author: SHORES, Justice. TORBERT, Chief Justice

text:
    DeSOTACHO, INC. v. VALNIT INDUSTRIES, INC.
    SC 2560.
    Supreme Court of Alabama.
    Sept. 30, 1977.

      Loma B. Beaty and John C. Wear, Fort Payne, for appellant.
    J. C. Kellett of Kellett & Gillis, P. A., Fort Payne, for appellee.
   SHORES, Justice.

This appeal concerns an action on an account brought by DeSotacho, Inc., an Alabama corporation, against a New York corporation, Valnit Industries, Inc. Following perfection of service through the Secretary of State, appellee Valnit Industries filed a motion to dismiss for lack of jurisdiction. This motion was granted April 8,1977. The trial court decree stated that Valnit Industries had not transacted sufficient business within the State of Alabama to give Alabama courts jurisdiction in the case. DeSo-tacho appealed to this court.

Valnit Industries is a hosiery supplier with offices in New York City, New York. The corporation is not qualified with the Secretary of State to do business in Alabama nor does it maintain an office or an agent in this state.

On June 19, 1974, Mr. Sigmund F. Hoffman, president of Valnit Industries, visited the manufacturing plant of DeSotacho which was located in Fort Payne, Alabama. Mr. Hoffman inspected the facilities to determine whether DeSotacho was able to manufacture hosiery for customers of Val-nit Industries. The record reveals that this was the first visit by any agent of Valnit Industries to the State of Alabama. Mr. Hoffman returned to New York that same day.

The next day in New York City, Mr. Hoffman met with Mr. Ryan, a buyer for Montgomery Ward, Valnit Industries’ principal customer. Mr. Ryan approved DeSo-tacho as a manufacturer. The first order was then placed by Valnit Industries with DeSotacho on June 20, 1974.

Shortly thereafter, a disagreement arose between the parties concerning the price of the hosiery to be manufactured by DeSota-cho. This dispute was settled by correspondence and DeSotacho began filling the order.

Further problems arose between the Val-nit Industries and DeSotacho due to the method of shipping used by DeSotacho.

Mr. Hoffman returned to Fort Payne, Alabama, spending two days at the manufacturing plant inspecting the facilities and making suggestions for improvements in the shipping process. Three additional trips were made by Mr. Hoffman to Alabama to discuss these business difficulties with plant managers and employees.

Shipments were made by DeSotacho to Valnit Industries through February 10, 1975. At that time, the Valnit Industries’ account had an outstanding balance of $35,-825.97. Suit was then filed by DeSotacho to recover this amount on July 8, 1975.

The issue on appeal is whether Valnit Industries, through the activities of its agent, Mr. Hoffman, conducted business within the State of Alabama sufficient for Alabama courts to acquire jurisdiction in this cause.

DeSotacho argues in its brief that Valnit Industries, through the actions of its agent Mr. Hoffman, had sufficient contact with Alabama to bring the New York corporation within the jurisdictional provisions of Rule 4.2(a)(2)(A) or 4.2(a)(2)(I) of the current Alabama Rules of Civil Procedure. We must note, as did the trial court, that although Rule 4.2(a)(2)(A)-(I), ARCP, is a codification of existing statutory and case law concerning jurisdiction over nonresident defendants, this particular amendment was not in effect at the time of the acts by Mr. Hoffman or at the time of the commencement of this suit.

Service of process was obtained in this case upon Valnit Industries under the provisions of Title 7, § 199(1), Code of Alabama 1940 (Recomp.1958), which statute is one of several “long-arm” statutes codified in Rule 4, ARCP, as it existed in 1975. Title 7, § 199(1), provides, in pertinent part, as follows:

“Any nonresident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall do any business or perform any character of work or service in this state shall, by the doing of such business or the performing of such work, or services, be deemed to have appointed the secretary of state, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident, upon whom process may be served in any action accrued, accruing, or resulting from the doing of such business, or the performing of such work or service, or relating to or as an incident thereof, by any such nonresident, or his, its or their agent, servant or employee. And such service shall be valid whether or not the acts done in Alabama shall of and within themselves constitute a complete cause of action. . . . ”

The power of state courts to ren-' der judgments in personam against nonresident defendants through provisions of “long-arm” statutes such as Title 7, § 199(1), has been considered by many courts since the case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877). This court has recognized that the issue of jurisdiction pursuant to “long-arm” statutes poses a federal question of whether subjection of a nonresident corporation to the jurisdiction of Alabama courts comports with federal due process. King & Hatch, Inc. v. Southern Pipe & Supply Co., 5 Cir., 435 F.2d 43 (1970); Boyd v. Warren Paint & Color Co., 254 Ala. 687, 49 So.2d 559 (1950).

The following quote from McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 200, 2 L.Ed.2d 223 (1957), summarizes a line of cases that form the foundation for statutes such as Title 7, § 199(1):

“Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the power of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations. In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, c. V. More recently in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the Court decided that ‘due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ Id., 326 U.S. at page 316, 66 S.Ct. at page 158.”

This court, as well as the Supreme Court of the United States, has held that the provisions of Title 7, § 199(1), in regard to substituted service are sufficient to meet the requirements of due process. New York Times v. Sullivan, 273 Ala. 656, 144 So.2d 25, cert. gr., 371 U.S. 946, 83 S.Ct. 510, 9 L.Ed.2d 496 (1962).

Therefore, we must determine if Valnit Industries had certain minimum contacts with this state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice” by examining the existing facts in this case.

We hold that Valnit Industries is subject to jurisdiction in this state. Taken collectively, the contacts of Valnit Industries with Alabama do constitute “minimum contacts” which would allow Alabama to constitutionally compel Valnit Industries to defend this suit in this state.

Unlike International Life Insurance Company, Valnit Industries sent its president to Fort Payne, Alabama, on at least five occasions. He inspected the facilities of DeSo-tacho and made various suggestions for improvement in those facilities. All of this culminated in a contract whereby Valnit Industries began placing orders for hosiery with the DeSotacho. Pursuant to that contract, DeSotacho manufactured hosiery for customers of Valnit Industries for approximately one year. By mid-February of 1975, Valnit Industries was indebted to DeSota-cho in an amount in excess of $35,000. Certainly, to require Valnit Industries to defend a suit by DeSotacho, Inc. to recover the amount of money due it in the State of Alabama does not offend traditional notions of fair play and substantial justice.

A general guideline in eases of this nature, i. e., the performance of business or services by a nonresident corporation so as to justify subjecting it to suit in Alabama is measured by the extent of its activities and the question of fairness as against the inconvenience to the nonresident corporation of requiring trial away from its home. Boyd v. Warren Paint & Color Co., supra. In light of this principle, we hold that the activities of Valnit Industries within Alabama are of such a quantity and quality to justify this state’s jurisdiction over that corporation. The decision of the trial court is, therefore, reversed and remanded.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and BLOODWORTH, J., dissent.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent. I do not agree with the majority that the few isolated and sporadic activities of Valnit Industries within this state constitute sufficient “mimi-mum contacts” with Alabama so as to compel Valnit Industries to defend the suit in this forum.

The reliance of the majority upon McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), is misplaced. I agree that McGee holds that state jurisdiction over a foreign corporation may be sustained on the basis of a single transaction—a single insurance contract—within the forum state. However, the United States Supreme Court upheld California’s assertion of jurisdiction in McGee on the basis of that state’s special interest in protecting its citizens from insurers who could use the expense of litigation in a distant forum as a bar to suits on insurance policies. The court placed emphasis on the nature of the contract as one of insurance which necessitated special regulation and stated the following:

“It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable. When claims were small or moderate individual claimants frequently could not afford the cost of bringing an action in a foreign forum — thus in effect making the company judgment proof.”

Id. at 223, 78 S.Ct. at 201.

In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the United States Supreme Court recognized the trend of expansion of in personam jurisdiction over nonresidents as represented by the McGee decision, but held that the state of Florida lacked jurisdiction over a Delaware defendant trustee. The Hanson decision is significant because the Court warned that “it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.” Id. at 251, 78 S.Ct. at 1238. The Court further stated the following:

“Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.”

Id.

I fail to find such “minimal contacts” in the circumstances of this case. Valnit Industries did not maintain an office or an agent in this state. It did not ship any goods into this state nor did it perform any labor or services in connection with the goods shipped from DeSotacho. Mr. Hoffman merely negotiated terms of a proposed contract in Fort Payne which was not finalized until approved by Mr. Ryan in New York City. He returned to Alabama to “follow up” on orders for manufactured Alabama goods, which orders had been previously placed by mail from New York City and then filled in the state of Alabama.

