text:
    DOUGLAS N. HIGGINS, INC., Appellant, v. FLORIDA KEYS AQUEDUCT AUTHORITY, Appellee.
    No. 81-70.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1981.
    Rehearing Denied Oct. 7, 1981.
    Podhurst, Orseck & Parks and Barry L. Meadow, Miami, Saveli, Williams, Cox & Angel and William E. Turnipseed, Atlanta, Ga., for appellant.
    Enrique Arroyo, Coral Gables, and Thomas J. Schwartz, West Palm Beach, for appel-lee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

The appellant, allegedly is the second lowest bidder on a certain project ad ver-tised for bids by the appellee. The appellee failed to apprise the appellant of its intention to award the contract to the lowest bidder, in accordance with the provisions of Chapter 28-5.111, Florida Administrative Rules. Notwithstanding this failure, the agency refused to accord the appellant a hearing because it contended that the appellant had actual notice of the proposed award to the low bidder for a period in excess of twenty-one days; therefore, the agency did not have to give the written notice required by the rule and did not have to accord the appellant a hearing. We reverse.

The appellant requested a hearing within twenty-one days of the actual giving of a contract to the low bidder without any prior written notice from the agency. This entitled it to a hearing under the rule. The agency action denying the appellant a hearing pursuant to said rule be and the same is hereby reversed, with directions to grant the appellant such a hearing.

Reversed and remanded, with directions.

      . “28-5.111 Point of Entry into Proceedings. Unless otherwise provided by law or agency rule:
      (1)Persons requesting a hearing on an Agency decision which does or may determine their substantial interest shall file a petition with the Agency within twenty-one (21) days of receipt of written notice of the decision, or within twenty-one (21) days of receipt of written notice of intent to render such decision; whenever possible, an Agency shall issue a written notice of intent to render a decision prior to the decision and allow persons who may be substantially affected thereby twenty-one (21) days from receipt in which to request a hearing. The notice shall state the time limit for requesting a hearing and shall reference the agency’s procedural rules.
      (2) Any person who receives written notice of an agency decision or who receives written notice of intent to render a decision and who fails to request a hearing within twenty-one (21) days, shall have waived his right subsequently to request a hearing on such matters.
      (3) The Agency may publish notice of its decision, or of its intent to render a decision in the Florida Administrative Weekly, newspapers of general circulation in the area affected by such decisions and may also, where appropriate, mail copies of its notice to applicants, competitors, and interested groups. Such action by the Agency may be used in establishing petitioner’s date of receiving notice.” (emphasis added)


source: Caselaw Access Project

author: JOANOS, Judge. BOOTH, Judge,

license: Public Domain

text:
    Lawrence KHOURY, Appellant, v. CARVEL HOMES SOUTH, INC., and Corporate Group Services, Inc., Appellees.
    No. WW-264.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 2, 1981.

      L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellant.
    Steven P. Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellees.
   JOANOS, Judge.

When the appellant/claimant prevailed on the merits of his workers’ compensation claim, the deputy’s order required that all attorney’s fees payable to appellant’s attorney, Mr. Keyfetz, be placed in a trust account and that Mr. Keyfetz seek the deputy’s approval as required by § 440.34(1), Florida Statutes (1979), before reimbursement of his fees. Arguing that § 440.34(1) is constitutionally invalid, appellant moved that this portion of the order be vacated. Although the deputy refused to decide the constitutional issues, he did enter brief “findings of fact.” On this record, appellant now seeks review before this Court asking generally that we find § 440.34(1) violative of equal protection, due process or the “contract clause.” Relying on the arguments and authority presented to us, we have not been persuaded that § 440.34’s requirement of obtaining deputy approval before disbursement of a claimant’s attorney’s fees is unconstitutional.

Except for the original claim for relief and the orders of the deputy, the entire record on appeal consists of the motion to vacate. Attached to the motion as exhibits are affidavits of claimant, Mr. Keyfetz, and two other attorneys, several letters written by Mr. Keyfetz to or about workers seeking representation, and a letter from the Bureau of Workers’ Compensation informing deputies of the procedure for processing retainer agreements. There is no indication that any of these exhibits were ever offered or accepted into evidence. Claimant’s and Mr. Keyfetz’ affidavits reflect that under claimant’s contract with Mr. Keyfetz for representation, claimant would pay the lesser of a percentage of benefits obtained or an hourly rate. Both claimant and Mr. Keyfetz stated that they did not wish to reveal the terms of the contract, seek third party approval, or furnish information to the deputy regarding work and services performed. Claimant also objected to the necessity of payment of an extra charge required because of the additional efforts of an attorney in obtaining approval of the attorney’s fee through a formal hearing. In addition, Mr. Keyfetz stated that if he is unable to freely contract with claimant but is required to deposit funds in a trust account and seek approval for disbursement, he is unwilling to represent claimant further. Finally, the motion to vacate included as an exhibit the affidavits of two other attorneys who state that they are unwilling to represent claimants in workers’ compensation eases because of the legislation adopted August 1, 1979, regulating attorney’s fees.

The deputy denied the motion because he did not feel he could take jurisdiction of the constitutional issues. In his order, however, the deputy found that

the procedure established by the legislature herein does preclude willingness of counsel to represent an injured workman, will cost injured workman additional attorneys’ fees in view of the additional time required in connection with seeking approval and may provide useful information to the employer-carrier in defending against the claim and making decisions in connection with their position as to any claim ....

Appellant first argues that § 440.34(1) unconstitutionally violates equal protection in that it discriminates against claimants as a class. According to appellant, the effect of the statute’s regulation of the manner and amount of a claimant’s attorney’s fees is to make lawyers unwilling to represent claimants. Appellant contends that despite what the legislature intended, the statute does not protect the injured worker but restricts the worker’s ability to hire an attorney. In support of this contention, appellant cites us to the record and the deputy’s findings.

The test for determining the validity of a statutory classification which does not involve a “suspect” class or a fundamental right is whether “any realistic and rational set of facts may be conceived to support it.” Fraternal Order of Police v. Department of State, 392 So.2d 1296, 1302 (Fla.1981). This somewhat limited judicial review is in recognition of the legislature’s broad discretion in fashioning statutory remedies to protect the public welfare. Our function is not to determine if the legislation achieves the intended goal in the best manner possible. If the goal is legitimate and the means to achieve it are rationally related to that goal, the statute should be upheld. See, e. g. In re Estate of Greenberg, 390 So.2d 40 (Fla.1980).

In Samaha v. State, 389 So.2d 639 (Fla.1980), the Florida Supreme Court upheld a statute which made it a misdemeanor for an attorney to receive any fees from a workers’ compensation claimant without prior approval by the judge of industrial claims (now termed “deputy commissioner”), Industrial Relations Commission or court. Rejecting an equal protection challenge similar to the one made in this case, the court recognized the State’s interest in regulating attorney’s fees for injured workers as legitimate. According to the court, allowing the attorney to extract a substantial sum from a claimant’s workers’ compensation benefits “would thwart the public policy of affording the claimant necessary minimum living funds and cast the burden of support for that person on society generally.” Id. at 640.

As additional support for its decision, the court in Samaha cited Yeiser v. Dysart, 267 U.S. 540, 45 S.Ct. 399, 69 L.Ed. 775 (1925), involving a workers’ compensation statute which sought to regulate attorney’s fees much like § 440.34(1). The statute in Yeiser provided that “only such sum could be demanded for services in bringing a suit under the workers’ compensation act as the court should allow, and a contract for other and further pay was void.” The plaintiff, an attorney who was suspended unless he agreed to refund a fee received without approval, argued that the statute unreasonably restricted the liberty of contract and deprived him of liberty and property without due process. These contentions were denied by the Court for two reasons: (1) a large portion of those covered by the act need protection against improvident contracts, and their protection is in the public’s and their own self-interest; (2) an attorney is licensed by the State, and workers’ compensation is a right created by the State; therefore, with regard to workers’ compensation the State may attach such contentions on the license to practice law as it deems necessary for the public good.

