author: JOANOS, Judge.

text:
    ALL RISK CORPORATION OF FLORIDA, Gallagher-Bassett Insurance Service, Inc., Commercial Risk Management, Inc., R. P. Hewitt & Association, Inc., Professional Administration, Inc., Scott Wetzel Services, Inc., Self Insured Services, Inc., Whiting National Services, Inc., Risk Management Services, Inc., Gates, McDonald & Company Corporate Group Services, Inc., Florida Association of Service Companies, and St. Joseph’s Hospital, Inc., Appellants, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. AI-27.
    District Court of Appeal of Florida, First District.
    March 25, 1982.
    Rehearing Denied June 2, 1982.

      Richard B. Collins of Perkins & Collins, Tallahassee, for appellants.
    George W. Butler, Jr. and Michael Rudi-cell of the State of Florida, Dept, of Labor and Employment Sec., Tallahassee, for ap-pellee.
   JOANOS, Judge.

This appeal is from the order of an administrative hearing officer dismissing the amended petition of the appellants for lack of standing without leave to amend. We note at the outset that a concession was made at oral argument that one of the appellants, Florida Association of Service Companies, does, in fact, lack standing. We shall, therefore, treat that association as having withdrawn for purposes of this opinion.

The Department of Labor and Employment Security, Division of Workers’ Compensation, properly (the parties have so stipulated) announced its intent to repeal Rule 38F-5.01 through 5.23, and simultaneously adopt revised rules for Chapter 38F — 5, involving self-insurers in workers’ compensation law. All of the appellants except for St. Joseph’s Hospital, Inc. filed a timely petition questioning the validity of the proposed rules and requesting a draw-out hearing pursuant to Section 120.54(16), Florida Statutes (1979).

Subsequently, those same petitioners filed an amended petition questioning the invalidity of the proposed rules. Those petitioners alleged that they were individual service companies for individual self-insurers and self-insurer funds. Both petitions alleged that the petitioners would be affected by the rules “in that the proposed rules will create an increased cost for non-refundable bond premiums and will have the potential impact of depriving the self-insu-rors and self-insuror funds of the right to operate as self-insurors pursuant to Florida Statutes, Section 440.38.” The amended petition further alleged that one of the individual service companies had been authorized by one self-insurer, Cedars of Lebanon Hospital Corporation, to represent it in this proceeding and that one individual service company had been authorized by a self-insurance fund, Florida Hospital Workers’ Compensation, to represent it in the proceeding.

The Department of Labor and Employment Security, Division of Workers’ Compensation (hereinafter referred to simply as the Department) filed a motion to dismiss the initial petition on the ground that the petitioners had not shown with particularity facts sufficient to show that they would be substantially affected by any of the proposed rules. Another ground was asserted which is not relevant here. The Department also filed a motion to dismiss the amended petition, on other grounds.

Two days before the scheduled hearing, petitioners filed a motion to amend the amended petition by adding a party, St. Joseph’s Hospital, Inc., an individual self-insurer. That motion alleged that the issues that St. Joseph’s would seek to raise were identical to or substantially similar to the issues already raised and it would, therefore, not prejudice the respondent or delay the proceedings if the joinder were permitted. On the same day the Department filed a motion to dismiss the amended petition on the grounds that petitioners lacked standing to challenge the proposed rules in that they were not substantially affected persons within the meaning of Section 120.-54(4)(a), Florida Statutes (1979).

After a hearing on both motions, St. Joseph’s was allowed to join as a party-petitioner, but the Department’s motion to dismiss for lack of standing was granted as to all parties except St. Joseph’s. After the hearing, the Department filed a suggestion of lack of jurisdiction over the subject matter and renewed its earlier motion to dismiss on grounds of lack of standing, citing State, Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA .1979). The Department urged again that the petitioners failed to allege with particularity facts sufficient to show that they would be substantially affected by the proposed rules and, therefore, there was no valid procedure for St. Joseph’s to join.

In the final order the hearing officer reviewed thoroughly the law of standing in administrative procedures and determined that the amended petition was insufficient as a matter of law. He further noted that since St. Joseph’s attempt to join the proceedings was filed beyond the 14 day period, St. Joseph’s had accepted the invalid status of the proceeding and could not breathe new life into it, citing Alice P. The hearing officer concluded that dismissal without leave to amend was appropriate because petitioners had already had two opportunities to file a petition which did conform with the statute and the pendency of a petition challenging the validity of a proposed rule prohibited the adoption of the rule. The hearing officer held that to allow the petitioners another opportunity to amend their petition would unduly delay the rulemaking process.

Section 120.54(4)(b), Florida Statutes (1979), requires that one challenging a proposed rule must “state with particularity facts sufficient to show that the person challenging the proposed rule would be substantially affected by it . . . . ” This Court has interpreted that statute as requiring proof that the rule has a real and immediate effect upon one’s case, as well as injury in fact, Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, State of Florida, 396 So.2d 1194 (Fla. 1st DCA 1981), and that the alleged interest is arguably within the zone of interest to be protected or regulated. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert. denied 359 So.2d 1215 (Fla.1978). See also, Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 1st DCA 1981).

We agree with the ruling of the hearing officer that the allegations of fact in the petition and amended petition fail to “state with particularity facts sufficient to show that . . . [service companies] would be substantially affected by the challenged rules” and that the service companies, therefore, lacked standing based on the allegations. We find, however, that the denial of leave to amend was an abuse of discretion. The record here shows that all prior challenges to the service companies’ standing had been rebuffed and that, although it is true, as the order states, the service companies had two opportunities to file amended petitions, neither of these amendments had dealt with the question of standing; this may well have been because the prior rulings indicated no need to do so. Evidence presented at the hearing included references to portions of the rules which affect the service companies’ ability to obtain or retain certification by the Department of Labor and Employment Security and information relevant to those provisions. See, e.g., Rule 38F — 5.40 and 38F — 5-41. Under these circumstances, we think petitioners should have been given another opportunity to amend their petition.

The remaining question is whether the dismissal of St. Joseph’s Hospital, Inc., the self-insured intervenor was proper. Alice P. specifically held that the 14 day period in which a petition must be filed is jurisdictional and a subsequent attempt to add parties cannot give validity to an otherwise invalid proceeding. Thus, the dismissal of St. Joseph’s was proper at the time. Under the circumstances of our ruling concerning giving the service companies an opportunity to amend, it follows that if the service companies fail to establish that they have standing, St. Joseph’s will likewise have no standing. If the service companies succeed in establishing standing, then the motion to add St. Joseph’s as a party should be reconsidered on the merits at that time.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

BOOTH and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert NEUMANN, Appellant, v. Diane NEUMANN, Appellee.
    No. 81-1185.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied June 7, 1982.
    Melvyn B. Frumkes and Cynthia L. Greene, Miami, for appellant.
    Marks, Aronovitz & Leinoff and Andrew M. Leinoff, Miami, for appellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The husband appeals from the final judgment for dissolution of an eighteen-year marriage. The wife cross-appeals.

The parties were married in 1963, the marriage being the wife’s fourth and the husband’s first. The wife’s two children by prior marriage were adopted by the husband. Two more children were adopted by the parties. Of the four children, only one daughter is still a minor and is in custody of the husband with consent of the wife.

During the marriage the parties enjoyed a high standard of living. The husband has experienced some losses in his insurance business and now claims a substantially reduced level of income. Although the wife has both a real estate and insurance sales license, at age fifty-three, she has never earned a living from these occupations and has no college degree. At the time of the proceedings she was working as a sales clerk earning approximately $150.00 per week. She receives no fringe benefits and the position offers no advancement opportunities.

We find no abuse of discretion either in the award of seventy percent of the proceeds from the sale of the marital home to the wife — part of the award clearly being special equity due to the wife’s having contributed from her own trust funds to the down-payment and to renovation of the home and part being lump-sum alimony; nor is abuse of discretion shown in the award to the wife of the husband’s interest in the Levy County and Plantation Beach properties as alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We clarify the trial court’s finding in Paragraph eight of the final judgment providing for the equal division of the remaining property to reflect the court’s intent, as conceded by the parties, that such division is not to include interest in the husband’s business and the parties are to retain the same interest held by them prior to dissolution; the wife is not entitled to any interest in the husband’s present residence, nor is the husband entitled to any interest in the wife’s present residence; the husband is not required to pay the mortgage on those properties awarded to the wife. We also find that the wife is not entitled to any interest in the husband’s Cape Coral property which was acquired by him through inheritance. See, e.g., Evans v. Evans, 398 So.2d 943 (Fla. 3d DCA 1981); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), rev. denied, 392 So.2d 1378 (Fla.1981). We find Schwartz v. Schwartz, 396 So.2d 806 (Fla. 3d DCA 1981) factually dissimilar.

The wife’s cross-appeal urges error in the trial court’s failure to award permanent instead of rehabilitative alimony. We hold that the court abused its discretion by making the alimony award to the wife rehabilitative in character rather than permanent where as here, there is no showing that the wife could be expected to support herself in accordance with the standard of living established during the marriage. If, after the award of permanent alimony, the wife should become adequately self-supporting, the husband could apply for modification of the judgment as to alimony on the basis of a change in circumstances. Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981); Gratton v. Gratton, 358 So.2d 262 (Fla. 3d DCA 1978).

