author: FERGUSON, Judge.

text:
    TOWER HOUSE CONDOMINIUM, INC., a non-profit Florida corporation, Appellant, v. Merton MILLMAN and Lillian Aronoff, Appellees.
    No. 80-1468.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    Rehearing Denied Sept. 11, 1981.

      Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Miami, for appellant.
    Heller & Kaplan and Robert Golden, Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

The issue on appeal is whether the purchase by a condominium association of an adjacent parcel of property to be used for additional parking at a cost of $400,000 constitutes a material alteration or modification of the appurtenances to the condominium unit so as to require an amendment to the Declaration of Condominium with approval by all unit owners.

On May 1, 1978, the Tower House Condominium Association held a properly noticed meeting attended by sixty-eight of the eighty-four unit owners. At the meeting members voted sixty-eight to zero to acquire an adjacent lot for $400,000 to provide additional parking. Each member was assessed his proportional share of $6,000. Ap-pellees, who did not vote for the acquisition, were notified of the assessments and when they failed to pay, the Association filed claims of lien against their respective units. After a non-jury trial, the Dade County Circuit Court held that the Association could not acquire the property without the consent of all unit owners and, therefore, the assessments were illegal and the claims invalid. Final judgment was entered canceling the claims of lien and assessing special damages against the Association. We affirm.

We find Section 718.110(4), Florida Statutes (Supp.1978) and Article VII of the Declaration of Condominium controlling. Section 718.110(4) provides:

Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any condominium unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses ... unless the record owner of the unit and all record owners of liens on it join in the execution of the amendment and unless all the record owners of all other units approve the amendment. (Emphasis added.)

Article VII of the Tower House Declaration of Condominium provides:

METHOD OF AMENDMENT OF DECLARATION.
This Declaration may be amended at any regular or special meeting of the Apartment Residence Owners of this Condominium, called and convened in accordance with the By-Laws of the Association, by the affirmative vote of seventy-five (75%) percent of the Apartment Residence Owners present in person or by proxy and casting votes at such meeting.... No amendment shall change any Condominium Parcel nor a Condominium Apartment Residence’s proportionate share of the common expenses or common surplus, nor the voting rights appurtenant to any Apartment Residence unless all record Owner[s] and all record Owners of mortgages or other voluntarily placed liens thereon shall join in the execution of the amendment.

The parking area is designated a common element by Article IV, (D) of the Declaration of Condominium.

(D) The area shown on the survey and described as “Parking Area” is part of the Common Elements.... Each Apartment Residence Owner shall be entitled to the use of the parking facilities for two automobiles; however, the Owners of the Penthouse and Tower Apartment Residences shall be entitled to the use of the parking facilities for three automobiles .... All parking shall be valet parking only ....

The undivided interest of each unit owner in the common elements is set forth in Article V of the Declaration of Condominium which provides:

OWNERSHIP OF COMMON ELEMENTS: COMMON EXPENSES AND COMMON SURPLUS
(A) The undivided interest in and to the Common Elements which each Apartment Residence Owner shall own by reason of his ownership of a Condominium Parcel and/or Apartment Residence in the Condominium shall be as' follows:
(i) Each Apartment Residence Owner of the Apartment Residences 01 through 04 on the third through twelfth stories, and the stories designated the fourteenth through twenty-third stories of the building, shall own an undivided 1.1407370 percent interest in and to the Common Elements; and
(ii) Each Apartment Residence Owner of Penthouse I and Penthouse II and Tower I and Tower II on the stories designated as the twenty-fourth and twenty-fifth stories of the building shall own an undivided 1.7111625 percent interest in and to the Common Elements; and
(B) The fee simple title to each Condominium Parcel shall include both the Apartment Residence and the undivided interest in the Common Elements in the above-mentioned percentages of the whole

This undivided interest in the parking area is made appurtenant to the condominium unit by subsection (B) of Article V quoted above and by Section 718.106(2)(a), Florida Statutes (1977) which provides: “There shall pass with a unit, as appurtenances thereto: (a) an undivided share in the common elements and common surplus.” This undivided interest is also part of the condominium parcel and condominium property defined in Article I of the Declaration of Condominium as follows:

(vii) Condominium Parcel means an Apartment Residence together with the undivided share in the Common Elements which is appurtenant to the Apartment Residence.
(viii) Condominium Property means the real property herewith submitted to Condominium ownership, being that property described in Exhibit “A”, including all improvements located thereon and all easements and rights appurtenant thereto intended for use in connection with the Condominium.