The Yeiser Court’s rejection of the “liberty to contract” argument applies with equal weight to appellant’s second contention that § 440.34(1) violates what appellant loosely describes as his constitutional “right to contract.” Merely because legislation places some restriction on the right to freely contract will not invalidate the legislation if the restriction was intended to protect the public’s health, safety or welfare. See City of El Paso v. Simmons, 379 U.S. 497, 508-509, 85 S.Ct. 577, 583-584, 13 L.Ed.2d 446 (1965); Golden v. McCarty, 337 So.2d 388, 390 (Fla.1976). In this respect, judicial analysis of legislative intent and the means used to achieve that intent should give the same deference to legislative discretion as was given in the equal protection cases previously cited. See Fraternal Order of Police, supra; In re Estate of Greenberg, supra.

Considering the limited record in this case and appellant’s failure to refer us to any case authority in support of his position, we have not been convinced to sway from our duty to resolve doubts regarding a statute’s validity in favor of constitutionality. Golden v. McCarty, 337 So.2d at 389. Appellant’s arguments as to the practical effect of the statute are particularly unpersuasive in light of the limited evidence presented in this case as well as the lack of experience available under the statute which has been in effect only a short period of time. Due to this failure of evidence, appellant has not shown that the statute is wholly inadequate to achieve the legitimate state interest recognized in Samaha.

For the foregoing reasons, we AFFIRM the deputy’s denial of the motion to vacate.

ERVIN, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting:

I am of the view that Section 440.34(1), Florida Statutes (1979), as interpreted by the majority, restrains and impairs the rights of claimants to contract and to engage the services of an attorney of their choice. The statute thereby violates concepts of due process and equal protection, and, I believe, is unconstitutional. Reliance on Samaha v. State, 389 So.2d 639 (Fla.1980), is not appropriate. That case dealt with a prior act which required that a reasonable attorney’s fee be determined by the deputy and paid by the employer and/or carrier. As a concomitant of the award to claimants of a reasonable attorney’s fee, over and above other compensation benefits awarded, the prior act prohibited private agreements for fees to protect claimants from personal liability for fees which might reduce compensation benefits below what was intended by the legislature. Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977).

Under the present act, a claimant’s right to recover attorney’s fees from the employer/carrier has been narrowly proscribed to certain limited instances. Section 440.34(3), Florida Statutes. The general rule under the present act is that claimants are personally responsible for the payment of attorney’s fees for services rendered on their behalf, not the employer/earrier. No defensible state interest can exist in unilaterally proscribing and restricting the right of claimants to negotiate and obtain legal services while leaving the employers/carriers free to contract with attorneys of their choice without restriction or limitation. Claimants should have the same rights as other litigants.

Workers’ compensation laws are a mandatory substitute for the common law right of injured workmen to recover in tort against employers for on-the-job injuries. So long as the statutory remedy afforded is substantially equivalent to the common law remedy relinquished, certain constitutional objections can be overcome. The restraints imposed by Section 440.34(1) result in deprivation of fundamental rights of injured workers and impose a limitation not applicable to parties injured in non-job-related accidents.

In the instant case, claimant, who contracted privately with an attorney for representation, does not contend the fee contracted for was excessive or improper in any way. No claim is being made by claimant or his counsel that the agreed upon fee be paid by the employer/earrier or be a lien against compensation benefits.

The interpretation of Section 440.34(1) which precludes freedom to contract and restricts the ability to obtain needed services seriously impairs the right of claimants to obtain compensation benefits due to them in what has become a complex area of the law, thereby penalizing, rather than protecting, the injured worker.

I respectfully dissent.

      . Section 440.34(1) provides:
      No fee, gratuity, or other consideration shall be paid for services rendered for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the deputy commissioner, commission, or court having jurisdiction over such proceedings. Except as provided by this subsection, any attorney’s fee approved by a deputy commissioner shall be equal to 25 percent of the first $5,000 of the amount of the benefits secured, 20 percent of the next $5,000 of the amount of the benefits secured, and 15 percent of the remaining amount of the benefits secured. However, the deputy commissioner shall consider the following factors in each case and may increase or decrease the attorney’s fee if, in his judgment, the circumstances of the particular case warrant such action:
      (a)The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude employment of the lawyer by others or cause antagonisms with other clients.
      (c) The fee customarily charged in the locality for similar legal services.
      (d) The amount involved in the controversy and the benefits resulting to the claimant.
      (e) The time limitation imposed by the claimant or the circumstances.
      (f) The nature and length of the professional relationship with the claimant.
      (g) The experience, reputation, and ability of the lawyer or lawyers performing services.
      (h) The contingency or certainty of a fee.

      . Neither appellant’s initial brief nor his reply brief included any cited case authority in support of or in opposition to his position.

      . Assuming that appellant was arguing that § 440.34 (1979) operated to impair a contract obligation as prohibited by Art. I, § 10 of the federal and Florida constitutions, we note that § 440.34(1) (1979) was in effect prior to the date of the accident in this case. Since the contract for attorney representation on the claim was entered into after the effective date of the statute, it cannot be said that § 440.34 impaired any existing contract obligation. Frizzell v. Bartley, 372 So.2d 1371 (Fla.1979).

      . Compare, Yeiser v. Dysart, 267 U.S. 540, 45 S.Ct. 399, 69 L.Ed. 775 (1925), cited by the majority, wherein the client sought the aid of the court to obtain the refund of a fee claimed by the client to be contrary to the agreement of the parties, which the attorney had subtracted from a workmen’s compensation settlement without court approval or authorization.


author: PER CURIAM.

text:
    Zachary CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. 80-356.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Rehearing Denied Oct. 14, 1981.

      Sheldon M. Schapiro of Law Offices of Sheldon M. Schapiro, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant entered a plea of nolo con-tendere to the charge of possession of cocaine reserving his right to appeal the trial court’s denial of his motion to suppress evidence. He appeals from an order withholding adjudication and placing him on a period of probation. We affirm the denial of his motion to suppress.

Detective Callahan observed the appellant sitting in the Fort Lauderdale-Holly-wood International Airport Terminal for approximately one and one-half hours. Callahan testified that the appellant appeared to be nervous. The appellant left the terminal and quickly entered a vehicle which had just arrived to pick him up. He returned to the terminal twenty minutes later, exited the same vehicle, and proceeded to the ticket counter to exchange his airline ticket for an earlier flight. Callahan informed deputy Burk of her observations. Burk, who also observed the appellant displaying a nervous demeanor, stood immediately behind the appellant at the ticket counter. Burk observed that the defendant’s ticket was made out to “Z. Carpenter”, but that appellant put the name “Z. Baum” on the luggage ticket which was attached to the small piece of luggage which he checked through to his destination, Atlanta, Georgia.

After the appellant checked his luggage, Deputies Brennan and Burk approached him at the terminal escalator and asked him for some identification. The appellant produced identification which indicated his name was Zachary Carpenter, thus reaffirming Burk’s suspicion that the appellant had used an alias on his luggage. In response to a request, the appellant said he had no objection to a search of his luggage. About this time, Callahan also approached the appellant. Burk pulled the luggage from the conveyor belt and carried it to where the appellant, Brennan and Callahan were standing. The appellant unequivocally denied that the bag belonged to him. The appellant thereupon acquiesced to the officers’ request that he accompany them to their airport office which was housed in a different, nearby building of the airport. The appellant was never advised that he had a right to refuse to cooperate.

Even though the officers were absolutely certain that the luggage was the same one which the appellant had checked through at the ticket counter, the appellant continued to disclaim ownership. Although appellant contradicted the officers, each of them testified that a single “doggie lineup” was conducted with the use of a trained narcotics detector dog. The dog “alerted” to the appellant’s luggage. Thereupon Detective Callahan completed a sworn affidavit in support of a search warrant and proceeded to obtain a search warrant from a circuit judge. The warrant was executed at the airport and six ounces of cocaine were discovered in the bag.