We reverse that part of the court’s order denying to wife any part of her attorney’s fees and costs. Creel v. Creel, 378 So.2d 1251 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1111 (Fla.1980).

Affirmed in part, reversed in part, and remanded for proceedings in accordance with this opinion.


text:
    Joel D. FOGEL, Teresa Ann Fogel and Fogel Industries, Inc., a Florida corporation, Appellants, v. Stewart M. MIRMELLI, and Law Offices of Stewart M. Mirmelli, P. A., a Florida corporation, Appellees.
    No. 80-1680.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied June 7, 1982.

      Frates, Jacobs, Farrar, Novey & Blanton and Terry S. Bienstock, Stephen Zukoff, Miami, for appellants.

      Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.

The jury trial of this legal malpractice action culminated in a verdict favorable to the defendant lawyer upon which judgment was entered. Plaintiffs contend that they were harmed when the court erroneously excluded certain evidence offered by them. We agree, and reverse the judgment and remand this cause for a new trial.

Defendant, a practicing lawyer, had been retained to handle plaintiffs’ business and personal legal affairs. The issues were (1) whether defendant had been negligent in (a) rendering certain advice, and (b) handling of the defense of a foreclosure action filed against the plaintiffs by a third party, and if so, (2) whether such negligence was the legal cause of any loss or damage sustained by the plaintiffs. Although both parties offered opinion evidence from expert witnesses, the testimony on .factual matters relating primarily to the communications between attorney and client, came largely from the plaintiffs, on the one hand, and the defendant lawyer and his legal secretary, Ms. Jackie Jaye, on the other. Their respective versions of the facts were in sharp conflict in many material respects, leading appellee’s brief to characterize the trial as a “swearing contest between Fogel and Mirmelli [in which] one side or the other was not telling the truth.” Since such a conflict in the factual testimony would necessarily require the jury to weigh the respective credibility of Fogel and Mir-melli, the foregoing characterization serves to graphically highlight the prejudicial effect on plaintiff of the trial court’s erroneously excluding, in two instances, testimony which would tend to impeach the credibility of Mirmelli.

The first such instance related to the exclusion of the testimony of Ms. Linda Hart, an examiner of questioned documents. Prior to trial defendant had produced file copies of six letters addressed to Mr. Fogel, the contents of which would tend to be exculpatory of any negligence on defendant’s part. At trial, during the plaintiffs’ case, Mr. Fogel testified that plaintiffs never received these letters and that the contents of each was inaccurate. During the defendant’s case, Ms. Jaye testified that she typed the letters and defendant testified not only that the letters had been typed by Ms. Jaye, but also that they had been typed on an IBM Selectric ball typewriter in his office. On rebuttal, plaintiffs called Ms. Hart for purposes of impeachment. The court sustained defendant’s objection to the proffered opinion testimony of Ms. Hart on the grounds that (1) her testimony was substantive, and (2) she was not listed on plaintiffs’ pre-trial witness list. The proffered opinion testimony of Ms. Hart was to the effect that the letters (1) were not typed on an IBM Selectric ball typewriter, (2) were typed on a different typewriter than that which had typed other letters which plaintiffs had in their possession from Mirmelli, and (3) were typed by someone with less typing skill than Ms. Jaye.

It is error for a trial court to exclude a witness from testifying at trial for failure of the party calling him to list such witness on a pre-trial catalog when the listing of such witness was not specifically required by pre-trial order of the court. Mall Motel Corp. v. Wayside Restaurants, Inc., 377 So.2d 41 (Fla. 3d DCA 1979); Lanai Development Corp. v. Berry, 373 So.2d 441 (Fla. 3d DCA 1979); Clarke v. Sanders, 363 So.2d 843 (Fla. 4th DCA 1978). In this case the pre-trial order requiring the parties to exchange written lists of the names of witnesses to be called at trial expressly excluded the listing of impeachment witness. Such a local custom and practice was approved as an exception to the disclosure standards announced in Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981). Consequently, if Ms. Hart’s testimony was, in fact, impeachment in nature (rather than substantive) her testimony should not have been excluded merely because she had not been listed on the plaintiff’s pre-trial witness list.

In Hartstone Concrete Products Co. v. Ivancevich, 200 So.2d 234 (Fla. 2d DCA 1967), the court, in drawing a distinction between substantive testimony and impeachment testimony, stated, at page 237:

If a witness’ testimony bears directly on an issue made by the pleadings that testimony is substantive .... But where the testimony only becomes pertinent because of prior testimony and does not bear on an issue made by the pleadings, such testimony is for impeachment ....

Of course, the content of the disputed letters, having a direct bearing on the issue of defendant’s alleged negligence, was substantive evidence. But Ms. Hart’s testimony was not directed to the content of the letters which remained the same irrespective of the kind of typewriter upon which typed or the person by whom typed. Rather her testimony went to the veracity of the defendant and Ms. Jaye and became pertinent only because of prior testimony of these two witnesses on direct examination during the defendant’s case. The import of the proffered testimony of Ms. Hart, if believed, would have tended to impeach the credibility of the defendant lawyer and his secretary, the only two fact witnesses for the defendant.

The second such instance related to evidence which would tend to impeach the defendant by means of a prior inconsistent statement. The court sustained objection to the proffered prior statement on the grounds that it was not inconsistent with the defendant’s trial testimony. Without going into detail, suffice it to say we find that facially there were sufficient material variances between the defendant’s trial testimony and his prior statement under oath to leave the question of inconsistency for the jury’s consideration. See, McCormick on Evidence (Second Edition 1972), at page 68; Central Mutual Insurance Co. v. Newman, 117 So.2d 41 (Fla. 3d DCA 1960). Because the testimony of defendant was critical to the defense of this action, any attack on his credibility could have affected the verdict, and thus we view the errors in excluding the proffered impeachment testimony as harmful. McArthur v. Cook, 99 So.2d 565 (Fla.1957).

A separate issue relates to the manner and circumstance under which the trial court exercised its discretion to limit the number of expert witnesses which plaintiffs were permitted to call. There was no pretrial ruling limiting the number of expert witnesses the parties could call. To the contrary, an agreed order had been entered providing that the plaintiffs could call as expert witnesses all of the experts whose names had been disclosed either on the witness list or through answers to interrogatories. That list included the names of Professor Minnette Massey and William Fried-lander, Esquire. When plaintiffs called Professor Minnette Massey, defendant objected on the grounds that Professor Massey had informed defense counsel several months previously that she did not plan to testify at the trial. The trial court sustained the objection and precluded this witness from testifying. At that point plaintiffs’ counsel informed the court that they intended to call William Friedlander, Esquire, as an expert witness on the substantive law of foreclosure actions. Overruling defendant’s objection, the court announced that the witness would be allowed to testify. After next introducing opinion testimony from Malcolm Wiseheart, Esquire, plaintiffs called Mr. Friedlander as their final expert witness. Defendant’s objection on the grounds of duplication of evidence was sustained, the court announcing that Professor Massey was now also being excluded from testifying on the same ground.

Without question, the trial court has discretion to limit the number of witnesses which may be called by the parties, Ritter v. Jiminez, 343 So.2d 659 (Fla. 3d DCA 1977). However, the more typical situation in which the courts have found no abuse of the exercise of that discretion is when the limitation has been exercised either by pre-trial order or at least under circumstances which give the parties prior notice of the limitations imposed. See, e.g., Stager v. Florida East Coast Railway Co., 163 So.2d 15 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 540 (Fla.), cert. denied, 382 U.S. 878, 86 S.Ct. 162, 15 L.Ed.2d 119 (1965). Rule 1.200(a)(4) Florida Rule of Civil Procedure, expressly provides that at the pre-trial conference the court may determine the limitation of the number of expert witnesses. While the rule does not prohibit, either expressly or by implication, the court from exercising, at a time other than the pre-trial conference, its discretion to limit the number of expert witnesses, the rule rather clearly implies fair forewarning before the limitation is imposed. The reason for the necessity of such fair forewarning, as explained in such cases as Ruby v. Chicago, M. & St. P. Ry. Co., 150 Iowa 128, 129 N.W. 817 (1911), and St. Louis, M & S.E.R. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867 (1906), is simply that trial counsel, in seeking to present evidence for the maximum effect it will have upon the jury, not infrequently will, as a matter of tactics, reserve for last one of the more effective witnesses, the testimony of whom the party would be totally deprived should the court, prior to the calling of such witness and without forewarning, terminate the party’s right to call further witnesses. As was stated in Lobue v. Travelers Insurance Co., 388 So.2d 1349 (Fla. 4th DCA 1980), the right to present evidence and call witnesses is a most important due process right of a litigant, the excluding of the testimony of a witness being a drastic remedy which should be invoked only under the most compelling circumstances.

By this opinion we do not seek to impose on the exercise of the trial court’s discretion in limiting the number of witnesses, any restriction greater than that which we think has always been inherent in the decisional law of this state, namely, that any limitation placed on the number of witnesses to be called should be imposed only after trial counsel has had fair and adequate warning, so that if the limitation imposed requires a reduction in the number of anticipated witnesses, counsel may have fair opportunity to select (within the limitation imposed) the witness or witnesses whom counsel wishes to call. For the court to arbitrarily and without any advance notice terminate the right to call an additional expert witness is an abuse of discretion when, as in this case, it is made to appear that counsel had every reasonable expectation of calling such additional expert witness, the anticipated testimony is not merely cumulative, and the witness would have testified but for the unforewarned limitation precluding the party’s right to call further witnesses.

