author: ROBERT P. SMITH, Jr., Judge.

text:
    Horace PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. MM-187.
    District Court of Appeal of Florida, First District.
    May 9, 1979.
    Rehearing Denied June 11, 1979.
    Robert G. Kerrigan, of Kerrigan, Estess & Rankin, Pensacola, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   ON MOTION TO DISMISS THE APPEAL

ROBERT P. SMITH, Jr., Judge.

The state’s motion to dismiss Pittman’s appe.al as untimely raises the question of whether the beginning of the 30-day appeal period in this criminal case was postponed by the filing of a motion in arrest of judgment within 15 days after the adjudication of guilt but 65 days after rendition of the jury verdict. The trial court entertained the motion in arrest of judgment but denied it on the merits; hence Pittman’s appeal. We hold that Fla.R.Crim.P. 3.590 requires the filing of any motion in arrest of judgment within four days after the verdict in a jury trial, or by leave of court within 15 days after the verdict; that the trial court is without power to entertain a Rule 3.590 motion in arrest of judgment thereafter; that absent a timely motion in this case, the appeal time began upon rendition of the judgment and sentence; and that this appeal must be dismissed.

Pittman was found guilty of extortion by a jury verdict on March 29, 1977, and without intervening motions he was adjudged guilty and placed on probation on May 20. On June 2, 13 days after adjudication and 65 days after the verdict, Pittman filed a motion for new trial, which the trial court denied as untimely, and a motion in arrest of judgment, which the trial court entertained and denied on the merits in November, 1978, some 17 months later. Pittman appealed within 30 days thereafter.

Pittman urges that his motion in arrest of judgment is addressed to a fundamental deficiency in the prosecution, the utter failure of the information to charge an offense; and that, consequently, his motion was not directed to the jury verdict or to trial proceedings culminating in that verdict, but rather was properly addressed to the judicial act which made those proceedings effective, i. e., the judgment and probationary sentence. On that premise Pittman urges that the judgment of guilt was “the finding of the court” within the meaning of Rule 3.590, which provides in part:

(a) A motion for new trial or in arrest of judgment, or both, may be made within four days, or such greater time as the court may allow, not to exceed fifteen days, after the rendition of the verdict or the finding of the court.

To sustain Pittman’s position would legitimize post-judgment motion practice in a large class of criminal eases tried to juries, if not in all, and would render the appeala-bility of judgments indiscernible for 15 days after rendition, when the opportunity to file a Pittman-like motion in arrest of judgment by leave of court shall have passed.

Those troublesome ramifications aside, Pittman’s interpretation of Rule 3.590 insufficiently takes account of history. Despite functional differences between motions for new trial and motions in arrest of judgment — the one being addressed to regularity of the trial and the efficacy of the verdict, the other to defects apparent on the face of the indictment or information, or the verdict — those motions are linked procedurally by Rule 3.590, as they were for years before 1939, when motions in arrest of criminal judgments were temporarily dispensed with. Chapter 19554, Section 239, Florida Laws (1939); Section 920.02, Florida Statutes (1941). Until then, at least since 1892, motions in arrest of criminal judgments and motions for new trial were to be filed “in the time and manner prescribed for similar motions in civil cases,” which was within a prescribed specified time after the verdict. Sections 1180,1181, 2936, Revised Statutes (1892); Sections 1608, 1609, 4005, General Statutes (1906); Sections 2811, 2813, 6108, Revised General Statutes (1920); Sections 4497, 4500, 8413, Compiled General Laws (1927). In 1967, by a rule in language carried down to now, the Supreme Court revived the motion in arrest of judgment in criminal cases and relinked its filing with motion for new trial. Fla.R. Crim.P. 1.590, 1.610; In re Florida Rules of Criminal Procedure, 196 So.2d 124, 164-65 (Fla.1967). There is no reason to suppose that the Supreme Court intended, through the language relied on by Pittman, to depart from the historic precedent.

When present Rule 3.590 speaks of filings within a specified period after “rendition of the verdict or the finding of the court,” it speaks of equivalent things: the jury’s verdict or the judge’s “verdict” or judgment in a nonjury trial. When as here a defendant has had a jury trial, a motion in arrest of judgment must be filed within the specified period after the jury’s verdict, in the same time and manner as a motion for new trial. If it is not timely filed and a judgment and sentence are entered, no motion in arrest of judgment is thereafter appropriate under Rules 3.590 and 3.610.

If Pittman were in custody and the grounds of his complaint were cognizable under Rule 3.850, the trial court would of course have had jurisdiction to entertain the motion under that rule, and we should have jurisdiction of a timely appeal from the order denying the motion on the merits. Those qualifying conditions do not appear, however, or in any event have not been suggested as a basis for our retaining the case.

The motion to dismiss is GRANTED.

MILLS, Acting C. J., and ERVIN, J., concur.

      . The trial court denied the motion for new trial in December, 1977, but did not act on the motion in arrest of judgment. Pittman appealed to this court from the final judgment within 30 days after his motion for new trial was denied, and no mention was made of his unaddressed motion in arrest of judgment. On the state’s motion, we dismissed that appeal as untimely, agreeing with the trial court that the motion for new trial, filed 65 days after the jury verdict, was untimely, and holding that the untimely motion for new trial did not toll the time for appealing from the May 20, 1977, judgment. Unpublished order in Pittman v. State, No. 11-430, August 3, 1978.

      . Fla.R.Crim.P. 3.600, Grounds for New Trial.

      . Fla.R.Crim.P. 3.610, Motion for Arrest of Judgment; Grounds. See also State v. Cadieu, 353 So.2d 150 (Fla. 1st DCA 1977); Crandall, Florida Common Law Practice (1928), Section 489: “This motion is made by the defendant for the purpose of preventing the entry of a judgment on the verdict, on the ground that there is some error on the face of the record . .”


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    BOARD OF COUNTY COMMISSIONERS, CITRUS COUNTY, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Robert C. Britt, Respondents.
    No. 78-842.
    District Court of Appeal of Florida, Second District.
    May 9, 1979.
    John F. Wendel, County Atty., and Charles P. Chritton of Wendel, Broderick & Chritton, Lakeland, for petitioner.
    Alex D. Littlefield, Jr., State of Florida Dept, of Commerce, Tallahassee, for respondents.
   SCHEB, Judge.

An unemployment compensation appeals referee found that claimant Robert C. Britt was ineligible to receive unemployment benefits. The Board of Review of the Department of Commerce reversed and held that Britt was entitled to benefits. This petition for review by the county followed. We grant the county’s petition, and reinstate the decision of the appeals referee finding Britt ineligible for benefits.

Robert Britt became the landfill director of Citrus County in October 1974. Britt quit his job at a county commission meeting on April 19, 1977, in the face of accusations that he ordered, or at least permitted, county employees to perform services for him at his personal residence. Britt subsequently applied for unemployment benefits, but his application was denied. Britt then obtained a hearing before an appeals referee of the Department of Commerce.

The appeals referee heard the testimony of Britt and Larry Haag, an assistant county attorney. Pertinent portions of the transcript of the county commission meeting of April 19, 1977, were received into evidence.

The evidence before the appeals referee revealed that during April 1977 Walter Bunts, the chairman of the county commission, was told that several county employees had installed a CB antenna at Britt’s personal residence during working hours. Chairman Bunts and attorney Haag conducted an informal investigation into the matter. At the next county commission meeting on April 19 Britt was informed of the allegations against him. The county attorney explained Britt’s due process rights under the county’s personnel rules, and the commission’s options in pursuing the matter. The county attorney suggested that the commission consider suspending Britt, which would require a public hearing on the matter. Britt then asked to speak. A colloquy involving Britt, the county attorney, and the commissioners ensued. Britt stated that he wished to waive all the due process procedures, and added: “I come before the Board on my own volition and say, gentlemen, I am guilty, fire me now, and end it.” The county attorney and commissioners attempted to dissuade Britt from this position, and encouraged him to avail himself of his right to a public hearing. However, Britt was adamant, and the commission finally voted to dismiss him.

Before the appeals referee Britt explained that he had insisted on his termination at the commission meeting in order to protect others. He stated that he had hired a private contractor to install the antenna at his personal residence, and that unbeknownst to him county employees had assisted the contractor on the job. He admitted that he was remiss in not disciplining the employees when he later found out about their activities, but adamantly denied that he had instructed them to perform the work at his residence.

The appeals referee found that Britt was not discharged by the county for misconduct, but that he was nevertheless ineligible for unemployment benefits because he had “voluntarily left his employment without good cause attributable to the employer.” The Board of Review agreed that Britt had not been discharged for misconduct, but held that the appeals referee erred in finding that Britt had voluntarily left his employment. Specifically, the Board of Review found:

[Claimant's request to be terminated was submitted under emotional stress during a public meeting before the Board of County Commissioners. Under the circumstances, the claimant was not discharged for any act, omission, or course of conduct which can be characterized as misconduct and he did not voluntarily leave employment without good cause within the meaning of § 443.06(1), F.S.

Thus under the Board of Review’s decision Britt would be entitled to benefits.

The county argues that the appeals referee was correct in finding that Britt had voluntarily left his job without good cause, and that the Board of Review erred in overturning this decision. We must agree. Irrespective of Britt’s motivation in asking to be terminated, it is clear that at the time he appeared before the county commission he knew of the accusations the county was prepared to make against him. Moreover, it is equally clear that Britt was fully advised that he could avail himself of a hearing at which he would have an opportunity to reply to these accusations. Understandably, Britt may have been emotionally upset at the time of his appearance before the county commission; however, this cannot relieve him of the responsibility for his acts. When an employee, in the face of allegations of misconduct, chooses to leave his employment rather than exercise his right to have the allegations determined, such action supports a finding that the employee voluntarily left his job without good cause. Quick v. North Central Florida Community Mental Health Center, 316 So.2d 301 (Fla.1st DCA 1975). The appeals referee is the factfinder in respect to unemployment compensation benefits, and where there is substantial, competent evidence to support his findings his decision must be upheld. Department of Commerce v. Dietz, 349 So.2d 1226 (Fla.2d DCA 1977). Accordingly, the Board of Review erred in reversing the finding of the appeals referee.