I would affirm the decision of the trial court.

BLOOD WORTH, J., concurs.


source: Caselaw Access Project

author: TORBERT, Chief Justice. MADDOX, Justice

license: Public Domain

text:
    Judson LOCKE, as Commissioner of the Board of Corrections of the State of Alabama v. William J. WHEAT, in his Capacity as Sheriff of Washington County, Alabama.
    SC 2447.
    Supreme Court of Alabama.
    Sept. 30, 1977.

      W. Scears Barnes of Radney, Radney & Barnes, Alexander City, for appellant.
    Edward P. Turner, Jr., and Marc E. Bradley, Chatom, for appellee.
   TORBERT, Chief Justice.

This case is an appeal from an order granting an injunction restraining a transfer of state prisoners from Mobile County jail to Washington County jail. This transfer was ordered by appellant Judson C. Locke, Commissioner of the Board of Corrections, pursuant to Title 45, sections 166 and 167, Code of Alabama 1940 (Recomp. 1958).

On October 21, 1976 Mobile County jail was inspected by the Board of Corrections. A written report was filed with the Mobile County Commission which stated that overcrowded conditions existed in the Mobile County jail and were creating security problems. This report did not contain a demand by Commissioner Locke that the Mobile County Commission correct the overcrowded conditions within a specified time.

As of February 1, 1977, Mobile County jail had an inmate population of 352 persons, which is 70 persons over the facility’s design capacity of 282. On that same day, Washington County jail had 23 inmates in a facility designed for 67 persons.

Commissioner Locke informed Mobile County and Washington County on February 3, 1977, that a transfer of 15 state prisoners would be made from Mobile County jail to Washington County jail. He then selected 15 “low risk” prisoners, whose sentences ranged from 1 year and a day to 8 years, to be transferred.

Washington County Sheriff William J. Wheat, appellee, petitioned the Washington County Circuit Court for a temporary restraining order enjoining this transfer which was granted February 7, 1977.

An evidentiary hearing was held on February 15, 1977. Sheriff Wheat testified that security problems would develop if the state prisoners were transferred to the Washington County jail and that he would need another jailer to properly house and secure the additional inmates. The probate judge of Washington County testified that the county had no extra funds with which to hire an additional jailer.

The trial court issued a preliminary injunction enjoining the proposed transfer February 23,1977, stating that Commissioner Locke had failed to comply with the provisions of Title 45, section 166 and therefore could be restrained from transferring state prisoners under section 167.

Title 45, section 166 provides:

“§ 166. (4860) Alterations, etc., to be made. — Whenever the department shall make written report to the court of county commissioners, or board of revenue, or to the city council, or other governing board or body, that certain conditions in the jail, prison, or almshouse should be remedied, or that certain improvements, additions or alterations should be made, they shall have the matter attended to within such reasonable time as may be designated by the department, and shall make written report to the department that such orders have been carried out.”

Title 45, section 167 provides in pertinent part:

“§ 167. (4861) (7219) Removal of prisoners. — In the event such instructions prescribed in the foregoing section are not carried out, and in the event the unsanitary or insecure conditions or overcrowding of prisoners, in the opinion of the department, warrant it, the department may order any or all persons confined in such jail, . . . immediately transferred to the jail, . of some other county, to be designated.”

The authority of Commissioner Locke to order transfers of prisoners from one county jail to another is undisputed by the parties on this appeal. We agree with the trial court, Commissioner Locke, and Sheriff Wheat that the language of section 167 clearly provides Commissioner Locke with the power to order a transfer when the Board of Corrections deems it necessary within the statutory guidelines.

The issue presented for review is whether or not Commissioner Locke may order a transfer under section 167 without first complying with the procedure set out in section 166. In other words, this court must decide whether the trial court erred in granting an injunction because Commissioner Locke failed to demand in writing that Mobile County correct the overcrowded conditions within a reasonable time before ordering the transfer to Washington County jail. As the Code sections at issue have not previously been construed by this court, our decision in this case must be made by reference to well-established rules of statutory construction.

This court has often stated that the fundamental rule of statutory construction is to ascertain and give effect to the legislature’s intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974); City of Montgomery v. Montgomery City Lines, 254 Ala. 652, 49 So.2d 199 (1950); Street v. Cloe, 207 Ala. 631, 93 So. 591 (1922).

Sections of the Code dealing with the same subject matter are in pari mate-ria. Kelly v. State, 273 Ala. 240, 139 So.2d 326 (1962). As a general rule, such statutes should be construed together to ascertain the meaning and intent of each. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974); Union Central Life Ins. Co. v. State, 226 Ala. 420, 147 So. 187 (1933); City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159 (1909).

Applying these rules of construction to the statutes at issue in the present case, we conclude that Commissioner Locke must first comply with the provisions of section 166 by ordering in writing that Mobile County correct the conditions in its jail before he orders a transfer under the authority given him by section 167. We believe the intent of the legislature that the provisions of section 166 must be carried out before section 167 may be activated is clearly indicated by the first sentence of section 167, which sentence specifically refers to the provisions of section 166. Furthermore, these two Code sections are clearly in pari materia as they were both enacted by the same legislature and they both relate to the subject of the prisons. Therefore, section 166 should be construed together with section 167.

Although these statutes were passed many years ago and the legislature at that time could not have known of the current problem of overcrowding in the county jails due to the housing of state prisoners, we are still bound by the rules of statutory construction.

We find no error in the decision of the trial court.

AFFIRMED.

BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

If we were dealing with an ordinary situation, I would agree with the majority’s mechanical and technical interpretation of Sections 166 and 167 of Title 45. As we all know, however, we are not dealing with the ordinary situation. The majority requires the Commissioner to proceed under Section 166, when the only testimony before the trial judge shows that such would be “impractical.”

Commissioner Locke and the Board of Corrections are under federal court order. This order, issued in August of 1975, by United States District Judge Prank M. Johnson, Jr., enjoined the Board of Corrections for the State of Alabama from accepting any additional state prisoners into state operated prison facilities from county jail facilities statewide with the exception of escapees and parole violators until inmate population of the state facilities was reduced below design capacity.

Following the federal court injunction of August, 1975, county jail facilities statewide began experiencing problems of overcrowding. Reduction of inmate population in state facilities below design capacity was accomplished in September, 1976, and in an attempt to relieve the congestion in county facilities, the federal court was asked to allow Commissioner Locke to receive state prisoners into state facilities on a space available discretionary basis. The petition was granted and induction of state inmates fitting a “minimum” category was initiated. Again, in December, 1976, Locke petitioned the federal court requesting induction of prisoners from county jails who fit a maximum custody classification but again on a space available discretionary basis. The petition was granted.

To further alleviate overcrowding in county jail facilities, Locke arranged voluntary transfers between consenting counties; however, may counties indicated they would not accept state prisoners on a voluntary basis. Overcrowding was still a problem in many county jails on the date of trial.

Locke was advised by the federal court that he was to implement transfers through Section 167, Title 45, Code of Alabama, 1940, to reduce overcrowding.

Both sides admit that Judge Johnson, when asked to abstain from ruling in the Houston County case (Adams v. Mathis, Ala., 350 So.2d 381) until this Court could rule on McKinney et al. v. Locke, 346 So.2d 419 (1977) or until this Court could rule on this appeal, denied the motion stating:

“. . . The authority and duties of the Board of Corrections and the Commissioner, who is the chief administrative officer of the Board (Section 10(5)), with regard to county jails are contained in Title 45 of the Code of Alabama. It is the responsibility of the Board to inspect the jail twice a year (Section 160), to see that sanitary buildings are constructed and maintained in a sanitary condition (Section 160), and, if necessary, to order that the condition of the buildings and grounds be corrected (Section 161). The Board has the authority to condemn the jail if conditions warrant such action, (Section 162), or it may order that prisoners be transferred to other jails to relieve overcrowding, insecure, or unsanitary conditions (Section 167). The duties of the Board are both clear and mandatory. The Board ‘shall’ do these things set out in Section 160. The other sections within this part of the Code give the Board the means of enforcing its orders. And since the language of these sections is clear, abstention would not be proper. Kusper v. Pontikes, supra; Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84 (5th Cir. 1977).
“However, the movants go further and argue that the Court should abstain until completion of the pending state judicial proceedings in which the same issues are presented. The pendency of these cases is not determinative. As the Fifth Circuit has noted, ‘The policies furthered by abstention cannot be circumvented merely by the plaintiff’s selecting a federal forum to the exclusion of the state forum.’ Romero v. Coldwell, 455 F.2d 1163 (5th Cir. 1972). The apparent basis for the movants’ arguing that the responsibilities and duties of the board and the Commissioner are not clear in spite of the clear language of the statutes is the existence of several Attorney General Opinions. But, ‘while these opinions may be helpful and even persuasive to a court, they are advisory only and do not carry the force of a judicial decision.’ Romero, supra, at 1164; accord, Associates [Associated] Industries of Alabama, Inc. v. State, 55 Ala.App. 277, [314 So.2d 879], cert. denied, 294 Ala. 281, 314 So.2d 901 (1975).”