While we would be hesitant to reverse for any one of these errors standing alone, we conclude that their cumulative effect precluded plaintiffs from receiving a fair trial and resulted in a miscarriage of justice. The judgment is reversed and this cause remanded for a new trial.


author: SHARP, Judge. FRANK D. UPCHURCH, Jr., Judge, COWART, Judge,

text:
    SCHOOL BOARD OF SEMINOLE COUNTY, Florida, Appellant/Cross-Appellee, v. GAF CORPORATION, etc., et al., Appellee/Cross-Appellants.
    Nos. 79-457, 80-205 and 80-208.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Rehearing Denied May 19, 1982.

      Ned N. Julian, Jr., Sanford, for appellant/cross-appellee. .
    No appearance for appellee/cross-appel-lant, GAF Corp.
    Stephen D. Feinberg, of Akerman, Sen-terfitt & Eidson, Orlando, for appellee, Eo-ghan N. Kelley.
   SHARP, Judge.

The School Board of Seminole County appeals from adverse summary judgments in three suits which asserted against Kelley liability for improperly designing or supervising the construction of roofs for three schools in Seminole County. The three schools, Idyllwilde Elementary, Forest City Elementary, and Teague Middle School, were all designed by Kelley and had the same basic roof design. They were built in the same two-year time span (1969-1971), and the roofs of all three schools required extensive repairs and eventual replacement. The actions were consolidated on appeal because the legal issues and facts involved in all three appeals are basically similar.’

The lower court ruled that the four-year statute of limitations applied to these causes of action against Kelley, and that the record showed, as a matter of law, that the School Board discovered or should have discovered the design defects in the roofs more than four years before it filed its lawsuits, in July of 1977. We agree that section 95.11(3)(c) applies to these cases rather than the two-year statute. The language of the four-year statute is much more specifically applicable to these suits against Kelley than the two-year statute, which generally references “professional malpractice” suits. However, we disagree that the record established conclusively, in these cases, that the four-year statute had run against the School Board by July of 1977. Accordingly, we reverse.

In order to sustain a summary judgment holding that a cause of action is barred by a statute of limitations, such as section 95.11(3)(c), the record must conclusively demonstrate that the appellant discovered or should have discovered the injury or the negligent act of the appellee giving rise to the injury. First Federal Savings and Loan Association of Wisconsin v. Dade Federal Savings and Loan Association., 403 So.2d 1097 (Fla. 5th DCA 1981); Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st DCA 1979). Further, the reviewing court must draw every possible inference in favor of the party against whom the summary judgment is made. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977).

In these cases the record established that Kelley was the architect and designer for a number of schools in Seminole County before and after the three included in these law suits. Idyllwilde, Forest City and Teague were designed and supervised in their construction by Kelley and they all had a “round” open-school plan developed by Kelley. All three developed roof leaks during the first two years following completion of construction. These repairs were made by the contractors, under the two-year construction warranties.

In 1973 the warranty period had expired on Idyllwilde, because it was built first, and the leaks became increasingly severe and persistent at that school. School Board employees conferenced on Idyllwilde’s roof with the roofing sub-contractor, resulting in the January 31, 1973 Memorandum from a Mr. Muse (Head of Maintenance) to his supervisor, Mr. Carlton (Head of the School Plants). In the memorandum Mr. Muse said the roof was leaking because:

[T]here were no provisions made in the roof itself to prevent the material from cracking due to expansion .... This problem could be very serious and I am concerned because we have three other schools constructed with practically the same roof design. (He admitted that he was referring to Teague and Forest City).

Kelley’s failure to design proper expansion joints in the roof systems was one of the School Board’s alleged reasons for the roof “failures” at the three schools. Other correspondence from Mr. Carlton and the admissions in his depositions show he was aware in early 1973 that the roofs on all three schools had severe leaking problems, and he was concerned as to whether or not the defects were covered by the GAF bond on the roofs.

However, from the beginning of the leaks through 1975, the School Board called upon Kelley to handle, coordinate and devise plans to repair the roofs. Repairs were made repeatedly, without cost to the School Board. The record is replete with correspondence during 1973 and 1974 from the School Board to Kelley reporting leaks and problems, and correspondence from Kelley assuring the School Board that the roof problems were being handled and “permanent repairs” were being made under his direction, together with the roof bonding company.

By the end of 1974, the leaks became “critical” and in 1975, School Board employees concluded the roofs required extensive repairs or replacement. More repairs by Kelley and GAF were attempted, but in March of 1976 GAF refused to make any further repairs because GAF claimed the problem was “structural” or design related, and not covered under its bond.

The School Board claimed it was not told by Kelley or GAF that the roof leaks really were caused by “design” or “structural” defects not covered by the bond until March of 1976, although Mr. Carlton admitted he may have been so informed by a GAF representative in 1975. Kelley admitted he knew GAF’s position in 1974. He also admitted he realized the School Board was relying on his expertise, knowledge and capacity to resolve the roof problems until 1976. The School Board witnesses also confirmed they had relied on Kelley during that time to determine the cause of the leaks and to repair them. During 1973 and 1974 they were told many possible theories as to why the roofs were leaking.

Under the circumstances as established in this record, where a “client” is relying on a “professional” to resolve and cure a problem within the ambit of their professional relationship, and where the professional continuously works on the problem and assures the client the problem is being solved, we think it is a question of fact resolvable by a jury, as to when the client knew or should have known his problem was permanent and irreparable. Swagel v. Goldman, 393 So.2d 65 (Fla.3d DCA 1981); Burnside v. McCrary, 382 So.2d 75 (Fla.3d DCA 1980). Had the roof problems been reparable as Kelley assured the School Board they were, the appellant would have had no cause of action against Kelley. The Board’s reliance on Kelley as the professional to diagnose and plan the repairs may reasonably have prevented the Board from discovering the permanency of the alleged design defects earlier. We distinguish K/F Development & Investment Corp. v. Williamson Crane & Dozer Corp., 367 So.2d 1078 (Fla.3d DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979), because that case did not deal with a client-professional relationship. Nor do we conclude that it is necessary for us to adopt the “continuous treatment” doctrine embraced in other states because those principles are already encompassed in Florida’s statutory concept of commencing the running of the statute of limitations when an injury is discovered or should have been discovered.

REVERSED.

FRANK D. UPCHURCH, Jr., J., concurs and concurs specially with opinion.

COWART, J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

concurring specially.

, While I concur with Judge Sharp, I would go further and recognize the “continuing treatment” doctrine. It is unrealistic to expect a potential claimant, who has engaged a professional, to immediately consider suit when he first discovers an error, omission, or unexpected result, especially, as here, when the professional makes every effort to have the condition corrected. To expect the School Board here to sue their architect on whose judgment and advice they had relied when he was diligently working to have the defective roofs repaired is unrealistic.

These circumstances, in my opinion, are far different from those where the injury or damage is apparent, permanent and unrepairable, although the cause may be uncertain. Aware that his rights have been invaded, it is not unrealistic to impose the burden on the claimant to inquire who, how, and what caused the damage.

COWART, Judge,

dissenting:

I respectfully dissent. In Florida the applicable statute of limitations has always been deemed to have commenced to run from the date the cause of action arises. This means the date the plaintiff can first sue for the legal wrong involved. That event can often, if not usually, be identified and determined as a matter of law without the resolution of any genuine issue of fact and, hence, is often properly the subject of a summary judgment.

No rule of law requires that defects resulting from negligence be permanent or non-repairable in order to be actionable. Whether or not a construction deficiency is covered by a bond does not affect the accrual of a cause of action against a negligent party. Likewise, such accrual is not deferred until the party with the cause of action is told about it by the negligent party or the negligence confessed. A leaky roof is not a “latent defect.” § 95.11(3)(c), Fla.Stat. (1981). When a newly finished roof leaks it is not only apparent, but obvious, that someone is at fault: the architect, if the design is defective; the roofing contractor, if the installation is defective; the roofing material supplier, if the roofing material is defective, or some combination of them.

The notion that a cause of action against a professional does not accrue so long as the “client” continues to permit the professional to treat the result of the professional’s negligence is a new concept in Florida law and the majority cites no authority for the statement that such “continuous treatment” doctrine has already been adopted as a part of Florida law relating to the accrual of a cause of action and the resultant commencement of the running of the statute of limitations against a “professional.” Existing law does not require a client to sue his professional “immediately” after discovering negligently caused injury or damage. Applicable statutes of limitation give either two or, as here, four years within which time the client should either give up on his amiable but bungling professional, get competent help and sue, or be forever barred from asserting his stale claim. Such statutes are proper exercises of legislative prerogative and I would not extend them by judicial action.