Although the display of the so called “drug courier profile characteristics” do not necessarily create a founded suspicion of wrongdoing, we do agree with the concurring opinion of Judge Hubbard in Royer v. State, 389 So.2d 1007 (Fla. 3rd DCA 1980) that the display of such characteristics could constitute the sort of founded suspicions necessary to justify the temporary detention of an air passenger in some instances. We hold that such is the case here. The defendant was observed in the airport terminal engaged in what must be considered highly unusual conduct. His lengthy presence at the terminal, his obvious nervous demeanor, his sudden departure and return to the airport, and his change of flight times were extremely suspicious circumstances. These, coupled with the use of an alias at the time of checking his luggage, created a founded or reasonable suspicion that the appellant was engaged in criminal activity. The use of an alias is a highly suspect act that tends to distinguish persons engaged in covert criminal activity from other segments of society. Although the use of an alias can be explained in some cases (e. g. a public figure’s attempt to gain anonymity), in others it creates an aura of justifiable suspicion. Hence, the temporary detention of the defendant was valid under the mandates of both Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Florida’s “Stop and Frisk” law, Section 901.151, Florida Statutes (1979).

The appellant also contests the validity of the warrant-issuance procedure. We find his arguments in this regard to be utterly without merit.

Finally, the appellant asserts that any statements made by him to the police officers at the airport should have been suppressed because the police failed to advise him of his Miranda rights at the time of his detention. We decline to review this claim upon the entry of a nolo contendere plea because it is not dispositive of the case. Brown v. State, 376 So.2d 382 (Fla.1979).

The temporary detention of the appellant was valid and the search of his luggage was executed pursuant to a valid search warrant. Accordingly, the trial court was correct in denying the motion to suppress and the trial court’s order withholding adjudication of guilt and placing the appellant on probation is affirmed.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    Louis MATIRE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1971.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    Mark R. Baer of Law Offices of Mark R. Baer, Miami, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a denial of appellant’s 3.850 motion to set aside his 1968 murder conviction. The motion was based upon an improper comment on appellant’s exercise of his right to remain silent made at trial. Though he moved at that time for a mistrial, the motion was denied, but appellant failed to argue the issue on appeal. The trial court, after a hearing, denied his 3.850 motion.

We affirm the trial court’s action since appellant’s failure to raise the issue on appeal precludes him from raising it for the first time in a 3.850 motion. Pitts v. Turner, 362 So.2d 134 (Fla. 4th DCA 1978). This decision is without prejudice, however, to appellant filing a petition for habeas corpus in this court based upon an allegation of ineffective assistance of appellate counsel. Smith v. State, 400 So.2d 956 (Fla. 1981); Knight v. State, 394 So.2d 997 (Fla. 1981).

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: ERVIN, Judge.

text:
    Harlan C. “Bud” LACY, Appellant, v. FORCE V CORPORATION d/b/a JBF Printing Company, Appellee.
    No. WW-374.
    District Court of Appeal of Florida, First District.
    Sept. 4, 1981.

      Robert C. Elmore of Ferrin C. Kemp Campbell, Sr., Crestview, for appellant.
    Mark Evan Frederick, Fort Walton Beach, for appellee.
   ERVIN, Judge.

Lacy brings this interlocutory appeal from an order denying his motion to abate, which asserted lack of personal jurisdiction over him. He argues that the court’s assumption of jurisdiction, pursuant to the applicable provision of Florida’s long-arm statute, Section dS.WSilXg), is erroneous because (1) he did not breach his contract by failing to perform acts in Florida required of him by his contract, or (2) alternatively, Section 48.193(l)(g) is unconstitutional in its application to the circumstances in this case due to the fact that appellant did not have sufficient minimum contacts with Florida to satisfy due process requirements, as evidenced by Lacy’s unrefuted affidavit in support of his motion. We affirm as to both points.

The record on appeal is sparse; the relevant information is limited to the appellee’s complaint and the appellant’s motion and supporting affidavit, showing that the ap-pellee/plaintiff, Force V Corporation, a printing concern doing business in Ft. Walton Beach, Florida, filed a complaint for damages against Lacy, a sole proprietor doing business as Lacy Printing and Machine Company in Dayton, Ohio, against Coastal Graphics, Inc., and against Fred Eggers, an employee of Coastal Graphics, alleging misrepresentation and breach of contract. It was alleged that in February, 1978, the parties entered into a three-way agreement for the sale and purchase of goods to be delivered at the appellee’s place of business in Okaloosa County, Florida. Eggers, working out of Atlanta, was a middleman or broker in the deal, and, while acting as agent for the appellee, he entered into a sales agreement with the appellant whereby the appellee agreed to purchase some printing equipment for the sum of $5,600. The agreement provided that Eggers would hold appellee’s check in escrow until the equipment arrived at the appellee’s place of business in Ft. Walton Beach and conditioned the sale upon the appellee’s approval and satisfaction of the equipment. On February 14, 1978, the appellee sent Eggers a purchase order referring to the subject equipment, and Eggers forwarded the ap-pellee’s check to the appellant prior to delivery. The delivery was late, and when the equipment finally arrived, it did not conform to specifications.

The appellant’s affidavit stated that his business was not incorporated; that he had no business connections in Florida whatsoever, except an unsolicited phone call by the appellee regarding the machinery in which information concerning specifications and shipping arrangements was sought.

As to Lacy’s first point, that the facts alleged do not disclose a contractual breach, the plaintiff is of course required to plead sufficient jurisdictional facts showing that the conduct alleged falls within the applicable provisions of the long-arm statute. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862, 864 (Fla.1977). Since, for purposes of a motion to dismiss, all well pleaded facts in a complaint are accepted as true, we consider that appellee has alleged facts which adequately reveal that the contract was to be performed in Florida and was there breached. The appellant’s affidavit did not assert any facts which rebutted this contention.

The constitutional issue raised under the latter point is, however, much more complex than that asserted under the former. Appellant’s contention that there were insufficient minimum contacts between the defendant and the forum state, and therefore that Florida could not constitutionally assert personal jurisdiction over him, rests upon his belief that a single, isolated act with the forum by a nonresident defendant can never meet the minimum contacts test required by International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Appellant relies upon certain supportive language found in Hyco Manufacturing Co. v. Rotex International Corp., 355 So.2d 471 (Fla. 3d DCA 1978); Elmex Corp. v. Atlantic Federal Savings & Loan Assoc., 325 So.2d 58 (Fla. 4th DCA 1976), and Lyster v. Round, 276 So.2d 186 (Fla. 1st DCA 1973).

Elmex and Lyster, however, are inapplicable to the case at bar because those two cases construed a different long-arm statute (Section 48.181) than the one now before us. The provisions of Section 48.181 apply to nonresident persons who “carry on a business or business venture in this state.” Those words were interpreted by Elmex and Lyster as requiring a continuous, systematic activity with the forum by the out-of-state business enterprise. The statutory language of Section 48.193, however, is much broader in scope than that of Section 48.181. Service upon a nonresident defendant can be made under Section 48.193 for a number of reasons; the operating or conducting of a “business or business venture in this state” is only one of several activities delineated by that statute.

Lacy’s reliance upon Hyco is, however, far more supportive of his position. The Third District’s opinion in Hyco — unlike those in Elmex and Lyster—addressed the constitutionality of Section 48.193 as applied to the facts before it, and determined that a hoist manufactured by the defendant in Ohio, and later placed onto a trailer in Pennsylvania by a different corporation, which in turn sold the trailer to a company located in Florida, lacked a substantial connection with Florida, so that its Ohio manufacturer could not be subjected to the jurisdiction of the state of Florida. Hyco concluded with the broad statement that “an isolated act will not subject a foreign corporation or a nonresident to the jurisdiction of a Florida court ...”, 355 So.2d at 475. A more accurate statement is that a single act may, depending upon the character or quality of the contact, subject the foreign corporation or nonresident to the jurisdiction of Florida courts.

Despite the contradictory state court opinions on the subject, the United States Supreme Court, in a series of decisions beginning with International Shoe Co. v. Washington, supra, and continuing through World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), has never unqualifiedly held that a single, isolated transaction with the forum by an out-of-state defendant is so insubstantial that the forum would in all cases be precluded from asserting in personam jurisdiction. Indeed, in McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Court upheld against constitutional attack the application of California’s long-arm statute over a Texas insurance company, despite facts showing only one contact by the insurer with California. There the company had mailed a reinsurance certificate to an insured living in California, offering to insure him in accordance with the same terms of his original policy. The Court ruled, although the company had never maintained any office or agent in California, had never solicited or done any business in California, apart from the particular policy involved in that case, that the Texas insurer’s single contact with the forum was sufficient to confer jurisdiction upon California because the policy was delivered in California, the premiums were mailed from there, the insured was a resident of that state when he died; therefore it would not be unfair or unreasonable to require the nonresident to defend the suit in California.