It appears to me that the federal court, even though aware of the pendency of this appeal, has already interpreted state law to place an affirmative duty on the Board of Corrections and the Commissioner, under penalty of possible contempt, to order prisoners transferred under Title 45, Sections 160, et seq. Now this Court has enjoined him from proceeding in a manner the federal court has said must be used.

Instead of equitably solving the serious federal-state conflict, it appears this Court has let pass an opportunity not to place the Commissioner in such a difficult spot.

It seems to me that, on balance, that this Court should recognize that under the facts and circumstances as they presently exist, that the Commissioner should not be required to proceed under Section 166 when he knows that it is “impractical.” In other words, this was an equitable action. The trial court fashioned what I consider an extraordinary, harsh remedy — an injunction — to remedy the situation. It appears to me that the issuance of an injunction here was inequitable. I realize that equity follows the law, but in this case, there is still open the question of whose law — that announced by the federal court or that announced by the legislature several years ago when the problems we now face could not have been foreseen. The interpretation of the Commissioner’s responsibility under state law, as I have already said, is not illogical, except for the facts of this case. We all know, however, that requirements of state law cannot run afoul of the federal constitution. The prison order issued by the district court, unless overturned, (the state has asked for a rehearing en banc in the Fifth Circuit Court of Appeals) will control.

I believe the majority has unnecessarily created a federal-state conflict which could have easily been avoided by directing the trial court to fashion his remedy in such a way that the sound objections raised by the sheriff of Washington County, could have been alleviated. In other words, an injunction could have been fashioned which could have required the state to do equity, tOO.

As I said initially, this is an unusual case. I think the remedy fashioned by the trial court was much too harsh in view of all the facts and circumstances. Consequently, I respectfully dissent,

      . Locke was questioned by Sheriff Wheat’s attorney and he testified, as follows:
      “Q In connection with specifically with reference to Title 45, Section 166, have you, as Director of the Board of Corrections, or has the Board of Corrections to your knowledge made any written report to the Mobile Commissioners, the name of it now, I believe, is Mobile County Commission, asking the Mobile County Commission to remedy any conditions in the Mobile County jail to make any improvements or any additions or alterations to the Mobile County jail?
      “A We make a report twice a year, which goes to the sheriff and to the county commission. This report would point out some of these discrepancies.
      * * * * * *
      “Q Are these inspections and reports of the Mobile County Commission made by the Board of Corrections pursuant to Title 45, Section 166?
      “A The report, the only report that we have given, is a report required to be made, an inspection report that’s made twice a year. These do go to the sheriff and to the County Commission, pointing out overcrowdedness, condition of the jail, and these sorts of things.
      “Q All right, do these reports ask that these conditions be remedied, or alterations or additions, or improvements be made to the Mobile County jail within any period of time after the report is received by the Commission?
      “A Well, they are made to the County Commission and the discrepancies are pointed out. I didn’t file any report per se according to 166. The reason I didn’t do this is because in my opinion it is impractical. We do have a report made twice a year that goes to the commission, and the reason I didn’t file this report is because it is impractical. The major difficulty in Mobile County is overcrowd-edness. I think it would be impractical to order a new facility to be built to accommodate overcrowdedness of a temporary nature. This is a state problem to house state prisoners. I think the building should be done at the state level. This is a function of the legislature and the executive branch to provide facilities for housing of state prisoners. Additionally, I don’t think it would be practical to order a county commission to build a facility, or expand it or renovate it, and the only enforcement is that it has to go through the governor. They have an appeal from any order from this office directly to the governor. I can order them to build another facility, et cetera, but they can appeal to the governor. I think it’s unenforceable." (emphasis added).

      . Commissioner Locke testified:
      “Q All right, sir, now then, has the Board of Corrections made any independent determination as the Board of Corrections that because of failure of Mobile County Commission to make improvements, additions, or alterations that it has created an overcrowded condition or unsanitary condition or an insecure condition in the Mobile County jail?

        “A No sir, I maintain that the overcrowdedness is due to a Federal Court order back in August of ’75 that prohibited the State Board of Corrections from receiving prisoners.
      “Q All right, then, if I understand your testimony correctly, the overcrowded condition that exists in the Mobile County jail is caused by a Federal Court order and not by a failure of the Mobile County Commission to make alterations, improvements or additions to the Mobile County jail?
      “A This is my opinion.
      “Q Now, the Federal Court order in effect does what, Mr. Locke?
      “A Well, it initially prohibited the Board of Corrections from bringing in any prisoners other than escapees, females, and parole violators, and youthful offenders that were to be assigned to the Youth Center, Frank Lee Youth Center. We were prohibited from bringing in any prisoners until the population of the four major institutions came under the designed capacity.
      “Q Is the effect of that order that prisoners or individuals who are convicted of state crimes remain in the local county jails until they can be processed into the state system?
      “A That is correct.
      “Q And you can’t process them into the state system because of the Federal Court order at this time?
      “A Well, we came under design capacity around October or November of ’76. At that time we petitioned the court to allow us to start bringing in prisoners according to bed space available, and on a selective basis, and we were allowed to do this in December. Initially we requested to bring in the minimum security type prisoner because during the year we had furnished some nine hundred additional bed space primarily in the minimum security type facility because we had Federal money that allowed us to build trailers and this sort of thing, work relief, et cetera, and later on that same month, in fact it was December 21st of last year, we petitioned the court to allow us to bring in the maximum security type, again on a selective basis according to bed space available, and we have brought in some four hundred and fifty prisoners since December of last year exclusive of parole violators and escapees.
      “Q And if I’ve asked this before, I apologize, it is my understanding from what you’ve testified to that the primary reason for the overcrowded condition that exists in the Mobile County jail at this time is because of the Federal Court order preventing you from bringing state prisoners out of the local Mobile County jail into the state system, is that correct?
      “A Yes, sir. That’s correct.
      “MR. TURNER: That’s all. “CROSS-EXAMINATION BY MR. RAD-NEY:
      “Q Mr. Locke, are you now under a contempt citation from any court?
      “A Yes, sir.
      “Q What court is that?
      “A This is the Middle District Court, Judge Johnson’s court.
      “Q What was the nature of this contempt order?
      “A I was ordered to keep the population of the Houston County jail beneath the designed capacity by the Federal Court.
      “Q Was this by use of Section 167 of Title 45?
      “A Yes, sir, I was instructed to implement the sections in the statute 167 through 185. Initially, we applied to the Federal Court that we preferred to do this on a voluntary basis because the statute was vague and unenforceable in our opinion, and the Federal Court ruled that this was an erroneous interpretation; to go ahead that I had the authority and the obligation under those sections to transfer prisoners from crowded jails to jails that had the vacancies throughout the state.
      “Q Pursuant to the Federal Court citation which you are now working under, and pursuant to a resolution of the Board of Corrections, you are now acting to follow through a transfer of prisoners, are you not?
      “A That’s correct. Due to the order of the Court, and the judge’s statement that I had the responsibility under this statute, and the authority and obligation, and then I had a resolution from my board for whom I work, the Board of Corrections, a five member board, and also advice of legal counsel to go ahead and initiate, carry through with the transfer of prisoners, which we’ve done.
      “Q And three counties have filed injunctions?
      “A We initiated the transfer among seven counties, and three filed a restraining order.”

