defend was an error in judgment on the part of the defendant, in view of the allegations of the complaint setting forth a cause of action in negligence, it does not appear to this court as wantonly, maliciously, unethically, or in ‘bad faith’ and that there is no genuine issue of material fact upon these questions

In support of the trial court’s judgment, appellee makes two related arguments. First, it argues that a settlement offer by the injured party in the earlier lawsuit is a prerequisite to the insured’s obtaining any judgment against the insurance company in excess of the policy limits. Second, it says that bad faith is another prerequisite to any excess judgment, and here there is no substantial evidence on which a jury could find bad faith.

Support for appellee’s arguments may be found in Seward v. State Farm Mutual Ins. Co., 392 F.2d 723 (5th Cir. 1968), a diversity case arising in Florida. That case, relying primarily on American Fidelity and Fire Insurance Co. v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965), made the following statements:

“This Court has summed up the Florida law: ‘As we construe the law of Florida, absent conduct amounting to “bad faith” or negligence “to the extent of bad faith”, the policy limits govern insurer’s liability for failure to defend.’ Hendry v. Grange Mutual Casualty Co., 5 Cir. 1967, 372 F.2d 222. See also Burton v. State Farm Mutual Automobile Insurance Co., 5 Cir. 1964, 335 F.2d 317.
“Loose generalizations may be found in secondary sources which state or imply that an insurer is held to strict liability for ‘any damages’ sustained as a result of the breach of contract for failure to defend. An examination of the cases, however, discloses that when an insurer is held liable for the excess over the policy, invariably there was offer to settle the initial claim. And invariably the insurer was either guilty of bad faith in refusing to accept a reasonable settlement within the policy limits or guilty of conduct tantamount to bad faith.
“We read American Fidelity as holding that in the determination whether an insurer’s conduct amounts to bad faith in a suit for the excess judgment, an offer of settlement is a necessary element. . . ”

We cannot agree with the Seward case and accordingly we reverse the judgment of the trial court.

I. Settlement offer as prerequisite

In American Fidelity, after the carrier had denied coverage, the insured employed his own counsel to defend against a suit filed by a third-party claimant. In the course of the litigation, the claimants offered to settle within the policy limits of American Fidelity’s policy. The insured lacked sufficient funds to settle and since American Fidelity had denied coverage, the offer was neither accepted by the insured nor communicated by him or his counsel to American Fidelity. Judgment in excess of the policy limits was thereafter entered and the insured sought to recover the full amount of the judgment. After affirming a finding that the carrier wrongfully refused to defend, the First District Court of Appeal sustained a judgment against the carrier for the full amount of the insured’s liability established in the prior suit. Patently, the court went no further than to equate an uncommunicated offer of settlement with a communicated one so as to place American Fidelity within the general rule that a settlement offer supports an excess judgment against the insurer. It did not hold expressly that a settlement offer was essential to excess liability. We do not think the case impliedly held such an offer essential.

The observation by the Fifth Circuit in Seward that settlement offers seem invariably to appear in “excess over” cases may well be true as far as it goes, but does not necessarily support the ultimate conclusion made by that court that a settlement offer is a “necessary element.” Unfortunately, it appears Seward may have influenced subsequent Florida cases which apparently recognize the possibility of such a rule. We don’t. In any case, at the very least we think it clear that American Fidelity does not stand for such a rule.

We think the issue of whether a settlement offer is a prerequisite for an excess judgment is clarified in Comunale v. Traders & General Insurance Co., 50 Cal.2d 654, 328 P.2d 198 (Cal.1958), a case which is quoted extensively in both Seward and American Fidelity. That case states the following general principle:

“There is an important difference between the liability of an insurer who performs its obligations and that of an insurer who breaches its contract. The policy limits restrict only the amount the insurer may have to pay in the performance of the contract as compensation to a third person for personal injuries caused by the insured; they do not restrict the damages recoverable by the insured for a breach of contract by the insurer.”

Then the case points out that if the insured has employed competent counsel to represent him, there is no ground for concluding that the judgment would have been for a lesser sum had the defense been conducted by the insurer’s counsel. In that situation the liability of the insurer for failure to defend is limited to the amount of the policy plus attorney’s fees and costs. Finally, the case says this reasoning does not apply where the insured is unable to meet a reasonable settlement offer within the policy limits.