If more than a leaky roof is necessary to suggest to the landowner that it may have a cause of action against someone for a construction defect and, as the majority apparently holds, the statute of limitations does not run against a professional until the client subjectively realizes that the injury was caused by the professional rather than some other possible source, then in this case the memorandum from the school’s head of maintenance, Mr. Muse, in 1973 serves that purpose when it states that “there were no provisions made in the roof itself to prevent the material from cracking due to expansion.” This is a clear reference to the architect’s failure to design proper expansion joints in the roof and is, in my opinion, sufficient to sustain the summary judgment. I would affirm.

      . Section 95.11(3)(c), Florida Statutes (1979), provides a four year statute for:
      An action founded on the design planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, except that when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event the action must be commenced within 12 years after the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer.

      . Section 95.11(4)(a), Florida Statutes (1979), provides a two year period in which to file:
      An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.

      . Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980); Wetmore v. Brennan, 378 So.2d 79 (Fla.3d DCA 1979).

      . Because of our disposition of these appeals, we decline to consider the appellee’s cross-claims which seek review of the trial court’s failure to grant Kelley’s motion to dismiss for the School Board’s failure to prosecute these suits pursuant to Rule 1.420(a). At this juncture these orders are not final, and this court does not have jurisdiction to review them. Bowl America Fla., Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980); Robertson v. Florida Rock and Truck Lines, Inc., 385 So.2d 138 (Fla. 5th DCA 1980); Fla.R.App.P. 9.130(a)(3); see Greyhound Corp. v. Estevez, 360 So.2d 41 (Fla.3d DCA 1978); Metropolitan Transit Authority v. Porter, 328 So.2d 573 (Fla.3d DCA 1976).

      . For example:
      On April 5, 1973—
      Kelley wrote the School Board concerning the roof splitting at Teague:
      “This is not considered to be a serious problem and a satisfactory solution has been arrived at by those concerned. This area will be satisfactorily corrected at no cost to the County School Board.”
      On October 30, 1973—
      Kelly wrote to the School Board that the “permanent repairs” had been completed.
      On February 11, 1974—
      Kelley’s office planned further “permanent repairs” to the roofs.
      On April 11, 1974—
      Kelley assured the School Board he had a person in his office working full-time on the problem. “We request that we continue to be given the opportunity to work hard on this item.”
      On July 16, 1974—
      Kelley reported to the School Board the the repairs were going forward at no cost to the School Board. “I am personally monitoring this progress — to stop all leaks on a permanent basis.”
      On December 3, 1974—
      Kelley reported the repairs at Teague as being complete and said he was going to set up a meeting with the bohding company. “The . .. extent of the remaining problem may be less than anticipated by your letter.”

      . See Shaw v. Clough, 597 S.W.2d 212 (Mo.Ct.App.1980); Naetzker v. Brocton Cent. School Dist., 50 A.D.2d 142, 376 N.Y.S.2d 300 (App.Div.1975), reversed on other grounds, 41 N.Y.2d 929, 394 N.Y.S.2d 627, 363 N.E.2d 351 (1977); Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777 (1962); County of Broome v. Vincent J. Smith, Inc., 18 Misc.2d 889, 358 N.Y.S.2d 998 (Sup.Ct.1974).


author: SHARP, Judge. COWART, Judge,

text:
    Alice THOMPSON, Appellant, v. ROCK SPRINGS MOBILE HOME PARK, Appellee.
    No. 80-1279.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Rehearing Denied May 17, 1982.
    Robert J. Felice of T. A. LaGrone, P. A., Orlando, for appellant.

      Sutton G. Hilyard, Jr. and D. Andrew DeBevoise of Pitts, Eubanks & Ross, P. A., Orlando, for appellee.
   SHARP, Judge.

The injured plaintiff in this case, Thompson, alleged that the defendant mobile home park breached its statutory duty as well as its common law duty to provide the lessee with a reasonably safe rented mobile home. The defendant landlord knew about the slippery, dangerous condition of the home’s steps for the purpose of the motion for summary judgment, and he had been asked to replace them. Thompson slipped and fell on the steps while visiting her daughter, and her injuries were aggravated by the fact that her foot became wedged in the make-shift railroad-tie stairs. The defendant relied on the caveat lessee doctrine as a complete bar to Thompson’s cause of action. The Final Summary Judgment, entered solely on that ground, said:

Motion for Summary Judgment is granted upon authority of Wingard v. McDonald, 348 So.2d 573 (Fla. 1st DCA 1977).

We reverse.

The Wingard decision was governed by the opinion of the Florida Supreme Court in Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946), in which the Supreme Court held:

Where the landlord surrenders possession and control of the leased premises to the tenant, in the absence of fraud or concealment, the tenant assumes the risk as to the condition of the premises, in-eluding the heating, lighting apparatus, plumbing, water pipes, sewers, etc. In other words, the rule of caveat emptor applies, hence the landlord is not liable for any personal injuries or sickness of tenants, although attributable to the defects in the fixtures. [Citations omitted] (Emphasis supplied).

25 So.2d at 206. The plaintiff in Wingard, like Thompson in this case, was visiting a rented residence when he slipped and fell on a slippery front porch.

Some erosion of the caveat lessee doctrine occurred in cases involving injuries suffered by individuals in the common areas of leased premises, such as walkways or halls for which the lessor had a continuing duty of maintenance. Going further, in Alexander v. Fiftieth Street Heights, Co., 334 So.2d 161 (Fla. 3d DCA 1976), the court rejected the caveat lessee doctrine by failing to apply it in a case where a tenant, who had leased an apartment, was injured when there was an explosion caused by a leaking gas pipe. It held that the lessor had a duty to provide the tenant with a reasonably safe rental unit and that any contributory negligence by the tenant should be treated as a comparative negligence issue.

In the context of these cases, the First District Court of Appeal decided in Mansur v. Eubanks, 368 So.2d 645 (Fla. 1st DCA 1979). In Mansur, the plaintiffs were injured by a gasoline explosion in a rented apartment when they tried to connect the gas for the appliances. One plaintiff was the lessee and the other was a neighbor who had volunteered to help. Citing Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946), the majority said the final summary judgment for the lessor must be affirmed because of the caveat lessee doctrine. It noted that its opinion was in direct conflict with Alexander, saying, “If conflict now exists, so be it.” 368 So.2d at 647.

Judge Ervin, specially concurring in Man-sur, said he thought the caveat lessee doctrine was still the law of Florida, but he

noted it had its “inception during the feudal years of rural England” and he invited the Supreme Court to reconsider whether or not it should continue to “be applied within the context of modern, urban conditions.” 368 So.2d at 649. That is precisely what the Florida Supreme Court did in Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981), a decision handed down after the trial court’s decision in this case, and after the oral argument before this Court.

In Mansur the Supreme Court held:

We resolve the conflict by overruling Brooks v. Peters and adopting the Alexander rule. We hold that the owner of a residential dwelling unit, who leases it to a tenant for residential purposes, has a duty to reasonably inspect the premises before allowing the tenant to take possession, and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant.
After the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless waived by the tenant. This latter duty corresponds to the statutory warranty of habitability noted by Judge Ervin in his concurring opinion below. § 83.51(1), Fla.Stat. (1977); (Citation omitted).

Id. at 1329 — 30. The Supreme Court reversed the final summary judgment in Mansur and remanded it for trial of various factual issues.

Pursuant to Mansur, the extent of Thompson’s injuries in this ease, and her comparative negligence in causing them, should be resolved by a jury. The dangerous condition of the steps, and the lessor’s knowledge of it, are also issues triable by a jury. The fact that Thompson was a visitor to the leased mobile home, rather than a lessee, should not bar her recovery here anymore than that fortuitous circumstance barred the neighbor’s recovery in Mansur. It should not be necessary to prove a contractual relationship to establish tort liability in this context. If the conditions for liability stated in Mansur are proven, and an injury results, the lessor should be liable not only to the tenant, but also to persons in the tenant’s household and visitors who come upon the premises at the tenant's implied or express invitation.

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Sections 83.40 et seq., Florida Statutes (1981), relate only to contractual rights and duties between tenants and landlords. I do not understand how this statute can be the sole basis for the landlord’s tort duty to a third party who is a stranger to any agreement with the landlord. The landlord’s obligations under the statutes may be altered or modified by written agreement with the tenant. If the landlord has a duty to the third party, then necessarily the third party has a right or cause of action against the landlord for breach of the duty. However, where is the precedent in law for the proposition that the landlord and tenant can by agreement waive the third party’s right to recover from the landlord in tort? The most logical answer is that Mansur’s relation as a tenant to Eubanks was not only significant, but was vital to Eubanks’ duty and to Mansur’s right to recover from Eu-banks as landlord. Appellant Alice Thompson has no such relationship to the appellee Rock Springs, so I would affirm the denial of her claim against Rock Springs.

      .Section 83.51, Florida Statutes (1977), provides in part:
      (1) The landlord at all times during the tenancy shall:

      (b) Where there are no applicable building, housing, or health codes, maintain the . .. steps, porches .. . and all other structural
      components in good repair and capable of resisting normal forces and loads.

      . Alexander v. Fiftieth Street Heights, Co., 334 So.2d 161 (Fla. 3d DCA 1976).

      . See Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980); Rutecki v. Sorkin, 350 So.2d 486 (Fla. 3d DCA 1977).