      . “Sheriff Wheat testified that the influx of an additional fifteen (15) state prisoners would present problems mainly in two areas, i. e. (a) bed space and (b) security.
      “He also testified he would need an extra jailer in addition to the three (3) already employed to properly house and secure fifteen (15) additional prisoners . .


author: SUNDBERG, Justice,

text:
    Donald E. MATHIAS, Jr., Petitioner, v. CITY OF SOUTH DAYTONA et al., Respondents.
    No. 49827.
    Supreme Court of Florida.
    July 21, 1977.
    Byron K. Rothert, Coble, McKinnon, Reynolds & Rothert, Daytona Beach, for petitioner.
    Martin J. Miekler, Bullock, Sharp & Childs, Jacksonville, for respondents.
   This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari upon the transcript of record and briefs and argument of counsel for the respective parties, to review the order of the Industrial Relations Commission and the Court finding no departure from the essential requirements of law, it is ordered that said petition be and the same is hereby denied. See: Scholastic Systems, Inc., et al. vs. LeLoup, et al., 307 So.2d 166 (Fla.1974).

OVERTON, C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur.

SUNDBERG, J., dissents with an opinion.

ADKINS, J., dissents and concurs with SUNDBERG, J.

The attorneys for petitioner in the above entitled cause have filed a motion for an order allowing and fixing attorneys’ fees for said services in this Court; and upon consideration thereof, it is ordered that said motion be and the same is hereby denied.

OVERTON, C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur.

ADKINS and SUNDBERG, JJ., dissent.

SUNDBERG, Justice,

dissenting.

I respectfully dissent from denial of the petition for certiorari by the majority of my colleagues. I do so because I believe the Industrial Relations Commission departed from the essential requirements of law in this case. Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974).

Petitioner was employed as a police officer by respondent City of South Daytona. While attending a social gathering, held at the home of the chief of police, petitioner injured his back during a softball game. This injury resulted in petitioner’s total disability and ultimate discharge by respondent when he was no longer able to perform his former duties.

The parties disagree on whether the social activity was sponsored and financed by respondent. Petitioner asserts that it was, alleging that funds for the party were secured from the operation of vending machines located on the premises of the respondent. Petitioner concedes that employees were not required to attend the party, but maintains that the evidence reflects that they were strongly encouraged to do so. Respondent contends that the vending machines, whose profits funded the party, were owned by the police officers, rather than the department. In addition, it asserts that petitioner was under no direct duty or instruction to attend the function.

The parties apparently agree that petitioner is entitled to Workmen’s Compensation if (i) the social gathering falls within the orbit of petitioner’s employment or (ii) the employer derives substantial direct benefit from the activity. The Judge of Industrial Claims found the claim to be compen-sable because the social gathering fell within the orbit of petitioner’s employment. She concluded that there was evidence to support the allegation that pressure was brought to bear on petitioner to attend the function. In addition, she found that respondent directly benefited by the increased morale of the employees resulting from participation in such social activities.

In his treatise on Workmen’s Compensation law, Professor Arthur Larson postulates that recreational or social activities are within the course of employment when:

(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.
Larson’s Workmen’s Compensation Law, Vol. 1, § 22.00.

The Judge of Industrial Claims found the existence of both (i) required participation and (ii) substantial benefit on the part of the employer. The Industrial Relations Commission determined that the finding of required participation was not supported by competent substantial evidence and that the Judge of Industrial Claims misapplied the law with respect to the issue of direct employer benefit. I concur with the Industrial Relations Commission as to direct employer benefit because both the evidence and the express findings of the Judge of Industrial Claims support nothing more than a general increase in employee morale resulting from participation in the recreational activities. As Professor Larson states:

Controversy is encountered also when the benefit asserted is the intangible value of increased worker efficiency and morale. Basically, the trouble with this argument is not that such benefits do not result, but that they result from every game the employee plays whether connected with his work or not. In this respect, the argument is reminiscent of the same view sometimes heard in connection with the personal comfort cases: eating, resting, and the like do indeed improve the efficiency of the employee, but this is equally true (and even more true) of the sleeping and eating which he does at home. And so, just as in the sleeping and eating cases some arbitrary time and space limitations must circumscribe the area within which the “benefit” establishes work-connection, the recreation cases must submit to some similar limitation, since otherwise there is no stopping point which can be defined short of complete coverage of all the employee’s refreshing social and recreational activities. It can be taken as the distinctly majority view that these morale and efficiency benefits are not alone enough to bring recreation within the course of employment. (Footnotes omitted) Larson’s Workmen’s Compensation Law, Vol. 1, § 22.30.

I depart from a majority of my brothers upon the issue of whether participation at the event was expressly or impliedly required by the employer. The testimony on this issue and the inferences to be drawn therefrom were conflicting. Petitioner and one other officer generally testified that they felt a compulsion to attend such gatherings lest they lose favor with the chief of police. Other employees of respondent testified they felt no such compulsion. However, the chief of police testified that he directed a call to the police department dispatcher advising him to contact off-duty officers to ascertain whether they would be in attendance. This occurred on the day of and during the course of the party. Petitioner maintains that such evidence demonstrates compulsion being exerted upon employees to attend the function. Respondent draws a different conclusion from the testimony and maintains that it was nothing more than an inquiry by the chief of police to ascertain the exact number who would be present before he commenced preparing the food for the occasion. I agree that either inference can be drawn from the testimony. The point is that the Judge of Industrial Claims apparently drew the same inference as petitioner. This, of course, is the function of a trier of fact. It would not be worthwhile to review or summarize further the evidence before the Judge of Industrial Claims. Suffice it to say that I conclude there existed competent substantial evidence as well as inferences to be drawn from the evidence to support the order of the Judge of Industrial Claims upon the issue of pressure being exerted impliedly requiring participation in the event. Certainly there was sufficient evidence of “pressure” to bring this case within the purview of the rationale stated in Fletner v. Southern Bell Telephone & Telegraph Co., 274 So.2d 530 (Fla.1973). In that case which involved an employee who had the right to refuse overtime, Justice Ervin noted:

Although neither administrative tribunal makes specific reference to Bowen in its order, the Judge of Industrial Claims and the Industrial Relations Commission have attempted to distinguish the instant cause from the Bowen holding, by finding that Fletner was not “directed” or “required” to be on-call. A review of the record has led us to conclude that this is a shallow, sematics-over-substance approach which ignores the realities of the employment relationship and misplaces emphasis as to our language in that decision and many of the cases cited therein. It is naive and unrealistic to assume that because the deceased was “asked” by his foreman to report into work at 9:00 P.M., that he was free to ignore the request and continue about his personal business. Employees with that attitude are apt to find themselves either overlooked when a promotion is sought, or among the ranks of the unemployed. . . . 274 So.2d 530 at 532.

Respondent and, apparently, the majority of my colleagues conclude that the rule announced in Chicken N’ Things v. Murray, 329 So.2d 302 (Fla.1976), amplifying the standard for review enunciated in Scholastic Systems, Inc. v. LeLoup, supra, and Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975), precludes our disturbing the decision of the Industrial Relations Commission because there is evidence upon which the Commission’s finding can be supported. If the cited cases support the proposition asserted, then I would recede from those cases. As pointed out by Justice Adkins concurring in Chicken N’ Things v. Murray, supra, and Hughes v. Public Finance Service, Inc., 319 So.2d 18 (Fla.1975), in reviewing orders of the Judges of Industrial Claims, the Industrial Relations Commission serves as an appellate court and the method of review is in the manner of an appeal. Upon review by appeal, the reviewing court is precluded from reweighing the evidence. The trier of fact will not be reversed on the facts if there is competent substantial evidence to support its findings. Consequently, if there is competent substantial evidence to support an order of the Judge of Industrial Claims, the Industrial Relations Commission departs from the essential requirements of law when it, nonetheless, reweighs or reevaluates the evidence before the Judge of Industrial Claims and reaches a contrary result. The Industrial Relations Commission, unlike the Public Service Commission, is not the original trier of fact, but rather sits in review of the judges of Industrial Claims who are the original triers of fact. When the Commission reweighs and reevaluates the evidence before the Judge of Industrial Claims and substitutes its judgment thereon for that of the Judge of Industrial Claims there is a departure from the essential requirements of law which creates a proper case for review by certiorari in this Court. The principles of law articulated so recently by this Court in Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Herzog v. Herzog, 346 So.2d 56, (Fla.1977), are no less applicable to the Industrial Relations Commission than to District Courts of Appeal.

Accordingly, I would grant the petition for certiorari and quash the order of the Industrial Relations Commission with directions to reinstate the order of the Judge of Industrial Claims.

