author: PER CURIAM. DAUKSCH, Chief Judge,

text:
    Gerald L. EHRINGER and Beatriz Ehringer, his wife, Appellants, v. BROOKFIELD AND ASSOCIATES, INC., etc., Appellee.
    No. 81-133.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    Rehearing Denied June 24, 1982.
    G. Larry Sims of Black, Crotty, Sims & Hubka, Daytona Beach, for appellants.
    J. Lester Kaney of Cobb & Cole, P. A., Daytona Beach, for appellee.
   PER CURIAM.

The Ehringers (the owners) appeal from a judgment entered after a non-jury trial, which concluded that Brookfield and Associates, Inc. was entitled to a commission on the sale of the LaMacarena Apartments to D’Amico and Friskey. We reverse because we conclude that Brookfield failed to establish any basis upon which a commission could be awarded.

The Ehringers owned the apartments and employed Pam Dunham as their resident apartment manager. While working for the Ehringers, Pam obtained a real estate license, and she associated with Brookfield. Pam asked the Ehringers for an exclusive listing on the apartments. They told her there were several open listings on the property, but if she sold the apartments, she could earn a commission. Pam did not put up any signs or advertise the property. At this point D’Amico and Friskey (partners) came to Daytona Beach to look for real estate investments. They noticed the LaMacarena Apartments and decided to make further inquiry about them. D’Amico telephoned the apartments seeking to speak with the owner, and asked if the project was for sale.

Pam received this call. She told D’Amico he need not call the Ehringers because she could show him the apartments. She then called Dr. Ehringer and obtained information about taxes, mortgages, etc., that a potential buyer would want to know. She did not tell him D’Amico’s name, nor the circumstances under which she had received D’Amico’s call. Pam then called a friend at Brookfield, Dorothy, who agreed to help her handle the sale. When D’Amico arrived to see the project the next day, Pam and Dorothy gave him their business cards, and conducted the apartment showing as brokers. As quickly as he could politely extricate himself, D’Amico left.

At about the same time, Dorothy presented the Ehringers with a written commission agreement on behalf of Brookfield, which provided that the Ehringers would pay a commission if D’Amico bought the apartments. Neither she nor Pam explained to the Ehringers who D’Amico was, nor how he came to know about the apartments. Friskey thereafter contacted Dr. Ehringer directly, and said he had not been sent by a broker. Ehringer then directed Pam, as his manager, to show Friskey the apartments. She conducted this showing as a non-broker. Friskey eventually bought the apartments for his partnership.

At trial the Ehringers argued that Brook-field was not entitled to a commission because it was not the “procuring cause” of the sale. See National Airlines, Inc. v. Oscar E. Dooley & Associates, 160 So.2d 53 (Fla. 3d DCA 1964). The trial court rejected this argument, finding that the key fact was “that contact between the potential buyer and the broker was in fact made when Mr. D’Amico presented himself at the property in question and was greeted by Pam Dunham and Dottie Huffman, two real estate associates of the plaintiff.” We disagree that this point of contact was determinative.

We agree with the Ehringers that Brook-field, acting through Pam and Dorothy, was not the “procuring cause” of the sale of the apartments to the D’Amico-Friskey partnership. The purchasers found these apartments themselves and telephoned the apartment office to reach the owner. They made their first appointment to see the project with a person who they thought was the owner’s agent or manager. As soon as they realized Pam was trying to interpose herself as a broker in the transaction, they stopped dealing with her.

A broker who is the “procuring cause” of a sale of real property is one who initiates negotiations by doing some affirmative act to bring buyer and seller together such as placing signs on the property, promoting calls from prospective buyers, or showing the property to prospective purchasers. Here the record shows all appellee did was, through Pam, answer the apartment office telephone at least partially in her capacity as manager of the project. No case in Florida holds that is sufficient to constitute being a “procuring cause” of a real estate sale.

Even if, as the dissent argues, there were minimal facts or inferences in this record to characterize appellee as a “procuring cause” (which we concede only for the purpose of argument) the record also establishes that Pam (Brookfield’s agent) violated her fiduciary duty owed to the Ehring-ers, in trying to act as the real estate broker in this transaction, to further her own interest rather than theirs. Pam did not first clearly obtain the Ehringers’ permission or consent to act as a broker, nor did she disclose to them that she had a conflict and was going to act against their interest.

Where employees or agents have so acted, contrary to the interest of their principals, the courts do not countenance their keeping the benefit of their breach of duty. Here the record shows Pam did not tell the Ehringers the name of her “prospect” nor the circumstances under which she received the call. Her associate (Dorothy) presented the commission contract to the Ehringers without any disclosure having been made to them as to any of the facts relating to Pam’s conflict of interest. Since Pam was “wearing two hats” in this transaction, if she was going to take off her employers’ and wear her own, she (at a minimum) owed them a duty to disclose her conflict. The fact that they earlier said she could act as a broker for the apartments did not clearly cover the transaction as it unfolded in this case.

Actually, Pam and Dorothy owed the Ehringers an additional duty as real estate brokers. The relationship of broker-to-client is a professional one, requiring the avoidance of a conflict of interest, and when it occurs, full disclosure and the sacrifice of self-interest. Before the execution of a brokerage agreement there must be a full, fair, and open disclosure by the broker or its agents to the prospective client of all material matters. Pam’s status as to persons coming into contact with her through her apartment manager capacity and her entitlement to a commission for a sale should have been clearly settled by a prior agreement. Absent such an understanding, the circumstances under which D’Amico reached her should have been disclosed to the Ehringers before they signed the contract. That duty not having been met, the brokerage contract is (at a minimum) voidable by the Ehringers.

Accordingly, the judgment is

REVERSED.

SHARP and COWART, JJ., concur.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent.

In my opinion this court cannot reverse the judgment of the trial court because the findings of the trial judge come to us presumed to be correct and we cannot substitute our judgment for that of the trial court. St. Joe Paper Company v. State Department of Environmental Regulation, 371 So.2d 178 (Fla. 1st DCA 1979).

There is substantial competent evidence to support the findings of the trial judge that the appellants permitted, and according to some testimony, requested, the appel-lee’s agent to serve as their real estate agent in procuring a buyer for the property. Since the agent was also the manager of the apartment complex, she was in an excellent position to assist in the sale of the property. This situation was ideal for both the appellants and the appellee; particularly for appellants because they had their own manager/real estate agent right there on the property. She was trained and qualified to do what only registered real estate agents are trained to do (to bring the buyer and seller together to execute a contract). It was with the seller’s knowledge and consent, then, that the manager agent filled a dual role. When the buyer contacted the manager/agent to begin negotiations for the purchase the die was cast. It is not important whether the buyer knew the manager was also the agent because it is the seller who is obligated to the agent and the buyer incurs no obligation when seeking properties for purchase.

I would affirm the judgment because it is based upon substantial competent evidence.

      . See Fearick v. Smugglers Cove, Inc., 379 So.2d 400 (Fla. 2d DCA 1980); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975); Walter S. Hardin Realty Co., Inc. v. Barolo, 198 So.2d 334 (Fla. 2d DCA 1966); National Airlines, Inc. v. Oscar E. Dooley Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964).

      . See Banks Real Estate Corp. v. Gordon, 353 So.2d 859 (Fla. 3d DCA 1977).

      . Van Woy v. Willis, 153 Fla. 189, 14 So.2d 185 (1943); Skinner Mfg. Co. v. Douville, 57 Fla. 180, 49 So. 125 (1909); Hershey v. Keyes Co., 209 So.2d 240 (Fla. 3d DCA), cert. denied, 214 So.2d 623 (Fla.1968).

      .A material matter is any matter which would reasonably or likely affect or influence the conduct of a reasonable person in entering or declining to enter into the proposed brokerage agreement.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gloria Jean TEARDO, Appellant, v. Thomas Francis TEARDO and Insurance Company of North America, a foreign insurance corporation, Appellees.
    No. 81-1242.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    Rehearing Denied June 28, 1982.
    David R. Miller, P. A., Daytona Beach, for appellant.
    Alfred E. Green, Jr., Daytona Beach, for appellees.
   PER CURIAM.

AFFIRMED. West v. West, 414 So.2d 189 (Fla.1982).

DAUKSCH, C. J., and COBB and CO-WART, JJ., concur.


text:
    Irvin W. WHETSTONE, Appellant, v. STATE of Florida, Appellee. STATE of Florida, Appellant, v. Irvin W. WHETSTONE, Appellee.
    Nos. ZZ 469, AB-29.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Rehearing Denied July 9, 1982.
    John R. Weed of Weed & Bishop, Perry, for Whetstone, appellant/appellee.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for the State, appellee/appellant.
   PER CURIAM.

The judgment is affirmed for lack of an appropriate record. Salomon v. State, 385 So.2d 148 (Fla. 3d DCA 1980). On the State’s appeal, the sentence is vacated and the case remanded for imposition of the mandatory minimum sentence required by section 893.135, Florida Statutes (1981), and State v. Benitez, 395 So.2d 514 (Fla.1981), which was decided after the sentencing in this case. Whetstone need not be present at resentencing.

AFFIRMED in part, REVERSED in part.

ROBERT P. SMITH, Jr., Chief Judge, and ERVIN and SHAW, JJ., concur.


author: McCORD, Judge.

text:
    W. R. LINDSEY, Terri Jean Lindsey and Nationwide Mutual Insurance Company, a foreign corporation, Appellants, v. David E. JOHNSON and Mattie Johnson, his wife, Appellees.
    No. AF-53.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Rehearing Denied July 13, 1982.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    William N. Avera, Gainesville, for appel-lees.
   McCORD, Judge.

The defendants below, W. R. Lindsey, Terri Jean Lindsey, and Nationwide Mutual Insurance Company, appeal from the trial court’s order granting the plaintiffs’ motion for a new trial. We reverse.