Recently the Florida Supreme Court in Ford Motor Co. v. Atwood Vacuum Machine Company, 392 So.2d 1305 (Fla.1981), required an out-of-state component parts manufacturer to submit itself to the jurisdiction of the Florida courts. Although the Atwood decision was not concerned with a situation showing that the nonresident had established a single contact with Florida, the opinion cited with approval certain out-of-state cases that had involved facts disclosing only isolated transactions. For example, the Atwood court’s acceptance of the rule stated in Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), to the effect “that a manufacturer engaged in interstate commerce, which expects its products to be used in other states, can reasonably expect to be held subject to the jurisdiction of those other states’ courts....”, 392 So.2d at 1312, is significant because the record before the court in Gray revealed that the nonresident defendant had established only one contact with Illinois. There, a product manufactured by the defendant in Ohio was incorporated by another manufacturer in Pennsylvania into a hot water heater, which in the normal stream of commerce, was sold to an Illinois consumer, who, during its use, was injured by the heater’s explosion. The Illinois Supreme Court’s opinion emphasized the commercial nature of the transaction, observing that the manufacturer’s shipping “of such products in the ordinary course of commerce is [a] sufficient contact with this State to justify a requirement that he defend here.” 176 N.E.2d at 766.

The Florida Supreme Court’s opinion in Ford Motor Co. also observed that

[o]ther cases have held that the occurrence of a single injury in the state is a sufficient basis upon which to conclude that the nonresident manufacturer’s product got there through normal commercial channels, thus justifying the conclusion that sufficient contacts existed. E.g., Continental Oil Co. v. Atwood & Morrill Co., 265 F.Supp. 692 (D.Mont.1967); Duignan v. A.H. Robins Co., 98 Idaho 134, 599 P.2d 750 (1977).

392 So.2d at 1313 (e.s.).

Thus, it clearly appears from the above decisions that a single, isolated transaction by the nonresident defendant does not necessarily offend due process. An examination of relevant cases reveals that the sub-stantiality of the nonresident’s tactile encounter with the forum for due process purposes depends upon a number of variables.

Since it is difficult to formulate a general rule as to what circumstances should be considered in seeking a solution to the inquiry of whether the minimum contacts test has been met, it is often necessary to weigh the facts of each particular case to determine “whether the requisite ‘affiliating circumstances’ are present.” Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978).

Unquestionably the single most important factor to be considered is whether “the defendant’s conduct and connection with the forum . . . are such that he should reasonably anticipate being haled into court there ... . ” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501. It is essential that this circumstance be considered from the perspective of the defendant — not from that of the plaintiff. See Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 43 L.Ed.2d 683 (1977). The reasonable foreseeability factor is frequently applied to force a nonresident defendant to answer a suit within the forum if it “purposefully avails itself of the privilege of conducting activities within the forum ... . ” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). For example, the Florida Supreme Court’s opinion in Ford Motor Co. v. Atwood Machine Co., supra, emphasized the willful character of an out-of-state component parts manufacturer’s act in selling an allegedly defective part to Ford Motor Company, which in turn incorporated the part into one of its vehicles. The automobile was later sold to a Florida resident, who was allegedly injured by the part. The court held that Atwood’s deliberate sale of the part to a nationwide manufacturer and distributor of motor vehicles, although not directly shipped by Atwood to Florida, made it reasonably foreseeable that the part would eventually be found within the state of Florida, since it was motivated by the “ ‘efforts of the [defendant] ... to serve directly or indirectly the market for his products in other States, and the defendant overtly carried out its motivation by placing “ ‘its products into the stream of commerce with the expectation that they would be purchased by consumers in the forum state.’ ” 392 So.2d at 1311 (quoting from World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 298, 100 S.Ct. at 567, 62 L.Ed.2d at 501, 502). Accord, Pennington Grain & Seed, Inc. v. Morrow Brothers Seed Co., Inc., 400 So.2d 157 (Fla. 1st DCA 1981).

If, on the other hand, the activity or contact is deemed fortuitous, not deliberate, the courts often hold that the defendant’s conduct is not such that it should reasonably anticipate being called upon to defend a suit before a court in a foreign jurisdiction. For example, in Denckla, the court held that the contacts of the defendant trustee with Florida, when viewed from the defendant’s perspective, were altogether non-purposeful, and therefore not sufficiently substantial to confer jurisdiction upon the forum. The record revealed that Florida’s only connection with a trust, executed in Delaware, was that its settlor had moved there, had there received trust income, and had there executed a power of appointment. On the other hand, the trustee had never maintained any office in Florida, had never solicited or transacted business there, nor had any of the trust assets been held or administered in Florida.

The Denckla analysis was given further refinement in World-Wide Volkswagen Corp. v. Woodson, supra, in which the Court declined to permit Oklahoma to assert jurisdiction over two New York corporations (a regional wholesale distributor of automobiles and a retailer) whose only contact with Oklahoma was the sale of an automobile in New York which later became involved in an accident in Oklahoma while the car was passing through Oklahoma on its way to Arizona. The Court viewed the character of that one isolated occurrence, the sale, and whatever inferences could be drawn from it, i. e., the adventitious circumstance that the accident occurred in Oklahoma, and concluded that the contact was far too attenuated to justify that state’s exercise of in personam jurisdiction.

Our court has also refused to permit Florida courts from acquiring jurisdiction over nonresident defendants in instances where the nonresidents’ contacts with this state were deemed merely fortuitous. See Dunn v. Upjohn Co., 350 So.2d 127 (Fla. 1st DCA 1977) (pharmacist whose business was located in the state of Georgia sold allegedly defective drugs in Georgia to a Florida resident); Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977) (a South Carolina automobile dealer serviced an automobile which ultimately found its way into the state of Florida and caused injury to persons within the state).

The allegations in the complaint before us — unlike those in World-Wide Volkswagen Corp. or Ford Motor Co. — ground the forum’s jurisdiction on that provision of the statute relating to a breach of “contract in this state by failing to perform acts required by the contract to be performed in this state ... ”, Section 48.193(l)(g), and not upon the statute’s provisions pertaining to products liability, as provided under Section 48.193(l)(f)2. Although undoubtedly the same analysis would apply to any action in which an issue arises as to whether it is reasonably foreseeable for the defendant to be required to defend the suit within the forum, there are additional facts — not relevant to allegations of jurisdiction predicated upon products liability — to be considered if the jurisdictional activity relates to an alleged contractual breach. The facts outlined in Products Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974), provide a suitable benchmark when the jurisdictional assertion is founded upon contract.

Cousteau held that the state of Texas could properly subject a French company to its jurisdiction, notwithstanding facts revealing that the company maintained no regular business there, conducted no local advertising, solicited no business, nor did anything aside from the single, isolated contract which it entered into with the appellant in Texas. The court employed a dual test in its determination of whether the forum state could assume jurisdiction under the circumstances without depriving the defendant of due process: First, there had to be some minimum contact with the state which resulted from an affirmative act of defendant; second, it must be fair and reasonable to require the defendant to come into the state and defend the action. In holding that the former requirement had been met, the court observed that the contract was executed within the state of Texas; therefore, the enforcement and protection of the defendant’s rights under the contract necessarily depended upon the laws of Texas. Additionally, it noted that the defendant’s contact with the state was deliberate, rather than fortuitous, in that the defendant chose to enter into a contract with the plaintiff which was to be performed in Texas.

As to the second requirement of the dual test, the court considered it necessary to look to the relative conveniences and inconveniences of the parties, as well as to the basic equities involved in either prosecuting or defending the suit within the forum. Because the plaintiff was a Texas resident, and the contract was made in Texas, Texas had a legitimate and reasonable interest in providing a forum for the suit. Finally, in its consideration of all the factors, the court concluded that any hardship or inconvenience placed upon the defendant in having to defend the suit in Texas did not rise to the level of a denial of due process.