Article VII, (3)(D) of the Tower House By-Laws provides:

D. The Board of Directors may not authorize or make any additions or capital improvements to the Condominium Property at a cost in excess of Twenty Thousand Dollars ($20,000.00) without first securing a three-fourths (%) vote of all Members constituting a quorum at the Meeting called for the purpose of considering said additions or improvements, excepting that in cases of emergency, and in order to protect the Condominium Property, Board of Directors may, in their sound judgment, make repairs to the Condominium Property in excess of said Twenty Thousand Dollars ($20,-000.00).

Article V, Section 6 of the By-Laws provides:

Section 6. VOTE REQUIRED TO TRANSACT BUSINESS: When a quorum is present at any Meeting, the vote of seventy-five (75%) percent of the Members present, in person or represented by written proxy, shall decide any question brought before the Meeting, unless the question is one upon which, by express provision of the statutes or of the Certificate of Incorporation or of these ByLaws, a different vote is required, in which case such express provision shall govern and control the decision of such question.

Article I of the Declaration of Condominium provides in relevant part:

(A) Except where permissive variances therefrom appear in this declaration, this Declaration, the Articles of Incorporation ... or the By-Laws ... the provisions of the Condominium Act . .. are adopted herein by express reference as if set forth herein in full, and the Condominium Act, and this Declaration, and the Articles of Incorporation and By-Laws of the Association, as lawfully amended from time to time %(3)27 shall govern this Condominium and the rights, duties and responsibilities of the Owners of the Condominium Parcels therein.

Article XV Section 1 of the By-Laws provides:

The contract documents relating to this condominium and the ownership of a Condominium Parcel therein shall include the Declaration of Condominium .. ., these By-Laws, the Charter of the Association, and the pertinent statutes from time to time pertaining thereto, all as amended from time to time in accordance with law ....

Construing the foregoing sections of the Declaration of Condominium, By-Laws, and statutes as a whole,, the association’s argument that the property in question could be acquired upon affirmative vote of only seventy-five percent of a quorum of unit owners as provided by Article VII, (3)(D) of the By-Laws, supra, was properly rejected by the trial court. The Association correctly argues that provisions of the Condominium Act as amended from time to time automatically became part of the documents of Tower House Condominium by the language of Article I of the Declaration. See note 1, supra. This'includes Section 718.110(4), Florida Statutes (Supp.1978). If the terms of Section 718.110(4) are inconsistent with the Declaration or By-Laws, the statutory provision prevails. Article 1(A), Declaration, supra, Article V, Section 6, By-Laws, supra.

We must first determine whether the acquisition of the parking area is a material alteration or modification of the appurtenances to a unit requiring amendment to the Declaration. In Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971) the court stated:

[A]s applied to buildings the term “material alteration or addition” means to palpably or perceptively vary or change the form, shape, elements, specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.

This definition applies equally as well to changes in common elements. The acquisition of a $400,000 piece of property to be used as an addition to the parking area which increases that area by one-third of its size, and changes the number of parking spaces owned by the unit owner is a material alteration or modification of the common area, and, of the unit owner’s interest in the appurtenances to the condominium unit. Because a unit owner’s undivided share in the parking area is appurtenant to the unit, Section 718.106(2)(a), Florida Statutes, supra, and part of the fee simple, Article V, Declaration of Condominium, supra, the parking area itself is necessarily appurtenant to the unit, even if regulated by the Association. See Ackerman v. Spring Lake of Broward, Inc., 260 So.2d 264, 266 (Fla. 4th DCA 1972) (citing § 711.-04, Fla.Stat. (1969), now § 718.106(2)(a); recreation area part of common elements is appurtenant to condominium units). An undivided interest is an undivided interest in the whole and when that whole changes, that interest, if not the percent, also changes. See also Blacks’ Law Dictionary (5th ed. 1979) (“A thing is ‘appurtenant’ to something else when it ... is necessarily connected with the use and enjoyment of the latter ... [or] used with the land for its benefit”).

Article VII of the Declaration of Condominium is consistent with § 718.110(4), supra, in providing that any change in the condominium parcel, i. e., the unit and the interest in the common elements, requires the vote of all unit owners.