The county further argues that both the appeals referee and the Board of Review erred in holding that Britt was not discharged for misconduct. Since we have held that Britt voluntarily left his job without good cause and thus is not entitled to benefits, it is not necessary that we determine this point. However, we note that Britt admitted that he made no effort to report the employees’ activities to his superiors or to rectify the matter in any way when he learned that they had aided in the installation of the antenna. This behavior falls far short of the legal and moral standards which our citizens are entitled to expect from their governmental officials and employees. See generally § 112.313(6), Fla. Stat. (1977); City of Clearwater v. Garretson, 355 So.2d 1248 (Fla.2d DCA 1978).

We quash the decision of the Board of Review and reinstate the appeals referee’s decision finding Britt ineligible for unemployment compensation.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . The Board of Review within the Department of Commerce exercises the power of review formerly vested in the Industrial Relations Commission. §'20.17, Fla.Stat. (1977). Judicial review of the Board’s orders is provided by Section 443.07(4)(e), Florida Statutes (1977), and Florida Rule of Appellate Procedure 9.110.

      . The Department of Commerce has acknowledged in its brief that the appeals referee’s holding that Britt voluntarily left his employment without good cause attributable to his employer was supported by competent, substantial evidence, and should have been affirmed by the Board of Review. In view of the Department’s position we gave respondent Britt, who had not previously appeared in this proceeding, an opportunity to file a brief in his own behalf. However, Britt did not avail himself of this opportunity.


author: GRIMES, Chief Judge.

text:
    OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA, Appellant, v. Donald L. STEVENSON d/b/a Stevenson Insurance, Appellee.
    No. 78-1526.
    District Court of Appeal of Florida, Second District.
    May 9, 1979.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellant.
    Donald G. Jacobsen of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P. A., Lakeland, for appellee.
   GRIMES, Chief Judge.

This is an appeal from a final judgment determining that appellee (Stevenson) is entitled to recover attorney’s fees from appellant (Occidental) on the basis of a cross-claim for indemnity filed by Stevenson against Occidental.

On May 9, 1976, a Mack truck was involved in an automobile accident. Prior to March 25, 1976, this truck had been owned by Peace River Valley Trucking, Inc., a corporation in which James A. Hughey had an interest. Peace River Valley Trucking, Inc. sold the truck to Thomas W. Harris on March 25, 1976, and Harris, in turn, leased the truck to Hughey. Prior to March 25, 1976, Occidental had issued a policy of insurance on this truck with Hughey as the named insured. Hughey had obtained the insurance policy through Stevenson’s insurance agency. This insurance continued in effect through the date of the accident.

After the accident Harris made a claim against Occidental for damages to the truck. Occidental claimed that it had never been informed of the fact that the truck was now owned by Mr. Harris and leased to Mr. Hughey and denied coverage because Hughey did not own the truck as stated in the policy when the accident occurred. A provision in the policy provided that the insurance agreement would not apply if the vehicle became subject to a bailment not specifically declared in the policy.

Harris then brought suit against Hughey, Occidental and Stevenson. He alleged that Hughey had agreed to provide insurance for the truck. Harris further alleged that Hu-ghey had told him that he had advised Occidental through Stevenson of the transfer of the truck to Harris and the lease back arrangement to Hughey. He alleged alternatively that Stevenson was either an independent insurance broker or that he was Occidental’s general agent. Harris contended that he was entitled to recover the damages to his truck from one or more of the defendants, depending upon the agency relationship between Stevenson and Occidental and upon whether Hughey had notified Stevenson and whether Stevenson had notified Occidental of the change in ownership and the lease back arrangement.

The defendants filed several cross-claims, but the only one relevant to this appeal is Stevenson’s cross-claim for indemnity against Occidental. The case was settled prior to trial, and Harris filed a voluntary dismissal with prejudice. Stevenson then requested attorney’s fees from Occidental under his cross-claim for indemnity. At the hearing no testimony was taken, but the parties stipulated that $1,615 would be a reasonable attorney’s fee, if one were awarded. The court entered judgment for Stevenson against Occidental in this amount.

Occidental first points to the lack of a contract upon which an attorney’s fee could have been awarded to Stevenson. Likewise, no statutory basis existed for süch an award because Stevenson was not an insured under the policy. While admitting that an indemnitee is entitled to recover as part of his damages attorney’s fees he has been compelled to pay in a suit involving the matter against which he is indemnified, Occidental argues that there were no set of circumstances in this case under which Stevenson could legally obtain indemnity from Occidental.

There were essentially five outcomes involving a recovery by Harris which would have been possible within this lawsuit:

(1) Hughey failed to notify Stevenson concerning the change in conditions involving the truck. Hughey would be liable to Harris providing the court determined that a contract existed whereby Hughey promised to provide insurance for Harris. Stevenson and Occidental would be exonerated.

(2) Hughey did notify Stevenson, but Stevenson, as an independent insurance broker, failed to notify Occidental. Stevenson would be liable to Harris, but Hughey and Occidental would be exonerated.

(3) Hughey notified Stevenson, but Stevenson failed to notify Occidental. Nevertheless, Stevenson held such an agency relationship with Occidental that he had authority to bind the coverage. Occidental and perhaps Stevenson would be liable, but Hughey would be exonerated. Occidental, however, would have a cause of action for indemnity against Stevenson.

(4) Hughey notified Stevenson. Stevenson, as an independent insurance broker, notified Occidental. Harris would recover from Occidental and Hughey and Stevenson would be exonerated.

(5) Hughey notified Stevenson. Stevenson had an agency relationship with Occidental as in the case of the third alternative. Stevenson notified Occidental of the change of circumstances with respect to the truck. Occidental would be liable to Harris. Hughey and Stevenson would be exonerated.

Clearly, under any of the first four alternatives Stevenson could not obtain indemnity for his attorney’s fees from Occidental. However, we believe that if the facts developed according to the fifth alternative then Stevenson could recover from Occidental the reasonable attorney’s fees incurred by him in defense of Harris’ action.

Under this alternative, Stevenson, while acting within the scope of his authority as Occidental’s agent, would have done everything required of him with respect to coverage. Occidental’s denial of coverage would have been improper because Occidental had been notified of the change in conditions involving the truck. While under these circumstances Stevenson should not be held liable to Harris, he nevertheless would have incurred attorney’s fees in defending the suit brought against him. Because he would be blameless and because his principal would be at fault, it seems reasonable that he should be indemnified for his attorney’s fees.

Our conclusion is specifically supported by the Restatement (Second) of Agency § 439 (1958), which reads in part as follows:

§ 439. When Duty of Indemnity Exists Unless otherwise agreed, a principal is subject to a duty to exonerate an agent who is not barred by the illegality of his conduct to indemnify him for:
(d) expenses of defending actions by third persons brought because of the agent’s authorized conduct, such actions being unfounded but not brought in bad faith . . .

The comment on clause (d) states:

An agent who has done an authorized act which brings him into contact with others, such as the making of a contract or the taking possession of a chattel, is ordinarily entitled to indemnity for the expenses of a successful defense to actions brought by third persons acting under the mistaken belief that the agent’s conduct was a breach of contract, a tort, or otherwise created liability to them. If the action is the result of a reasonable mistake of law or fact by the third person, it is within the risks attendant upon authorizing the conduct and one which the principal customarily assumes. See the Restatement of Restitution, § 80.

The rule announced in the Restatements rests upon the notion of principal and agent, and this relationship serves to distinguish the situation in which two parties who share no such relationship are sued but only one of them is found at fault. For example, suppose as a result of a three car accident one of the drivers sues the other two for damages. Ultimately, one defendant is found 100% liable and the other defendant is totally exonerated. The innocent defendant has incurred attorney’s fees in defending himself, yet there is no rationale upon which he can recover his attorney’s fees from the guilty defendant. The same principle would preclude Stevenson from recovering attorney’s fees from Occidental under the fourth alternative described above because even though Stevenson would have been innocent he was not Occidental’s agent.

Thus, we can envision one set of facts under which Stevenson could legally recover his attorney’s fees from Occidental. Under any other circumstances Stevenson has no claim against Occidental. In the posture of this appeal, we must reverse because facts demonstrating which of the alternatives actually occurred have never been proved. The fact that one or more of the defendants may have paid Harris to settle the case is not proof of what really happened. Therefore, the judgment for attorney’s fees is reversed, and the case is remanded for the factual determination necessary to decide whether Stevenson is entitled to recover his attorney’s fees from Occidental.

BOARDMAN and RYDER, JJ., concur.

      . Fontainebleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla. 3d DCA 1962).

      . Under the facts described in the fifth alternative, Harris’ action against Stevenson would have been groundless but, clearly, would not have been brought in bad faith in view of Occidental’s contention that it was never notified of the change of conditions regarding the truck.


author: DANAHY, Judge.

text:
    STATE of Florida, as a party and for the benefit of Dr. Lawrence Hughes, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF GLADES COUNTY, Florida, Respondent.
    No. 78-1855.
    District Court of Appeal of Florida, Second District.
    May 9, 1979.