The plaintiffs, David E. Johnson and his wife Mattie, brought suit against the defendants for damages allegedly arising out of a motor vehicle accident that occurred on December 3,1975. On that day, at approximately 4 p. m., David Johnson was driving toward his residence on Highway 349 in Dixie County. He and his wife were in a Dodge pickup truck, which was pulling a boat and trailer. He testified that he was driving at approximately 35 m. p. h. when, about 800 feet from his house, he turned on his truck’s left turn signal. About a minute later, approximately 400 feet from his house, he looked through his rearview mirror and did not see anyone behind him. As he approached the driveway, he turned across the center of the road and began to make his left turn. Reaching his driveway, he decreased his speed and was going approximately 10 m. p. h. when he reached the driveway. As he started into the driveway, he was struck by a car coming from behind. Johnson admitted at the time of the accident he did not have any operative signals or lights on the boat trailer. He also admitted that he did not look into the rearview mirror after the 400-foot mark because his attention was focused ahead for on-coming traffic.

The car that struck the Johnsons was owned by the defendant W. R. Lindsey and was being driven by his daughter, Terri. While she thought the speed limit was either 65 or 70 m. p. h., she testified that she was traveling at approximately 55 m. p. h. She further stated that her maximum speed would have been 60 m. p. h. As she approached the truck, she realized it was going “real slow” so she decided to pass. When she began to pass, the truck made a left turn in front of her. As she approached and started to pass, she did not see any turn signals on either the boat or the truck. She does not recall that any center lines were painted in the pavement and testified that if there had been lines, “... I wouldn’t have passed. I mean I know how to read the lines on the road.”

The accident was investigated by Patrolman D. H. Dufore. He testified that he did not recall whether the center line, which was depicted in a picture of the accident scene taken five years after the accident, was painted on the road at the time of the accident. He also indicated that there was nothing in his accident report to show a no-passing area. It was his normal practice to observe whether a solid yellow line is at the scene of an accident and to indicate it on the accident report diagram if it had anything to do with contributing toward the accident. He thought that this was the type of accident where the existence of a solid yellow line would be important. He further stated that he did get down onto the road surface to measure and visually inspect the skid marks on the road surface but still did not notice any solid yellow lines. He also was not aware that any speed limit signs existed on that road within the two miles leading to the scene of the accident.

On the other hand, Mr. Johnson testified that the solid yellow line that is now on the pavement was present at the time of the accident. His testimony was supported by that of Gary Jones, a marine patrol officer, who testified that he had traveled on that road three to four times a week since 1974 and that the center line markings have been on the road since that time.

At the close of the parties’ presentation of the evidence and arguments, the trial court gave in its charge to the jury the following relevant instructions: (1) that Section 316.030(1) provides that any person operating a vehicle upon the streets or highways within the state shall drive in a careful and prudent manner under the circumstances existing; (2) that Section 316.085(2) provides that a vehicle shall not be driven from one lane on a highway across the other lane until the driver has determined that he is not being approached or passed by any other vehicle in the lane toward which he is moving; (3) that Section 316.-086 provides that when no-passing zones or markings are in place and clearly visible to an ordinary observant person, no driver shall drive on the left side of the roadway within such no-passing zone; (4) that Section 316.089(1) provides a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved in such lane until the driver has first ascertained that such movement can be made with safety; (5) that 316.183(5) provides that no person shall drive a motor vehicle at such a slow speed as to impede or block normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with the law; (6) that § 316.183(1) provides that no one shall drive at a speed greater than is reasonable under the circumstances prevailing; (7) that 316.222 requires every motor vehicle, trailer, semitrailer, and pole trailer to be equipped with stop lamps and turn signals. The jury then retired and, after one hour of deliberation, returned a verdict in favor of the defendant.

The trial court subsequently granted the plaintiffs’ motion for a new trial, finding that the “verdict was based upon passion, prejudice, sympathy or some other consideration outside of the evidence, or that the jury failed to understand, weigh or consider the force and credibility of the evidence or failed to follow or understand the charges of this Court ... . ” He also noted that the “.. . verdict was contrary to the manifest weight and probative force of the evidence and that the jury verdict did not comport with logic and reason.” This appeal ensued.

We note that the trial court's decision to grant a motion for new trial is within its sound judicial discretion. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959). However, when the trial court concludes, as this trial court essentially has, that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be amenable to appellate review. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978).

Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.

Id., at 435. Here, the order for new trial is deficient in that it does not contain reference to the record in support of either of its two basic conclusions. Therefore, we have made an independent review of the record in search of support for those conclusions. We find none.

A review of the evidence that was presented to the jury indicates that there were two ways in which the jury could have found Terri Jean Lindsey negligent and to thereby have contributed to the accident: (1) that she was speeding; or (2) that she passed on a solid yellow line. As to both of these points, the evidence was conflicting. The questions, therefore, were properly submitted to the jury and its conclusion should stand:

It is an abuse of discretion to grant a new trial where the verdict finds ample support in the record, no illegal evidence is shown to have gone to the jury, and all that is to be accomplished is to have another jury try the cause.

North Dade Import Motors v. Brundage Motors, 221 So.2d 170, 176 (Fla. 1st DCA 1969). Likewise, we find no support in the record, and no factor has been brought to our attention, as to how or why the jury was impermissibly influenced by “passion, prejudice, sympathy or some other consideration outside of the evidence.” Indeed, plaintiffs, an elderly couple, strike us as the sort of victims most likely to appeal to a jury’s sense of sympathy and largesse. Further, there is nothing to indicate the jury misunderstood or failed to follow the charges of the trial court. The mere fact that the jury verdict was arrived- at in a relatively short period of time does not, by itself, establish that the jury failed to perform its function. North Dade Import Motors, supra, at 177. The jury instructions were a correct formulation of the applicable law, and we will not assume that, without more, the jury was remiss in its allotted task of applying those instructions to the facts. Therefore, finding no affirmative support to show the impropriety of the jury’s findings, we must conclude that the trial court, perhaps understandably, abused its discretion in granting the plaintiff’s motion for a new trial. See Wackenhut, supra.

Accordingly, we reverse and remand this cause to the trial court with directions that the jury’s verdict in favor of the defendants be reinstated.

ERVIN and SHAW, JJ., concur.


text:
    BOOKER CREEK PRESERVATION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. AG-95.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    Rehearing Denied July 9, 1982.
    Thomas W. Reese, St. Petersburg, for appellant.
    Mary F. Clark, General Counsel for Dept, of Environmental Regulation, Tallahassee, for appellee.
   PER CURIAM.

While we find that appellant had standing to maintain this rule-challenge, Florida Home Builders Ass’n v. Department of Labor and Employment Security, 412 So.2d 351 (Fla.1982), we find no error on the merits of the hearing officer’s decision that the rule challenged was lawfully adopted.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


text:
    D. Chris EMMERT, Charles A. Mays and J. W. Strickland, Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION and Board of Naturopathic Examiners of the State of Florida, Appellees.
    No. AH-498.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Rehearing Denied July 12, 1982.
    Donald B. Hadsock, Bradenton, for appellants.
    Charles F. Tunnicliff, Asst. Gen. Counsel, Tallahassee, for appellee Department of Professional Regulation.
    Jim Smith, Atty. Gen., Randy Schwartz, Asst. Atty. Gen., for appellee Naturopathic Examiners, Tallahassee.
   PER CURIAM.

AFFIRMED. See City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


text:
    Richard A. GERI, Appellant, v. STATE of Florida, Appellee.
    No. AH-376.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Rehearing Denied July 12, 1982.
    Michael Allen, Public Defender, and Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This appeal is from a judgment and sentence finding appellant guilty of probation violation and adjudging him guilty of grand theft, the charge for which he had previously pled nolo contendere and been placed on probation, and sentencing him for such offense. We affirm.

Appellant first contends that the trial court erred in revoking his probation because it lacked subject matter jurisdiction to enter the original order of probation; that the information charging him with grand theft was fatally defective in that it failed to allege that the taking was with the intent to permanently deprive the owner of his property; that such was an essential element of the crime, and, therefore, the circuit court lacked subject matter jurisdiction to enter the original order of probation. This contention is without merit. See Sinclair v. State, 46 So.2d 453 (Fla.1950).

Appellant also contends that the trial court’s written order of revocation of probation is in error in that it does not conform to the trial court’s oral findings; that it finds violations for which there was no evidence presented at the violation of probation hearing. The amended affidavit for violation of probation alleged that appellant had violated Condition 5 of his probation by committing the offenses of burglary of a dwelling and battery upon Ricky Sapp. In addition, it charged appellant with violation of probation by committing a battery upon Mary Jeffries and by committing the offenses of introduction of narcotics into the county jail, possession of marijuana, and possession of quaaludes. At the probation violation hearing, the state introduced evidence only as to the alleged battery upon Ricky Sapp and the burglary. The trial court, at the conclusion of the hearing, only found appellant guilty of those two offenses, but the subsequent order of revocation of probation finds that he violated Condition 5 (three paragraphs) in the amended affidavit. The first of the three paragraphs charged the burglary and the battery upon Sapp. The remaining two paragraphs relate to the other charges upon which no evidence was presented. The state agrees that this was a mistake and that it did not present evidence on the second and third paragraphs. This is an obvious error between the judge’s finding at the conclusion of the hearing and the written order which was later prepared.

The judgment and sentence are affirmed but with directions to correct the order of revocation of probation.

ROBERT P. SMITH, Jr., C. J., and BOOTH, J., concur.