The amalgam of the relevant factors recited in the above decisions convinces us that the lower court was correct in denying Lacy’s motion to quash process. Lacy did not rebut Force V’s assertions in its complaint that the contract was to be performed in Florida. Appellee specifically alleged that under the terms of the contract, the printing press was to be of certain size specifications; that Force V’s check was to be held in escrow until the press met with Force V’s approval and satisfaction; that the press was in fact delivered to plaintiff’s place of business in Okaloosa County, and that the contract was there breached due to Lacy’s failure to provide equipment complying with the contractual specifications. The law generally recognizes that the place where the last act necessary for the completion of the contract is where the contract first creates a legal obligation. 1 Williston on Contracts, § 97 at 356 (3 ed. Jaeger (1957)).

Because the contract was required to be performed in Florida, it was not unreasonable from the defendant’s perspective to foresee that an alleged breach of the contract might be litigated in Florida, or that enforcement of Lacy’s rights under the contract might depend on the laws of Florida. Lacy’s delivery of the printing press to Force V could hardly be deemed a fortuitous, nondeliberate act. He purposefully employed the normal channels of commerce as a conduit to market his product in another state. Consequently, his conduct in connection with the forum is such that he should reasonably anticipate being brought into Florida to defend any álleged breach of the contract. Finally, we consider that the legislature, through its enactment of Section 48.193, has expressed an important policy consideration that Florida residents, whose contracts are to be performed in this state, shall be protected here from any potential breach of their contracts by out-of-state persons.

AFFIRMED.

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

      . § 48.193(l)(g), Fla.Stat. (1979) provides:
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      * * * * * *
      (g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.

      . The latter two defendants are not parties to this appeal.

      . The McGee result was foretold seven years earlier in Travelers Health Ass’n v. Commonwealth of Virginia, 339 U.S. 643, 654, 70 S.Ct. 927, 933, 94 L.Ed. 1154, n. 9 (1950): ‘“Some casual or even single acts done within the borders of the sovereignty may confer power to acquire jurisdiction of the person, provided there is also reasonable provision for giving notice of the suit in accordance with minimal due process requirements.’ ” (Douglas, J., concurring, quoting from Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 516 (1943).) (e.s.)

      . An additional reason justifying California’s assertion of jurisdiction over the Texas insurer was advanced by the Court the following year in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), which observed that California had enacted special legislation (the Unauthorized Insurer’s Process Act, West’s Ann.Cal.Ins. Code, § 1610 (et. seq.)), which expressed the state’s manifest interest in providing redress for its citizens who had been injured by nonresidents who were engaged in an activity which the state treated as exceptional, and therefore considered subject to special regulation.

      . The character of the nonresident’s act was not observed in such cases as Harlo Products Corp. v. J. I. Case Co., 360 So.2d 1328 (Fla. 1st DCA 1978), or Aero Mechanical Electronic Craftsman v. Parent, 366 So.2d 1268 (Fla. 4th DCA 1979). Contra Life Laboratories, Inc. v. Valdes, 387 So.2d 1009 (Fla. 3d DCA 1980). Since the activities of the nonresident components parts manufacturers in both Harlo and Parent were no less deliberate than those of the out-of-state manufacturer in Atwood, the decisions in those two cases should be considered implicitly disapproved by the Atwood opinion.

      . A more thorough list of non-deliberate activities is set out in World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. 286 at 295, 100 S.Ct. at 566, 62 L.Ed.2d at 500.

      . It should be observed that the authorities are not in general agreement as to whether the provisions of long-arm statutes relating to jurisdictional facts involving injuries caused by products are applicable to other activities, such as breach of contract. See 62 Am.Jur.2d, Process, § 79 (1972). At any event, the Supreme Court, without distinguishing between the types of actions, has suggested that the following circumstances should be considered in deciding whether the quality of the contact has the requisite substance to meet International Shoe’s test: The forum’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 292, 100 S.Ct. at 564, 62 L.Ed.2d at 498.

      . This is not an essential requirement. Although the contract may not have been executed or have required performance within the forum, the forum is not necessarily barred from assuming jurisdiction if it has a significant contact, or a significant aggregation of contacts, so that its choice of law is neither arbitrary nor fundamentally unfair. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981).


author: FERGUSON, Judge.

text:
    Philip J. NEIMARK, individually, Philip J. Neimark, Inc., Investments; and Philip J. Neimark, Inc., a Florida corporation, Appellants, v. John H. ABRAMSON & Lani Abramson, his wife, Appellees.
    No. 80-1713.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Pallot, Poppell, Goodman & Slotnick and Neil A. Shanzer and Howard Vogel, Miami, for appellants.
    Freeman & Evans and Sheldon Evans, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

Philip Neimark appeals from a final judgment awarding appellees John and Lani Abramson damages and costs in an action for breach of an investment agreement. We affirm the judgment in favor of the Abramsons, and reverse as to interest and costs.

In December, 1976, Neimark and the Abramsons entered an agreement whereby Neimark was to invest and manage a $15,-000.00 fund through Abramson’s existing margin account with his stockbroker. The agreement provided that the account be liquidated should it depreciate to the extent of fifteen percent. When Neimark failed to return the sum of $12,750.00 when the account depreciated by fifteen percent, the Abramsons sued. Evidence was introduced that Neimark had made purchases in excess of $26,000.00 shortly after the agreement was in effect. There was evidence that the Abramsons were aware of the additional purchases based on receipt of confirmation slips and monthly account statements. There was also evidence that the Abram-sons subsequently requested an account status report from Neimark and sought enforcement of the contract terms. Acting as trier of fact, the court rejected Neimark’s affirmative defenses of ratification, estop-pel, failure to mitigate damages and negligence. In a final judgment the court awarded $14,766.94 damages, including prejudgment interest, and $394.75 costs to the Abramsons.

The appellate court may not substitute its judgment for the trial court on disputed questions of fact, unless such determination was clearly erroneous. Strawgate v. Turner, 339 So.2d 1112 (Fla. 1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla. 1972); Holland v. Gross, 89 So.2d 255 (Fla. 1956); Calvert Fire Insurance Company v. Tarr, 391 So.2d 244 (Fla.3d DCA 1980); Singer Housing Company v. Wren, 390 So.2d 428 (Fla. 1st DCA 1980).

We find that the factual issues concerning the affirmative defenses raised by Neimark were properly submitted to the trier of fact and that the record contains sufficient evidence to support a finding in favor of the Abramsons. See, e.g., Hackett v. Reynolds & Company, 577 F.2d 948 (5th Cir.1978) (defense of ratification is question of intent for jury). Accord, Toffel v. Baugher, 111 So.2d 290 (Fla.2d DCA 1959).

We find, however, that the trial court erred in awarding prejudgment interest to the Abramsons from the date the contract was entered into rather than from the date of filing the complaint, the date that a demand for a sum found due and owing was made. See, e.g., Politis v. General Hotel and Restaurant Supply Corp., 403 So.2d 1021 (Fla.3d DCA 1981).

We also find error in awarding costs to Abramsons where there was no evidence submitted at trial or at a cost hearing as to the amount of costs incurred, and no affidavit as to costs incurred by the Abramsons was ever filed or served. Cf. Aetna Life Insurance Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978) (award of costs reduced to correspond with record evidence); City of Sunrise v. West Broward Utilities, Inc., 311 So.2d 175 (Fla. 4th DCA 1975), cert. denied, 325 So.2d 10 (Fla. 1975) (award of cost was supported by substantial competent evidence).

Affirmed in part, reversed in part, and remanded for an evidentiary hearing on costs and with instructions to fix pre-judgment interest from the date of the filing of the complaint.


text:
    INTERTRACK TRANSPORTATION, INC., Hialeah Park, Inc., Hialeah, Inc., and Gulfstream Park Racing Association, Inc., Appellants, v. B & G HORSE TRANSPORTATION, INC., Appellee.
    No. 80-1917.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Rehearing Denied Oct. 7, 1981.

      Adams & Ward and Robert C. Ward, Landefeld & Romanik, Hollywood, for appellants.
    Paul & Thomson and James D. Whise-nand, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Intertrack Transportation, Inc., Hialeah Park, Inc., and Gulfstream Park Racing Association, defendants below, appeal from an order granting the motion of appellee B & G Horse Transportation, Inc. for a judgment on the pleadings and determining that appellants were not entitled to recovery of damages on an injunction bond for the wrongful issuance of a temporary injunction.