The case does not say a settlement offer is a prerequisite to excess liability in every case. It merely says that it is one factor that may lead to excess liability even if the insured employs counsel to represent him.

We think it clearly follows from the Comunale case that even in the absence of a settlement offer, the insurer may be liable for an excess judgment where (1) due to the actions of the insurer, the insured suffers a default or final judgment without benefit of an attorney, and (2) the insured can prove the final judgment would have been lower had the suit been properly defended. Such a case would fall within the general rule, quoted above, that policy limits do not restrict the damages recoverable by the insured for breach of contract.

Of those cases wherein a default had been taken against the insured, we have been unable to find a case, nor has one been cited to us in which, as here, the carrier was not only chargeable with notice that the claim for damages against its insured sounded in an action within coverage of the policy, but was also chargeable with notice of a potential affirmative defense which could and should have been pleaded. The potential defense in this case was that the insured’s agent Kenny committed an act outside the scope of his employment. This defense may well have been sufficient to relieve the insureds from liability that might otherwise have been imposed under the doctrine of respondeat superior. If this defense had been pleaded and established in Hancock’s suit against the Thomases, then the damages for the wrongful failure of the Thomases’ carrier to provide the means of interposing it would be fixed just as certainly as one might measure them in the ordinary “excess over” case by the difference between an offer of settlement made in such case and an excess judgment ultimately obtained.

Now on the other side of the coin, it is black-letter contract law that a party suffering a breach is obligated to take all reasonable means to protect himself and mitigate his damages. Here, for example, depending upon all relevant facts, circumstances and wherewithal on the part of the insureds, reasonable diligence in this regard may have made it incumbent on them to employ independent counsel (even though they became aware of the carrier’s breach at a very late date) either immediately to jump into the fray to preserve remaining rights or to attempt timely to have the default and final judgment set aside. At a trial on the full merits the carrier herein should certainly have the opportunity affirmatively to plead, by amendment if necessary, and establish a breach of this obligation on the insureds’ part in mitigation of its potential liability. This issue, of course, would relate to entitlement to damages, even assuming culpability on the part of the. carrier.

The Thomases here would have the burden of establishing their damages. If the trier of fact determines they were notified so late of the insurer’s refusal to defend that they could not reasonably have been expected to obtain counsel, and if they establish their defense that the act of their agent was beyond the scope of his employment there would be a basis for awarding them the full amount of the judgment against them. If the insureds fail in.carrying this burden, they are in no worse position now than they would be had the carrier not breached its contract and had undertaken a proper defense.

II. Bad faith as a prerequisite

In its final judgment, the trial court relied primarily on the absence of showing of “bad faith.” Even assuming that “bad faith” on the part of the insurer is a prerequisite to recovery in excess of the policy limits, we would be compelled to reverse. In American Fidelity the court held that the insurer’s failure “to investigate and appraise the probability and the extent of [the insured’s] liability, its failure to explore settlement possibilities and to consider the advisability of settlement where [the insured] was being sued for the wrongful death of one youth and injury to another, was tantamount to bad faith in the performance of its contractual obligations to the insured. . ” 177 So.2d at 683. If we were to follow the outline of American Fidelity, we would hold that given a complaint sounding in négligence, and given a possible absolute defense on behalf of the insured, the insurer’s actions raise a triable issue of “bad faith” and summary judgment was improper.

However, we do not agree that “bad faith” or its equivalent is an absolute prerequisite to a recovery of excess damages in the present case. The case which sets forth the standard of “bad faith” as a requirement for damages over policy limits is Auto Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). That case, and Beck v. Kelly, 323 So.2d 667 (Fla. 3d DCA 1975), were each decided within the context of an insured’s failure to exercise good faith in the defense or settlement of claims against an insured. This line of authority relates to the exercise of judgment by the insurer.

In the case before us, there is no threshold question of “good faith” vs. “bad faith.” For here, the company exercised no faith at all. It simply wrongfully refused to comply with its contract to provide a defense on behalf of its insureds. If that breach by insurer caused foreseeable damages to be assessed against its insureds, to that extent the insurer should be held liable.