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

text:
    SUNLAND HOSPITAL/STATE OF FLORIDA, and Division of Risk Management, Appellants, v. Thomas GARRETT, Appellee.
    No. AG-422.
    District Court of Appeal of Florida, First District.
    June 7, 1982.
    Rehearing Denied July 12, 1982.
    Bernard J. Zimmerman, Michael M. O’Brien, and William G. Berzak, of Aker-man, Senterfitt & Eidson, Orlando, for appellants.
    Joseph H. Williams of Troutman, Parrish & Williams, P. A., Winter Park, and John F. Wilhelm, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Sometimes, in workers’ compensation cases, complex legal issues have a way of attracting attention only after the deputy has entered a compensation order and the order has been appealed. Here, after briefing and oral argument, we were left to ponder a sticky legal question concerning the deputy’s award of 75% permanent partial disability benefits, based on loss of wage earning capacity, to a worker who hurt his previously vulnerable back while at work in May 1979, went back to work a few months later, and injured it again in December 1979.

Did the deputy err in awarding benefits for loss of wage earning capacity in the absence of medical testimony expressing claimant’s anatomic impairment in terms of the American Medical Association Guides to the Evaluation of Permanent Impairment? See section 440.15(3)(a)3, Florida Statutes (1979); Decor Painting & Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981); Spring Air Mattress Co. v. Cox, 413 So.2d 1265 (Fla. 1st DCA 1982).

Here the deputy found that claimant was physically or anatomically impaired as a result of his May 1979 back injury, as aggravated in December 1979, but the deputy did not rate that impairment in terms of a percentage, whether the AMA-kind of percentage or some other. By deposition a chiropractor testified claimant was totally disabled to work, and the orthopedic surgeon whom the carrier authorized to treat claimant said he was 30 percent permanently impaired when last seen in 1980, due 20 percent to his long-standing back condition (which didn’t previously prevent his working), zero percent to his May 1979 accident, from which, the orthopedist said, claimant recovered entirely, and 10 percent to the new injury in December 1979. Neither doctor expressed claimant’s disability in terms of AMA-endorsed percentages. Neither was asked to do so, either on direct or on cross-examination.

A practiced eye may discern in these deceptively simple facts a tangle of chapter 440 issues concerning pre-existing conditions, aggravation vs. new injury, law applicable before and after the 1979 amendments to chapter 440, and perhaps other issues, in addition to the need for AMA-endorsed percentages of disability spoken by a doctor, the predicate for finding greater disability due to loss of wage earning capacity. One could write a book.

We think we shall not. None of those issues was substantially raised before the deputy.

No question about AMA-endorsed percentages was raised and noticed in counsel’s pre-hearing filing, where the carrier described its “intended position” as:

(1) Claimant has been timely furnished all benefits to which he is entitled to date as a result of the 5/8/79 accident; (2) Reached maximum medical improvement without permanent impairment from 5/8/79 accident; (3) No attorney fees or costs due; (4) Dr. Litchfield [the chiropractor] unauthorized; (5) Claimant not PTD.

The transcript of the deputy’s hearing shows the carrier offered no further elaboration of its position, as against claimant’s claim and his evidence, before, during, or after the deputy’s hearing. The carrier’s counsel repeated his “position” in the same general terms quoted above. The two doctors’ depositions were filed in evidence without objection. Claimant testified about his disability and work search. The hearing ended without any argument whatever. Counsel rested their case, the deputy thanked one and all, and everybody left.

We do not speculate on whether or how the deputy, if the point now raised had been raised then, could have permitted claimant’s counsel to remedy the absence of AMA-endorsed disability ratings in the two doctors’ depositions; nor do we foreclose the possibility that the carrier, by introducing an orthopedist’s deposition evidencing a disability rating but not its source in the AMA guides, invited or waived the error of which it now complains. It is enough to say that neither the AMA-guide issue, nor any other alluded to above, was ever significantly raised before the deputy, and the deputy never was asked by counsel to address the question now so earnestly argued by the carrier.

It was suggested at oral argument that these deputies are vastly experienced navigators of workers’ compensation law, that they know without being told where the carrier thinks the claim should go on the rocks. Thus silence is prudent; and, with the ordered benefits still in its pocket, the carrier urges, some months later and on sophisticated briefs prepared at leisure, that we reverse the order for grave and inexplicable error.

We will have none of this. It is familiar general law that an appellate court will not reverse on a point not preserved in the tribunal of first resort. Hartford Fire Insurance Co. v. Hollis, 58 Fla. 268, 50 So. 985 (1909); Bozeman v. Roberts, 188 So.2d 23 (Fla. 1st DCA 1966). A corollary of that, in workers’ compensation appeals, is that we will not reverse for a readily correctable technical error that the deputy was not asked to correct within the time available for correction. Section 440.25(4)(a), Florida Statutes (1981); Genuine Parts Co. v. Morris, 409 So.2d 156 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981). The purpose of workers’ compensation being to compensate the worker justly and in time for his disability due to industrial risks, this Court recently excised any incentive for the deputy to apply too-lenient work search standards, by relieving the draconian effect of denying a claim finally and totally for some correctable deficiency in the work search. Flesche v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982).

These principles further imply that the deputy commissioners, not this Court, shall bear primary responsibility for administering chapter 440, and that when a plausible case for particular compensation is shown, all the carrier’s impediments to promptly paying those benefits shall be made known to the deputy clearly and contemporaneously, and in substantially the same detail as the carrier would later wish to urge upon us. That the carrier has done so will be shown in the record. We decline to become the tribunal of first resort on complex questions latent in the record but not substantially raised before the deputy. To the extent our own record of decisions these past three years may have given the appearance of a present and continuing readiness to decide questions not substantially raised before the deputy, thus misleading counsel, we now forswear that implication.

Substantial competent evidence supports the deputy’s finding that the work search was adequate. The compensation order is AFFIRMED. Considering the affidavit of claimant’s counsel concerning the services rendered and the time devoted to the appeal, including oral argument, an attorney’s fee is awarded claimant’s counsel in the amount of $3,500.

ERVIN and SHAW, JJ., concur.


text:
    Russell Bruce MONCRIEF, Appellant, v. STATE of Florida, COMMISSIONER OF INSURANCE, Appellee.
    No. UU-174.
    District Court of Appeal of Florida, First District.
    June 8, 1982.

      James C. Weart, Sanford, for appellant.
    Thomas A. T. Taylor, S. Strom Maxwell and Steven R. Scott, Tallahassee, for appel-lee.
   PER CURIAM.

Moncrief, a licensed bail bondsman, appeals an order of the Department of Insurance (Department) fining him a total of $500.00 on all three counts of an administrative complaint and placing him on probation for a period of one year for violating each of the three counts. A hearing officer of the Division of Administrative Hearings recommended certain findings, which the Department accepted, while at the same time rejecting the recommended conclusions that Moncrief be issued only a letter of admonition for one of the alleged charges, and that no penalties be imposed for the other two charges.

We affirm the Department’s order as to Count I, but reverse it as to Counts II and III. The pertinent evidence and findings in support of each count are as follows:

COUNT I

Count I charged that the appellant knowingly hired one Delbert Leroy Sams to perform the duties of a bail bond runner, although Sams was not licensed as a runner, in violation of Sections 648.30 and 648.-45(l)(b), Florida Statutes (Supp.1976). Following the administrative hearing, the hearing officer made the following findings of fact as they relate to the facts alleged under Count I:

Shortly after Respondent opened his bail bond office, he was approached by Sams who represented himself as a bounty hunter who could pick up “skips” and others the bail bondsman wanted for surrender under their bonds. Sams represented that he was a member of the Florida Assurity Association, that he so worked for several bail bondsmen and was qualified to pick up skips for bail bondsmen. Sams produced an impressive badge, business cards and arrest forms for the bondsman to sign which would authorize Sams to pick up the individuals who had skipped out on their bonds.
At this time Respondent had no skips to pick up and suggested Sams contact him later; and, during the period between June and September, 1978, Sams picked up some five (5) to eight (8) individuals on whom Respondent had written a bond and returned these people to Respondent. For these services, Respondent paid Sams a percentage of the bond.
This relationship with Sams terminated when the latter gave Respondent a worthless check.
Subsequently, Sams learned that his “bounty hunting” was unauthorized and applied for licensure as a bail bond runner. During Petitioner’s investigation of Sams’ application, his association with Respondent became known and Respondent told Petitioner’s agents of his relationship with Sams. This led to an investigation of Respondent and to the charges here preferred.

The hearing officer concluded from the above findings that although the employment of Sams by Moncrief to pick up “skips” was in violation of the law, and although Moncrief should have been aware that Sams could not apprehend skips without the latter’s licensing as a runner, he nevertheless recommended that Moncrief be issued only a letter of admonition because the “employment stemmed from lack of knowledge on the part of respondent [Mon-crief] and not from an intent to violate the laws regulating bail bondsmen.”

The record substantially reveals that Moncrief was aware that Sams was not licensed. Moncrief’s lack of knowledge pertained not to a mistake of fact, but to a mistake of law — his belief that he was not required to have Sams licensed because he was not exclusively in his employ. As to the latter, the courts universally recognize that ignorance or mistake of law will not excuse an act in violation of the laws so long as the laws clearly and unambiguously proscribe the conduct alleged. See 21 Am. Jur.2d Criminal Law § 94 (1965).

The main thrust, however, of Moncrief’s argument as it pertains to that portion of the Department’s order sustaining Count I of the administrative complaint is that Moncrief had a common law right as a bail bondsman to delegate his authority to an agent, a right specifically recognized by the United States Supreme Court in Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1873); consequently, he was not required to license Sams since Sams was not a “runner” as defined by Sections 648.25(6) and 648.37(l)(c), Florida Statutes. This argument is without merit. The common law right of a bail bondsman to delegate his authority to an unlicensed agent has been abrogated by statute in Florida. See Register v. Barton, 75 So.2d 187 (Fla.1954). The licensing requirement is all inclusive by virtue of Section 648.30, Florida Statutes, which indisputably provides that all runners shall be licensed. Section 648.25(6) includes in its definition of a “runner” “a person employed by a bail bondsman to assist ... in the apprehension and surrender of the defendant.” Sams was hired by Moncrief to perform this very function. Thus, Sams was either a “runner” or was performing “the functions, duties or powers prescribed for ... runners.” Further, Fla.Admin. Code Rule 4-1.06 specifically placed a duty on Moncrief to have Sams licensed.