ADKINS, J., concurs.


author: PER CURIAM.

text:
    Lawrence F. TAYLOR, Petitioner, v. The FLORIDA REAL ESTATE COMMISSION et al., Respondents.
    No. 50803.
    Supreme Court of Florida.
    Sept. 22, 1977.
    Albert George Siegel, Miami Beach, for petitioner.
    Howard Hadley and Vaughan David Hulse of the Florida Real Estate Commission, Winter Park, for respondents.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. Certiorari was granted, without argument, based on apparent decisional conflict. Upon further consideration of the matter and review of the record, we have determined that the cited decision presents no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., ENGLAND, SUND-BERG and KARL, JJ., concur.

ADKINS, BOYD and HATCHETT, JJ., dissent.


text:
    STATE of Florida, Petitioner, v. Samuel Lee BRITTON, Respondent.
    No. 50814.
    Supreme Court of Florida.
    Sept. 22, 1977.
    Robert L. Shevin, Atty. Gen. and Patti Englander, Asst. Atty. Gen., of Tallahassee, for petitioner.
    Michael M. Corin, Asst. Public Defender of Tallahassee, for respondent.
   PER CURIAM.

We have for review by certiorari a decision of the District Court of Appeal, First District, Britton v. State, 339 So.2d 256, which allegedly conflicts with the decision of the District Court of Appeal, Second District, in Lomax v. State, 322 So.2d 650.

Subsequent to the filing of this petition for certiorari, we quashed the decision of the District Court of Appeal, Second District, in Lomax v. State, supra. See Lomax v. State, 345 So.2d 719 (Fla.1977).

We approve the decision of the District Court of Appeal, First District, in the case sub judice. The writ of certiorari is therefore discharged.

It is so ordered.

ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

OVERTON, C. J., dissents.


text:
    David Ross DELAP, Appellant, v. STATE of Florida, Appellee.
    No. 49166.
    Supreme Court of Florida.
    Sept. 29, 1977.
    Elton H. Schwarz, Public Defender, Stuart and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We have for consideration the motion for new trial for inability to complete the trial transcript of David Ross Delap, who was convicted of murder in the first degree and sentenced to death by the Circuit Court in and for Okeechobee County.

Notice of appeal was filed with this Court from the final judgment of conviction and sentence of death. The trial judge entered an order for transcription of reporter’s notes on May 25, 1976, directing the court reporter to transcribe and file his notes of the trial of the cause, beginning January 6, 1976, and ending January 10, 1976, but to exclude therefrom the voir dire examination of the jurors and the opening and closing statements of counsel. Thereafter, defendant filed a timely motion for supplementary transcription of the record requesting the trial court to direct the court reporter to transcribe his notes of the voir dire of the jury and closing arguments in both the trial and sentencing proceedings. On December 6, 1976, the trial court ordered the court reporter to transcribe the voir dire of the jury and closing arguments of counsel during trial and sentencing phases. A subsequent order was entered May 11, 1977, compelling the court reporter to file the transcript of the jury charge conferences, charge to the jury in both the trial and penalty phases, voir dire of the jury, and closing arguments of counsel in both the trial and penalty phases, or to show cause why he should not be adjudged in contempt of court.

On June 11, 1977, the trial judge entered an order expressly stating:

“It further appears to the Court that no portions of the transcript of the jury charge conferences; charge to the jury in both the trial and penalty phases; voir dire of the jury; or closing arguments of counsel in both the trial and penalty phases regarding the trial of this cause have been filed with the Clerk as directed by said Order of May 11, 1977.
“It further appears to the Court from inquiry of the State and the attorney for the defendant that it is impossible to reconstruct said portions of the record by stipulation or otherwise and that there appears to be no means of completing the requested record under Rule 3.7(1) Florida Appellate Rules.
“In consideration of the foregoing it is, therefore,
“ORDERED AND ADJUDGED that the transcript of the jury charge conferences; charge to the jury in both the trial and penalty phases; voir dire of the jury; and, closing arguments of counsel in both the trial and penalty phases regarding the trial of the defendant herein be, and the same are hereby conclusively determined to be unavailable for inclusion in the record on appeal in this cause.”

Since the full transcript of the proceedings requested by the defendant is unavailable for review by this Court, and since the omitted requested portions of the transcript are necessary to a complete review of this cause, this Court has no alternative but to remand for a new trial of the cause.

Accordingly, this cause is hereby remanded to the trial court for new trial.

It is so ordered.

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

      . This Court has the mandatory constitutional duty to hear appeals from final judgments of trial courts imposing the death penalty. Art. V, § 3(b)(1), Fla.Const. Our review is of the entire record of the conviction and the sentence of death. § 921.141, Fla.Stat. (1975). Our own rule provides:
      “Upon an appeal from the judgment by a defendant who has been sentenced to death the appellate court shall review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is a ground of appeal or not.” Fla. App. Rule 6.16.
      In the absence of a waiver, the defendant has the right to a complete review. Here, there was no waiver but, rather, an affirmative and timely request that the record be prepared for our use in performing our duty.


text:
    Marcia D. WARDEN, Petitioner, v. Michael M. BENNETT, etc., Respondent.
    No. 49934.
    Supreme Court of Florida.
    Sept. 29, 1977.
    Larry G. Turner of Goldin, Turner & Cates, Gainesville, for petitioner.
    James M. Blue of Smith, Young & Blue, Tallahassee, and Edward A. Turville of McClure & Turville, St. Petersburg, for respondents.
    Robert L. Shevin, Atty. Gen., Sharyn L. Smith and Patricia R. Gleason, Asst. Attys. Gen., Tallahassee, for Robert L. Shevin, amicus curiae.
    Arthur M. Simon of Bolles, Goodwin, Ryskamp, Welcher & Carrier, Miami, for Miami-Dade Community College, amicus curiae.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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

BOYD, J., dissents.


text:
    Mack SIMMONS, Petitioner, v. The STATE of Florida, Respondent.
    No. 49988.
    Supreme Court of Florida.
    Sept. 29, 1977.
    Bennett H. Brummer, Public Defender, and Julian S. Mack and Karen M. Gottlieb, Asst. Public Defenders, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy and Anthony C. Musto, Asst. Attys. Gen., Miami, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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


author: ENGLAND, Justice.

text:
    William Alexander DUMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 50124.
    Supreme Court of Florida.
    Sept. 29, 1977.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for respondent.
   ENGLAND, Justice.

This case is here on the basis of a direct conflict between the decision of the Fourth District Court of Appeal affirming petitioner’s criminal convictions, and the holding in Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976), to the effect that a trial court may not disqualify a witness “from testifying [for a violation of the rule of sequestration] absent a finding that the rule violation was with the knowledge, connivance, or consent of the defendant or his counsel.” In the case now before us, a defense witness was not permitted to testify simply because he had been present in the courtroom to hear the testimony of other witnesses, without any inquiry by the trial judge as to the circumstances of his presence.

Dumas claims that the apparent breach of this procedural rule at least requires a factual inquiry by the trial judge, where the consequence is to be a denial of the opportunity to present a witness on his behalf as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. The state suggests that a trial judge may summarily exclude a witness where the judge has personally observed the witness in the courtroom during the proceedings, so that any Atkinson inquiry would be a futile gesture. We agree with Dumas.

The rule of sequestration is intended to prevent the shaping of testimony by witnesses. Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). Balanced against the rule, however, is the criminal defendant’s Sixth Amendment and due process right to present witnesses in his own behalf. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). In Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893), the Court indicated the nature of the rule and consequence of its breach:

“If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.”

Considering the respective reasons for the rule of sequestration and for the constitutional right to present witnesses, we have no difficulty in concluding that the latter overrides any mere violation of the former. The rule of sequestration is a procedural device available to purify trial testimony when counsel for either side believes it to be advantageous. The rule must be invoked in the first instance by counsel. In our Anglo-American system of jurisprudence, no trial is invalid simply because one or more potential witnesses hear the testimony of other witnesses. We no more automatically bar the testimony of witnesses who have not been placed “under the rule” than we prevent a defendant from testifying on his own behalf simply because he has heard all the testimony in his trial before he takes the stand. When confronted with the Sixth Amendment right, then, a mere violation of the rule must give way.

Since it appears the trial judge made no Atkinson inquiry to determine whether the witness acted with the knowledge, consent, procurement or connivance of the defendant or defense counsel, his action was error. Accordingly, the decision of the Fourth District Court of Appeal is reversed with directions to remand to the trial court for a new trial.

It is so ordered.

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

      . This case was denominated below as Brummitt v. State, 336 So.2d 626 (Fla. 4th DCA 1976).