      Joseph P. D’Alessandro, State’s Atty. and Marshall King Hall, Asst. State Atty., Fort Myers, for petitioner.
    James C. Fountain, County Atty., Moore Haven, for respondent.
    J. E. Hodges, Gainesville, for amicus curiae Medical Examiners’ Commission.
   DANAHY, Judge.

On behalf of Dr. Lawrence Hughes, an Associate Medical Examiner, the state petitions for writ of certiorari to review the lower court’s order denying the state’s motion to tax Hughes’ expert witness fee as costs against Glades County in the criminal case, State v. Lonnie Lee White. We grant the writ and quash the order.

Lonnie Lee White, an indigent, was charged with committing manslaughter by automobile while intoxicated in Glades County. Trial venue was changed to Charlotte County.

Dr. Hughes, who had performed the autopsy on the victim, was subpoenaed by the prosecutor to testify at trial. He testified at trial concerning the cause of the victim’s death. The prosecutor also intended to call him as an expert in histology, concerning the physiological effects of given blood alcohol levels on the human body, but the defendant unexpectedly pled guilty in the middle of trial, and that testimony was not needed. Dr. Hughes also attended a pretrial conference. Dr. Hughes had to travel from Fort Myers to Punta Gorda, where the trial was held, twice — the prosecutor had him appear on the first day of trial, but was unable to get his testimony in, so he had to go back the second day to testify.

Following the trial the prosecutor filed in the Glades County Circuit Court a motion to tax costs of $700 for Hughes’ services based on a statement from the Medical Examiner’s office. That statement listed charges of $700 for a one-hour pretrial conference, two and a half hours for Hughes’ court appearance for the first day of trial, and three and a half hours for his court appearance the seeond day of trial; the charges were calculated on the basis of an hourly rate of $100.

A hearing was held on the motion, which was opposed by Glades County. Dr. Hughes testified that he was simply an employee of Pathology Associates Lab and had nothing to do with setting the fee for his services; his organization charged by the hour for the services of its medical examiners, and he had no knowledge of the hourly rate charged. Martha Lee Sherman, an executive secretary responsible for billing at the Medical Examiner’s office, testified that the office’s usual fee for court appearances was $100 per hour. The prosecutor testified that he believed that in view of the doctor’s qualifications and the time he expended, the $700 fee sought was reasonable.

The lower court denied the motion to tax costs on two grounds: First, the court ruled that Section 914.06, Florida Statutes (1977) requires that an expert witness for the state or an indigent defendant is not entitled to an expert witness fee unless the party calling him files prior to trial a motion seeking his attendance at trial. Here the state had merely subpoenaed the doctor by means of a praecipe for subpoena. Second, the court found that no evidence was presented as to the reasonableness of the $700 witness fee sought.

Under the circumstances sub judice, an expert witness must come within the terms of Section 914.06 in order to be entitled to an expert witness fee. 1972 Op. Att’y Gen. Fla. 072-82 (March 21, 1972).

Section 914.06, Florida Statutes (1977) provides:

In a felony case, on motion of the state or an indigent defendant, the court may require the attendance of an expert witness whose opinion is relevant to the issues of the case. The court shall award reasonable compensation to the expert witness that shall be taxed as costs in the same manner as other costs.

We do not believe that this statute mandates denial of an expert witness fee under the circumstances of the case at bar. A trial court may, of course, quash the issuance of a subpoena to an expert witness when it deems the testimony of such a witness irrelevant to the issues of the case. However, if the witness is subpoenaed and does testify (or, as was the case here, he appears at trial, but his testimony is rendered unnecessary due to a change of plea or the declaration of a mistrial), he is entitled to an expert witness fee.

Because this is so we grant certiorari, quash the order, and remand the cause with instructions to award an expert witness fee. While there was some testimony concerning the reasonableness of the fee sought, i. e., that of the prosecutor, the trial court may, if it deems it advisable, hold a further hearing to determine the amount of the fee to be awarded.

HOBSON, Acting C. J., and OTT, J., concur.


author: KEHOE, Judge. PEARSON, Judge

text:
    Richard Terry KUNTZ, Appellant, v. Tove G. KUNTZ, Appellee.
    No. 77-2079.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 8, 1979.
    Joseph DiBartolomeo, Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Jeffrey M. Mart, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   KEHOE, Judge.

Appellant, respondent below, brings this appeal from a final judgment of dissolution of marriage entered by the trial court. The judgment, inter alia, required appellant to pay appellee, petitioner below, the sum of $400 per month for permanent alimony and $100 per month for child support. From the final judgment, appellant appeals.

Appellant contends, basically, that the trial court abused its discretion by awarding appellee permanent alimony in an amount greater than his net income at the time of the dissolution. The amount of child support is not contested.

At the final hearing in this cause, the trial court took testimony concerning the parties’ relative financial positions. The admittedly incomplete record shows that appellant’s sole source of income at the time of the hearing was $500 gross consisting of retirement pay from the U.S. Army. Out of that amount, appellant was obligated to pay $150 per month to the credit union and $39.55 in taxes. Two-thirds of the payment to the credit union was for financing a car belonging to appellee. This left appellant with an income of $310.45 to cover his monthly living expenses, as he was not otherwise employed. Appellee, at the time of the hearing was earning approximately $96 per week as gross salary. Based upon the testimony, the trial court ordered appellant to pay $400 per month in permanent alimony and $100 per month in child support.

Although in cases such as this we cannot substitute our judgment for that of the trial court by re-evaluating the evidence, it is our duty to overturn an award of alimony which is not supported by substantial competent evidence. See, e. g., Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 384 So.2d 13 (Fla.1976). An essential consideration in an alimony award, in addition to the needs of the wife, is the ability of the husband to pay. See, e. g., Lockwood v. Lockwood, 354 So.2d 1267 (Fla. 3d DCA 1978); and Lytton v. Lytton, 289 So.2d 17 (Fla. 2d DCA 1974). Based upon these principles, we do not feel that we are obligated to affirm an award of alimony, which in our opinion is patently unjust, that would expropriate a former spouse’s entire income or require that spouse to seek additional employment for sustenance; particularly where, as here, there is no showing of a spouse’s willful failure to exert himself to discharge his family obligations. See, e. g., DeHart v. DeHart, 360 So.2d 1285 (Fla. 2d DCA 1978); Wolfman v. Wolfman, 344 So.2d 893 (Fla. 4th DCA 1977); and Weston v. Weston, 251 So.2d 315 (Fla. 4th DCA 1971). A trial court has broad discretion in awarding alimony; however, under the facts of this case, even though it may be desirable to fully compensate appellee, it cannot be done at the expense of appellant’s present ability to maintain himself.

Accordingly, we reverse the alimony award in the final judgment and remand the cause with directions to enter an appropriate award of alimony based upon the respective financial needs and resources of the parties as they existed at the time of the final hearing. We do not agree with appellee’s contention that evidence adduced at a subsequent hearing on appellant’s motion for a rehearing should be considered. This procedure is not justified herein. See, e. g., Maryland Casualty Co. v. Murphy, 342 So.2d 1051 (Fla. 3d DCA 1977); and Fla.R.Civ.P. 1.530. Cf. C. A. Davis, Inc. v. K & R Electric, 350 So.2d 27 (Fla. 3d DCA 1977). This opinion, of course, does not preclude either party from later petitioning to modify the final judgment in the light of changed financial circumstances.

Reversed and remanded with directions.

PEARSON, Judge

(dissenting).

I respectfully dissent upon the following basis. The controlling question presented on this appeal is whether a trial judge may award alimony equal to the husband’s fixed income where the trial judge finds:

“. . . that the Respondent has the ability to provide the support and alimony previously ordered by this Court, but has chosen not to work voluntarily and of his own free will . . ”

The facts giving rise to this order, as gleaned from the incomplete record, are as follows: The appellant, Richard Kuntz, is forty-one years of age and has retired from the armed services because of hypertension. He received a gross pension of $500.00 per month. The appellee, Tove G. Kuntz, was married to Richard for seventeen years. She is forty years of age and, at the time of the hearing, earned a salary of approximately $96.00 per week. At the time of the hearing, Richard’s pension was his sole income; he was living with his mother and not working. The trial court ordered him to pay $400.00 per month in permanent alimony, and $100.00 per month child support. Only the alimony award is appealed.

I would hold that the principles set forth in the cases relied upon by the majority are not applicable to the situation where the court finds that the husband willfully refuses to exert himself to procure the funds necessary to discharge his legal obligations to his family. Cf. Klein v. Klein, 122 So.2d 205 (Fla. 3d DCA 1960).

      . This appeal was filed under the 1962 revision of the Florida Appellate Rules, and we are presented with an incomplete record in the cause.


author: PER CURIAM.

text:
    James H. THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-34.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Richard B. Marx and Steven G. Glucks-man, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

James H. Thomas takes this appeal from a judgment finding him guilty of one count of burglary and one count of grand larceny. The judgment was entered upon a jury verdict. On this appeal, Thomas urges error upon the denial of his pro se motions (1) for a continuance and (2) for appointment of substitute counsel on the ground that the court-appointed counsel was unprepared to proceed to trial. Our review of the record shows no error in these particulars. The court, in fact, granted a continuance of several days for the purpose of allowing court-appointed counsel to confer with the defendant. There was no contention or showing that this time was inadequate. Cf. Holman v. State, 347 So.2d 832 (Fla. 3d DCA 1977).