The appellant’s contention that the statutory definition of “runner” in Section 648.25(6) is violative of due process because of a vagueness or overbreadth is without merit. Cf. Jr. Food Stores of West Florida, Inc. v. Division of Alcoholic Beverages and Tobacco, 390 So.2d 1244 (Fla. 1st DCA 1980).

Because the order as it relates to Count I was substantially supported by the evidence, the Department was justified in rejecting the hearing officer’s recommended penalty and imposing its substituted penalty as it was one which it could impose within its range of discretion. See Fla. Real Estate Comm’n. v. Webb, 367 So.2d 201 (Fla.1978); Hartnett v. Department of Ins., 406 So.2d 1180, 1181, n. 1 (Fla. 1st DCA 1981).

COUNT II

The evidence supporting the Department’s order as to Count II was, however, far less substantial than that under Count I. Count II alleged that Moncrief’s alteration of a jail card rendered him untrustworthy. As to the evidence supporting that charge, the reviewing agency accepted the hearing officer’s findings of fact, yet drew the opposite conclusion from that recommended, holding on the facts found that the alteration of a jail card was, under the circumstances, reflective of untrustworthiness, and therefore was, as denounced by Section 648.45(l)(j), “a source of detriment, injury or loss to the public.” We disagree.

The hearing officer specifically found:

On or about February 28,1978, Respondent was given the jail card of Willie Frank Boone by the booking officer to use in preparing a bailbond. Boone had previously been bonded by Respondent and he was somewhat familiar with Boone’s record. While the card was in his custody, Respondent thought one entry on the card was an error and interlined that item. Further perusal of the card led Respondent to realize the card had not been in error. When he returned the card to the booking officer, he told the booking officer of the changes he had made to the card. This caused considerable consternation in the booking officer and led to procedural changes to not allow custody of the jail cards to be given to bail bondsmen. The change to the jail card made by Respondent could not benefit Respondent financially or otherwise. However, the change could have affected the sentencing of the accused.

The above findings, accepted by the Department, show that while Moncrief deliberately altered a jail card relating to one of his clients, he did so in the honest belief that certain information on the card was incorrect. When he discovered, to the contrary, that his belief was ill-founded, he immediately reported the alteration to the booking officer. We agree with the hearing officer’s conclusion that such action is not tantamount to untrustworthiness. “Trustworthy” is defined in Webster’s New Collegiate Dictionary (1976) as the state of being worthy of confidence or of being dependable. If untrustworthiness means the opposite, namely the status of one lacking in confidence or dependability, then the findings do not reveal that appellant’s conduct fell within the statute’s terms.

The crucial issue narrows simply to whether the alteration of the jail card was, under the circumstances, equivalent to untrustworthy conduct. We consider that the answer to this question rests upon the following general principles from Bowling v. Dept. of Ins., 394 So.2d 165, 172 (Fla. 1st DCA 1981):

[W]hen the standards of conduct to be enforced are not explicitly fixed by statute, or by rule, but depend on ... debatable expressions ...; when the conduct to be assessed is past, beyond the actor’s power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as “substantial” as the consequences.

Here, as in Bowling, because the matter at issue is not one involving Department policy, it was therefore one which the agency was required to prove by conventional facts — i.e., expert testimony, documentary opinion, or other evidence “appropriate in form [to] the nature of the issues involved.” Anheuser-Busch, Inc. v. Dept. of Business, 393 So.2d 1177, 1183 (Fla. 1st DCA 1981). No facts were adduced revealing that Moncrief’s conduct necessarily rendered him untrustworthy or undependable. Having accepted the recommended findings, the Department was not then at liberty to draw the opposite conclusion — as it was as to the recommendations pertaining to Count I — that Moncrief’s conduct necessarily rendered him untrustworthy. If the Department had wished to present evidence directed to that issue, it should have done so. Other evidence might have been presented, from say Moncrief’s peer group, that the intentional alteration of a jail card would be considered untrustworthy behavior under any circumstance. Such a conclusion could not be drawn from the findings before us, however; no more than could, for example, the agency’s conclusion that a teacher’s effectiveness as an employee of a school board had been reduced because of the commission of certain conduct, without substantial evidence directed to that issue. See Boyette v. Professional Practices Council, 346 So.2d 598, 600 (Fla. 1st DCA 1977); Jenkins v. State Bd. of Ed., 399 So.2d 103, 105 (Fla. 1st DCA 1981).

The Department was required to establish its allegations under Count II by a record foundation. In adopting the recommended findings that Moncrief had mistakenly altered the card, had returned the card to the booking officer with his admission of the change, and that the alteration could not benefit Moncrief financially or otherwise, the Department must be considered to have effectively rejected and dismissed as unfounded all implications of untrustworthy conduct. Cf. Jenkins v. State Bd. of Ed., supra. Accordingly, the penalty imposed as to Count II is vacated.

COUNT III

In Count I, both the conduct alleged and the standard prescribed for such conduct were established by substantial evidence. The charge under Count II failed in that the conduct alleged was not substantially supported by evidence. On the other hand, the conduct alleged as to Count III was clearly established since there is no factual dispute that Moncrief’s office was not open during the specified morning hours during March, 1979. The only material issue is whether the standard sought to be enforced for such conduct was satisfied by the necessary quantum of evidence. We find that it was not.

Moncrief was fined $100 because he failed, as charged in Count III, to maintain his office during “normal business hours” in violation of Section 648.34(2)(c) and Rule 4-1.04, Florida Administrative Code. Neither the statute nor the rule defines the term “normal business hours.” The Department was therefore required to prove by conventional facts that Moncrief’s bonding office should have been accessible to the public, as the Department contends, between the hours of 8:00 or 9:00 a. m. until 4:00 to 6:00 p. m. The hearing officer’s recommended conclusion in this regard was equivocal; it stated that Moncrief failed to have his office open during the morning hours prior to April, 1979, in violation of the rule, however the violation was not willful.

The material evidence as to Count III reveals the following: That from early 1978 until April, 1979, Moncrief’s office was usually opened around noon by a secretary who remained there until 6:00 p. m.; that Mon-crief normally arrived between 2:00 and 4:00 p. m., and kept his office open until midnight. Additionally, at the time of the specified period of violations, a 24-hour answering service was available to page Mon-crief when he was not at his office. Finally, the evidence reflected that on one occasion when the office was closed, Moncrief had a sign posted inside the office, visible from the outside, stating a telephone number where he could be reached, as well as a time clock on the window advising when he would return.

As in Anheuser-Busch, Inc. v. Dept. of Business, supra, this is a case in which policy-making by rules is preferable to orders. This is so because the Department seeks to establish an industry-wide policy requiring bondsmen to maintain offices open to the public during certain specified hours. As the matter in issue is one of Department policy, a Department rule would be well-nigh conclusive. Cf. Bowling v. Dept. of Ins., supra at 174. Yet, because there was no rule announcing the agency’s policy prospectively, the Department now seeks to extract its policy by an order from events viewed retrospectively.

We decline to accept the agency’s contention that the term normal business hours means, as a matter of common knowledge, the so-called typical work day from 8:00 or 9:00 a. m. through 5:00 or 6:00 p. m. Since the Department now contends that such hours are typical of the bonding industry, it was, in the absence of a rule articulating its policy, obliged to demonstrate such evidence by ordinary methods of proof, i.e., by adjudicative facts rather than by legislative facts. See Bowling v. Dept. of Ins., supra at 174 for the distinction between the two terms. It could have presented evidence that there was some agreement, manual, or common understanding among bondsmen that they were required to maintain their offices during the mornings. The evidence on this issue was hardly substantial. In answer to the question whether any interpretation had been placed on the term normal business hours by the agency, the Department’s agent, Mr. Thayer, responded:

A. I think the interpretation would be that unless otherwise published and, then, it would be ... the normal business hours have been construed to be the normal daytime operating hours available to the public.
If the bail bondsman should say my hours are from 4:00 o’clock in the afternoon till 4:00 o’clock the next morning, if it’s published the people are aware of that, then perhaps that would be his normal business hours.
But generally, it would be construed that people needing bonds or needing to check records or Department personnel, then they don’t do that after hours. The normal business hours are construed to be somewhere between 8:00 and 9:00 and 4:00 and 5:00, 6:00 in the afternoon.

The source of Mr. Thayer’s interpretation did not come from established Department policy; it was based instead upon his experience. Observe the following:

Q. Now I believe you also stated that it had been your experience that during the early morning hours that there would be bondsmen available.
Can you tell me which bondsmen or agencies that you have checked with and found this to be true?
A. Do you want me to name a specific agency?
Q. If you can think of one offhand.
A. I don’t know any particular one that ... I’ve been with the Department eight years all over Florida. You know, I don’t know any particular one that I would choose to pick out and say that’s the particular one.
Q. In other words, you’re just saying that it’s your opinion, really, that this is practice.
A. Well, I wouldn’t say its my opinion, it’s my experience.

Mr. Thayer’s “experience” did not document the number of bondsmen’s offices that were actually open during the morning; indeed it did not substantially rebut Moncrief’s testimony that he considered his normal work day to be from noon until midnight due to the large volume of work then transacted, and the fact that he rarely ever was called upon to write bonds during the morning. If anything, Thayer’s testimony corroborated Moncrief’s by its ac-knowledgement that different hours could be maintained if a public notice were posted advising the hours of accessibility. Mr. Thayer’s testimony of his experience as to the normal hours of a bonding business can hardly be deemed substantial evidence supporting a retrospective characterization of conduct requiring the imposition of a penalty upon the actor’s license. Accordingly, the Department’s order as it relates to Count III must be vacated.