      . 317 So.2d at 808 (emphasis in original).

      . The ruling of the trial court arose during the course of trial in the following colloquy:
      “MR. PUGH [Defense Counsel]: I think the witness can be excused.
      The defense would call Alvin Randall.
      THE COURT: Mr. Randall, will not be permitted to testify.
      MR. PUGH: Your Honor, I didn’t realize that he was sitting in the Courtroom.
      THE COURT: That’s unfortunate, because he sat through the entire testimony and he was there prior to that. Mr. Randall, will not be permitted to testify. You were told before trial, that you were to keep all prospective witnesses out of the Courtroom.
      MR. PUGH: I meant to have him sequestered, but you were busy with the school children.
      THE COURT: Call your next witness.
      MR. PUGH: Does it mean that the Court is going to refuse me to allow this witness to testify?
      THE COURT: Where do we fail in our communications.
      MR. PUGH: I just want to make sure. I will call the defendant, Willie Dumas.”

      . 150 U.S. at 92, 14 S.Ct. at 10.

      . A witness who knowingly violates a sequestration rule may be disciplined by the court, of course, as Holder suggests.


author: SUNDBERG, Justice.

text:
    The OHIO CASUALTY GROUP, Petitioner, v. James C. PARRISH, Jr., a minor By and Through his father and next friend, James C. Parrish, Sr., and James C. Parrish, Sr., Individually, et al., Respondents.
    No. 50609.
    Supreme Court of Florida.
    Sept. 29, 1977.

      Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach and Horton, Perse & Ginsberg, Miami, for petitioner.
    Sam Daniels and Headley & Sudduth, Miami, for respondents.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 338 So.2d 910, which is alleged to be in conflict with Avant v. Waites, 295 So.2d 362 (Fla. 1st DCA 1974), on the issue of whether a trial court has authority to entertain a motion to modify a final judgment under Fla.R.Civ.P. 1.540(b), without first obtaining permission of the appellate court which has previously affirmed that final judgment. We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

Respondent James C. Parrish, Jr., a minor, was severely injured in an automobile accident. The minor’s father instituted suit against the third party tort-feasors both in his individual capacity and on behalf of his son. As the minor’s employer had Workmen’s Compensation insurance with petitioner, petitioner began paying compensation and medical benefits. Thereafter, the petitioner filed a notice of Workmen’s Compensation carrier’s claim of lien pursuant to the provisions of Section 440.39, Florida Statutes (1975).

While the parties to the litigation were in the process of negotiating a settlement, a conference was held before the circuit court judge to determine the amount of recovery the court would allow petitioner on its lien. The judge announced at the conference that he would return to the petitioner $20,000 of the approximately $70,000 in compensation and medical benefits which petitioner had paid and on August 23, 1971, entered his order of award accordingly. The settlement was to be $1.7 million dollars.

On appeal, the District Court of Appeal, Third District, affirmed the equitable distribution order. Ohio Casualty Group v. Parrish, 260 So.2d 550 (Fla. 3d DCA 1972). Ohio Casualty then filed a petition for writ of certiorari before this Court. That petition was denied. 273 So.2d 78 (Fla.1973). Petitioner was also denied review by the United States Supreme Court. 414 U.S. 828, 94 S.Ct. 53, 38 L.Ed.2d 62 (1973).

Based upon a subsequent change in the Workmen’s Compensation statute, Section 440.39, Florida Statutes (Supp.1974), petitioner filed a motion to modify the equitable distribution order. Respondents thereupon filed a suggestion of lack of jurisdiction over the subject matter. The trial court granted that motion, holding it lacked jurisdiction to proceed without permission of the appellate court.

Ohio Casualty appealed this order to the District Court of Appeal, Third District. In addition, James C. Parrish, Jr. filed a motion in the District Court of Appeal, Third District, for award of attorney’s fees pursuant to Fla.App. Rule 3.16(e) and Section 440.34(1), Florida Statutes (1975). The district court held that when the provisions of a final judgment are affirmed on appeal, that judgment becomes a judgment of the appellate court. Without specific permission by the appellate court, that judgment cannot be interfered with by the trial court. The district court also held that respondents’ attorney’s fees should be assessed against petitioner, pursuant to Section 440.-34(1), Florida Statutes (1975).

Petitioner now invites this Court (1) to adopt the reasoning enunciated in Avant v. Waites, supra, which court found that leave of the appellate court was not required for the trial court to entertain a timely motion filed pursuant to Fla.R.Civ.P. 1.540(b), and (2) to reverse the order of the District Court of Appeal, Third District, awarding respondent attorney’s fees pursuant to Section 440.34(1), Florida Statutes (1975). For the reasons stated hereinafter, we accept petition’s invitation as to the first proposition but decline its offer as to the second.

Initially, petitioner urges this Court to construe Fla.R.Civ.P. 1.540(b) to permit a trial court, after issuance of the appellate court’s mandate, to entertain a timely motion pursuant to said rule without first obtaining leave of the appellate court. This position was adopted by the District Court of Appeal, First District, in Avant v. Waites, supra, wherein that court stated:

When an appellate court issues its mandate its judicial labors in that particular case are completed. (Unless, of course, the lower court should refuse to comply with the mandate.) In the event of a subsequent motion pursuant to Rule 1.540 RCP, the trial court is in a much better position to hold a hearing, receive evidence and pass upon the issues than is an appellate court. This is particularly true when the ground for the motion is newly discovered evidence. In order for newly discovered evidence to be a valid basis for relief under Rule 1.540, the rule provides that the newly discovered evidence must be such as “by due diligence could not have been discovered in time to move for a new trial or rehearing.” This requirement necessitates an evidentiary hearing resulting in a finding of facts. The trial court is in the favored position to conduct such a hearing and make such findings. The useless and delaying formalism of prior permission of the appellate court accomplishes nothing, delays speedy administration of justice and tends to clog the dockets of the appellate courts and the trial courts as well.

Id. at 364-365.

In the instant case, the district court came to a contrary conclusion on the same point of law. In so doing, it followed the position it had previously taken in State v. Anderson, 157 So.2d 140 (Fla. 3d DCA 1963), and Lesperance v. Lesperance, 257 So.2d 66 (Fla. 3d DCA 1972). The Lesperance court enunciated the rationale for its holding when it stated:

After the opinion and mandate of this court was rendered in Lesperance v. Les-perance, supra, the final judgment of the trial court became the judgment of this court and the trial court had no authority or jurisdiction to entertain a motion to vacate its original judgment without permission therefor having been obtained from this court.

Id. at 67.

In our view, the arguments in favor of abrogating the requirement of appellate leave are the more persuasive. The general purpose of the rules of civil procedure is to avoid technical proceedings. Shores v. Murphy, 88 So.2d 294 (Fla.1956). A requirement of leave from an appellate court can only constitute a useless and delaying formalism. An evidentiary hearing will ordinarily be required to determine whether the requirements for reopening a case under the rule are actually met. It is the trial court and not the appellate court which is in the favored position to conduct such a hearing.

Fla.R.Civ.P. 1.540(b) closely resembles Federal Rule 60(b). Until the United States Supreme Court rendered its opinion in Standard Oil Co. of California v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976), there was a conflict in the federal circuit courts on the same point under review today. The Supreme Court resolved that conflict by holding that appellate leave was not required. In so holding, it stated its exposition as follows:

In our view, the arguments in favor of requiring appellate leave are unpersuasive. Like the original district court judgment, the appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events. Hence, the district judge is not flouting the mandate by acting on the motion. See 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2873, at 269-270 (1973). Cf. SEC v. Advance Growth Capital Corp., 539 F.2d 649, 650 (CA7 1976). Furthermore, the interest in finality is no more impaired in this situation than in any Rule 60(b) proceeding. Finally, we have confidence in the ability of the district courts to recognize frivolous Rule 60(b) motions. Indeed, the trial court “is in a much better position to pass upon the issues presented in a motion pursuant to Rule 60(b),” Wilkin v. Sunbeam Corp., 405 F.2d 165, 166 (CA10 1968). [Cert. denied, 409 U.S. 1126, 93 S.Ct. 940, 35 L.Ed.2d 258.] Accord, Wilson Research Corp. v. Piolite Plastics Corp., 336 F.2d 303, 305 (CA1 1964); 11 Wright & Miller, supra, at 269.
The appellate-leave requirement adds to the delay and expense of litigation and also burdens the increasingly scarce time of the federal appellate courts. We see no reason to continue the existence of this “unnecessary and undesirable clog on the proceedings.” S. C. Johnson & Son, Inc. v. Johnson, 175 F.2d 176, 184 (CA2 1949) (Clark, J., dissenting). We therefore deny the motion to recall because the District Court may take appropriate action without this Court’s leave.