      . See Ferber v. Orange Blossom Center, Inc., 388 So.2d 1074 (Fla. 5th DCA 1980).


text:
    David HARBACH, Allen Harbach and Patricia Harbach, Appellants, v. NEW HAMPSHIRE INSURANCE GROUP, a foreign corporation, Appellee.
    No. 81-519.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Rehearing Denied May 17, 1982.
    Richard D. Dixon, Indialantic, for appellants.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee.
   PER CURIAM.

■ David Harbach and his parents appeal from an order ruling that the parents’ uninsured motorist insurance coverage, issued by appellee, did not cover David’s injuries received while he was operating his own uninsured motor vehicle. Because he was struck by an underinsured motorist he has made a claim against the policy.

David, resident in his parents’ household, had no insurance covering his personal vehicle but his parents’ policy provided for uninsured motorist coverage as follows:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by a covered person and caused by an accident.
* * * * * *
“Covered person” as used in this Part means:
(1) You or any family member.

The policy defined “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.” However, the uninsured motorist coverage provisions contained the following exclusion:

We do not provide Uninsured Motorist Coverage for bodily injury sustained by any person:
(1) while occupying, or when struck by, any motor vehicle or trailer of any type owned by you or any family member which is not insured for this coverage under this policy.

If the question of coverage for David’s injuries were to be determined solely from the terms of the policy, the policy would not provide such coverage. Although the policy covered injury caused by an uninsured motorist to the named insured or any family member resident in the household, the policy excluded uninsured motorist coverage if at the time of the injury the “covered person” was operating an automobile not insured under the policy. However, exclusions of this type were held to be invalid by the Florida Supreme Court in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971). Mullís involved facts similar to those in the instant case. Mullís was operating an uninsured motorcycle belonging to him when he was injured by an uninsured motorist. Although he was resident in his parents’ household, his parents’ uninsured motorist insurer denied coverage because of an exclusion identical to that in the instant case. The supreme court held that the exclusion was invalid as being in conflict with the statutes defining uninsured motorist coverage, stating that a family member resident in the household is entitled to uninsured motorist “whenever or wherever bodily injury is inflicted upon him by the negligence of an uninsured motorist.” Id. at 288.

The case the trial court relied upon, State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), held that one resident in his father’s household who was injured while driving his own uninsured automobile could not recover under his father’s policy. The Wimpee court interpreted the statute “to provide for no coverage when the insured has no coverage on the vehicle involved in the accident.” This case is at cross-purposes, with the statute, Section 627.4132, as determined by the supreme court in South Carolina Insurance Co. v. Kokay, 398 So.2d 1355 (Fla.1981). The statute’s effect is that if there is more than one policy of uninsured motorist coverage applicable to one accident, and if those policies are issued to the same named insured, then the statute states which coverage is to be applicable to the accident, to the exclusion of all others. If the injured person has uninsured motorist coverage on his own vehicle which is involved in the accident, then he may not obtain coverage under any other uninsured motorist policy containing the same named insured. Therefore, the statute deals only with determining which of multiple coverages issued to the same named insured will apply to a particular accident; it does not determine whether one will be entitled to coverage at all.

In summary, section 627.4132 applies to bar coverage only where multiple coverages are issued to the same named insured; in such event, the policy describes which coverage will be available to the exclusion of all others. However, here, where there is only one uninsured motorist policy available to the appellant, the statute can create no bar to his recovery under that policy. Therefore, the trial judge erred in ruling that there was no coverage for the appellant under his parents’ policy, and the declaratory judgment is reversed and this cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


author: COWART, Judge.

text:
    John C. BREWER, Appellant, v. STATE of Florida, Appellee.
    No. 81-528.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Rehearing Denied May 21, 1982.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

Appellant, charged with grand theft, appeals the denial of his motion for judgment of acquittal.

In March, 1978, Wayne Allen Parks’ house was burglarized and several rings and thirteen guns were stolen. Parks subsequently saw appellant wearing one of the stolen rings. Parks informed the appellant that the ring had been stolen and paid the appellant fifteen dollars for its return. At a later date, appellant approached Parks and informed Parks that the appellant could purchase Parks’ stolen guns for him. Parks gave appellant a thousand dollars with the understanding that appellant would travel to Miami, purchase the guns from the individuals who had stolen them, and return in “a day or two.” Appellant took Parks’ money, but never returned with the guns or the money and Parks never saw or heard from appellant until after appellant’s arrest approximately two and one half years later.

Appellant argues that Parks gave the appellant money to perform a future service and the future service was never performed, therefore the evidence is insufficient to support a conviction of theft, citing Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980), Edwards v. State, 226 So.2d 140 (Fla. 2d DCA 1969), and Ricard v. State, 181 So.2d 677 (Fla. 3d DCA 1966). In Ricard, the State presented evidence that the victim gave money to the defendant to open a Jamaican bank account, the defendant never opened the account, the victim demanded the money back from the defendant, and the defendant kept putting the victim off with excuses. The jury convicted the defendant of grand larceny but the appellate court reversed, holding there was no evidence that the defendant appropriated the money to his own use or that of another other than the true owner. Similarly in Edwards, the defendant had received money from several people on the premise that a corporation would be formed and the money would be deposited in a corporate bank account. Although the corporation was subsequently formed, the State established the money was never deposited in any corporate account. In reversing the defendant’s conviction, the appellate court stated “in substance, the only thing the State proved was that the complaining witnesses gave him monies to open an account and that no bank account was ever opened.” Id. at 141. Relying on Ricard, the court held the State failed to establish a prima facie ease of grand larceny.

While both Edwards and Ricard involve the old larceny statute, section 811.021, Florida Statutes (1951), the same result has been reached under the present theft statute. In Martin, appellant had contracted to build a house for the complaining witness and had accepted two hundred dollars cash as a down payment. Although the contract did not state the day construction was to begin, the complaining witness testified the commencement was to be one or two days after the payment of the two hundred dollars. Approximately a month and a half after the agreement was signed, the appellant was arrested on a charge of grand theft. Appellant’s conviction was reversed on appeal. The appellate court noted both Ricard and Edwards but did not squarely base their decision on those cases. Instead, it noted that that statute encompassed a variety of offenses relating to the unlawful appropriation of property and went on to discuss why none of these various offenses applied to the instant facts. The court held that the evidence did not support a charge of false pretenses since it was not a misrepresentation of a past or existing fact but an alleged false promise to do something in the future; nor did the evidence support a charge of embezzlement or conversion since the down payment, when given to the appellant, became the property of the appellant and lost its character as property of the prosecuting witness. The court then concluded that the State had failed to present a prima facie case of grand theft.

While the above case law supports the appellant’s position, we hold it is too narrow a construction of the present theft statute, section 812.014, Florida Statutes (1979). It should be noted that, under the present theft statute, how the property of another is acquired is no longer important. See section 812.012(2), Florida Statutes (1979). Thus, regardless of how the property is acquired, if the defendant has the requisite intent, he is guilty of the crime of theft.

Although the State must prove intent just as any other element of a crime, Uber v. State, 382 So.2d 1321 (Fla. 1st DCA 1980), a defendant’s mental intent is hardly ever subject to direct proof. Instead, the State must establish the defendant’s intent (and a jury must reasonably attribute such intent) based on the surrounding circumstances in the case. Keeping in mind the test to be applied to a motion for judgment of acquittal, a trial court should rarely, if ever, grant a motion for judgment of acquittal based on the state’s failure to prove mental intent. In the instant case, the State established that Parks had given the thousand dollars to the appellant on the appellant’s stated intention that he would go to Miami, use the money to buy back Parks’ guns, and would return “in one or two days.” Appellant subsequently disappeared for over two and a half years, never offered to return the money, never acquired Parks’ guns, and Parks did not see or hear from appellant until after his arrest. Under these facts, the trial court did not err in denying the appellant’s motion for judgment of acquittal.

Appellant has filed a motion for leave to file a supplemental brief claiming that the information charging theft in this case was defective because it did not allege that appellant obtained or used the property of another with the intent to permanently deprive the owner or possessor of a right to the property or a benefit therefrom or with the intent to permanently appropriate the property, citing Baxley v. State, 411 So. 2d 194 (Fla. 5th DCA 1981). We understand the argument proposed to be made in a supplemental brief, but conclude that Baxley does not mandate reversal here. Baxley was concerned with the interpretation of section 812.014(1)(a) and (b), Florida Statutes (1979), in view of certain prior decisions cited therein. It did not consider the great difference in law between an information that wholly fails to allege an essential constituent element under circumstances where that omission results in an information that wholly fails to charge a crime and an information which attempts to allege a necessary element and does so imperfectly in some detail or degree but sufficient to meet jurisdictional concepts and constitutional standards. In the first instance, the total omission goes to the jurisdiction of the trial court and the failure to provide constitutional requirements. Such a failure is therefore fundamental and the defect can be raised for the first time on appeal without having been preserved by presentation to the trial court and without a showing of harm. On the other hand, the latter type of imperfect or incomplete allegation of an essential element of a crime must be raised in the trial court or it is deemed waived, Florida Rule of Criminal Procedure 3.140(o) and 3.190(c), and errors in rulings relating thereto may be subject to the harmless error statutes, sections 59.-041 and 924.33, Florida Statutes (1981). See Gray v. State, 404 So.2d 388 (Fla. 5th DCA 1981) (citing with approval State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980)). In Baxley, unlike in the instant case, the defect in the information was properly raised in the court below by a motion to dismiss the information.