Thomas next urges that the trial court erred in denying his request to participate in the trial as co-counsel. He relies on the holding of the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He draws from that case an argument that where the court is aware of a defendant’s need for an attorney, but the defendant wishes to proceed as his own attorney, he should not only be given legal counsel to advise and help him, but also should be allowed to run his own defense. We do not infer such a holding from a reading of the Faretta ease. Nevertheless, we have examined this record to determine whether there is any showing that this particular defendant was deprived of a right to participate in his defense. We find an absence of such evidence and a record of a trial judge who showed considerable patience and who attempted to give the defendant every, opportunity to participate in his defense without unduly disrupting the proceedings. Cf. Thompson v. State, 194 So.2d 649 (Fla. 2d DCA 1967); and see United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977).

The third and fourth points presented are without merit and do not warrant further discussion. It is sufficient to say that we have examined these points and find no reversible error.

Affirmed.

      . In a prior appeal by this defendant, who was found guilty of burglary and grand larceny by a jury, adjudged guilty and sentenced, this court reversed the conviction upon a holding of error when the bailiff gave legal instructions to the jury. See Thomas v. State, 348 So.2d 634 (Fla. 3d DCA 1977).


author: SCHWARTZ, Judge.

text:
    J. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-882.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

J.H. appeals from an adjudication of delinquency based upon the trial court’s finding that he was guilty of the crime of robbery. We reverse because the evidence was insufficient to support the finding.

The facts are simple. The victim, a Mrs. Hopkins, was seated on a bus bench when she was approached by two males. One, who was named Mack, sat next to Mrs. Hopkins; the other, the respondent J.H., stood behind the bench. Mack struggled with the victim, grabbed her purse, and then fled the scene. J.H. took no part in the actual robbery and did not even talk to Mack, either before or during its commission. After Mack had taken the purse, however, J.H. ran away with him. When they were both apprehended a short time later, J.H. voluntarily agreed to speak to the officer since he “had not done anything wrong.” His statement was simply that Mack “grabbed the purse, he [J.H.] was behind the bench, and they both took off running.”

The trial judge obviously based the adjudication on the conclusion that J.H.

was shown to have aided or abetted Mack’s actual commission of the robbery, and the state argues that this determination is supported by the record. We disagree. For one to be convicted as an aider and abetter, it must be demonstrated not only that he assisted, but that he intended to participate in the perpetration of the crime in question. E. g. Ryals v. State, 112 Fla. 4, 150 So. 132 (1933); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968). In this case there was no direct evidence of such an intention. The circumstantial evidence upon which the state necessarily relies — that J.H. was present at the scene of the crime and fled after it had been committed — was manifestly insufficient to exclude a reasonable hypothesis of innocence and thus to permit an affirmance. K. W. U. v. State, 367 So.2d 647 (Fla. 3d DCA 1979). A long line of cases involving similar facts has established that such evidence does not exclude the reasonable inference that the defendant had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission. Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, supra; Gilday v. State, 168 So.2d 205 (Fla. 3d DCA 1964). Indeed the facts in this case are, if anything, even weaker than those in Lockett and Douglas. In each of those cases the defendant was a “wheel man” who drove the actual perpetrator to or from the scene of the crime and thus actually aided in its commission; there was no such evidence here. Therefore, the record does not support a finding of guilt as to either of the indispensable elements of aiding and abetting.

The adjudication is reversed and the cause remanded with directions to discharge the respondent.

Reversed and remanded.


author: SCHULZ, Associate Judge.

text:
    Gino MORETTO, Appellant, v. Werner STAUB, Appellee.
    No. 78-1054.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Jerry B. Schreiber, Miami, for appellant.
    Frank, Strelkow & Gay and Peter Strel-kow, North Bay Village, for appellee.

      Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   SCHULZ, Associate Judge.

Appellant, Gino Moretto (defendant in the trial court) brings this appeal from a final judgment entered on April 26, 1978 in favor of the appellee, Werner Staub (plaintiff in the trial court). The action was tried non-jury.

The pertinent facts in this case are that the appellant and appellee entered into an agreement to purchase shares of a corporation known as “Chez Maxim’s” for the purpose of operating a restaurant, which event occurred. Some time later, the parties had a misunderstanding and this litigation arose. The appellee alleged a payment of $20,000.00 into the above-named corporation and sued for an accounting.

Now we have another business that became involved in this suit, called “The Trat-toria Pizzeria”, which we will call the Italian Restaurant. This establishment comes into the picture because appellee claims that a portion of his $20,000.00 went into the Italian Restaurant, which was allegedly operated by appellant and his wife and that they benefited by the funds paid by the appellee to the appellant. This was rebutted by the appellant’s wife, Mrs. Moretto, who testified at the trial that only she owned and operated the Italian Restaurant and that at no time did she play any part in the negotiations between Mr. Staub and her husband, Mr. Moretto. Her testimony was unchallenged and uncontradicted. We must also bear in mind that Mrs. Moretto, the appellant’s wife, appeared in this suit only as a witness. She was never made a party to this litigation, even though the appellee had ample opportunity to join Mrs. Moretto into the subject cause and give her a chance to assert her rights according to the dictates of due process; instead, the appellee chose to ignore her rights to the subject property and business.

The court, in its final judgment which was entered in favor of Werner Staub, stated as follows:

“The Court finds that the Italian Restaurant that is operated by the Defendant, GINO MORETTO and his Wife benefited directly by the funds paid by Plaintiff to the Defendant. Therefore the said judgment shall constitute a lien on the Italian Restaurant . said lien shall attach to all income and personal property of said . . . Restaurant.”

This we find to be error for the reason the final judgment takes on the form of creating a lien against the appellant’s wife, a non-party, which violates her rights of due process.

For many years, the Florida courts have universally recognized that the rights of an individual cannot be adjudicated in judicial proceedings to which he or she has not been made a party and from which he or she has been excluded by the failure of the moving party to bring him properly into court. See: Alger v. Peters, 88 So.2d 903 (Fla.1956).

In the instant cause, as was stated before, Maria Moretto was not made a party to the suit by service of process nor in any other fashion. As stated in Alger v. Peters, supra, at 906:

“ . . . It is so fundamental to our concept of justice that a citation of supporting authorities is unnecessary to hold that the rights of an individual cannot be adjudicated in a judicial proceeding to which he has not been made a party and from which he has literally been excluded by the failure of the moving party to bring him properly into court. Under our system a man’s rights cannot be disposed of or otherwise determined by a judicial decree entered in absentia.”

Also see: E. B. Elliot Adv. Co. v. Metropolitan Dade County, 425 F.2d 1141, 1148 (5th Cir.1970).

It therefore follows that appellant’s wife, Maria Moretto, and her business (referred to as “The Italian Restaurant”) were improperly included in the final judgment and that paragraph 2 of the final judgment is void and of no force or effect.

Accordingly, paragraph 2 of the final judgment is hereby reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded, with directions.


text:
    Lynn MERETSKY, Appellant, v. Jay D. ELLENBY, M.D., Appellee.
    No. 78-1613.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.

      Lopatin, Miller, Bindes, Freedman & Bluestone, Detroit, Mich., Weaver & Weaver and Thomas D. Lardin, Fort Lauderdale, for appellant.
    Thornton, Conroy & Herndon and Neal A. Roth, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant was the plaintiff below in an action for damages against a doctor. The appeal is from a judgment entered for the defendant upon the granting of his motion for a directed verdict filed at the close of the plaintiff’s case. We find error, and reverse.

The plaintiff engaged the defendant doctor to perform an operation on her nose to remote a bump or protrusion on the bridge of her nose which had been caused by her having been hit by a baseball bat when she was a child approximately nine years of age. One count of the complaint alleged negligence, and the second count alleged operation on a portion of the nose without and beyond consent. It is conceded that the first count is no longer applicable. Involved is the second count charging battery. The plaintiff testified that in two interviews with the doctor prior to the operation she expressly told the doctor she did not want him to operate on the tip of her nose or alter the shape of the end of her nose. Thereafter, before the operation, she signed a consent for the doctor to perform a “rhi-noplasty”, which is a general term for plastic surgery on a nose. On the operation, in addition to caring for the bump or protrusion on the bridge of the nose, the doctor operated on the tip of the nose, which he thereby shortened and reshaped into a “turned-up” nose.

This case does not involve any question of lack of informed consent, but presents a claim of absence of consent to operate on the end or tip of the nose and, in fact, of operation thereon against express instructions of the plaintiff not to do so.

In Chambers v. Nottebaum, 96 So.2d 716 (Fla. 3d DCA 1957), this court said:

“The rule is well established which prevents a doctor from operating on a patient without his express or implied consent, or in a manner contrary to the patient’s express instructions. A statement of this rule was made in Wall v. Brim, 5 Cir., 138 F.2d 478, at page 481: ‘ * * * The law is well settled that an operation cannot be performed without the patient’s consent and that one performed without consent, express or implied, is a technical battery or trespass for which the operator is liable. * *

It appears the trial court was of the opinion that in order for the plaintiff to recover against the doctor for performance of an operation without the patient’s consent, or which was contrary to the patient’s express instructions, it was essential for the plaintiff to present evidence of medical experts that the doctor’s action was contrary to an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and the appellee so contends on appeal. We hold such evidence was not required in this case.

The requirement for such medical expert testimony in cases based on a claim of absence of informed consent, Bowers v. Talmadge, 159 So.2d 888 (Fla. 3d DCA 1963); Ditlow v. Kaplan, 181 So.2d 226, 228 (Fla.3d DCA 1966); Thomas v. Berrios, 348 So.2d 905, 908 (Fla. 2d DCA 1977); section 768.46(3) and (3)(a)1, Florida Statutes (1977), is not applicable in a case based on a claim of want of consent (as distinguished from a claim of absence of informed consent), or for an operation claimed to have been performed contrary to the patient’s instructions.