Id. at 18-19, 97 S.Ct. at 32.

Were we not persuaded by the policy considerations favoring abolition of the appellate-leave requirement, a careful reading of the rule itself would militate toward that position. While Fla.R.Civ.P. 1.540(a) specifically requires leave of the appellate court as a prerequisite to correction of clerical mistakes arising after commencement of the appeal, subparagraph (b) of the rule contains no such condition. The absence of the appellate-leave requirement from sub-paragraph (b) where the same requirement was clearly stated in subparagraph (a) suggests that no such requisition was intended to attach to the former subparagraph.

The basis of petitioner’s motion to modify the equitable distribution order is that the Workmen’s Compensation Law, which was enacted after the date of the accident, should be applied retroactively. Because the trial court did not rule on the motion, this issue is not ripe for review in this Court.

Petitioner also urges this Court to reverse the order of the District Court of Appeal, Third District, awarding respondent attorney’s fees. It is submitted that the scope of the statute awarding attorney’s fees is limited to circumstances where the employer or carrier declines to pay a claim or unsuccessfully resists payment of compensation benefits; because the proceeding was not one for payment of compensation or enforcement of an award of compensation, petitioner argues the instant cause is outside the sphere of the statute.

We do not construe the thrust of the statute to be so narrow. The statute specifically authorizes an award of attorney’s fees if the employer or carrier “shall otherwise resist unsuccessfully the payment of compensation.” By filing a motion to modify the equitable distribution order, petitioner was essentially resisting payment of compensation by attempting to both deprive respondent of prospective payments and recover half of all benefits paid after October 1, 1974. The language of Section 440.34, Florida Statutes (1975), articulates the policy that the claimant should not be required to pay his own legal fees in attempting to retain past benefits paid or future benefits already determined to be forthcoming. Furthermore, the proceedings in the district court involved review of the equitable distribution award.

Section 440.34, Florida Statutes (1975), was enacted to enable an injured employee who has not received an equitable compensation award to engage competent legal assistance and, in addition, to penalize a recalcitrant employer. If the services of an attorney become necessary, and the carrier is ordered to pay compensation, attorney’s fees must be assessed against the carrier so that the benefits awarded the employee will constitute a net recovery. See Alpert, Florida Workmen’s Compensation Law, § 15:10, p. 445 (1966). Cf., Steele v. A.D.H. Building Contractors, Inc., 196 So.2d 430 (Fla.1967). Thus, in adding attorney’s fees to the injured worker’s compensation award, Section 440.34, Florida Statutes (1975), discourages the carrier from unnecessarily resisting claims in an attempt to force a settlement upon an injured worker. In addition, if the worker has a meritorious case, an attorney will be inclined to represent him, realizing that a reasonable fee will be paid for his labor and not deducted from perhaps a modest benefit due the claimant. Conversely, if the attorney believes the claim is frivolous, he would be inclined to decline representation.

The conduct of the petitioner in the instant cause falls squarely within both the policy considerations of Section 440.34(1), Florida Statutes (1975), calling upon it to pay respondents’ attorney’s fees and the express language of that statutory provision.

Accordingly, the petition for writ of cer-tiorari is granted, that part of the District Court of Appeal’s opinion holding that leave of the appellate court was required for the trial court to entertain a timely motion pursuant to Fla.R.Civ.P. 1.540(b) is quashed and remanded to the District Court of Appeal, Third District, with instructions to remand to the trial court for proceedings not inconsistent with the views expressed herein. That portion of the District Court’s opinion awarding respondent attorney’s fees is hereby approved.

It is so ordered.

OVERTON, C. J., and ADKINS and HATCHETT, JJ., concur.

BOYD, J., dissents.

      .' This discussion assumed that the trial court’s order was appealable. If an appeal was dismissed on the ground that the order from which appeal was sought was not appealable it was as if no appeal had ever been taken, and the trial court retained complete power to modify its order as it saw fit.

      . The Avant court noted that an evidentiary hearing is especially required when the ground for the motion is newly discovered evidence. In the instant case, the ground for the motion is not newly discovered evidence, but falls under (5) of the rule, to wit: “It is no longer equitable that the judgment or decree should have prospective application.” Nevertheless, an eviden-tiary hearing resulting in findings of fact is just as essential to determine the merit of such a motion.

      . See also the Report of Proposed Amendments to the Rules of Civil Procedure for the United States District Courts (1955), prepared by Advisory Committee on Rules for Civil Procedure, wherein the Advisory Committee recommended the position later adopted by the Court in Standard Oil.

      . § 440.34(1), Fla.Stat. (1975), states:
      “If the employer or carrier shall file notice of controversy as provided in s. 440.20, or shall decline to pay a claim on or before the 21st day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation be awarded reasonable attorney’s fee, to be approved by the judge of industrial claims which may be paid direct to the attorney for the claimant in a lump sum. If any proceedings are had for review of any claim, award or compensation order before any court, the court may allow or increase the attorney's fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct.” (Emphasis supplied)


text:
    Roger LUCKETT, Appellant, v. Marguerite DOCEN, Appellee.
    No. 51214.
    Supreme Court of Florida.
    Sept. 29, 1977.
    Robert S. McCain, of McCain & Sutton, Fort Lauderdale, for appellant.
    W. W. Caldwell, Jr. and Donald R. Hall, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

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


author: OVERTON, Chief Justice. ENGLAND, Justice,

text:
    James Ron SHELLEY, Public Defender, First Judicial Circuit of Florida, Petitioner, v. The DISTRICT COURT OF APPEAL, First District of Florida, Respondent.
    No. 46537.
    Supreme Court of Florida.
    Sept. 30, 1977.
    Bruce S. Rogow, and Daniel S. Pearson of Pearson & Josefsberg, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., Tallahassee, for respondent.

      Bennett H. Brummer, Public Defender, Miami, for Florida Public Defenders’ Association, as amicus curiae.
   OVERTON, Chief Justice.

James Ron Shelley, Public Defender for the First Judicial Circuit of Florida, petitions for writ of common law certiorari to review an order of the First District Court of Appeal, finding him in contempt for failure to prosecute an appeal and failure to respond to an inquiry of the court. This action initially began in the District Court of Appeal, and there has been no previous appellate review.

The assertion is also made that there is conflict with In re McCarey, 105 So.2d 813 (Fla. 1st DCA 1958). McCarey held that a lawyer’s abandonment of an appeal of his client was “not truly a contempt of the appellate court,” but that the facts in that case justified a disciplinary prosecution for disbarment. 105 So.2d at 815. We find decisional conflict, even though the McCar-ey case did not involve a failure to respond to a letter inquiry and directive of a court. We have jurisdiction.

The instant case began on February 6, 1974, when a notice of appeal from a conviction of breaking and entering was filed by George Ralph Miller, an assistant public defender and member of the staff of the petitioner, on behalf of Clyde Young, a client of petitioner. Nothing further was done to prosecute the appeal. The defendant Young was placed on probation in June of 1974. On September 20, 1974, the clerk of the First District Court of Appeal, at the direction of the chief judge, wrote petitioner Shelley directing him to advise the court within seven days why the appeal had not been prosecuted. No response was made by petitioner. On October 17, 1974, the First District Court of Appeal ordered the petitioner Shelley to appear before the court and show cause why he should not be held in contempt for failure to prosecute and failure to respond to a directive of the court. Since Shelley had neither responded nor appeared at that point, it was necessary for the court to have the sheriff serve the Order to Show Cause on the petitioner. The order directed petitioner to show “why [he] should not be held in contempt of this Court for [his] dereliction for failure to prosecute this appeal in accordance with Florida Appellate Rules.”

Petitioner at the hearing on November 5, 1974, did not deny he received the court’s letter, but urged that it was his assistant who failed to respond to the circumstances of the appeal. He nevertheless admitted: “I am personally responsible for whatever he did because he cannot act except by my authority.” The District Court found that he failed to prosecute the appeal of his client and failed to respond properly to the court’s directive, and fined him one hundred fifty dollars ($150.00) and costs. Although no express mention was made of “contempt” in the order, contempt appears to be the foundation for the sanctions imposed since the last sentence of the order read: “Payment of said fine and court costs within 30 days from the date of this Order shall constitute purge of this Order.”