In this case the information, charging theft in the usual manner, not only alleges that appellant committed certain acts, but that such acts were committed with a specific intent, that is, with the intent to deprive the owner of his rights to the property or a benefit therefrom or with the intent to appropriate the property to the use of appellant or some other person not entitled thereto. Although, as we held in Baxley, this allegation of the element of a specific intent should properly have alleged the word “permanently” before the words “deprive” and “appropriate,” nevertheless, such defect is not the total omission of the entire essential element of a specific mental intent. Therefore, it was waived by the failure to attack it by motion in the trial court. Even if raised in the trial court, an error made in denying such a motion directed at the correction of an imperfect or incomplete allegation of an essential element may be subject to the harmless error statutes. Accordingly, appellant’s motion for leave to file a supplemental brief is hereby denied and the order denying the appellant’s motion for judgment of acquittal is affirmed.

Believing that a consideration by the full court was desirable in this case, all of the judges of this district court of appeal agreed that this case be determined en banc. See Fla.R.App.P. 9.331(a) and (b).

AFFIRMED en banc.

DAUKSCH, C. J., and ORFINGER, COBB, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.

      . [A] defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge.

        Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

      . Sometimes, of course, the failure to allege an essential constituent element of a greater offense may still leave the information sufficient to charge a lesser crime. Jurisdiction may even then still be a problem if, for instance, the lesser crime is but a misdemeanor, jurisdiction for the trial of which is not in the same court having jurisdiction to try the greater offense.

      . The essential acts are “obtains or uses” as those terms are defined in section 812.012(2), Florida Statutes (1979).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    James W. CULP, Appellant, v. Sharon Lynn CULP, Appellee.
    No. 81-723.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Rehearing Denied May 20, 1982.
    Ronald W. Black, Orlando, for appellee.
    James H. Harrison of Malone & Harrison, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a judgment of dissolution contending that the trial court erred in awarding the jointly owned marital home to the wife as lump sum alimony. The husband also questions the award of child support.

The parties were married in 1968 and had three children. The husband was awarded custody of the parties’ eldest son and was ordered to pay child support to the wife who was awarded custody of the parties’ other two sons. Both parties are employed with substantially similar incomes. The record indicates that the marital home was the parties’ only substantial asset.

The hearing in the matter reveals that the trial judge was concerned about the wife’s ability to enforce future child support payments against the husband who was residing out-of-state. To insure support for the wife, the court awarded the marital home to the wife as lump sum alimony. At the same time, the court also granted the husband a $6,000 special equity lien in the home. It is not clear how the court arrived at the $6,000 figure.

In Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981), this court described the two types of lump sum alimony. The first type relates to support and occurs where the court finds sufficient need on the part of one spouse, sufficient ability to pay on the part of the other spouse and unusual circumstances justifying the determination that the alimony should be in the form of a lump sum award rather than being paid periodically. The second type of lump sum alimony relates to making an equitable division of marital property.

In the present case, the wife claims that the marital residence was totally financed and that she made all or substantially all of the mortgage payments. However, her reference to the record does not support this claim. The parties have not referred to any evidence in the record to support an award of lump sum alimony as an equitable division of marital property and therefore the award is proper only if it relates to support and fulfills the criteria discussed above.

The record does not afford us with details of the age, health, education or skills of the wife, but she is apparently capable of being self-supporting in an amount almost equal to the husband. Therefore, it is questionable whether a need for lump sum alimony has been demonstrated.

As was noted above, the sole basis for the award was the trial judge’s concern that the wife may not be able to enforce payments against a non-resident. While the court’s concern that the husband will not pay child support may be well founded, the method of insuring support is inappropriate. It, in effect, holds the husband liable for non-support before support has accrued.

The child support award can be secured by awarding the wife exclusive possession of the house until the children reach majority or until the wife remarries. Should the husband fail to pay any support ordered, the court can impose a lien on the husband’s interest. See Gorman, 400 So.2d at 79-80. We believe that this would be a more appropriate method of providing security for the wife without stripping the husband of his only asset. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980).

As to the award of child support, we see no error and AFFIRM. Child support is a discretionary matter and should not be disturbed unless abuse is shown. Droubie v. Droubie, 379 So.2d 1331 (Fla. 2d DCA 1980).

REVERSED in part, and AFFIRMED in part.

ORFINGER and COBB, JJ., concur.

      . See, e.g., Martin v. Martin, 376 So.2d 400 (Fla. 1st DCA 1979)—the evidence did not justify award of lump sum alimony when the parties had substantially similar salaries and the major asset was the marital home; Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979)— when wife’s needs would be adequately satisfied by giving her exclusive possession of marital home, trial court abused its discretion in granting wife a lump-sum alimony award of husband’s interest in marital home; Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976)— in absence of clear showing of necessity on part of wife, who had present income of $8,200.00, whose half interest in marital home was worth $35,000.00, and who received $15,-000.00 as her half of joint savings account upon dissolution of marriage, trial court erred in awarding wife husband’s undivided one-half interest in marital home as lump sum alimony.


author: BOARDMAN, Acting Chief Judge.

text:
    Robert A. RYAN and Celtic Realty, Inc., a Florida corporation, Appellants, v. William H. WREN, Jr., and Wanda J. Wren, husband and wife, Appellees.
    No. 81-1566.
    District Court of Appeal of Florida, Second District.
    April 16, 1982.
    Rehearing Denied May 14, 1982.
    Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Largo, for appellants.
    G. Robert Schultz, St. Petersburg, for appellees.
   BOARDMAN, Acting Chief Judge.

Plaintiffs/appellees William and Wanda Wren brought suit to recover a real estate sales commission from defendants/appellants Robert A. Ryan and Celtic Realty Company. After a nonjury trial, final judgment was rendered in favor of the Wrens and against Ryan and Celtic in the amount of $5150 as compensatory damages and $5000 as punitive damages. After denial of their motion for rehearing, this appeal by Ryan and Celtic followed timely. We affirm in part and reverse in part.

The Wrens filed a two-count complaint alleging in count one a breach of contract and in the other count an intentional interference with the Wrens’ business relation; Ryan and Celtic filed a counterclaim also alleging a breach of contract and an intentional interference with their business relations.

The Wrens were employed by Celtic as real estate sales associates and Ryan, president and majority stockholder of Celtic, was their boss. While employed, the Wrens executed an exclusive right of sale listing agreement in which they agreed to list for sale their personal residence. It is the sale of this property that is the subject matter of this suit. The main thrust of the Wrens is that because they were employees of Celtic at the time of the sale, Celtic was only entitled to collect the nominal commission of $100 under existing company policy, which states that if a sales associate was in good standing at Celtic at the time of the closing of a sale of a residence owned by that associate and listed with Celtic, Celtic would at its discretion waive all but $100 of the commissions owed.

Two issues raised by Ryan and Celtic merit discussion. The first is the propriety of the trial court award of punitive damages to the Wrens. The case was tried on a breach of contract theory. True, count two of the complaint alleged that the acts of Ryan and Celtic were “done in a willful and malicious manner.” However, taking the allegation as true for the purpose of pleading, the proof clearly did not establish as a matter of law that either Ryan or Celtic committed an independent tort. The act of Ryan in changing the amount of the commission to be paid does not amount to an independent tort. To sustain an award of punitive damages the breach of contract must consist of an act which “constitutes a tort which was wilfully and wantonly committed or was attended by fraud, malice, or gross negligence.” Charter Air Center, Inc. v. Miller, 348 So.2d 614, 616 (Fla. 2d DCA), cert. denied, 354 So.2d 983 (Fla.1977). In essence, the complaint does not allege any tort. There is no dispute that the transaction was closed successfully and smoothly. By agreement of the parties, the closing agent retained the commission in an interest bearing account pending the outcome of this case. The Wrens have failed to prove count two.

The second issue is whether under the facts and circumstances it was proper to hold Ryan individually liable. We think it was not. An officer of a corporation cannot be held liable in his individual capacity unless he either signed the contract in his individual capacity or unless the corporate veil was pierced or the corporate entity should be ignored because it was found to be formed or used for fraudulent purposes or where the corporation was merely the alter ego of the shareholder. Charter Air Center, Inc. The trial record does not reveal that Ryan changed the contract’s amount of commission while acting in his individual capacity. The evidence did show that Ryan owned more shares than any other shareholder in the corporation, but this evidence does not reach the threshold necessary to show that the corporation was organized or employed for fraudulent purposes or was Ryan’s alter ego. It was therefore improper to hold Ryan personally liable. Russell v. Gans, 275 So.2d 270 (Fla. 3d DCA 1973).

Accordingly, the final judgment is REVERSED as to the award of punitive damages against Celtic and Ryan, REVERSED as to the award of compensatory damages against Ryan, and AFFIRMED as to the award of compensatory damages plus interest and costs against Celtic.

OTT and DANAHY, JJ., concur.

      . The award of $5150 against Celtic is not an issue on appeal, and that portion of the final judgment is therefore affirmed.


author: HENDRY, Judge.

text:
    Charles Henry PEEK, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2394.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Rehearing Denied June 11, 1982.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   HENDRY, Judge.