In the informed consent cases, the required medical expert testimony is not for the purpose of presenting medical opinion on the question of whether or not a patient has a cause of action against a doctor for operating without the patient’s informed consent [for which no medical expert testimony is necessary. Cf. Atkins v. Hunes, 110 So.2d 663 (Fla.1959), 81 A.L.R. 590]. The medical expert testimony thus required in eases based on claimed absence of informed consent is presented for the purpose of showing whether the disclosure made by the doctor was such as a medical practitioner in that or similar communities reasonably should have given, in order that the patient’s consent be an informed consent.

In this case, where the claim of the patient is that the doctor operated on the end of the nose without consent, and contrary to her express instructions not to do so, there was no necessity for the presentation of medical opinion as to whether she had a cause of action.

It is the applicable established law, and not the opinions of other doctors, which determines that an operation by a doctor on a person without the patient’s consent or contrary to the patient’s express instructions, constitutes an actionable battery.

The appellee argues that by virtue of Section 768.46(4)(a), Florida Statutes (1977), the plaintiff’s signed written consent to a “rhinoplasty” operated to preclude the plaintiff from maintaining this action. That subsection of Section 768.46 reads as follows:

“A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, be conclusively presumed to be a valid consent. This presumption may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature.”

Subsection (3) of said Section 768.46 to which the above-quoted subsection (4)(a) refers and is applicable, relates to and is concerned with informed consent.

That statutory provision regarding a signed consent is not applicable to the case presented here, and does not operate to bar this action. First because this is not a case claiming absence of informed consent. Secondly, it would not be reasonable to assume that by signing a general consent to a “rhinoplasty” the plaintiff thereby should be conclusively presumed to have given her consent for the doctor to operate (unnecessarily) on the tip or end of her nose, when she had expressly instructed that such not be done. There was evidence from testimony of the defendant and another doctor that an operation on the plaintiff’s nose to correct the bump on the bridge of the nose need not require operating on the tip or end of the nose. Also there was the testimony of the plaintiff that she expressly instructed the doctor not to operate on or alter the end of her nose. Even if the evidence had presented an issue of fact as to the necessity, in removing a protrusion from the bridge of the plaintiff’s nose, to operate also on the tip or end of the nose (contrary to the patient’s instructions), such issue would be one to be determined by the jury. See Russell v. Harwick, 166 So.2d 904, at 905 (Fla. 3d DCA 1964).

For the reasons stated the judgment is reversed, and the cause is remanded for new trial on the count charging battery.


text:
    Bruce CHAPMAN and Sylvia Chapman, husband and wife, Appellants, v. NATIONAL POOL CORPORATION, INC., and the Reserve Insurance Company, Appellees.
    No. 78-1744.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.

      Leland E. Stansell, Jr. and Douglas L. Oppenheimer, Miami, for appellants.
    G. E. Petrie, Jr., Coconut Grove, for ap-pellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Bruce Chapman and Sylvia Chapman sued National Pool Corporation, Inc. In Count One of the Amended Complaint they charged the defendant with breach of the contract entered into between the parties which contract called for construction of a swimming pool by National at the home of the plaintiffs. In Count Two of the Amended Complaint it was alleged that the work was negligently performed.

The defendant’s answer denied that it had breached the contract or had been guilty of negligence. The cause proceeded to a jury trial resulting in a verdict and judgment for the plaintiffs.

Subsequent to the entry of final judgment and denial of rehearing, the plaintiffs determined that the judgment could not be collected from the defendant. Whereupon plaintiffs moved for leave to add as party defendant Reserve Insurance Company, National’s liability insurer, the court granted the motion and Reserve Insurance Company was added as a party defendant.

Plaintiffs’ first amended and second amended complaints were dismissed with leave to amend, and a third amended complaint was dismissed with prejudice.

The determinative point on appeal is whether the trial court erred in dismissing the plaintiffs’ third amended complaint with prejudice. We hold that the court abused its discretion in not allowing plaintiffs further leave to file an amended complaint. See principle enunciated in General Guaranty Insurance Company of Florida v. DaCosta, 190 So.2d 211 (Fla. 3d DCA 1966), 226 So.2d 104 (Fla.1969), reversed on other grounds, and Ferguson v. Goodley, 213 So.2d 495 (Fla. 4th DCA 1968). See also, 18A Fla.Jur., Insurance § 828.

Reversed and remanded with direction to permit plaintiffs to further amend their complaint.

It is so ordered.


text:
    Miriam DONNER, Appellant, v. Vernon HETHERINGTON, the City of Miami, a municipal corporation under the laws of the State of Florida, Metropolitan Dade County, Admiral Insurance Company, Dale Lucas, Janet McCardel, Ludvik V. Zapletal, Richard McPherson, Elizabeth Smith, Evelyn Williams Walden and Appalachian Insurance Company, Appellees.
    No. 78-2105.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.

      Miriam Donner, in pro. per.
    Arthur J. Morburger, Miami, co-counsel for appellant.
    Stuart L. Simon, County Atty. and John E. Finney, Asst. County Atty., for appel-lees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The plaintiff-appellant sued numerous defendants for damages arising out of her having been arrested and thereafter incarcerated in the “women’s annex” of the Dade County Jail. This appeal concerns only a summary judgment rendered below for one of the defendants, Janet McCardel, a Dade County employee who was then the supervisor of the annex.

The record shows that, after her arrest on April 10, 1975, the plaintiff was taken to the women’s prison. As a result of an incident which occurred during the admission process, she was, supposedly for her own protection, ordered by subsidiary jail personnel to be stripped naked and placed in a so-called “safety cell.” The cell, in which Ms. Donner was confined until her release into the general population of the jail on April 15, 1975, was not heated, contained nothing but a mattress core, and was equipped only with an inoperable toilet. Moreover, she alleged, she was given no medical or psychiatric attention during the entire period. The asserted liability of Dr. McCardel for this conduct was based primarily upon her review and approval of an “incident report” from those who dealt directly with Ms. Donner. The report allegedly brought the conditions under which the plaintiff was confined directly to McCardel’s attention and showed on its face that there was nothing to justify that treatment. It is contended that Dr. McCardel’s at least tacit approval of Ms. Donner’s continued imprisonment in the safety cell, as it was equipped, and without medical evaluation, was contrary to the requirements of several Dade County regulations, to Florida statutory provisions, Sections 944.34, 944.35, Florida Statutes (1975), and to those portions of the Florida and United States Constitutions which forbid the imposition of “cruel and unusual punishment.”

We hold that summary judgment was improperly entered in McCardel’s favor. In Paul v. Heritage Ins. Co. of Amer ica, 363 So.2d 563 (Fla. 3d DCA 1978), following Talmadge v. District School Board of Lake County, 355 So.2d 502 (Fla. 2d DCA 1978), we interpreted Sec. 768.28(9), Florida Statutes (1977) to permit the maintenance of an action against a public employee “as a result of negligent acts occurring within the scope of his employment.” 363 So.2d, at 564. It is clear that McCardel did not conclusively demonstrate that she was not guilty of simple negligence and that she was. under this holding, therefore not responsible for the allegedly improper treatment accorded the plaintiff. The summary judgment therefore cannot be permitted to stand. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966); Swenson v. Cahoon, 111 Fla. 788, 152 So. 203 (1934); McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788 (1976).

Reversed and remanded.

      . We reject the appellant’s contention that she was entitled to summary judgment in her favor against Dr. McCardel.

      . We do not reach the question of whether there was also a triable issue that McCardel “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and wilful disregard of human rights, safety, or property.” This would be the pertinent test under Sec. 768.28(9) should the supreme court reverse Tal-madge v. District School Board of Lake County, supra, which is now before it on certiorari granted, and follow the contrary case of Dade County v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977), which we rejected in Paul v. Heritage Ins. Co. of America, supra.


text:
    Agustin F. GRANDA, M.D., and Luis R. Caceres, M.D., Petitioners, v. The Honorable Arden M. SIEGENDORF, Circuit Judge of the Circuit Court in and for Dade County, Florida, and Miguel Angel Rios, Respondents.
    No. 79-348.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Rehearing Denied June 1, 1979.
    Thornton, Conroy & Herndon and Edward N. Winitz, Miami, for petitioners.
    Sams, Gerstein & Ward and Paul M. Rashkind, Miami, for respondents.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The petition for writ of mandamus is granted, the motion to dismiss is denied, and the respondent judicial referee is directed to hold a full medical mediation hearing with all three panel members present based on the authority of Grossman v. Duncan, 371 So.2d 142 (Fla. 1st DCA 1979); Hewitt v. Caffee, 368 So.2d 1342 (Fla. 3d DCA 1979); Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979). We are confident that it will be unnecessary for this court to issue a peremptory writ of mandamus and that the respondent judicial referee upon receipt of this opinion will comply with this court’s directive as stated above. It is so ordered.


author: BERANEK, Judge.

text:
    Benjamin COLE, et ux., et al., Appellants, v. ANGORA ENTERPRISES, INC., etc., et al., Appellees.
    No. 77-712.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.

      Jeffrey E. Streitfeld, of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for appellants.
    Robert S. Levy, West Palm Beach, for appellees.
   BERANEK, Judge.

Appellant seeks reversal of an order dismissing certain counts of a third amended complaint with prejudice. This was a suit by plaintiffs attacking a condominium recreation lease. Count III relates generally to a theory of unconscionability. Count IV seeks to assert the homestead character of the condominium property as a bar to foreclosure. Count VIII seeks a declaratory judgment to the effect that the long-term recreational lease and foreclosure provisions violate Section 689.18 Florida Statutes (1977) which prohibits certain capital re-verter or forfeiture provisions as unreasonable restrictions on alienation of real estate.