We hold that the imposition of a summary contempt sanction is a proper and necessary disciplinary tool to aid a judicial tribunal in carrying out its necessary court functions, but the imposition of the sanction in this case was not warranted under the facts presented in the record. The contempt power is a proper and historical alternative to existing formal disciplinary proceedings. The Integration Rule of The Florida Bar, Article XI, Rule 11.14, providing for disciplinary proceedings in circuit courts, is no bar to the use of this summary power in cases of lesser infractions of the various rules governing the practice of law which affect the necessary operations of a court. Such authority historically is within the inherent power of courts, and the District Courts of Appeal clearly have the inherent authority to impose such sanctions. Flaksa v. Little River Marine Construction Co., Inc., 389 F.2d 885, 888-89 (5th Cir. 1968), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968). See In re Sutter, 543 F.2d 1030, 1037-38 (2d Cir. 1976); Bardin v. Mondon, 298 F.2d 235 (2d Cir. 1961). Contra, see Gamble v. Pope & Talbot, Inc., 307 F.2d 729 (3rd Cir. 1962), cert. denied, 371 U.S. 888, 83 S.Ct. 187, 9 L.Ed.2d 123 (1962).

We find the sanction imposed by the District Court improper because there was a lack of personal knowledge by the petitioner of the grounds for contempt. This is a substantial mitigating circumstance in this case. Further there is no finding that the petitioner personally disobeyed a court order.

Accordingly, the order of the District Court of Appeal is quashed.

ADKINS, BOYD, SUNDBERG, HATCH-ETT and KARL, JJ., concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice,

concurring.

The district court of appeal has identified two distinctive concerns which prompted its action against Shelley — a concern that he failed to prosecute an appeal diligently, and a concern for the administrative need of the judiciary to control its justice-dispensing processes. Insofar as the court’s order is predicated on the first, which has as its goal the protection of clients’ rights to obtain prompt appellate review of a trial ruling with which they are aggrieved, it is wholly without support in the record.

The record shows that public defender Shelley’s office zealously and successfully advocated the case of Johnny Clyde Young. Almost immediately after Young’s conviction and sentence, and at approximately the same time the notice of appeal was filed in the district court, assistant public defender George Miller took appropriate action before the trial judge to vacate Young’s sentence and to have him released on probation. (This was accomplished two months before the first notice to Shelley was sent by the district court’s clerk.) Young’s interest in the appeal vanished when he was released from custody, as was shown by an affidavit to that effect in the record. Thus, when the district court held Shelley in contempt, it well knew that it was in no way vindicating a client’s rights and that, at best, it was acting in response to the negligent failure of Miller (or others in the public defender’s office) to notify the district court clerk that the appeal should have been dismissed.

The only legitimate concern of the district court in this case, then, was Shelley’s alleged affront to that court’s record-keeping function — knowing what cases are in what stage of the appellate process for scheduling the court’s work flow and for statistical purposes. This function, of course, is without question a proper duty of the chief judge as administrator of the court (Article V, Section 2(c), Florida Constitution) and of the court’s clerk. I agree with my colleagues, however, that contempt was not an appropriate response to that affront on the facts of this case.

First, as the majority notes, Shelley had no personal knowledge of the Johnny Clyde Young case. George Miller, an assistant public defender employed by his office, had sole charge of the case and had personally filed the controversial notice of appeal. Shelley lived and had his principal office in Pensacola (Escambia County), while Miller operated a branch of the public defender’s office in De Funiak Springs (Walton County). The two offices are about 90 miles apart. The Public Defender’s Association, acting as amicus curiae in this case, notes that the caseloads of some public defender offices in Florida are so large that it is impossible for the elected public defender to be acquainted personally with every matter under his jurisdiction. The record before us shows that the public defender’s office in the First Judicial Circuit, Shelley’s domain, handled several thousand cases in 1974. Shelley and the Association suggest that it would no more be possible for an elected public defender to be familiar with each case personally than it would be for the Attorney General, or for the senior partner of a law firm, to be personally familiar with each case within his organization. I agree.

Second, the record shows that when Shelley received the first form inquiry about the Young case he took immediate action within his organization to ascertain its status. (A timely response to the district court’s request was virtually impossible since the clerk’s directive required an answer within seven days. It was not received in Pensacola until four days after it was mailed, and the case records were only available in De Funiak Springs. This does not excuse Shelley’s failure to indicate that he had received the communication and was working on it, however.) Shelley was assured by personnel in his office that the matter had been resolved by filing a dismissal of the appeal, or some other appropriate document, in the district court.

Third, Shelley did not disobey the district court’s Rule to Show Cause. That directive did not ask Shelley to explain why he failed to respond to an earlier request of the court. Its sole command was for Shelley to

“show cause, if any you have, why you should not be held in contempt of this Court for your dereliction for failure to prosecute this appeal in accordance with Florida Appellate Rules.”

He made that showing at the time and place he was ordered to appear by the district court. It follows, then, that the district court found Shelley contemptuous in a matter for which he had never been charged — failing to answer the district court clerk’s routine file-check letter.

In Barry v. State, 324 So.2d 95 (Fla. 1st DCA 1975), a different panel of the same district court, on materially identical facts, declined to hold an attorney in contempt of court but reprimanded him publicly. The action taken in that case was a reasonable judicial response to an attorney’s disregard for court directives, and a like response may well have been appropriate in this case. 'My colleagues are eminently correct, however, in concluding that a contempt finding and fine were improper in response to the defaults in the public defender’s office.

      . Art. V, § 3(b)(3), Fla.Const.

      . For a critical discussion of this subject, see Wolf, Attorney’s Negligent Failure to Comply with Procedural Deadlines and Court Calendar Orders — Sanctions, 47 Texas L.Rev. 1198 (1969): Note, Dismissal for Failure to Attend a Pretrial Conference and Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J. 819, 829-32 (1963); Note, Civil Procedure— Power of Federal Courts to Discipline Attorneys for Delay in Pretrial Procedure, 38 Notre Dame Lawyer 158, 161-66 (1963).

      . Had Shelley in fact failed to prosecute Young’s appeal, a finding of contempt would not necessarily be the only appropriate response. In In re McCarey, 105 So.2d 813, 815 (Fla. 1st DCA 1958), cert. denied, 112 So.2d 10 (Fla.1959), the court held:
      “While members of the bar and the bench are engaged together in the administration of justice, a lawyer’s failure properly to prosecute an appeal and properly to represent his client is not truly a contempt of the appellate court, although it may well be a breach of his professional duty to his client.”

      . Interoffice communications and notations supportive of Shelley’s testimony on this point were tendered to, but not received by the district court.


text:
    Jody STANLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1581.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Oct. 25, 1977.
    Richard L. Jorandby, Public Defender, and James L. Eisenberg, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of robbery and sentenced to thirteen years in prison. On appeal he presents three points, only one of which warrants discussion. That point has to do with the admissibility of a tape recorded conversation between appellant and his co-defendant, Eddie L. Brown, taken after the two men had been arrested and while they were confined in the rear seat of a police car.

We treated the same question in an opinion in the Brown case. (Brown v. State, Fla.App., 349 So.2d 1196, Opinion filed this day.)

Accordingly, we affirm the judgment and sentence on authority of Brown v. State, supra.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., and DEAN, ROY E., Associate Judge-, concur.


author: DOWNEY, Judge.

text:
    Paul TODD, Appellant, v. Carl L. TODD, etc., et al., Appellees.
    No. 76-1214.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1977.
    Rehearing Denied Oct. 27, 1977.
    Ronald Sales of Sales & Christiansen, Palm Beach, for appellant.
    Herbert P. Benn of Blank, Williams & Benn, West Palm Beach, for appellees.
   DOWNEY, Judge.

We have studied the briefs and appendix in this case and conclude that error has not been demonstrated. While the language of the inartfully drawn will of the decedent Grace Todd seems to indicate she contemplated the establishment of a trust, the will in fact does not convey any property in trust. In any event, the complaint for declaratory relief does not allege that the coexecutors as cotrustees could not, in accordance with the will, properly have acceded to the request of the surviving spouse and conveyed the property to him after the establishment of a trust. Absent such an allegation no prejudice is shown and no cause of action is stated.

Accordingly, the judgment appealed from is AFFIRMED.

ALDERMAN, C. J., and GREEN, OLIVER L., Associate Judge, concur.