B & G Horse Transportation is certified to transport horses pursuant to Section 323.03, Florida Statutes (1977). Intertrack Transportation was formed by appellants Hialeah Park and Gulfstream Park to transport horses between the Hialeah and Gulfstream tracks. Because Intertrack had not filed for a certificate of public convenience and necessity required by Section 323.03, Florida Statutes (1977), B & G moved for declaratory relief and a temporary injunction enjoining appellants from providing intertrack transportation. In Hialeah, Inc. v. B & G Horse Transportation, Inc., 368 So.2d 930 (Fla. 3d DCA 1979), this court reversed the order of temporary injunction as an invalid prior restraint where Intertrack had not actually operated a vehicle in violation of Chapter 323, Florida Statutes (1977). Appellants then filed a motion for an evidentiary hearing to fix damages and attorney’s fees. The hearing was deferred until after a final hearing on the merits of B & G’s complaint. In a final summary judgment entered on B & G’s complaint, the trial court declared that if Intertrack were to engage in transportation of race horses between Hialeah and Gulf-stream, it would be a motor carrier as defined in Section 323.01(7), Florida Statutes (1977), engaged directly in compensation for hire and would be required to obtain a certificate of public convenience and necessity before it could operate. The damage issue was then reset for trial and upon a motion for judgment on the pleadings filed by B & G, the trial court held that none of the appellants were entitled to recover damages or attorney’s fees. The court specifically found that the temporary injunction was not dissolved on the merits and that the injunction was not wrongfully issued, but that the defendants below were restrained from doing acts which the law prohibited.

We reverse the trial court and find that the temporary injunction was wrongfully issued as to all appellants. The Public Service Commission subsequently found Hialeah Park, Inc. and Gulfstream Park Racing Association, Inc. had the right to van horses using their own employees and own equipment between the parks without a certificate or permit. Regardless of the intent of the complaint or of the final order, the actual wording and legal effect of the order of temporary injunction restrained not only Intertrack but also Hialeah and Gulfstream. The trial court made no finding that the vanning of horses by Hialeah or Gulfstream would be in any way prohibited or unlawful. We, therefore, reverse and remand as to Hialeah and Gulf-stream for a determination of attorney’s fees and damages.

As to appellant Intertrack Transportation, Inc., we also find that the injunction was wrongfully issued. Here, unlike the case of Penner v. Y. M. C. A., 20 Fla.Supp. 106 (Fla. 11th Cir.Ct.1962) cited by appellees, the injunction was determined to be wrongfully issued as an invalid prior restraint. Intertrack had a right to plan the action, although it had no right to actually transport horses in an illegal manner. Hialeah, Inc., supra. This clearly is a decision on the merits of the validity of the temporary injunction. Accordingly, we find that the temporary injunction was wrongfully issued as to appellant Intertrack and that as an element of damages, Inter-track is entitled to an award of attorney’s fees for the wrongfully issued injunction. See, e. g., Wittich v. O’Neal, 22 Fla. 592 (1886), Global Contact Lens, Inc. v. Knight, 254 So.2d 807, 810 (Fla. 3d DCA 1971).

Reversed and remanded for further proceedings consistent with this opinion.

      . We note that the court in Penner, supra at 110, recognized that an injunction may be wrongfully issued even when a person is restrained from doing that which he had no legal right to do. Examples of this are cases where there is an invalid prior restraint, as in this case.


text:
    Joseph FINK, Wayne Fieldhouse, Carl Hounshell, William Dresback, and George Senus, Appellants, v. METROPOLITAN DADE COUNTY and Ashton Tyler, Personnel Director of Metropolitan Dade County, Appellees.
    No. 81-406.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.

      Howard M. Neu and Frank Wolland, North Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Susan E. Trench, Asst. County Atty., for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

This is an appeal from an order of the circuit court dismissing appellants’ petition for declaratory relief and damages based on breach of an employment-merger agreement. We affirm.

Appellants were full-time employees of the City of North Miami Beach Fire Department when the City’s fire protection services were merged into and made a part of the Metropolitan Dade County Fire Department. Under the terms of the merger agreement of April 1, 1978, the County agreed to accept all full-time regular employees of the City Fire Department who were employed as of December 31, 1977 and to assign them to appropriate classifications within the County’s system. The agreement provided that: “In the event any City employee is not in accord with the classification and pay rate to which he or she is allocated, then such employee shall have the right to use the County’s classification appeal procedure.” Appellants were dissatisfied with the classification they received and, pursuant to the agreement, requested a classification appeal to the Personnel Director as provided by Chapter IV, Section 6(d) of the Metropolitan Dade County personnel rules. The Director found that appellants had been properly classified. Appellants then petitioned the circuit court seeking declaratory relief and damages. In count one, appellants alleged as an action in contract that the classifications were not “appropriate” as required by contract and that the term “appropriate” as used in the contract was ambiguous. In count two, appellants alleged violation of due process with respect to a protected property interest in that the rules as applied to appellants lacked objective standards for determination of the classification. In count three, appellants alleged violation of equal protection in that certain limited openings were filled with higher-ranking union members and, in count four, appellants sought a writ of mandamus with respect to Stanley Sil-verman, not named in this appeal.

As merged employees, appellants are required to follow and were bound by the results of the grievance procedure provided in this merger agreement. See, e. g., City of Miami v. Fraternal Order of Police, 378 So.2d 20, 23 (Fla.3d DCA 1980) (a decision rendered through the method chosen by the parties to settle their contractual dispute is deemed final and binding); Koenig v. Tyler, 360 So.2d 104 (Fla.3d DCA 1978) (county employees bound by agreements made on their behalf). In such cases there is no general right to a de novo review of the decision. Review is limited to the question of whether the agency or official had jurisdiction for the action and whether there is competent substantial evidence to support the findings. There is generally, no right to an original action, including that of mandamus. See DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957).

In this case, appellants in their original petition failed to state facts sufficient to raise an issue of competent substantial evidence. We find that appellants were, in effect, seeking de novo review of the classification system and the petition was, therefore, properly dismissed by the circuit court for lack of jurisdiction.

We also find no error in the dismissal of appellant’s constitutional claims. Appellants had no constitutional right, as alleged, to a hearing prior to their classification determination, see, e. g., Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), and fail to state facts sufficient to support their other constitutional claims.

Affirmed.


text:
    Steven M. BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 81-1151.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1981.
   PER CURIAM.

This is an appeal from the summary denial of a motion for post-conviction relief.

According to the motion, on June 6, 1979, the court sentenced appellant to eighteen months in prison followed by three and one half years on probation. Appellant later moved to correct the sentence contending that he had pled nolo contendere pursuant to a plea bargain under which he was only supposed to serve one year in prison. The court responded by entering an order, dated July 21, 1980, reducing the incarceration to one year, followed by four years probation. Subsequently, appellant filed the motion under consideration here asserting once again that his sentence violated the plea bargain. The court denied this motion without a hearing, noting that it was “res judicata by relief granted 21 July 80.”

The order of July 21, 1980, brought the term of incarceration into line with the alleged plea bargain, but it did not address appellant’s contention with respect to the probationary period extending beyond his incarceration. Hence, it was not res judicata on the probation issue. We therefore reverse the present order and direct the court to hold an evidentiary hearing to determine the exact nature of the plea bargain and whether the sentence is consistent with that bargain. While under ordinary circumstances a plea bargain is not specifically enforceable, it is now too late to merely offer appellant the right to withdraw his plea. Cf. Odom v. State, 310 So.2d 770 (Fla.2d DCA 1975), wherein the court held that specific performance of a plea bargain is not available in the absence of a showing of irrevocable prejudice to the defendant. Therefore, if the court determines that the bargain did not contemplate a probationary period, it should simply vacate the probation requirement.

GRIMES, A. C. J., and OTT and RYDER, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    James Robert JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1747.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 14, 1981.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant was indicted for and convicted of first degree murder and robbery. The trial court sentenced appellant to life imprisonment for the murder conviction and withheld sentence for the robbery conviction. We affirm.