On appeal we find that appellant has one meritorious point. We find that the Court below erred in dismissing Count III of the third amended complaint with prejudice. The complaint was properly dismissed but plaintiff should have been given an opportunity to further amend to allege a cause of action based upon unconscionability. This result is based on Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977), which was not available to the trial court at the time of the ruling complained of.

As to Count IV, we find the dismissal with prejudice by the trial court to be correct. This count was based on the theory of homestead and this theory has been rejected in Bessemer v. Gersten (Fla.1979), Case No. 52,264, Decision of February 8, 1979.

We also find the trial court’s dismissal with prejudice of Count VIII to have been correct.

The order below is affirmed in part and reversed in part and the matter remanded for further proceedings consistent herewith.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

DOWNEY, C. J., and LETTS, J., concur.


author: MOORE, Judge.

text:
    Shirley A. MARTIN, and Ronald Martin, Appellants, v. Hubert L. ROSOMOFF et al., Appellees.
    No. 77-760.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.
    Michael Lake and Richard E. Mandell, Orlando, for appellants.
    A. Craig Cameron, Daytona Beach, for appellees.
   MOORE, Judge.

This is an appeal from a final judgment in favor of the defendant in a medical malpractice action.

During the course of surgery a Michel clip, used as a tissue securing device, was left in the incision. Still suffering pain after approximately seven months the plaintiff, wife, returned to the defendant who, upon taking x-rays, discovered the existence of the clip in plaintiff’s lower back beneath the surgical incision previously made by him. An unsuccessful attempt was made to remove the clip under local anesthesia in a treatment room adjacent to the defendant’s office. Two days later the plaintiff was hospitalized and the clip was removed by the defendant after another surgical procedure. Thus, the plaintiffs incurred additional medical expenses for the surgical procedures utilized to remove the clip.

During the seven months while the clip remained inside her lower back the plaintiff complained to several doctors about pain. At trial the defendant presented considerable testimony to the effect that the clip was not responsible for any of plaintiff’s subsequent ailments. The defendant testified:

“We discussed the situation, and I indicated to Mr. & Mrs. Martin, to use a phrase that’s been used here and one of my favorite phrases, that I really didn’t think the presence of the clip amounted to the price of tea in China, and that I did not believe that the clip itself had any thing to do with her present symptoma-tology. If I were to be asked the question, ‘Is there a remote possibility that there could be some connection?’ I couldn’t deny it, but it was my judgment that this was not the case, and if she’d be happier to have it out, I was perfectly willing to do so, because it was close to the surface and should have come out relatively easily.”

The doctor continued:

“ . I would have been perfectly happy to leave it be and consider it to be innocuous. There are pieces of metal, these days, left in individuals — that are huge, compared to this type of surgical clip — which can be tolerated by the body and which I wouldn’t necessarily remove unless I felt it was being detrimental.
But at the same time, if it’s in the patient’s mind this is a cause of their symptomatology, and I did not feel that the procedure, itself, was so risky as to be against their best interest, then under that type of compromise situation and decision with the patient, I was willing to go ahead and take it out.”

Assuming that there was no physiological reason for removal of the clip nevertheless a patient whose body has been violated by leaving surgical tools therein has the right to have such tools removed, even if the reason for such removal is psychologically motivated. As argued by the defendant in his brief the decision to remove the clip was made “with the patient” in order to “redirect the focus of attention” of the patient from the psychological cause of the pain to the presence of the clip, thereby eliminating the pain which was psychosomatic in nature.

Although the trial court instructed the jury that the defendant was negligent in leaving the clip in the plaintiff’s back it also instructed the jury to determine whether such negligence was a legal cause of loss, injury or damage sustained by the plaintiffs. This was error.

The issue of whether a plaintiff’s damages or injuries were proximately caused by the defendant’s negligence is peculiarly a factual question for the jury’s determination. Brightwell v. Beem, 90 So.2d 320 (Fla.1956). This does not mean, however, that a jury may disregard completely that testimony which is not open to doubt and on which reasonable minds could not differ.

In the instant case, the negligent act of leaving the clip in plaintiff’s back clearly and undoubtedly necessitated the subsequent surgical procedures to remove the clip. Although the clip may have been innocuous and not the cause of continuing pain its presence necessitated the plaintiff-wife to undergo two additional surgical procedures, the cost for which the plaintiff-husband became responsible. Thus, the defendant’s negligence was the unequivocal proximate cause of some damage to the plaintiffs and the amount thereof only should have been determined by the jury. The jury should not have been instructed to determine whether the negligence was the legal cause of loss but rather to determine the amount of damages that were legally caused by the negligence.

This cause is reversed and remanded for a new trial on the issue of damages only.

REVERSED and REMANDED.

ANSTEAD, J. and SIMONS, STUART M., Associate Judge, concur.


author: DOWNEY, Chief Judge.

text:
    George Davis YAGER and Jean Ann Howard, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-1634, 77-1878.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.
    Peter D. Aiken of Aiken, Nahoom & Da-more, Fort Lauderdale, and Norman S. London, St. Louis, Mo., for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Robert L. Bogen and Kenneth G. Spillias, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellants were charged jointly in a mul-ti-count information with possession of amphetamines, cannabis, drug paraphernalia, opium derivative, methaqualone, and cocaine. Appellant Howard (a female) was found guilty of possession of cannabis in excess of five grams and an opium derivative (Percodan). Appellant Yager (a male) was convicted of possession of amphetamines, cannabis in excess of five grams, an opium derivative, methaqualone, and cocaine.

Appellants’ brief contains eight points on appeal and we have considered each of them and find no reversible error. The thrust of appellants’ most serious point is that the trial court allowed inadmissible evidence to be introduced against each of them. In our view, the evidence was properly admitted and the verdict demonstrates that following the court’s instruction, the jury convicted the respective appellants of possession of only those items of contraband of which the evidence showed they had knowledge.

Accordingly, the judgments appealed from are affirmed.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    Nancy LOVE, Appellant, v. James Gordon LOVE, Appellee.
    No. 78-112.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.
    Walter Komanski, Legal Aid Soc., Orlando, for appellant.
    No appearance for appellee.
   MOORE, Judge.

In this appeal appellant contends that the trial judge abused his discretion in denying her request for attorney's fees. In doing so the judge stated in the judgment:

“The court further finds that the respondent was referred by the Orange County Legal Aid Society to Attorney James N. Powers and as a result was represented by the Legal Aid Society through James N. Powers as a public service performed by a member of the Bar, upon the premise that neither party has the ability to compensate an attorney for the wife, and as a consequence the claim for an attorney’s fee is hereby denied.”

It is readily apparent that the ‘premise’ referred to above is that of the Legal Aid Society and not that of the judge. No finding was made by the court as to the appellant’s need for, or the appellee’s ability to pay, attorney’s fees.

As to an award of attorney’s fees, we see no reasonable basis on which to distinguish a client of a Legal Aid Society from one who retains private counsel. Accordingly, the judgment is reversed and this cause remanded with instructions to determine the need for attorney’s fees and the appel-lee’s ability to pay same. Assuming the judge finds that appellant is entitled to such an award, he shall determine the amount thereof.

REVERSED and REMANDED.

DOWNEY, C. J., and LETTS, J., concur.


author: SIMONS, STUART M., Associate Judge.

text:
    George KADAR, Appellant, v. STATE of Florida, Appellee.
    No. 78-940.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.

      Maurice Graham of Brimmell & Graham, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   SIMONS, STUART M., Associate Judge.

Appellant appeals from a judgment and sentence entered upon a purported plea negotiation. Thereafter, the appellant sought to withdraw his plea by way of letter addressed to the Court, and later filed a formal motion on the basis that the plea and proceedings were not understood and that the plea of guilty was not knowingly and intelligently entered. Although the record does not reveal a formal order of the court denying the motion for change of plea, it is clear that the trial judge and all parties gained the impression that the court had previously denied the motion; and the record does not reflect an evidentiary hearing on the issues raised in the aforesaid letter, written three days after the plea, nor on the formally filed motion, which was filed some time later. At the time of sentencing, upon the previously entered plea of guilty, the court, without an evidentiary hearing and without a hearing on the motions, entered sentence.

The letter and motion to set aside the plea of guilty raises upon its face serious questions as to whether the appellant, who it is acknowledged throughout the proceedings had difficulty with the English language and who spoke Hungarian, actually understood the full significance of the plea. An interpreter was used throughout the proceedings to interpret the proceedings to the defendant and defendant alleges that only upon his return to the jail did he fully understand the nature of what had occurred. Defendant claims the interpreter did not properly interpret the proceedings. This is buttressed by the interpreter’s own statement in the record, “I am going to learn Hungarian.”

Further, the record indicates that the colloquy was held largely between the interpreter and the court, as evidenced by the following:

THE COURT: Also inform him by changing his plea of not guilty to guilty, that he is admitting everything as stated in the Information here by the State. By changing of not guilty to guilty, that the guilty plea admits the allegations set forth in the Information.
What did Mr. Kadar say?
MRS. MALLACH: He said he understands. He will do everything he can do.
THE COURT: He does allege, admit the allegations set forth in here?
MRS. MALLACH: Yes, he admits. He will do everything he has to do.
THE COURT: Do you also understand, Mr. Kadar, you have a right under the Constitution of the United States whereby you could have six members of the community who would sit as jurors in which event they would determine the truth of the facts which a plea of guilty admits and the State would then have the burden of proving it beyond and to the exclusion of every reasonable doubt, the truth of such facts? Do you understand what I have said?
DEFENDANT: Some of it I understand.