The order is affirmed as it relates to Count I and reversed as to Counts II and III.

ERVIN, SHAW and WENTWORTH, JJ., concur.

      . Section 648.30 provides:
      No person shall act in the capacity of a professional bail bondsman, limited surety agent, or runner, or perform any of the functions, duties or powers prescribed for bail bondsmen or runners under the provisions of this chapter unless that person shall be qualified and licensed as provided in this chapter.

      . Section 648.45(l)(b) permits the Department to suspend or revoke any license for violation of any law relating to bail bonding in the course of dealings under the license.

      . Section 648.25(6), Fia.Stat. provides:
      “Runner” shall mean a person employed by a bail bondsman for the purpose of assisting the bail bondsman in presenting the defendant in court when required, or employed by the bail bondsman to assist in the apprehension and surrender of the defendant or the court, or keeping the defendant under necessary surveillance. This does not affect the right of a bail bondsman to hire counsel, or to ask assistance of law enforcement officers.

      . Section 648.37(l)(c), Fia.Stat. provides:
      It must affirmatively appear from the application:
      * * * * * *
      That the applicant will be employed by only one bail bondsman, who will supervise the work of the applicant, and be responsible for the runner’s conduct in the bail bond business.

      . Section 648.34(2)(c) provides:
      (c) That the place of business of the applicant will be located in this state and that such applicant will be actively engaged in the bail bond business and maintain a place of business accessible to the public.

      . Rule 4-1.04 provides:
      Section 648.34(2)(c), Florida Statutes, is interpreted to mean that every bail bondsman or general lines agent engaged in the bail bonds business be currently engaged in that business; that a place of business suitably designated as such must be maintained open and accessible to the public to render services during normal business hours.


text:
    Theresa B. DOYAL, Appellant, v. SCHOOL BOARD OF LIBERTY COUNTY, a/k/a The Board of Public Instruction of Liberty County, Florida, a public corporation, and Laquita Shuler, as Superintendent of the School District of Liberty County and individually, Appellees.
    No. AD-246.
    District Court of Appeal of Florida, First District.
    June 8, 1982.

      David J. Busch of Busch & White, Tallahassee, for appellant.
    Clinton E. Foster and Richard D. Ogburn, Panama City, for appellees.
   PER CURIAM.

The order here appealed is a final summary judgment entered for appellant on Counts I and II and for appellees on Counts III and IV of appellant’s amended complaint. Appellant raises as error the summary judgment for appellees on Count III and the denial of her prayer for attorney’s fees.

Count III of the amended complaint alleged that the superintendent of schools tortiously interfered with appellant’s contractual relationship with the Liberty County School Board. The tort of malicious interference with a contractual relationship has been consistently defined by the Florida courts as an intentional interference with a contract between two persons where one of the parties is induced to breach the contract to the injury of the other. Dade Enterprises v. Wometco Theaters, 119 Fla. 70, 160 So. 209 (Fla.1935); West v. Troelstrup, 367 So.2d 253 (Fla. 1st DCA 1979); Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964); Steffan v. Zernes, 124 So.2d 495 (Fla. 1st DCA 1960). In the present case, the superintendent did not induce either appellant or the school board to breach the employment contract. The superintendent simply refused to sign appellant’s salary warrants causing the breach.

The present case is factually similar to the situation in West v. Troelstrup, supra. Troelstrup was the executive director of the Florida Department of Criminal Law Enforcement (FDCLE). Appellant in that case was employed by FDCLE until Troelstrup allegedly unlawfully discharged him from his employment. We held in that case that Troelstrup must be considered to be a party to the employment relationship stating:

The nature of the tort supports the determination that Troelstrup was not a third party to the employment relationship. A third party interferes with a contract or business relationship by influencing, inducing or coercing one of the parties to the relationship to abandon the relationship or breach the contract, thereby causing injury to the other party. If Troelstrup was a third party, who did he induce to terminate West? There is no allegation that Troelstrup influenced or induced anyone to terminate West. It appears that the only person who could have been induced to terminate West was Troelstrup himself. 367 So.2d at 255.

In the present case, the superintendent did not induce the school board to breach the employment contract with appellant, it was the superintendent’s own conduct, in refusing to sign appellant’s salary warrants, which constituted the breach of the contract. And, although the superintendent may not have technically been a party to the employment contract, we agree with the trial court in its determination that the superintendent could not be considered a third party to the employment relationship for the purposes of the tort of malicious interference with a contractual relationship. Cf. Hollis v. School Board of Leon County, 384 So.2d 661 (Fla. 1st DCA 1980) (where this court stated dual control is placed in both the superintendent and the school board for the operation and administration of the district school system). Accordingly, we affirm the trial court’s order granting summary judgment in favor of appellees on this point.

Appellant also raises as error the trial court’s failure to grant appellant an attorney’s fee on the final summary judgment entered in appellant’s favor on Counts I and II. In those counts of her complaint, appellant sought enforcement of an order issued by the Public Employees Relations Commission and sought damages for the breach of appellant’s continuing contract of employment. Appellant contends she was entitled to an award of attorney’s fees under Section 57.105, Florida Statutes (1979), as there was a complete absence of justicia-ble issues of law raised by the losing party with regard to those counts of the complaint. Appellant further contends the trial court should have awarded her an attorney’s fee under Section 120.69(7), which provides for the prevailing party in a petition for enforcement to recover the costs of the litigation and a reasonable attorney’s fee, and under Section 448.08 which provides for successful litigants in actions for unpaid wages to recover costs of the action and a reasonable attorney’s fee. We agree that it was an abuse of discretion for the trial court to deny appellant a reasonable attorney’s fee under the facts of this case.

It appears from the record that this teacher was caught in a struggle for power between the superintendent and the school board. It is undisputed that appellant always reported to work where the school board directed her. Yet, the superintendent refused to sign appellant’s pay checks for a period of four months because the superintendent felt appellant should report to work at a different school. The superintendent further refused to comply with a PERC order, denying appellant certain benefits. Appellant then filed suit in circuit court to have the PERC order enforced and to obtain the wages which were wrongfully being withheld. Appellant incurred $6,000 worth of attorney’s fees in her successful attempt to recover $4,000 in unpaid salary and benefits. In enacting Section 448.08, the Legislature intended to avoid the inequity which would result if an employee were required to pay her own attorney’s fees in actions for unpaid wages.

Appellees contend that the trial court’s denial of attorney’s fees is justified in light of the fact that appellees made offers of judgment to appellant prior to summary judgment being entered. We note that these offers of judgment encompassed only appellant’s wages which were past due and the benefits which had been denied. The offers of judgment did not include any amount for the attorney’s fees already incurred by appellant in bringing the action and would not have made appellant whole.

Accordingly, we reverse the order of the trial court insofar as it denies appellant an attorney’s fee and we remand the case to the trial judge to determine a reasonable fee. In all other respects, the order is affirmed.

ERVIN, BOOTH and THOMPSON, JJ., concur.


author: JORGENSON, Judge.

text:
    Donald SCHREIER and Lumbermens Mutual Casualty Company, Appellants, v. Rufus Byron PARKER, Jr., as Personal Representative of the Estate of Rufus B. Parker, III, Clifford B. Martin, Paul H. Martin and Allstate Insurance Company, Appellees.
    No. 81-1594.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied July 14, 1982.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and W. Sam Holland and Roy D. Wasson, Miami, for appellants.
    Philip Freidin, Adams, Ward, Hunter, Agnones & Adams and Robert C. Ward, Miami, for appellees.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   JORGENSON, Judge.

Rufus Parker, III, was a passenger in a Ford Mustang driven by Bradford Martin. The car in which Parker was riding struck a truck owned by Donald Schreier and insured by Lumbermens Mutual Casualty Company, appellants here. The collision occurred in a residential area in southern Dade County. The speed limit in this area was 30 mph. It was nighttime and the weather conditions were rainy. The Mustang, which was northbound, swung into the southbound lane in order to pass an uninvolved motor vehicle and struck Schreier’s truck which protruded onto the southbound driving surface. The Mustang struck the stationary truck at a speed between 50 and 65 mph. Rufus Parker was ejected from the vehicle during the collision and, according to the medical evidence, died of blunt trauma to the head. The jury returned a verdict finding Schreier eighty percent negligent and Rufus Parker twenty percent negligent.

We affirm in part and reverse in part. The first point on this appeal concerns the testimony of the investigating officer regarding his conversations with Mr. Schreier, alleged to be privileged under Section 316.066(4), Florida Statutes (1979). The testimony which was elicited, and which was properly objected to, was clearly privileged and, thus, reversal is required. Elder v. Robert J. Ackerman, Inc., 362 So.2d 999 (Fla. 4th DCA 1978); Nash Miami Motors, Inc. v. Ellsworth, 129 So.2d 704 (Fla. 3d DCA 1961).

The second point raised deals with the propriety of bringing before the jury testimony which occurred during a traffic court proceeding regarding this accident. Appellant suggests, and we agree, that it is wholly improper to bring the traffic court proceeding before a jury trying a civil negligence action. Albertson v. Stark, 294 So.2d 698 (Fla. 4th DCA 1974); Walton v. Robert E. Haas Construction Corporation, 259 So.2d 731 (Fla. 3d DCA 1972); Riedel v. Driscoll, 124 So.2d 42 (Fla. 1st DCA 1960).

Schreier also complains that the trial court erred in granting summary judgment on the cross-claim of Donald Schreier and Liberty Mutual which sought contribution. The trial court appropriately entered summary judgment in favor of Clifford B. Mar-Paul H. Martin and Allstate Insurance Company pursuant to the provisions of Section 768.31(5), Florida Statutes (1979). Since the Martins and Allstate tendered their policy limits to Parker and obtained a release therefor, the contribution claim was barred. Metropolitan Dade County Transit Authority v. Simmons, 375 So.2d 858 (Fla. 3d DCA 1979), cert. denied 386 So.2d 639 (Fla.1980); Martinez v. Gonzalez, 368 So.2d 92 (Fla. 3d DCA 1979); Seaboard Coast Line Railroad Company v. Gordon, 328 So.2d 206 (Fla. 1st DCA 1976).