Article VII(3)(D) of the By-Laws, as applied herein by the Association, is inconsistent with the Declaration and § 718.-110(4), supra, in that it permits material alterations or modification by less than a vote of all unit owners and is, therefore, invalid.

Under the circumstances of this case, the purchase of the lot materially modifies the owner’s interest in the common elements which are appurtenant to the unit and, therefore, changes the condominium parcel. Such a change requires the vote of all record owners of the condominium units. Article VII, Declaration of Condominium, § 718.110(4), Fla.Stat. (Supp.1978).

The Association also challenges the award of attorney’s fees to Millman and Aronoff by the trial court. We affirm also the award of fees. The prevailing party in an action brought pursuant to the provisions of Chapter 718, Florida Statutes (1979) is entitled to recover reasonable attorney’s fees. Section 718.303(1), supra.

AFFIRMED.

      . Appellant notes in its brief that the provisions of the Condominium Act as amended from time to time automatically became a part of the controlling documents of the Tower House Condominium. Kaufman v. Shere, 347 So.2d 627 (Fla.3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978).

      . See also § 718.108(2), Fla.Stat. (1977) providing for designation of common elements within a declaration of condominium.

      . See also §§ 718.103(10) and (11), Fla.Stat. (Supp.1978).

      . A quorum is defined in Article V, Section 5 of the By-Laws as seventy-five (75%) percent of the total number of members of the Association, present in person or represented by written proxy.

      . We are not here concerned with change in the proportion or percentage by which an owner of the parcel shares the common expenses. See, e. g., Bayshore Cooperative, Inc. v. Russcol, 386 So.2d 1207 (Fla. 3d DCA 1980); Thiess v. Island House Association, Inc., 311 So.2d 142 (Fla. 2d DCA 1975).

      . This case is distinguishable from Juno By the Sea North Condominium Association, Inc. v. Manfredonia, 397 So.2d 297 (Fla. 4th DCA 1981) where the court found no material alteration of the common elements in a plan to assign existing individual parking places. No purchase or change in size of parking area was involved. The court in Juno, supra, notes in footnote seven that if the owner’s share in common element is altered, the Declaration requires consent of all unit owners.

      . In Juno, note six supra, unlike this case, an interest in the 50 parking spaces apparently did not pass with the fee simple title to each unit. We do not agree with the suggestion by the 4th District in Juno, supra, that common elements subject to continuing regulation by the Association may not pass as appurtenances to individual units. See Ackerman, supra. See, e. g.. Porter v. Hollander, 494 F.Supp. 151 (D.Del.1980) citing §§ 711.06 and 711.07, Fla.Stat. (1975) (ownership in mixed leasehold and fee simple interest in all common elements not violative of Condominium Act); Mayfair Engineering Co. v. Park, 318 So.2d 171 (Fla. 4th DCA 1975) (“while under this Declaration it is clear that the developer did not retain ownership of the ... parking spaces (except to the extent that such was retained as in undivided interest appurtenant to the unsold condominium units) ... undoubtedly he retained... the right to assign their exclusive use”).

        .See also Article I(vii), supra.


source: Caselaw Access Project

author: PER CURIAM. HURLEY, Judge,

license: Public Domain

text:
    Leonard J. MERCER, Jr., General Partner d/b/a Galt Ocean Mile Hotel Association, Ltd., a Pennsylvania limited partnership, Appellant, v. J. D. RAINE, Sr., Trustee, and Alladin Manavi, Appellees.
    No. 80-400.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Rehearing Denied April 2, 1982.
    Joel L. Kirschbaum of Esler & Kirsch-baum, P.A., Fort Lauderdale, for appellant.
    Douglas K. Silvis of English, McCaughan & O’Bryan, Fort Lauderdale, for appellees.
   PER CURIAM.

This is an appeal from an order resulting from a discovery violation. The trial court struck the defendant’s answer and entered default judgment against defendant on liability. The court simultaneously granted defendant’s lawyer leave to withdraw from the case. This situation occurred at a hearing scheduled on defense counsel’s motion to withdraw and plaintiffs’ motion to impose sanctions for discovery violations. The court considered the motions simultaneously and granted both motions in the absence of the defendant. The decision to impose sanctions for a discovery violation and the severity thereof are matters within the discretion of the trial judge. Absent clear abuse these discretionary acts will not be reversed on appeal. Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980). We conclude that appellant has failed to make such a demonstration in this case and the order below is thus affirmed.