In another portion of the transcript, the following took place:

THE COURT: Has your attorney given you the benefit of his advice to whatever defenses you might have available if you would have gone to trial?
Do you understand? If not, go ahead. I want to find out if Mr. Kundinger has given Mr. Kadar the benefit of his advice as to the defenses which would have been available to Mr. Kadar if he would have gone to trial.
MRS. MALLACH: He says he knows. He didn’t sign anything. He did understand.
THE COURT: He does understand?
MRS. MALLACH: Yes.
THE COURT: Also, has Mr. Kundinger, your attorney, done everything that you could reasonably expect him to do under the circumstances of this particular offense?
MRS. MALLACH: He said when I asked if he trusted him and does he know anything about him.
He has never met him before, but he thinks that he is doing everything. But said something about the ten years. He feels like it is too much.
THE COURT: So, that is under negotiations part. The thing I want to know is he satisfied with the representations of Mr. Kundinger. As far as the ten years, this is a recommendation, and that decision will be up to the court.
MRS. MALLACH: He says he is satisfied with him.
MR. GORDON: It’s a recommendation of ten years.
MR. KUNDINGER: I have explained to George what had to be done this morning. I have explained to him about the open plea and the cap.
I am sure that he understands. I talked to him a number of times concerning it.

Fla.R.Crim.P. 3.170(j) requires that the court shall not accept a plea without determining in a reported hearing that the plea was fully understood by the defendant. Thus the court should have conducted an evidentiary hearing concerning the interpreter’s ability to interpret to the appellant and whether the appellant freely and voluntarily changed his plea. The court should enter its written order concerning same, together with the appropriate findings of fact. State v. Lyles, 316 So.2d 277 (Fla.1975). See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Here, the record does not show that a true evidentiary hearing was ever held on the motion to withdraw. In this respect the court was in error.

The judgment is reversed and the matter remanded for further proceedings consistent with this opinion. The trial court should hear the defendant’s motion to withdraw his plea and should also give due consideration to defendant’s claim that this initial plea was the result of ineffective assistance of counsel.

REVERSED AND REMANDED.

ANSTEAD and BERANEK, JJ., concur.


author: DAUKSCH, Judge.

text:
    In the Interest of R.L.K., a child, Petitioner, v. Honorable Alcee L. HASTINGS, Respondent.
    No. 79-590.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1979.

      Alan H. Schreiber, Public Defender and Steven Michaelson, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for respondent.
   DAUKSCH, Judge.

Petitioner seeks our Writ of Prohibition to prevent further proceedings pursuant to the petition alleging his delinquency. We grant the petition because we have determined from the record an extension of the adjudicatory hearing was granted for an insubstantial reason. It was done without a proper showing the interests of justice would be served by extending the time for the hearing beyond the time mandated by the speedy trial rule governing juvenile proceedings. Fla.R.Juv.P. 8.180. In fact the only reason the state attorney requested the extension was because “ . . .we have the victim-but we don’t have the two other witnesses who I believe would bolster the officer’s testimony.” There is an indication in the transcript of the hearing on the oral motion for extension that the prosecutor expected the witnesses to come, the court allowed “another fifteen minutes” and when they did not appear, granted the extension. The Rule, Fla.R.Juv.P. 8.180(c), specifically says “ ‘lack of diligent preparation, or failure to obtain available witnesses, or other avoidable or foreseeable delays shall not constitute grounds for such extension.’ ” K.M. v. Baker, 366 So.2d 133 (Fla. 4th DCA 1979).

There was no written motion for the extension of time for the final hearing but in the transcript of the proceedings where the extension was sought it is readily apparent the state could have been prepared for the hearing by requiring the appearance of the witnesses. The state failed in that respect and failed to set out adequate reasons to be excused, thereby failing to establish how the interests of justice would be served by the requested extension. State v. J.H., 295 So.2d 698 (Fla. 1st DCA 1974).

This cause is remanded with directions to discharge the child.

ANSTEAD and BERANEK, JJ., concur.


author: BOARDMAN, Judge.

text:
    Margaret Ann DICKEY, Appellant, v. GRANGE MUTUAL CASUALTY COMPANY, Appellee.
    No. 78-911.
    District Court of Appeal of Florida, Second District.
    May 16, 1979.

      Lee S. Damsker of Gordon & Maney, Tampa, for appellant.
    H. Vance Smith of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   BOARDMAN, Judge.

Appellant Margaret Ann Dickey appeals the final judgment entered in favor of ap-pellee Grange Mutual Casualty Company.

Dickey was injured in an automobile accident while a passenger in a vehicle operated by Frances Ballard. At the time of the accident Frances Ballard had liability insurance in the amount of $10,000. Dickey held an uninsured motorist policy issued by Grange with a limit of $20,000. Dickey determined that her injuries were in excess of Ballard’s liability coverage and brought an uninsured motorist claim against Grange. Grange participated in an arbitration proceeding with Dickey. The arbitration panel filed its amended award of arbitration which provided:

AS A RESULT OF THE NEGLIGENCE OF FRANCES BALLARD IN THE OPERATION OF A MOTOR VEHICLE IN WHICH MARGARET A. DICKEY WAS A PASSENGER, MARGARET A. DICKEY, SUSTAINED TOTAL DAMAGES IN THE AMOUNT OF SEVEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS ($7,500.00), IN ADDITION TO PERSONAL INJURY PROTECTION BENEFITS PREVIOUSLY PAID BY GRANGE MUTUAL CASUALTY COMPANY.

Dickey filed a motion to confirm the arbitration award. Grange filed a motion to modify or vacate the award and an objection to the motion to confirm the arbitration award. At the hearing on these motions Dickey argued that the court should enter judgment against Grange for the entire amount of the arbitration award. Grange contended that since the amount of the arbitration award did not exceed the limits of Ballard’s liability insurance Grange was not liable for any amount. The trial court ordered the arbitration award be modified to provide that “no portion of this award shall be payable” by Grange. It then confirmed the award as modified. This appeal was filed timely from that order.

Appellant, relying on Arrieta v. Volkswagen Ins. Co., 343 So.2d 918 (Fla. 3d DCA 1977), argues that since she has a right to compel arbitration with her uninsured motorist carrier prior to instituting an action against the tortfeasor she has a right to entry of judgment against her carrier based on the arbitration award. However, Arrie-ta does not provide authority for this position. The issue in Arrieta was whether the insured could compel arbitration with his uninsured motorist carrier prior to initiation of an action against the tortfeasor. That court held that it could. The court expressly stated that it was not considering the extent of the uninsured carrier’s coverage where the tortfeasor had liability insurance, that is whether it was the excess over the amount available from this tortfeasor or the full amount of the damages. This is essentially the question before us.

The purpose of uninsured motorist protection is to assure individuals that certain levels of compensation will be available to them regardless of the limits of any liability policy carried by the tortfeasor. Up to the limits of the policy the uninsured carrier is responsible for compensating the victim for damages which are not otherwise available. See Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978); § 627.727(1), Fla. Stat. (1977):

The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

We see no reason to expand the liability of the uninsured carrier to the full amount of the damages where benefits from the tort-feasor are available to the insured. See United States Fidelity & Guaranty Co. v. Gordon, 359 So.2d 480 (Fla. 1st DCA 1978).

AFFIRMED.

HOBSON, Acting C. J., and OTT, J., concur.


text:
    Charles P. WEAVER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1361.
    District Court of Appeal of Florida, Second District.
    May 16, 1979.
    Steven Carta of Smith & Carta, Fort Myers, for appellant.
    James G. Yaeger, County Atty., Fort Myers, for appellee.
   GRIMES, Chief Judge.

This appeal involves the question of whether the court could decline to cancel a bail bond after having set aside a prior forfeiture for failure to comply with Section 903.26(2), Florida Statutes (1977).

Appellant, as authorized agent for Accredited Surety & Casualty Co., Inc., issued a $1,500 bail bond to secure the appearance of Stephen Zul in circuit court to answer a charge of grand theft. Appellant was properly notified of the time when Zul was scheduled to appear for his arraignment. When Zul failed to appear at the appointed time the court ordered the bond forfeited. Appellant later filed a motion to set aside or remit forfeiture on the ground that he had not been notified in writing within seventy-two hours after the forfeiture pursuant to Section 903.26(2), Florida Statutes (1977). The state admitted that it had failed to send written notice of forfeiture to either appellant or his surety company within seventy-two hours of the forfeiture, but pointed out that the appellant must have learned of the forfeiture at some point since he had already paid it.

Because of the failure to comply with the statute, the court entered an order “setting aside the estreature” but providing that the bond should remain in full force and effect. Further, the court once again ordered Zul to appear at a time certain. Appellant moved for rehearing upon the ground that Section 903.31, Florida Statutes (1977), mandated cancellation of the bond. Following a hearing at which no evidence was presented, the motion was denied. After Zul once again failed to appear as directed, the court declared a second forfeiture of the bond. This time written notice of the nonappearance and forfeiture was timely mailed to appellant and his surety company.

The pertinent statutes which must be considered are set forth below:

903.26 Forfeiture of the bond; when and how directed; discharge; how and when made; effect of payment.
(1) A bail bond shall not be forfeited unless:
(a) The information, indictment, or affidavit was filed within 6 months from the date of arrest, and
(b) The clerk of court gave the surety at least 72 hours’ notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant. Notice shall not be necessary if the time for appearance is within 72 hours from the time of arrest or if the time is stated on the bond.
(2) If there is a breach of the bond, the court shall declare the bond and any bonds or money deposited as bail forfeited and shall notify the surety agent and surety company in writing within 72 hours of said forfeiture. The forfeiture shall be paid within 30 days.
903.31 Canceling the bond. When the conditions of a bond have been satisfied or the forfeiture discharged or remitted, the court shall order the bond canceled. Conviction or acquittal of the defendant will satisfy a bond unless the court otherwise provides in the judgment.