We turn now to one other point which merits discussion. During the close of the case, counsel for defendant Schreier, and counsel for plaintiff Parker, made arguments which, in the court’s view, are wholly inappropriate. The prophylactic effect hoped for by Judge Schwartz in his special concurrence in Eastern Steamship Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA 1980) apparently has not been forthcoming. Arguments in derogation of Fla.Bar Code Prof.Resp. EC7—24, DR7— 106(CX3), (4) will not be condoned in this court, nor should they be condoned by the trial court, even absent objection. Hillson v. Deeson, 383 So.2d 732 (Fla. 3d DCA 1980).

We trust that on retrial, counsel will limit their arguments to their views of the evidence in conformance with the provisions of the Florida Bar Code of Professional Responsibility.

Reversed and remanded for further proceedings in accordance with the views expressed herein.

      . The arguments here are remarkably similar to those found in Metropolitan Dade County v. Dillon, 305 So.2d 36 (Fla. 3d DCA 1974) (Barkdull, J., dissenting), cert. denied, 317 So.2d 442 (Fla.1975).


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. William ROBERTS, Appellee.
    No. 81-1830.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Donald L. Ferguson, Miami, for appellee.
    Before HUBBART, C.J., SCHWARTZ, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The state appeals from an order suppressing the quaaludes and cocaine discovered in the defendant’s luggage at the Miami Amtrak station upon the execution of a warrant secured after a positive alert by a police narcotics dog. The court found that although Roberts had validly consented to the sniff itself, he had not agreed to the movement of the bags from the platform where he had been stopped to the baggage area where the sniff was actually conducted. We reverse on the ground that upon the defendant’s consent to the sniff, cf. Sizemore v. State, 390 So.2d 401 (Fla.3d DCA 1980), review denied, 399 So.2d 1145 (Fla.1981), the movement from one part of the station to another, which was employed simply to facilitate the process, did not offend his reasonable expectations as to the location of his property and thus did not implicate an interest protected by the fourth amendment. Cavalluzzi v. State, 409 So.2d 1108 (Fla. 3d DCA 1982); State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980).

Reversed.

      . Pursuant to Fla.R.App.P. 9.140(c)(1)(B).

      . The dispositive findings of the order are as follows.
      1. That at the time of the conversation between Officer Robertson McGavock and the Defendant, William Roberts, at the Amtrak Train Station on January 9, 1981, the Defendant had in his possession two pieces of baggage and a briefcase.
      2. That although Officer McGavock received a valid consent to subject the Defendant’s luggage to a dog “sniff’ that consent did not extend to the moving of the luggage.
      3. That the Defendant was not present at the time of the search by the Customs dog.
      4. That the removal of the bags from the immediate possession of the Defendant by Officer McGavock amounted to a seizure of Defendant’s luggage in violation of the Fourth Amendment to the United States Constitution.

      . We note that while the defendant claims error in this determination, we may not consider the contention in this proceeding either by way of cross-appeal (which the defendant correctly did not file), State v. DeConingh, 396 So.2d 858 (Fla. 3d DCA 1981); State v. Clark, 384 So.2d 687 (Fla. 4th DCA 1980), review denied, 392 So.2d 1372 (Fla.1980), or as an argument that the trial court was “right for the wrong reason.” State v. Pratt, 386 So.2d 1249 (Fla. 4th DCA 1980).

      . Roberts did not verbally or otherwise affirmatively object to the officer’s taking the luggage to the baggage area. Compare, Cavalluzzi v. State, 409 So.2d 1108, 1110, n.4 (Fla. 3d DCA 1982).


text:
    Winston RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 81-2111.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied July 15, 1982.
    Brian R. McComb, Miami, for appellant.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   SCHWARTZ, Judge.

The defendant-appellant pled nolo con-tendere to a charge of carrying a concealed firearm, reserving his right to challenge the denial of his motion to suppress the pistol which was found hidden in his boot following a Terry “stop and frisk” of his person. Officer Roberts of the Dade County Public Safety Department, who conducted the search, had apprehended the defendant after receiving a BOLO radio report for a strong-arm robbery suspect who fit Russell’s description. On this appeal, the defendant admits that there was articulable, founded suspicion of criminal activity so as to render the initial stop constitutionally permissible. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Webb, 398 So.2d 820 (Fla.1981); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); Franklin v. State, 374 So.2d 1151 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1113 (Fla.1980). He argues, however, that the pat-down frisk for weapons, which was undertaken for the officer’s own protection immediately after the stop and with no other overt indication of danger, was not justified by any reasonable basis for belief that he was armed and dangerous as is required to support that further intrusion. Sec. 901.151(5), Fla.Stat. (1981); Brezial v. State, 416 So.2d 818 (Fla. 4th DCA 1982); Schnick v. State, 362 So.2d 423 (Fla. 4th DCA 1978). We disagree and thertefore affirm.

We believe that the fact that the defendant was properly stopped because of a reasonable suspicion that he had committed a crime of violence, a robbery, in and of itself validated the subsequent pat-down for weapons. As Justice Harlan said, specially concurring in Terry itself,

[w]here such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.
The facts of this case are illustrative of a proper stop and an incident frisk. Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so. When he did, he had no reason whatever to suppose that Terry might be armed, apart from the fact that he suspected him of planning a violent crime. McFadden asked Terry his name, to which Terry ‘mumbled something.’ Whereupon McFadden, without asking Terry to speak louder and without giving him any chance to explain his presence or his actions, forcibly frisked him.
I would affirm this conviction for what I believe to be the same reasons the Court relies on. I would, however, make explicit what I think is implicit in affirmance on the present facts. Officer McFadden’s right to interrupt Terry’s freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer’s right to take suitable measures for his own safety followed automatically, [emphasis supplied.]

392 U.S. at 33-34, 88 S.Ct. at 1900, 20 L.Ed.2d at 913 (Harlan, J., concurring). This view, which reflects the common sense notion that it would be foolhardy for an officer to encounter an individual suspected of a serious and violent felony without taking the most basic safeguard for his personal safety, has won virtually unanimous acceptance. 3 W. R. LaFave Search & Seizure § 9.4 (1978); see especially cases collected at n.27 (robbery). We adopt it here. And it does not matter, as the appellant claims, that the BOLO upon which officer Roberts acted described only a “strong-arm” robbery, and did not affirmatively indicate that a weapon had been employed in the crime itself. This is because it might reasonably be assumed that such a weapon might be used or carried, not necessarily in the commission of the crime, but also, perhaps more important from the viewpoint of an apprehending officer, “to escape if the scheme went awry, or for protection against the victim or others involved.” La-Fave, supra, § 9.4. See, People v. Shackelford, 37 Colo.App. 317, 546 P.2d 964 (1976) (rejecting contention that frisk of rape suspect unjustified because officer unaware of whether weapon had been employed).

Since officer Roberts thus had the “automatic” right to frisk upon his reasonably-based stop of the defendant for a crime of violence, the judgment below is

Affirmed.

      . Since the rationale we have adopted renders them merely makeweight, it is unnecessary to consider the separate effect of the facts that (a) the officer was alone and (b) the stop took place at night. Compare Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973). We do suggest, however, that — if the crime involved were not a violent one, see LaFave, supra, nn.32-37, and if, as here, there is no other threatening circumstance, compare Brezial v. State, supra (observation of nail-like object on suspect); State v. Ramos, 378 So.2d 1294 (Fla. 3d DCA 1979) (bulge in overcoat worn during warm weather; suspect had prior firearm record); cases collected, LaFave, supra, nn.39-44—these facts, since they themselves provide no basis for belief that the suspect is armed and dangerous, could not alone justify a frisk.

        In this connection, we specifically indicate our disagreement with the majority opinion in the only case cited by the state on this issue, Phillips v. State, 360 So.2d 1310 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1372 (Fla.1979). On the facts treated in Phillips, which involved only a reasonable suspicion of a petit theft, we believe that Judge Smith’s dissenting view that the frisk was not permissible is the correct one.


text:
    John V. HARDEMAN, Jr., as Personal Representative of the Estate of John V. Hardeman, III, and Kathryn Gerson as Guardian and next friend of Matthew Hardeman and Charles Hardeman, heirs at law of John V. Hardeman, III, Appellants, v. CRASTE CORPORATION PROFIT SHARING PLAN AND TRUST, Appellee.
    No. 81-2118.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied July 14, 1982.
    Philip M. Gerson, Miami, for appellants.
    Mark Alan LeVine, Miami, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Lucco v. Treadwell, 127 So.2d 461 (Fla. 2d DCA 1961); Paul v. Harold Davis, Inc., 155 Fla. 538, 20 So.2d 795 (1945); Miller v. Gulf Life Insurance Company, 148 Fla. 1, 3 So.2d 519 (1941).


text:
    STATE of Florida, Appellant, v. Raymond Wayne HODGES, Jr., Edwin Wilbur Emerson, and Larry Ronald Moss, Appellees.
    No. 80-2118.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    David R. Damore, Fort Lauderdale, for appellees, Hodges and Emerson.
   PER CURIAM.

This appeal by the State is before the court based on a notice of appeal directed to an order of dismissal of November 18,1980. This order resulted from the court’s vacating an earlier order of dismissal and re-entry of the same order with a later date so that the State could file a timely appeal. The order of dismissal, when initially entered, had not been appealed by the State. We find no legal basis for the vacation and re-entry of the order after the State failed to timely appeal, and having so concluded, we vacate the order of November 18, 1980, and reinstate the earlier order of dismissal of October 6, 1980.