Defendant Charles Peek appeals from a final judgment of conviction and sentencing for petit theft. The single issue for our determination is whether the trial court erred in refusing to excuse a juror for cause. We hold that the court’s denial of the challenge for cause, after the defendant had exhausted all his peremptory challenges in reliance upon a previous ruling striking the juror for cause, impaired defendant’s right to a fair trial and mandates reversal.

During voir dire examination prior to trial, one of the prospective jurors, Samuel Weber, stated that as a retired criminal court reporter for the prosecution he might be unable to put his knowledge of the criminal justice system out of his mind and render an impartial verdict. Although three other jurors were excused for cause upon motion of the state, Mr. Weber was not challenged at this time. Upon completion of voir dire examination, both sides began to strike jurors from the panel, starting with number one and working their way down the jury list. Among the first fifteen veniremen, the state exercised four peremptory challenges and the defendant exercised five. The remaining six jurors composed the tentative panel. At this point defense counsel asked the court to rule on a chai-lenge for cause to juror number eighteen, Mr. Weber. The court agreed to strike him for cause, but deferred ruling after the prosecutor complained that “we haven’t gotten to Mr. Weber yet.” Although defense counsel argued that the proper procedure was to make challenges for cause at that time, the court withdrew its prior ruling. Defense counsel then exercised his sixth and final peremptory challenge, back-striking the last juror called prior to the challenge on Mr. Weber, and the state exercised its last two challenges against jurors number sixteen and seventeen. All peremptory challenges having been exhausted, defense counsel again challenged Mr. Weber for cause. The court now refused to excuse Mr. Weber for cause. Defense counsel objected and sought to withdraw one of his peremptory challenges, but this request was also denied. An alternate juror was selected, and the jury, including Mr. Weber, was sworn in chief and the case tried. Following his conviction, defendant instituted this appeal.

While our review of the voir dire in this case raises some doubt as to the ability of Mr. Weber to render an impartial verdict, see Section 913.03(10), Florida Statutes (1979), whether or not the trial court erred in denying defense counsel’s challenge for cause of Mr. Weber is not the pivotal consideration. The error, as we see it, is the court’s reversal of its prior ruling on which defense counsel relied to his detriment.

Rule 3.310 of the Florida Rules of Criminal Procedure provides that the state or a defendant may challenge an individual prospective juror before the juror is sworn to try the cause. Thus, a criminal defendant has a right to challenge a juror at any time before the juror is sworn in chief. See State v. Rodgers, 347 So.2d 610 (Fla.1977); Knee v. State, 294 So.2d 411 (Fla. 4th DCA 1974). Accordingly, defense counsel was entitled to have a ruling on his challenge for cause at the time raised even though Mr. Weber was not next in line for peremptory striking. The trial court’s initial agreement to strike Mr. Weber for cause and subsequent deferral of this ruling caused defense counsel to use his remaining peremptory challenge in the belief that when they “got to Mr. Weber” the court would strike him for cause.

The court’s refusal to rule on defense counsel’s challenge of Mr. Weber was clearly erroneous in light of the fact that the court had excused three jurors for cause upon the state’s motion during voir dire well before the parties began to go down the list numerically and accept or reject jurors in sequence. Additionally, the court’s actions violated the defendant’s right to exercise peremptory challenges since he was required to exhaust his per-emptories before asserting challenges for cause. Although counsel cannot be compelled to exhaust his peremptory challenges on individuals who should be excused for cause, United States v. Nell, 526 F.2d 1223 (5th Cir. 1976), counsel clearly has the right to exercise a peremptory challenge on any juror, even one who should be excused for cause. Leon v. State, 396 So.2d 203 (Fla. 3d DCA 1981). We therefore find that the “essential demands of fairness” were not met in this case, United States v. Nell, supra, at 1229, and reverse and remand for a new trial.

Reversed and remanded for new trial.


author: PER CURIAM. SHARP, Judge,

text:
    Ann ROBERTS, a minor, Vivienne Roberts and Michael Roberts, individually, and as next friends and guardians of Ann Roberts, Appellants, v. James T. CASEY, et al., Appellees.
    No. 80-335.
    District Court of Appeal of Florida, Fifth District.
    April 21, 1982.
    Rehearing Denied May 19, 1982.

      Shackow & MeGalliard, Gainesville, and Larry Klein, West Palm Beach, for appellants.
    Andrew G. Pattillo, Jr. and L. Edward McClellan of Pattillo, MacKay & McKeever, P.A., Ocala, for appellees, James T. Casey and Florida Physicians Insurance Reciprocal.
    Edwin C. Cluster of Ayres, Cluster Curry, McCall & Briggs, P.A., Ocala, for appellees Marion County Hospital Dist., etc., and St. Paul Ins. Co.
    No appearance for appellee The Florida Patient’s Compensation Fund.
   PER CURIAM.

The appellants (Ann Roberts and her parents, suing on their own behalf and as her guardian) claim the trial court erred in granting a final summary judgment denying them any recovery against the appellees (Dr. Casey, Ann’s pediatrician, Munroe Memorial Hospital and their respective liability carriers). The court ruled that the appellants’ causes of action against the appellees are barred by the two year statute of limitations and that section 768.44(6) of the medical mediation statute did not toll the running of the statute.

The record shows, without material dispute, that Ann Roberts was born an apparently healthy child on February 4, 1977, at Munroe Memorial Hospital. On April 5, 1977, Dr. Casey ordered her readmitted to the hospital. He treated her at Munroe for bacterial meningitis. After approximately one week, she was transferred to Shands Teaching Hospital in Gainesville because of the severity of her illness. While Ann was at Shands, Mrs. Roberts learned that her child had probably suffered severe brain damage. Mrs. Roberts also heard that other babies in the nursery at Munroe at about the time Ann was born had contracted infectious diseases, and that the hospital had been criticized for its lax visiting procedures in the maternity ward.

Mrs. Roberts stated in her deposition that she talked with Dr. Casey at the end of April, 1977, about bringing suit against the hospital. Dr. Casey said it was possible that Ann contracted the meningitis at Mun-roe, and he then advised her to consult an attorney.

The first question we shall consider is whether the tolling provision of chapter 768, relating to medical malpractice actions preserved appellants’ cause of action. Section 768.44 provides in relevant part:

(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.
(4) The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.

A summary of the medical mediation proceedings in this case is as follows:

February 3, 1979 Medical mediation claim filed. Referee expanded time for final hearing to 6 months.
July 6, 1979 Hearing. The parties appeared but presented no evidence. They stipulated it was a valid “start-up” hearing, and agreed to continue the hearing beyond 6 months.
October 29,1979 Final hearing scheduled but not held.
October 30, 1979 In response to motions made by appellees, referee terminated the proceedings “nunc pro tunc” effective August 3, 1979, because of lack of jurisdiction since no valid “start-up” hearing was held prior to August 3, 1979.
December 18, 1979 Suit filed in circuit court.

The question here is when did the sixty day period referred to in subsection (4) begin to run. Appellees argue that it began on August 3, 1979 because no valid “start-up” hearing was held.

It is clear that jurisdiction of the mediation panel terminates within six months unless there is a valid “start-up” hearing. This jurisdictional requirement cannot be altered by stipulation of the parties. Sanchez v. Wimpey, 409 So.2d 20 (Fla.1982); Aldana v. Holub, 381 So.2d 231 (Fla.1980); Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978). Thus, the parties’ stipulation that it was a valid “start-up” hearing was of no effect.

There being no valid “start-up” hearing within six months of February 3, 1979, the date the mediation claim was filed, the jurisdiction of the panel terminated on August 3, 1979. The appellants then had either sixty days or the time remaining under the applicable statute of limitations, whichever was greater, within which to file suit. The trial court found that the acts and omissions constituting the alleged negligence occurred and the causes of action accrued on or before April 30, 1977, the time that appellants were advised by Dr. Casey to consult an attorney. Therefore, the complaint, which was filed December 18, 1979, was well beyond the two year period plus the six months during which the statute was tolled.

This brings us to the next question. Was summary judgment improper because there remained a question of fact as to when the appellant should have discovered the incident giving rise to the malpractice claim?

The statute of limitations in a medical malpractice action begins to run when the plaintiff has been put on notice of an invasion of his legal rights. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978). This occurs when the plaintiff has notice of either the negligent act which causes the injury or the existence of an injury which is a consequence of the negligent act. Almengor at 894. Here, appellants discovered in late April, 1977, that their child’s condition may have been caused by a negligent act. We hold that the statute of limitations began to run against both the hospital and Dr. Casey at this time. The fact that appellants were not aware that Dr. Casey’s treatment may have contributed to the child’s condition does not alter the result as appellants had been put on notice of an invasion of their legal rights at this time. Thus, the entry of summary judgment was not improper and we affirm.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting

I respectfully dissent in this case on two grounds: that the medical malpractice two year statute of limitations had not run because it was tolled by the provisions of section 768.44(4), Florida Statutes (1977), and to refuse to so hold violates the appellants’ constitutional rights of access to the courts of this state; and further, that as to Dr. Casey, the summary judgment was not properly entered because the record does not clearly and as a “matter of law” show when the appellants were aware of his alleged negligent treatment of Ann, nor the alleged increased damage to her resulting from it.