On the morning of December 2, 1978, appellant, along with Robert Lee Washington, James Brown, and Raymond Hil-lery, were employed to pick fruit. Washington testified that when they arrived at the grove, Hillery asked to see a sawed-off shotgun that was produced by appellant from the trunk of his car. The four decided not to work and left the grove in appellant’s car. While in the car, Hillery said he knew of a man in Vero Beach who would be in his office with plenty of money. Brown asked appellant if Washington, Hillery and he could use appellant’s car for the robbery, to which appellant agreed. Brown, Hillery and Washington shortly thereafter took appellant’s car and shotgun to Vero Beach where they affected the planned robbery of W. C. Graves. Washington testified that he was given $50 at Hillery’s house after the robbery and the remainder of the money was divided three ways among appellant, Brown and Hillery. Brown then said to the others that they make one more robbery that night, then drive to the Carolinas, to which Jackson replied, “I’m going to ride too.”

That night at the 33rd Street Grocery, the owner of the store was killed by the blast of a sawed-off shotgun and his cash register was emptied. Two black men were seen in the store shortly before the shooting. After appellant’s arrest he gave three statements to the police. Appellant denied, in one of the statements, any knowledge of the robberies and maintained the denial at the trial. Later statements contain admissions that he drove his car with Brown and Hillery as passengers, knowing that they were going to rob a store; that he parked his car three or four houses from a store; that he waited until Brown and Hillery ran back to the car, telling him to drive off, which he did; that he knew they had robbed the store; that en route Brown said, “You didn’t have to kill that man,” to which Hillery replied that he did not mean to do it and that the gun just went off; that Hil-lery said he had left the shotgun in the store; and that Brown showed him a pistol which Jackson believed had been taken from the store.

Jimmy Lee Washington testified that about 9:30 that same night at his home he saw appellant and Brown with money, which surprised him. When a policeman arrived at the home looking for Hillery, appellant and Brown panicked and said they were going to North Carolina.

Appellant and Brown were arrested in Jacksonville on the following day when a state trooper stopped them because of the license tag on appellant’s car. Corporal Sutherland, who was one of the arresting officers, testified that he found a revolver in the car. This weapon was identified as being kept by the victim under the counter in his grocery store.

Appellant first argues that he was entitled to a judgment of acquittal because he was not personally present at the time of the homicide. He relies on Adams v. State, 341 So.2d 765 (Fla.1976), and Hite v. State, 364 So.2d 771 (Fla.2d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979), both of which use the term “personally present.” However, from the foregoing testimony it is apparent that appellant was part of the original discussion which led to the robbery of the grocery store; that he furnished the weapon used in the homicide; and that he was the wheel man who provided Brown and Hillery with their means of flight from the scene by waiting in his car a very short distance from the store. Under the circumstances of this case, the following excerpt from Enmund v. State, 399 So.2d 1362, 1370 (Fla.1981), demonstrates that appellant was constructively present and supports the verdict of first degree murder:

There was no direct evidence at trial that Earl Enmund was present at the back door of the Kersey home when the plan to rob the elderly couple led to their being murdered. J. B. Neal’s account of what Sampson Armstrong told him did not include any reference to Enmund. Ida Jean Shaw testified to Enmund’s absence that morning and his statements of his complicity. But the only evidence of the degree of his participation is the jury’s likely inference that he was the person in the car by the side of the road near the scene of the crimes. The jury could have concluded that he was there, a few hundred feet away, waiting to help the robbers escape with the Kerseys’ money. The evidence, therefore, was sufficient to find that the appellant was a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery. This conclusion supports the verdicts of murder in the first degree on the basis of the felony murder portion of section 782.-04(l)(a).

See also Goodwin v. State, 405 So.2d 170 (Fla.1981).

Appellant’s second point is that the trial court erred in refusing to give two jury instructions requested by him. The instruction on presence of defendant was submitted on authority of Adams v. State, su pra, and Hite v. State, supra. Although not having the benefit of the supreme court’s opinions in Enmund, supra, and Goodwin, supra, we think the trial court nonetheless properly denied this request. It is evident under Enmund and Goodwin that a jury instruction containing the words personally present would be an imprecise statement of the law. As for the denial of the requested instruction on second degree murder, we believe that the instructions as given were adequate.

Appellant further argues that it was error to admit evidence of the earlier robbery of Graves because appellant was not charged with and on trial for that robbery, but for a robbery and murder occurring later that same day. The test for admissibility of collateral offenses, is relevancy, not necessity. Hall v. State, 403 So.2d 1321 (Fla.1981); Ruffin v. State, 397 So.2d 277, 279 (Fla.1981). The state initially has the burden, if evidence of a collateral crime is to be admitted, of offering proof of a connection between appellant and the collateral offense. See State v. Norris, 168 So.2d 541 (Fla.1964). Sub judice, the state presented evidence that appellant loaned his ear to the actual perpetrators of the collateral offense, knowing of their reason for borrowing the car. The state further showed that appellant furnished the weapon used and received a portion of the money taken during the collateral robbery. That the two robberies were part of one prolonged criminal episode is supported by the evidence. But for appellant’s car and sawed-off shotgun, Brown, who initiated both robberies, would have been without the means to effect either one. Both crimes had taken place within hours of each other on the same day; and the second robbery was spawned while the money taken in the first was being counted. Accordingly, the evidence of the earlier robbery was admissible because it established the entire context out of which the criminal conduct arose. Hall, supra; Ruffin, supra; Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

Appellant also contends that it was double jeopardy to convict him on the underlying felony of robbery in view of his conviction for felony murder. He relies on State v. Pinder, 375 So.2d 836 (Fla.1979). Subsequent to the submission of briefs and to oral argument, the Florida Supreme Court held that an accused could be convicted of the underlying felony and of felony murder, but under Section 775.021(4), Florida Statutes (1979) could not be sentenced for the underlying felony, which was a necessarily included offense for the felony murder conviction. State v. Hegstrom, 401 So.2d 1343 (1981). Therefore, we affirm the convictions of both offenses.

AFFIRMED.

HERSEY, J., and RIVKIND, LEONARD, Associate Judge, concur.

      . The two requested instructions are:

        PRESENCE OF DEFENDANT. You are instructed, that in order to find the Defendant to be guilty of Murder in the First Degree as charged in the Indictment, you must find from the evidence beyond a reasonable doubt that the Defendant either personally committed the killing as alleged in the indictment or be personally present, aiding and abetting the commission of the underlying felony, that is the Robbery alleged, when the killing occurs, in order to be guilty of Murder in the First Degree.

        SECOND DEGREE MURDER. You are instructed that in applying the foregoing definition of Murder in the Second Degree, if the person who actually kills the alleged victim is a principal in the commission of the underlying felony, that is the Robbery, and not an innocent person, such as a bystander or law enforcement officer, then you cannot find that the Defendant is guilty of Murder in the Second Degree.


text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. William F. JAMES, Appellee.
    No. 79-2247.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.

      H. Reynolds Sampson, Gen. Counsel Dept, of Transp., Margaret-Ray Kemper, Appellate Atty., Tallahassee, for appellant.
    Robert Woolfork, Executive Director and Burton M. Michaels, Tallahassee, for appel-lee, Career Service Commission.
   GLICKSTEIN, Judge.

This is an appeal by the Department of Transportation from a decision of the Career Service Commission as to the Department’s employee, appellee William F. James. We reverse.

On May 12, 1979, appellee James was traveling from Fort Lauderdale to Clear-water in a Department vehicle. En route and while on official business he stopped twice and consumed alcoholic beverages. At the hearing on his appeal to the Career Service Commission, appellee admitted to three or four drinks at the first stop and one drink at the second. Near Bartow, while traveling 65 miles per hour, appellee was involved in a serious accident when another motor vehicle turned in front of him. The Department vehicle was demolished and three persons, one of whom was appellee, were injured. Investigation of the accident revealed appellee’s blood alcohol level to be an unlawful 0.19 per cent.

Appellee was suspended for thirty days pending completion of the investigation of the accident, and on April 27, 1979, was dismissed effective April 30, 1979. He appealed his dismissal to the Career Service Commission on May 9, 1979, which, in its order filed September 26, 1979, sustained appellee’s dismissal from the position of Public Transportation Specialist I, but ordered the Department to offer appellee the next available position, not requiring travel, for which he is qualified.