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


text:
    Betty MABIE, Appellant/Cross-Appellee, v. J. Ralph MABIE, Appellee/Cross-Appellant.
    No. 81-1052.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Rehearing Denied July 13, 1982.
    Donald J. Sasser of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellant.
    Charles W. Musgrove, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by the wife from a final judgment of dissolution of marriage.

The parties were married some six years. Each had been previously married. The husband is a lawyer of some twenty-five years experience, whose income for the year 1980 was $76,000 and whose net worth is $138,000. The wife is forty-nine years of age; she has no net worth, but does have some experience in banking. She worked with a bank during the marriage until the husband asked her to cease working. During the course of the dissolution proceeding the trial court granted her temporary relief in the amount of $110 per week. The award was characterized as “temporary rehabilitative alimony.” The trial court seemed to feel that the wife should obtain employment and commence her rehabilitation. In any event, she had not obtained employment by final hearing, which apparently upset the trial judge. In the final judgment the court found that the wife was being supported by a male friend in a style at least equivalent to the style she enjoyed during the marriage. This fact, together with the fact that the marriage endured only six years and the court’s feeling that the wife had no intention of seeking rehabilitation, convinced the trial court that the wife should receive no permanent or rehabilitative alimony. He did, however, award her $5,000 lump sum alimony.

The only evidence adduced relative to attorney’s fees was that the reasonable value of the wife’s attorney’s services was $100 per hour. Her lawyer testified that he devoted thirty-five hours to the case. Thus, a reasonable fee would be $3,500; however, the trial court only allowed her $2,500 for her attorney’s fees.

In our view of this record, this is a proper case for an allowance of rehabilitative alimony in addition to the lump sum award. The wife, at forty-nine, is employable, and she has some experience in banking. She has no assets and no income. Accordingly, some reasonable award of rehabilitative alimony should have been made to carry her over until she can find employment and is rehabilitated. If she fails to take advantage of it (as apparently the trial judge felt she did pendente lite), then so be it. But the opportunity should be made available to her to reenter the market place and become independent again. We specifically reject the trial judge’s finding relative to her life style with a male friend at the time of final hearing as not supported by the record.

Finally, we also hold that the award of attorney’s fees was inadequate under the evidence. The wife should not have to use up her small lump sum alimony award to pay part of her attorney’s fees.

Accordingly, the judgment appealed from is affirmed in all respects except as to the award of alimony and attorney’s fees. The case is remanded with directions to award the wife an attorney’s fee consistent with the evidence and to award her rehabilitative alimony in a reasonable amount for a reasonable time.

AFFIRMED IN PART; REVERSED IN PART, and remanded for modification consistent herewith.

DOWNEY, HURLEY and WALDEN, JJ., concur.

      . The husband has cross appealed, but his failure to present any argument demonstrating error constitutes an abandonment of the cross appeal.


author: MILLS, Judge.

text:
    Vincent OLLER, Jr., Appellant, v. DIVISION OF RETIREMENT, Appellee.
    No. AG-92.
    District Court of Appeal of Florida, First District.
    June 11, 1982.
    Donald D. Slesnick, II, Coral Gables, for appellant.
    Augustus D. Aikens, Jr., Tallahassee, for appellee.
   MILLS, Judge.

Oiler appeals an order of the State Retirement Commission finding that he is no longer totally and permanently disabled. We affirm.

The Commission found by a preponderance of the evidence that Oiler is capable of “rendering useful and efficient service as an officer or employee” and thus not totally and permanently disabled, Section 121.-091(4)(b), Florida Statutes (1981). This finding is supported by competent substantial evidence. Amico v. Division of Retirement, 352 So.2d 556 (Fla. 1st DCA 1977).

Section 121.091(4)(b) does not provide total disability retirement for an officer or employee who is capable of performing useful and efficient service within the state system. The fact that Oiler is incapable of returning to his duties as a policeman does not entitle him to the extraordinary benefits provided by this section. Shepard v. Division of Retirement, 361 So.2d 208 (Fla. 1st DCA 1978).

ROBERT P. SMITH, Jr., C. J., and ERVIN, J., concur.


text:
    William L. MEYERS, Appellant, v. David A. CUNNINGHAM, Evelyn B. Cunningham, Audrey A. Elver and Elver-McBride Assoc., Inc., Appellees.
    No. 81-2020.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied July 2, 1982.
    Frigola, DeVane & Wright, P. A. and Thomas D. Wright and Leonard J. Cooper-man, Marathon, for appellant.
    Michael H. Cates, Key West and Thomas J. Dowdell, III, Marathon Shores, for appel-lees.
    Before HUBBART, C. J., SCHWARTZ, J., and PEARSON, TILLMAN (Ret.) Associate Judge.
   PER CURIAM.

The final judgment under review is reversed and the cause is remanded to the trial court with directions to enter judgment for the plaintiff William L. Meyers as prayed for in his complaint. The uncontra-dicted evidence in this record establishes that the plaintiff Meyers was entitled to the return of his $13,000 deposit sued for in this action under the contract which he entered into for the purchase of certain realty in Monroe County, Florida.

The subject contract of sale was made expressly contingent on the plaintiff Meyers, as buyer, obtaining a certain mortgage loan within thirty (30) days of the date of the contract; either party was authorized to cancel the said contract if the above mortgage loan was not obtained within the above-stated time period. It is undisputed that the plaintiff Meyers made application for the said mortgage loan at a savings and loan association in Marathon, Florida, within a week of the signing of the above-stated contract; subsequently, the plaintiff Meyers supplied the above institution with all the necessary information requested with reference to the loan application. It is equally undisputed that the said institution refused the requested loan application, that as a result the said mortgage loan was not obtained within the time period required by the contract, that the plaintiff Meyers elected to cancel the contract and demanded the return of his $13,000 deposit, and that the defendants David and Evelyn Cunningham, as sellers, refused to authorize the return of the deposit.

The trial court below concluded that the plaintiff Meyers was not entitled to the return of his $13,000 deposit because he did not use reasonable diligence as required by the contract to procure the mortgage loan in question. We cannot agree. The plaintiff Meyers applied promptly for said loan at a recognized savings and loan association and thereafter supplied that institution with all the necessary information required to process the said application. We are at a loss to understand what more the plaintiff Meyers could have done in order to pursue this loan. Based on the express terms of the contract, it is clear that the plaintiff Meyers was entitled to the return of his deposit. Merritt v. Davis, 265 So.2d 69 (Fla.3d DCA 1972).

Reversed and remanded.


text:
    Eric Wayne BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1029.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Eric Wayne Bryant, in pro per.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R-App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


author: ANSTEAD, Judge.

text:
    CROWN DIVERSIFIED INDUSTRIES, INC., d/b/a Deerfield Beach Mobile Home Park, Appellant, v. James B. WATT and Marion I. Watt, his wife, Appellees.
    No. 80-2191.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied July 14, 1982.

      James G. Kincaid and Bruno DiGiulian, Fort Lauderdale, for appellant.
    M. Ross Shulmister, Fort Lauderdale, for appellees.
   ANSTEAD, Judge.

At issue is whether the owner of a mobile home park has the right to make permanent improvements within the park when the construction of such improvements will require the utilization of an existing mobile home lot and the displacement of the tenant occupying such lot. We hold that the owner does have the right to make such improvements.

Appellees James and Marion Watt are tenants of a mobile home lot located in the Deerfield Beach Mobile Home Park. In May of 1979, the park was purchased by the appellant. Soon thereafter appellant had a home for its president, Joe Scott, constructed near the lot upon which appellees’ mobile home is situated. Appellant planned to provide Scott’s home with a driveway and yard space and to construct other permanent improvements to the park that would require the use of appellees’ lot. All of these improvements were permissible under the existing zoning and building laws. Pri- or to commencing construction of the improvements appellees were asked to relocate to another lot appellant made available to them in the park. Rather than acquiesce, appellees filed suit against appellant, seeking entry of a declaratory judgment that Section 83.759(l)(d), Florida Statutes (1973), absolutely barred the park owner’s planned improvements. No claim was made by appellees that appellant was acting in bad faith or that appellant did not intend to actually construct the improvements involved. Appellant counterclaimed, seeking a holding that it was entitled to proceed with the improvements contemplated. A bench trial resulted in the entry of a final judgment which held that appellant was barred from making any improvements to its property involving the displacement of mobile home lots unless the appellant’s land was rezoned from its present use as a mobile home park to some other use.

Section 83.759, Florida Statutes (1973), popularly referred to as the Florida Mobile Homes Landlord and Tenant Act, sharply limits the right of mobile home park owners to evict tenants to certain enumerated circumstances. The only circumstance pertinent to the issue here is contained in Section 83.759(l)(d) which provides:

83.759 Mobile home parks; eviction, grounds, proceedings.—
(1) A mobile home park owner or operator may not evict a mobile home or a mobile home dweller other than for the following reasons:
(d) Change in use of land comprising the mobile home park or a portion thereof on which a mobile home to be evicted is located from mobile home lot rentals to some other use, provided all tenants affected are given at least 6 months’ notice, or longer if provided for in a valid lease, of the projected change of use and of their need to secure other accommodations.

In limiting the application of Section 83.-759(l)(d) to those situations in which a mobile home park owner or operator has secured a zoning variance to use the land for some purpose other than a mobile home park, we believe the judge below overlooked the standard rule of statutory construction that “words of common usage, when used in a statute, should be construed in their plain and ordinary sense.” Pedersen v. Green, 105 So.2d 1, at 4 (Fla.1958). The statute authorizes use of existing mobile home lots if there is a “[cjhange in use of land comprising the mobile home park or a portion thereof ... from mobile home lot rentals to some other use.” (Emphasis supplied.) In our view, a change in the “use” of a piece of land is plainly not the same thing as a change in the zoning of the land; the words “use” and “zoning” are simply not synonymous in this context.