The Medical Mediation Act, Chapter 768, was declared unconstitutional prospectively only, in Aldana v. Holub, 381 So.2d 231 (Fla.1980). In Aldana, our Supreme Court stated “It simply offends due process to countenance a law which confers a valuable legal right, but then permits that right to be capriciously swept away on the wings of luck and happenstance.” 381 So.2d at 236. I would add that due process is also offended by a law which is so contradictory and confusing it successfully disguises when a constitutional right has been reborn to such an extent that reasonably knowledgable and diligent litigants cannot ascertain the life expectancy of their rights to redress in the courts.

On its face, the provisions of section 768.-44(3) state that the jurisdiction of the mediation panel expires: “If no hearing on the merits is held within 10 months of the date the claim is filed . . . . ” It has no six months “expiration” time for proceedings which do not begin within six months after the claim is filed, although the section says: “Such extension shall not exceed 6 months from the date the claim is filed” (Referring to the power of the judicial referee to extend the time to begin the hearing beyond 120 days).

The ten month provision is keyed to section 768.44(4), which provides:

The filing of the claim shall toll any applicable statute of limitations, and such statute of limitation shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is other- wise terminated in which to file a complaint in circuit court. [Emphasis supplied).

Prior to the very recent Florida Supreme Court decision Sanchez v. Wimpey, 409 So.2d 20 (Fla.1982), it was not at all clear that failure to hold a hearing in six months automatically terminated the jurisdiction of the panel, so as to commence the running of the sixty days to file a cause of action in court. Numerous cases dealt with the plaintiffs’ rights to cut off the mediation proceedings when the six months period expired without a hearing. Contrary to the statement in the majority opinion and the cases cited by it, Aldana and Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979) do not deal with this issue: When does the jurisdiction of the mediation panel “expire” for purposes of triggering the sixty day grace period to get into court?

The Third District Court of Appeal held in Wimpey v. Sanchez, 386 So.2d 1241 (Fla. 3d DCA 1980), reversed in part, 409 So.2d 20 (Fla.1982), that the only jurisdictional time period in the statute which automatically terminates the panel’s jurisdiction is the ten months provision — not the six months one. The court chose not to apply Rule 20.190(c), as altering a period of statute of limitations because (presumably) rules governing procedure ought not to alter substantive rights given under statutes. Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978) reached a different conclusion, although in that case it was the plaintiff (injured party) seeking to bring his case in court.

Further, in Aldana v. Holub, 381 So.2d 231 (Fla.1980) the consolidated case of Abel v. Kirschbessner involved a fact pattern consistent with this case — the six months period was violated, but the panel’s jurisdiction was upheld. Similarly in Ruben v. Kelley, 402 So.2d 1165 (Fla.1981), the Florida Supreme Court held admissible at trial the findings of a panel even though the six months time period had been exceeded. See also Stockton v. Knight, 382 So.2d 1230 (Fla. 1st DCA 1980); Lustig v. McCormick, 358 So.2d 844 (Fla. 3d DCA 1978); Ludwig v. Glover, 357 So.2d 233 (Fla. 1st DCA 1978).

In view of the confusion of the courts’ interpretation of the Medical Mediation Act’s jurisdiction and statute of limitations provision, and the lack of clarity in the statute itself, I would apply Sanchez v. Wimpey, prospectively only, and thereby avoid the (I think) egregious and unconstitutional result in this case, which deprives appellants of their “day in court” by applying (in effect) a shorter statute of limitations period to them than to others similarly situated, and on top of that, retroactively.

I also dissent as to the summary judgment in favor of Dr. Casey. I agree the record showed, two years before appellants filed suit (and hence too late if the Medical Mediation Act did not toll the running of the two year statute) that the appellants knew Ann had suffered brain damage from the bacterial meningitis which she probably became infected with shortly after her birth at the Munroe Hospital, and that the hospital’s lax visiting rules or hygiene may have been responsible for the presence of the bacteria in the new-born nursery. They were therefore on notice as to the damage and the negligent act, as the majority opinion points out. Under Nardone and Almen-gor, they would be barred from suing the hospital.

However, aside from some technical admissions, which were self-contradictory the record before the court did not show in any way that two years prior to filing the suit the appellants knew or had any notice that Dr. Casey mishandled Ann’s treatment at Munroe before she was transferred to Shands. The record shows (taking all inferences in Ann’s favor as we must do) that Dr. Casey and his partner diagnosed Ann’s illness as some form of bacterial meningitis but negligently misdiagnosed the underlying bacterium and put her on the wrong antibiotics. It also shows that Ann’s parents did not know of any possible malpractice on Dr. Casey’s part, for at least a year after Ann’s severe illness. Mrs. Roberts continued to bring Ann and her other children to Dr. Casey as their general pediatrician, for check-ups through January of 1979.

Further, there is nothing in the record to show when the appellants learned or had notice that Ann’s permanent disabilities were attributable to mistreatment by Dr. Casey. The mere fact a child has suffered permanent disabilities as a result of an attack of bacterial meningitis is not itself dispositive of the question when the parents should have discovered the doctor’s alleged negligence. Bacterial meningitis is a serious disease. Permanent disability or death is not uncommon even when treatment is proper. Where the malpractice and its resulting damage is masked by the fact that some permanent disability may flow naturally from the diagnosed disease, the statute of limitations should not begin to run on the latent malpractice incident at the same time. The case at bar is analogous to the misplaced sponge or instrument cases. The likelihood of some pain and discomfort following surgery masks the presence of the misplaced sponge. In the sponge case the presence of continuing pain following surgery is some evidence the plaintiff should have discovered the act of negligence; however, in the face of conflicting evidence regarding actual knowledge it is rarely sufficient to warrant summary judgment.

Because the record in this case does not show when appellants knew or had reason to know of Dr. Casey’s alleged malpractice and its additional effect on Ann, I think summary judgment in his- favor was improperly entered.

A record that is silent on a determinative issue of fact forecloses summary judgment, for the movant’s burden is to ‘show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’

Glass v. Camara, 369 So.2d 625, 627-28 (Fla. 1st DCA 1979).

      . Section 95.11(4)(b), Florida Statutes (1975), which was in effect in 1977, provides:
      An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence....

      . Section 95.11(4)(b), Florida Statutes (1977) provides:
      An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered within the exercise of due diligence; . . .

      . Art. I, § 21, Fia.Const.

        .See Parker v. Knorr, 383 So.2d 776 (Fla. 5th DCA 1980); Serrill v. Hilderbrand, 382 So.2d 316 (Fla. 2d DCA 1979); Wright v. Ratnesar, 373 So.2d 431 (Fla. 2d DCA 1979); Cohen v. Johnson, 373 So.2d 389 (Fla. 4th DCA 1979); Hirsch v. Kleinman, 375 So.2d 362 (Fla. 4th DCA 1979); Hewitt v. Caffee, 368 So.2d 1342 (Fla. 3d DCA 1979); Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979); Shore v. Abbazia, 375 So.2d 354 (Fla. 3d DCA 1979); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978); Ballard v. Curatolo, 363 So.2d 864 (Fla. 4th DCA 1978).

      . It is ironic to have the time period of section 768.44(3), which was intended for the plaintiffs’ protection, now turned against them. See Judge Schwartz’ concurring opinion in Valenstein v. Doctors Hospital, 372 So.2d 1169 (Fla. 3d DCA 1979).

      . See also State ex rel. Love v. Jacobson, 343 So.2d 1328 (Fla. 3d DCA 1977).

      . Adams v. Wright, 403 So.2d 391 (Fla.1981); Art. V, § 2(a) and Art. II, § 3, Fla.Const.; S. R. v. State, 346 So.2d 1018 (Fla.1977); Lane v. State, 337 So.2d 976 (Fla.1976).

      .§ 95.11(4)(b), Fla.Stat. (1977).

      . Love v. Allis-Chalmers Corporation, 362 So.2d 1037 (Fla. 4th DCA 1978), cert. dismissed, 366 So.2d 879 (Fla.1978).

      . Wills v. Sears Roebuck Co., 351 So.2d 29 (Fla.1977).

      . R. Gray, Attorney’s Textbook of Medicine § 40.14 (1981).

      . See Salvaggio v. Austin, 336 So.2d 1282 (Fla. 2d DCA 1979); cf. Leech v. Bralliar, 275 F.Supp. 897 (D.Ariz.1967) (Pain from automobile accident and injury masking pain from negligent treatment); Stafford v. Shultz, 42 Cal.2d 767, 270 P.2d 1 (1954) (Following extended treatment of bullet wound in the leg, informing plaintiff that the leg needed to be amputated was not dispositive of the issue when the plaintiff should have discovered the treating physician’s negligence); see also Perez v. Maule industries, Inc., 413 So.2d 75 (Fla. 3d DCA 1982); Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981).

        .Worrell v. John F. Kennedy Memorial Hospital, Inc., 384 So.2d 897 (Fla. 4th DCA 1980); Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979); Tetstone v. Adams, 373 So.2d 362 (Fla. 1st DCA 1979); Eland v. Aylward, 373 So.2d 92 (Fla. 2d DCA 1979); Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978); Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978).