Affirmed.

LETTS, C. J., and BERANEK, J., concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

There is no question but that sanctions were necessary in this case. Nevertheless, I believe that the multiple sanctions imposed were so unnecessarily severe as to constitute an abuse of discretion. Consequently, I respectfully dissent.

The trial court entered an order on November 27, 1979, which was rendered on November 28, 1979, and which required the defendant to produce documents and to answer interrogatories within twenty days (December 18, 1979). Defendant failed to comply. On January 11, 1980, defense counsel moved to withdraw, citing a disagreement as to fees and other conduct which made it difficult for counsel to properly represent his client. A few days later, plaintiffs filed a motion for sanctions; both motions were heard on February 7, 1980.

The trial court granted plaintiffs’ motion and imposed the following sanctions: (1) defendant’s answer was stricken; (2) a default judgment was entered against the defendant on liability; and (3) defendant was ordered to pay plaintiffs’ costs and fees occasioned by defendant’s refusal to comply with the court’s order of November 27th.

Given the posture of the case, I must acknowledge “the general principle that the decision to impose sanctions and the severity thereof, are matters within the sound discretion of the trial court. The exercise of this discretion will not be disturbed absent a clear showing of abuse.” Ferrante v. Waters, 383 So.2d 749, 751 (Fla. 4th DCA 1980) (citations omitted). Nonetheless, I view the striking of defendant’s answer and entry of a default judgment on liability as so unnecessarily severe as to constitute an abuse of discretion.

I believe this case is governed by Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980) wherein the court held:

Even in a situation where notice is given to the defendant for the purpose of imposing sanctions, the record must be clear that such a severe sanction is authorized. Florida Rule of Civil Procedure 1.380 contains a variety of sanctions for failure to make discovery but the striking of pleadings, entry of default, and dismissal of an action are the most drastic among them and ordinarily will not be resorted to for the purpose of punishing or penalizing a party. The severity of a sanction must be commensurate with the violation, and should be imposed upon a defendant only in extreme situations for flagrant or aggravated cases of disobedience. The visitation of such an ultimate sanction should not be imposed for failure to timely comply with a discovery order especially where failure to comply does not operate to prejudice the opposing party in any substantial manner. Id. at 113. (Citations omitted.)

Obviously, each case must be evaluated individually to determine whether a violation is so flagrant or aggravated to justify the imposition of drastic sanctions. Absent extreme situations, an overdue party should be given a lesser sanction and/or afforded a reasonable opportunity to comply before the court resorts to ultimate sanctions. For example, in the case at bar, the February 7th hearing was the first time the defendant was brought before the court for the imposition of sanctions. At that point he was 51 days beyond the December 18th due date. But, rather than limit the sanction to reimbursement of plaintiffs’ costs and fees, the court added the additional sanctions of striking defendant’s answer and entering a default on liability. This was overkill. The case is further colored by the fact that prior to the expiration of the discovery deadline, defendant and his counsel became embroiled in a controversy over fees. Certainly, such difficulties do not excuse defendant’s failure to adhere to the December 18th deadline, but it is a factor which should have been considered in determining the appropriate sanction to encourage compliance with the court’s order. It is also worthy of note that on February 13, 1980, six days after the imposition of sanctions, defendant, then represented by new counsel, fully complied with the discovery order.

Taking all of the above factors into account, I do not believe this case presents a situation of flagrant, persistent, and aggravated disobedience sufficient to justify the striking of defendant’s answer and entering a default. Thus, I respectfully dissent.


author: PER CURIAM. COBB, Judge,

text:
    Kevin J. DUNMANN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1170.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.

      James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

The judgment herein is reversed on the authority of Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981).

REVERSED AND REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

I dissent for the reasons set forth in my dissent in the companion cases of Baxley v. State, 411 So.2d 194 (Fla. 5th DCA 1981).


author: PER CURIAM. DOWNEY, Judge.

text:
    Gary Robin EATON, Appellant, v. STATE of Florida, Appellee. John Arthur GOMBOS, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-664, 80-788.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    On Rehearing March 24, 1982.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant Eaton planned an escape while being transported from his prison cell to a dentist. A cellmate suggested that his girl friend “on the outside” would help Eaton. The girl friend, Dawn Sobel, enlisted appellant Gombos to help in the escape. At an appointed time and place Gombos, who was holding a shotgun, and Sobel approached a police van in which Eaton and other prisoners were being transported. The shotgun Gombos carried discharged, killing one of the deputies guarding the prisoners. A jury found Gombos guilty of second degree murder and aiding in an escape and found Eaton guilty of first degree murder and attempting to escape.