Appellant argues that the order setting aside the first forfeiture was equivalent to a discharge or remission of the forfeiture which required the bond to be canceled under Section 903.31. We cannot agree.

Surely one purpose of Section 903.26(2) is to insure that the bondsman and the surety company will receive prompt notice of a bond forfeiture so that they may pay the bond in a timely fashion. Another purpose may be to promptly alert them of the defendant’s failure to appear so they can commence their efforts to locate him. Thus, the failure to give the statutory notice of forfeiture which prejudices a bondsman’s ability to take the defendant into custody could constitute good cause to remit the forfeiture under Section 903.28, Florida Statutes (1977). But it would be illogical to conclude that the bondsman and his surety company are automatically relieved of their obligation under the bond in every case simply because of the failure to give the statutory notice of a forfeiture which has already occurred. Here appellant made no showing that he was prejudiced by the failure to receive the written notice of the forfeiture.

The cases cited by appellant in which bonds have been cancelled upon a discharge of a forfeiture all involved situations in which the bondsman had not been given written notice under Section 903.26(1) of when the defendant was required to appear. Ramsey v. State, 225 So.2d 182 (Fla. 2d DCA 1969); Bailey v. State, 282 So.2d 32 (Fla. 1st DCA 1973); Resolute Insurance Co. v. State, 269 So.2d 770 (Fla. 3d DCA 1972). The case of Resolute Insurance Co. v. State, 289 So.2d 454 (Fla. 3d DCA 1974), is more nearly on point. In that case the bail bond had been forfeited because of the failure of the defendant to appear. Thereafter the forfeiture was set aside because the surety company demonstrated that the reason for the defendant’s absence was that he was in jail in another county at the time. The court then set a new date for the defendant’s appearance. The defendant again failed to appear, and a second forfeiture was entered. Our sister court rejected the contention that the bond had been can-celled as a result of the order which set aside the first forfeiture.

Despite the absence of specific statutory authority, we hold that the court could properly set aside the forfeiture for failure to comply with Section 903.26(2) without cancelling the bond when the bondsman failed to show prejudice. In setting aside the forfeiture but directing that the bond should continue in force, the court simply preserved the status quo and gave appellant another opportunity to secure Zul’s appearance. When Zul failed to heed the new order to appear, the court properly caused the bond to be forfeited once again.

AFFIRMED.

RYDER and DANAHY, JJ., concur.


author: McCORD, Chief Judge.

text:
    Anita Callahan DOBSON, Appellant, v. Ruth K. LAWSON, as Personal Representative of the Estate of Lewis Richard Hengst, Deceased, Appellee.
    No. LL-262.
    District Court of Appeal of Florida, First District.
    May 22, 1979.
    James W. Grimsley, of Smith, Grimsley, Barron, Remington & Kessler, Fort Walton Beach, for appellant.

      M. J. Menge, of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
   McCORD, Chief Judge.

This interlocutory appeal is from an order granting summary judgment to appellee. We reverse.

The summary judgment found that a testamentary devise to appellant of stock in Suffolk Associates Corporation was adeemed when the testator, Louis Richard Hengst, sold the stock to appellant prior to his death. The material facts stipulated to by the parties are as follows: In November, 1974, decedent sold to appellant 50 shares of stock in Suffolk Associates Corporation for $25,000 and received from appellant in payment a promissory note and security agreement. Subsequently, in January, 1976, decedent executed the subject will. In that will he devised to appellant “all interest that I may have in Suffolk Associates Corporation and including, but not limited to all the stock that I own in Suffolk Associates Corporation.” Thereafter, in July, 1976, decedent sold to appellant his remaining 50 shares of corporate stock in Suffolk Associates for $25,000. Upon that sale a new promissory note and security agreement were executed by appellant and delivered to decedent. It consolidated the remaining balance owed on the first stock purchase and the full purchase price on this transaction — amounting to approximately $43,000. Decedent died in July, 1977, in possession of the promissory note and security agreement on which there was an outstanding balance of approximately $34,000.

Appellant contended in the trial court and contends here that the promissory note and security agreement should be cancelled as satisfaction of the devise contained in the will. The appellee estate successfully contended that the devise was adeemed. The trial court found that the bequest to appellant was a specific devise of decedent’s interest in the subject corporation and that because decedent owned none of the devised securities on the date of his death, the devise was adeemed by virtue of the provisions of § 732.605(l)(a), Florida Statutes (1977), which provides as follows:

“(1) If the testator intended a specific devise of certain securities rather than their equivalent value, the specific devi-see is entitled only to:
(a) As much of the devised securities as is a part of the estate at the time of the testator’s death.”

It is clear from the above statute that if the testator in the case sub judice had sold all of his stock to appellant or anyone else for cash, the devise would have been adeemed. Appellant argues that the foregoing statute is not applicable to a sale with deferred payments because § 732.606(2), Florida Statutes (1977), applies. That statute in pertinent part provides as follows:

“(2) A specific devisee has the right to the remaining specifically devised property and:
(a) Any balance of the purchase price owing from a purchaser to the testator at death because of sale of the property plus any security interest.”

This statute appears to control unless it is modified by the immediately preceding subsection (1) of § 732.606 which appellee contends is a restriction on the operation of subsection (2). Subsection (1) provides as follows:

“(1) If specifically devised property is sold by a guardian of the property for the care and maintenance of the ward or if a condemnation award or insurance proceeds are paid to a guardian of the property as a result of condemnation, fire, or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if, subsequent to the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by 1 year. The right of the specific devisee under this subsection is reduced by any right he has under subsection (2).”

Appellee contends that subsection (2) only applies as does subsection (1) if specifically devised property is sold by a guardian of the property for the care and maintenance of the ward or if a condemnation award or insurance proceeds are paid to a guardian of the property as a result of condemnation, fire, or casualty. We are unable to conclude that subsection (2) is so limited. We find nothing in subsection (2) to indicate that it is limited by subsection (1) and nothing in subsection (1) to indicate that subsection (2) is limited by it. While subsection (1) contains the final sentence, “The right of the specific devisee under this subsection is reduced by any right he has under subsection (2),” we find nothing in that sentence which limits the operation of subsection (2) only to instances where devised property is sold by a guardian of the property, etc. We note that this is also the view expressed by Henry A. Fenn, Dean Emeritus and Professor of Probate Law, and Edward F. Koren, Professor of Law, both of the University of Florida College of Law, published in their article, “The 1974 Florida Probate Code — A Marriage of Convenience”, where they said:

“Although the section is somewhat misleading in its arrangement, a specific dev-isee will be entitled to any property remaining in the specific devise, as well as any outstanding: (1) balance or security interest resulting from the sale of the property by the testator.” 27 U. of Fla. L.Rev., No. 1 (1974), page 31.

The author’s footnote on the same page of the above statement is as follows:

“A casual reading of the subdivision might lead one to think that subsection (2) applied only to specifically devised property held by a guardian of the property of the testator. A more careful reading shows that this is not the case and that subsection (2) applies to a specific devisee of all testators. By reversing the subsections this misapprehension could easily be avoided.”

The same construction is likewise adopted by the author of Redfern Wills and Administration in Florida, 5th Ed., Edwin 0. Simon, 1977, 12.09, page 177, in footnote 4 relating to ademption under § 732.606(2)(a) stating as follows:

“If there is any balance of the purchase price remaining at the testator’s death from the sale of the specifically devised property, the specific devisee is entitled thereto together with any security interest . . This statutory provision supersedes the decision in Estate of Sweet, (1971 Fla.App.) 254 So.2d 562.”

REVERSED.

MELVIN and BOOTH, JJ., concur.


author: BOOTH, Judge.

text:
    STATE BOARD OF REGENTS et al., Appellant, v. Rual B. FORSYTHE, etc., Appellee.
    No. MM-480.
    District Court of Appeal of Florida, First District.
    May 22, 1979.
    L. William Graham, of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, Gainesville, for appellant.
    Anthony I. Provitola, Deland, for appel-lee.
   BOOTH, Judge.

This cause is here on appeal from the order of the judicial referee of a medical mediation panel, denying motions for change of venue. The order sought to be reviewed is, in pertinent part, as follows:

“Upon consideration of said motions in the light of the opinion of the Supreme Court of Florida in Simons (sic) v. Faust, 358 So.2d 1359 [1358] (Fla.1978), the undersigned finds that he has no authority as judicial referee to rule on the legal question concerning venue as presented by said motions and thus declines to consider same on their merits. . . . ”

We reverse. In Largen v. Greenfield, 363 So.2d 573 (Fla. 2nd DCA 1978), the judicial referee concluded that the State’s venue statutes did not apply to a claim in medical mediation and that he had no authority to consider motions for change of venue. On appeal the District Court reversed, holding that medical malpractice claims should be mediated in the same forum in which the suit on that claim may be ultimately filed. The court further held that:

“The claimants argue that the defendant’s motion was prohibited by virtue of Fla.R.Med.P. 20.090(c) which provides that except for the filing of an answer there ‘shall be no other pleadings or motion filed in answer to the claim.’ We believe that this refers to motions directed to the substantive merits of the claim and does not preclude an attack on the venue of the proceeding.”

The appellant also raises the question of whether proper venue for the mediation proceeding lies in Alachua County, where the medical treatment was rendered and where four of the five doctor/defendants reside, or Volusia County, where the decedent died. That question was not decided below due to the judicial referee’s holding that he lacked authority to rule on venue questions.

Accordingly, we remand the cause for further proceedings.

McCORD, C. J., and MELVIN, J., concur.

      . See A-1 Truck Service, Inc., et al. v. Kivenas, 371 So.2d 495 (Fla. 1st DCA 1979).