American Fidelity may indirectly support the idea that bad faith is required for any excess judgment, for the court there did find bad faith. But we are unaware of any Florida case which directly holds bad faith to be a prerequisite to excess coverage where the insurer fails to defend the case in any manner.

An insurer which denies coverage does so at its own risk. This has been held to be true even where such denial is on a mistaken but honest belief that coverage did not exist. St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973). It seems only fair that an insurer whose contracts are by their very nature “adhesive” should be held to at least the same standard of damages applicable to other contracting parties. One purchasing coverage should be able to rely upon this. An insurer at least impliedly represents it will be responsible for damages if it fails to provide the contracted for coverage and defense. The concept of “bad faith” is a viable and useful test for determining damages against an insurance company within the context of settlement negotiations and defense of claims against its insureds. But, employment of the test presupposes the company is attempting to exercise skill, judgment and fidelity on their behalf. Ap-pellee concedes that it did not measure up to this standard.

Accordingly, the judgment appealed from is reversed and the cause remanded for further proceedings consistent herewith. Consonant with the liberality by which amendments to pleadings are allowed under our rules of civil procedure, opportunity ought to be given each of the parties to frame all issues that we have herein recognized as being among those which may be properly addressed.

REVERSED and REMANDED.

BOARDMAN, C. J., and SCHEB, J., concur.

McNULTY, J., concurs specially with opinion.

McNULTY, Judge,

concurring specially.

I fully concur in the reversal of the summary judgment entered herein and in so much of the majority opinion which assumes “bad faith” to be a condition precedent to recovery in an “excess over” case. Moreover, I fully concur that the acts and conduct on the part of the insurer herein, if true, would support a jury finding of “bad faith” in the premises. I would disagree, however, with that portion of the opinion which would eliminate “bad faith” in a case in which a liability insurer breaches its covenant to defend.

The adoption of such a rule would ignore the fact that a liability insurance policy, first and foremost an indemnification contract which incidentally also includes an undertaking to defend (so that the carrier may, rightfully, protect its own interest), is a bifurcated contract which by its express terms limits the responsibility of the carrier. In terms of dollars and cents, the company agrees to pay up to a specified amount a legal obligation of its insured which is predicated on liability together with the reasonable fees and costs of an adequate defense to the claim against the insured. That’s what the insured purchased and that’s all to which he is entitled. Indeed, if in this case the carrier was not guilty of any negligence or conduct “tantamount to bad faith”, but simply tendered the face amount of the policy plus a reasonable sum to cover costs and attorney’s fees saying it was too busy to undertake a defense or merely chose not to, could it be said that ipso facto it would be liable for an “excess over” judgment if one were obtained against the insured? Certainly not.

The reason why “bad faith” has long been considered a condition precedent to an “excess over” judgment is because such a judgment is “punitive” in nature in that it renders the insurer liable for more than he undertook to be liable for; and under black letter contract law a mere breach of the contract will not result in such a consequence.

      . See Beck v. Kelly, 323 So.2d 667 (Fla. 3d DCA 1975); St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973). ,

      . Even if the insured cannot establish that he would have prevailed entirely had he been adequately defended, he might be able to prove that a reasonable defense would have resulted in a damage award lower than that actually incurred. But no point is made on this appeal that the damages to Hancock were excessive.

      . Of course, if the insurer’s.refusal to defend is unjustified, it becomes liable to the insured for reasonable attorneys’ fees and other expenses incurred in defending the action brought by the third party. 44 Am.Jur.2d, Insurance, § 1547; Annot., 49 A.L.R.2d 694, 721 (1956).

      . Where the insured is relying on a settlement offer to prove excess damages, he might arguably need to show that the offer would or should have been accepted had the insurer been properly defending the case. Proof of this issue might, in turn, require some evidence of what constitutes good faith or bad faith. But that is far different from showing bad faith as a prerequisite to any excess liability.

      . See, e. g., Gordon v. Nationwide Mutual Insurance Company, 30 N.Y.2d 427, 438, 334 N.Y.S.2d 601, 608, 285 N.E.2d 849 (1972).