The Department contends the Commission was without authority to require the Department to offer appellee the next available position, not requiring travel, for which he is qualified. The Career Service Commission argues in support of its decision that it derived its authority from Florida Administrative Code Rule 22A-10.07(2). That paragraph of the rule, which has not been altered since the date of the accident, provides that after hearing, the Commission shall:

(2) Issue a written order which may sustain, reverse, or alter the decision of the employing agency. The orders of the Career Service Commission may include, but not be limited to, the reinstatement of an employee, with or without back pay; removal of all references to the charges from the employee’s personnel file; or other decisions deemed proper and necessary based on the circumstances of the appeal. (Emphasis supplied)

Although we agree with the Commission that Section 110.061, Florida Statutes (1978 Supp.), applies because it was in effect on the date of the accident, that section does not provide a basis for the Commission’s discretion to issue such orders as it deems “proper and necessary.” Section 110.061(3) provided:

(3) The Career Service Commission may:
(a) Order the reinstatement of an employee, with or without back pay.
(b) In its discretion, reduce a dismissal to a suspension for such time as the Commission may fix; or
(c) Reduce the period of a suspension, ....

A regulatory body cannot enlarge its authority through promulgation of rules beyond the authority delegated by statute. See Florida Growers Coop Transport v. Department of Revenue, 273 So.2d 142, 144 (Fla. 1st DCA) cert. denied 279 So.2d 33 (Fla.1973), wherein our sister court stated:

In innumerable decisions the appellate courts of Florida have pointed out that, where a regulatory body is created by statute and endowed with the authority to promulgate rules and regulations to carry into effect the statutory provisions, the rules and regulations must be consistent with those provisions and must not amend those provisions ....

We hold that the clause underlined in the above quoted rule, which appears to empower the Commission with unbridled discretion, must be given a narrow interpretation in order to be in harmony with the principle articulated in Florida Growers Coop Transport, supra. Since neither Section 110.061(3) nor any other statute empowered the Career Service Commission with the authority to require the Department to offer appellee James another position, such decision was made without lawful authority.

Accordingly, we reverse the decision and remand for consideration of whether the dismissal should be reduced to a suspension, and if so, for what time.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.

      . The Department contends that Section 110.-309(4), Florida Statutes (1979) applies as it became effective July 1, 1979, replacing Section 110.061. Section 110.309(4) provides:
      (4) Upon a finding that just cause for disciplinary action existed, but did not justify the severity of the action taken, the commission may, in its discretion:
      (a) Reduce a dismissal to a suspension for such time as the Commission may fix; or
      (b) Reduce the period of a suspension.
      As can be seen from the foregoing, there is no language to support the discretion granted by the rule in question; however, we concur with the Commission’s argument that Section 110.061 should govern here because the date of the accident determines the rights of appellee.


author: DOWNEY, Judge.

text:
    RUSH HAMPTON INDUSTRIES, INC., a Florida corporation, Appellant, v. BUILDERS’ BOARD OF ADJUSTMENT AND APPEALS OF the CITY OF BOCA RATON and the City of Boca Raton, Appellees.
    No. 80-1293.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 7, 1981.

      E. Hugh Chappell, Jr. of Chappell, Brandt & Gore, P. A., Fort Lauderdale, for appellant.
    M. A. Galbraith, Jr., City Atty., Boca Raton, for appellee City of Boca Raton.
   DOWNEY, Judge.

Appellant, Rush Hampton Industries, Inc., seeks reversal of an amended final judgment of the circuit court denying appellant relief against the appellees, Builders’ Board of Adjustment and Appeals and the City of Boca Raton.

Rush Hampton manufactures a ductless fan known as the CA — 90, which is designed to serve as an alternative to ventilation and exhaust systems in windowless bathrooms. The fan pulls air through a chemically saturated particle filter in the unit; the air becomes saturated with the chemical and is ejected from the unit, defusing the sanitized air throughout the room. The CA — 90 unit has been approved by the Florida Board of Building Codes and Standards and the National Sanitation Foundation.

Rush Hampton had a contract with a developer of a condominium in the City of Boca Raton to furnish CA-90’s for installation in the bathrooms of various units. However, the Chief Code Administrator of the City refused to approve the use of the CA-90 systems, as he interpreted the building and mechanical codes of the City to require exhaustion of air from toilet rooms directly to the out-of-doors. Rush Hampton appealed the Code Administrator’s ruling to The Builders’ Board of Adjustment and Appeals of the City without success. Rush Hampton then filed, in the Palm Beach County Circuit Court, two suits, which were consolidated, seeking to require City approval of the CA-90 fans for use in windowless bathrooms. After a non-jury trial an amended final judgment was entered denying the relief requested, and this appeal followed.

The validity of the judgment depends upon the interpretation of one provision of the Standard Building Code and one provision of the Standard Mechanical Code, both of which codes were adopted as ordinances in December, 1977, by the City of Boca Raton. The pertinent provision of the Standard Mechanical Code is Section 307.-2(c), which section was amended to read as follows when the City adopted the Standard Mechanical Code as an ordinance:

General Provisions. Where mechanical ventilation is required from bath, toilet, urinal, locker, service sink, closets and similar room, it shall be an independent system, and shall exhaust at least two (2) cubic feet of air per minute per square foot of floor area.

The relevant Building Code section is Section 2001.5(a):

Where ventilation is provided by mechanical means, fresh air in sufficient quantity to maintain healthful conditions shall be provided to meet the requirements of all state laws. In the absence of such requirements, ventilation at least equivalent to the requirements of this code governing natural ventilation shall be provided, or an approved air circulation and treatment system in compliance with National Sanitation Foundation Standard C-10-1976 may be provided.

The trial court based its denial of relief upon the following findings. Section 2001(5)(a) of the Standard Building Code “provides that mechanical ventilation may be provided by an approved air circulation and treatment system meeting a certain standard” (the parties stipulated the CA-90 fan met that standard). However, Section 307.2(c) of the Standard Mechanical Code (which section, as amended, and Section 2001.5(a) of the Standard Building Code were simultaneously adopted as portions of two City ordinances) appeared to proscribe use of the fan. Because of the statutory construction rule that a more specific rule will prevail over a more general rule on the same subject, “The Standard Mechanical Code prevails over the Standard Building Code to the extent of conflict between provisions of the Codes relating to mechanical systems, and therefore the former prevails over the latter as applied to this case.”

We hold that the trial court misapplied the statutory construction rule set forth in its amended judgment. Since Section 307.2(c) deals only with required mechanical ventilation systems, the trial court’s application of the rule of statutory construction would have been appropriate if Section 2001.5(a) dealt solely with the same subject, namely, required mechanical ventilation systems. However, Section 2001.5(a) deals with two subjects other than required mechanical ventilation systems, namely, natural ventilation and air circulation and treatment systems. We thus conclude that Section 2001.5(a) prevails over Section 307.-2(c), because the former section deals specifically with air circulation and treatment systems while the latter does not deal with them at all.

In addition to the foregoing, it is worthy of note that the 1976 version of Section 2001.5(a) simply provided:

Where ventilation is provided by mechanical means, fresh air in sufficient quantity to maintain healthful conditions shall be provided to meet the requirements of all State laws. In the absence of such requirements, ventilation at least equivalent to the requirements of this code governing natural ventilation shall be provided.

However, this section was amended in 1977 to add:

“or an approved air circulation and treatment system in compliance with National Sanitation Foundation Standard C-10-1976 may be provided.”

This amendment indicates that it was the intention of the drafters of the Southern Standard Building Code to allow use of an air circulation and treatment system approved by the National Foundation in place of a mechanical system in the absence of “requirements of all state laws.” Since it was not shown that there is any state law dealing with ventilation requirements, it follows that use of the CA-90 is not barred by the Building Code of Boca Raton. Accordingly, we reverse the amended judgment and remand the cause with directions that the trial court enter judgment granting the appellant the relief it sought.

REVERSED AND REMANDED with directions.

BERANEK and GLICKSTEIN, JJ., concur.