We are also obligated to construe a statute to avoid unreasonable consequences. Wakulla County v. Davis, 395 So.2d 540 (Fla.1981). In our view, the construction adopted by the trial court would lead to several absurd results which we do not believe were intended by the legislature. For instance, this interpretation would effectively preclude mobile home park owners or operators from ever moving tenants in order to improve mobile home parks no matter how necessary the improvement. Such an interpretation would require us to ascribe an intent on the part of the legislature to “freeze” the configuration of mobile home parks in exactly the state they existed when this legislation was passed. This construction would also permit the park owner to displace all of the tenants in order to use the land for some totally different purpose, such as a used car lot, but would bar the displacement of even a single tenant in order to construct a needed improvement to the park. On the other hand, since the statute operates only to regulate evictions, this construction would appear to permit park owners to utilize existing lots to make improvements so long as those lots are not occupied, but would bar such improvements when occupied lots are to be utilized and tenants displaced. We do not believe the legislature intended that the park owner’s use of his land should turn upon such fortuitous circumstances.

Furthermore, the construction adopted below would appear to endanger the constitutional validity of the entire Mobile Homes Landlord and Tenant Act contrary to the interpretation of the Act by the Supreme Court in Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974). In Strong the court upheld the constitutionality of the then Sections 83.271(l)(a), (b), and (c), Florida Statutes (Supp.1972), in large part because subsection (d) left the landowner free to use his land for other purposes:

Although we find that Section 83.271, Florida Statutes, is constitutionally valid, we are fully cognizant that a contention might be made that the act is invalid because it would have the effect of permanently depriving the owner of the land upon which a mobile home park is located for all times of the management in the use of his land for other purposes than a mobile home park. This would ordinarily raise serious doubts as to the constitutionality vel non of the act; however, that question has become moot in that the 1973 Legislature has cured the defects by enacting into law the following:
“(d) Change in use of land comprising the mobile home park or a portion thereof on which a mobile home to be evicted is located from mobile home lot rentals to some other use, provided all tenants affected are given at least ninety (90) days’ notice, or longer if provided for in a valid lease, of the projected change of use and of their need to secure other accommodations.”

Id., at 887. The court thus found that the 1973 addition of that portion of the statute at issue here (then Section 83.271(l)(d), later Section 83.69(l)(d) and now, in essence, 83.759(l)(d)) validated the entire eviction scheme of the Florida Mobile Homes Landlord & Tenant Act by granting mobile home park owners or operators the right to use their land for purposes other than mobile home rental. Sub judice we believe that Section 83.759(l)(d), in order to pass constitutional muster, must also be construed to grant mobile home park owners the right to utilize existing mobile home lots to make legitimate improvements to mobile home parks.

We are in agreement with appellees that the legislature intended to grant broad rights to mobile home park occupants to be free from unreasonable evictions., Indeed, we attach much significance to the fact that no allegations of fraud or bad faith have been lodged by appellees against appellant. In our view, proof of bad faith on the part of the park owner would constitute a valid defense to any attempt to remove tenants from existing mobile home lots and could serve as the basis for an independent cause of action by tenants wrongfully evicted through fraudulent representations of contemplated improvements by the park owner.

For all of the foregoing reasons, we reverse the judgment entered by the trial court and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . This interpretation would also bar the park owner from converting the park to some other use that might be permissible under the existing zoning. For instance, even if the existing zoning permitted rental apartments the park owner, under the trial court's construction of Section 83.759(l)(d), would still not be permitted to construct apartments if such construction would displace current tenants. This is clearly contrary to the holding in Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974).

      . Later Sections 83.69(1 )(a), (b) and (c) and currently, in essence, Sections 83.759(l)(a), (b) and (c). Section 83.271(l)(a), (b), and (c) provides:
      83.271 Mobile home parks; eviction, grounds, proceedings.—
      (1) A mobile home park owner or operator may not evict a mobile home dweller other than for the following reasons:
      (a) Nonpayment of rent.
      (b) Violation of some federal, state or local ordinance which may be deemed detrimental to the safety and welfare of other dwellers in the mobile home park.
      (c) Violation of any rule or regulation established by the park owner or operator, provided the mobile home owner received written notice of said violation at least thirty days prior to the date he is required to vacate. A copy of all rules and regulations shall be delivered by the park owner or operator to the mobile home owner prior to his signing a lease or entering into a rental agreement. A copy of the rules and regulations also shall be posted in the recreation hall, if any, or some other conspicuous place in the park.

      . The constitutionality of Section 83.759(l)(d) (then Section 83.69(l)(d)) was upheld in Stewart v. Green, 300 So.2d 889 (Fla.1974), as a valid exercise of the state’s police power.

      . [A] hybrid type of property relationship exists between the mobile home owner and the park owner and that relationship is not simply one of landowner and tenant. Each has basic property rights which must reciprocally accommodate and harmonize.

        Stewart v. Green, Id. footnote 3, 300 So.2d 889 at 892.

      .A member of the 1972 Legislature gave a deposition on behalf of appellees to the effect that the Legislature intended to go as far as the courts would let them go in restricting evictions. While this intent is probably inferable from the face of the statute, we believe the lower court’s consideration of the deposition was technically improper under McLellan v. State Farm Mutual Automobile Ins. Co., 366 So.2d 811 (Fla. 4th DCA 1979), wherein this court held that the testimony of a single legislator was not admissible to demonstrate the intent of the legislature. Neither party cited McLellan to the trial court.


author: JOANOS, Judge.

text:
    LONE STAR OF FLORIDA and Scott Wetzel Services, Appellants, v. Warren BUTLER, Appellee.
    No. AF-465.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    Jerry V. Wilkey, Coral Gables, for appellants.
    Stephen Marc Slepin of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellee.
   JOANOS, Judge.

The employer/carrier appeal the deputy commissioner’s order finding the claimant permanently totally disabled, setting July 9, 1980, as the date of maximum medical improvement, ordering the payment of temporary total disability benefits from May 29, 1980, to July 9,1980, and reserving jurisdiction to determine whether employer/carrier are entitled to credit for permanent disability payments made between May 29, 1980 and July 9, 1980. We affirm in part and reverse in part.

Claimant, at the time of the injury, March 21, 1979, was a 59 year old cement truck driver. He was standing beside his truck when a bucket hook from a crane hit him in the back of the head. It was indicated that the hook weighed approximately 300 pounds. Competent substantial evidence supports the deputy’s conclusion that claimant is PTD. Although appellants argue that claimant did not make a work search adequate to show loss of wage earning capacity, the record supports the deputy’s findings that “Claimant did make a good faith job search and .. . with Claimant's restrictions and problems he is patently disabled.. .. Claimant cannot even do light work on a steady basis.” See Red Oak Farms, Inc. v. Scott, 408 So.2d 841 (Fla. 1st DCA 1982); Lancaster Youth Development Center v. Waters, 381 So.2d 1156 (Fla. 1st DCA 1980); Caruso v. Crown Liquors, Inc., 379 So.2d 1317 (Fla. 1st DCA 1980).

With regard to the date of MMI, however, we agree with appellants’ argument that the date should have been set at May 29, 1980. The deputy’s selection of the date of MMI was based on Dr. Ortiz’s testimony. Dr. Ortiz, an examining physician, saw claimant only twice, on July 9, 1979, and July 9, 1980. He gave an opinion, following the second visit, that claimant had reached MMI on or before July 9,1980, and that by this second visit, everything that should have been done for the claimant had been done. The treating physician Dr. Yates, on the other hand, was in a position to set a definite date of MMI, and he testified it occurred on May 29, 1980. Dr. Ortiz’s opinion does not conflict with Dr. Yates’ opinion.

In light of our determination that the date of MMI should have been May 29, 1980, further benefits for temporary total disability were not due, therefore no question remains as to any credit due employer/carrier for payments attributed to permanent disability made after May 29, 1980.

The permanent total disability award is AFFIRMED. The order is REVERSED as to the date of MMI, the payment of additional temporary total disability benefits, and the reservation of jurisdiction to resolve the credit issue.

THOMPSON and WIGGINTON, JJ., concur.


text:
    Andrew Mark STASSE, Appellant, v. STATE of Florida, Appellee.
    No. AG-120.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    Virlyn B. Willis, Jr., Lake City, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.


author: THOMPSON, Judge.

text:
    Larry Alan STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. AG-499.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Defendant appeals his life sentence for attempted first degree murder with a firearm. We affirm.

Defendant cites King v. State, 390 So.2d 315 (Fla.1980) and Bolden v. State, 404 So.2d 417 (Fla. 1st DCA 1981) for the proposition that attempts to commit a capital felony are sentenced as first degree felonies, not as life felonies, even if committed with a firearm or weapon. However, for the following reasons we do not find King and Bolden controlling. In King the State conceded that the trial court erred in sentencing the defendant to life for attempted first degree murder committed while in possession of a weapon. Furthermore, the state apparently did not bring to the court’s attention in King the applicability of § 775.087, Fla.Stat., which reclassifies a first degree felony to a life felony when the defendant possesses a weapon or firearm during the commission of the felony unless the use of a weapon or firearm is an essential element of the felony. Likewise, in Bolden the state did not call attention to § 775.087. However, in the instant case the state has raised the applicability of § 775.-087.

Since the use of a firearm is not an essential element of attempted first degree murder, we find that the reclassification provision of § 775.087 is applicable. We agree with Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981) that § 775.087 supports a life sentence for attempted first degree murder committed by a defendant while in possession of a firearm. We note that in Williams the state did not point out the applicability of § 775.087 until the motion for rehearing. Since the instant judgment and sentence specifically reflects that defendant was adjudicated guilty of attempted first degree murder while in possession of a firearm, remand is not required as it was in Williams. Accordingly, we find that the trial court properly sentenced the instant defendant to life imprisonment. AFFIRMED.

JOANOS and WIGGINTON, JJ., concur.