Before this court both appellants contend that “the trial court erred in refusing to properly instruct the jury on the predicate for consideration of the co-conspirator statements.” In addition, Eaton argues the trial court erred in entering judgment against him as “an aider and abettor for a crime higher than that which the ... jury found was actually committed by the perpetrator.” Finally, Gombos contends the trial court committed error in retaining jurisdiction over the first one-third of his seventy-five year sentence.

Over appellants’ objections, the trial court admitted into evidence statements made by jail inmates and friends of Dawn Sobel who were not themselves called to testify. The statements were admitted as statements of co-conspirators made to further a conspiracy (the escape plan). Even though appellants were not charged with the crime of conspiracy, proof of a conspiracy was relied upon to establish the appellants’ responsibility for the crimes charged.

The main thrust of appellants’ first point is that, since Section 90.803(18)(e), Florida Statutes (1979), requires a trial court “[ujpon request of counsel ... [t]o instruct the jury that the conspiracy itself and each member’s participation must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph”, the trial court should have granted appellants’ request (made at the charge conference) that the jury be instructed on co-conspirator statements. However, appellants’ request for the instruction at the charge conference was too late, since such an instruction is geared to apprise the jury regarding the admission of hearsay evidence before, or at the time, it is admitted. So we see no error under the first point because appellants’ request was tardy.

Appellants also contend that the trial court erred in not instructing the jury in accordance with the following suggestion contained in Boyd v. State, 389 So.2d 642, 647 (Fla.2d DCA 1980), a case in which the state relied upon a conspiracy (with which the defendant was not charged) as a predicate for the admission of hearsay evidence:

“What are proper instructions in a case such as this? At a minimum, the instructions should contain a definition of conspiracy, an explanation of the legal consequences of proving a conspiracy in the case, and the admonition that it is for the jury to determine whether a conspiracy has been established beyond a reasonable doubt.” (Footnote omitted.)

While the instructions suggested in Boyd would better apprise a jury of the appropriate law than the instruction given by the trial court in the present case, the evidence of guilt was so overwhelming here that we hold that any error was harmless. Cf. State v. Wilson, 276 So.2d 45 (Fla.1973).

We have considered Gombos’s complaint regarding the retention of jurisdiction over the first one-third of his sentence and find no error demonstrated.

Accordingly, the judgments and sentences appealed from are affirmed.

AFFIRMED.

DOWNEY, GLICKSTEIN and DELL, JJ., concur.

ON MOTION FOR REHEARING

DOWNEY, Judge.

Among appellant Eaton’s grounds for rehearing he argues that we overlooked the contention that Eaton could not be convicted of first degree murder under an aider and abettor theory when his codefendant Gombos, the actual perpetrator of the homicide, was only convicted of second degree murder. We concede the point was not discussed; however, we hasten to add that we did, in fact, consider it, but we found it to be without merit. We were in accord with the Second District Court of Appeal’s exposition of the correct rule found in Potts v. State, 403 So.2d 443 (Fla. 2d DCA 1981).

Accordingly, following Potts and our recent decision regarding another defendant in this same criminal episode, Sobel v. State, Case No. 80-653, Fla.App., 410 So.2d 556, 1982, we grant the Motion for Rehearing, but we adhere to our original decision and opinion in these consolidated cases.

GLICKSTEIN and DELL, JJ., concur.


author: FERGUSON, Judge. PER CURIAM.

text:
    Frances B. GLENN, D.D.S., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 80-2037.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    On Rehearing March 4, 1982.
    Joe N. Unger; Finley, Kumble, Wagner, Heine & Underberg, Miami, for appellant.
    Carol Gregg, Tallahassee, for appellee.
    . Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The final order of the Board of Denistry, Department of Professional Regulation suspending appellant’s license to practice dentistry for six months and fining her $1,000.00 is affirmed upon our finding that there is competent substantial evidence to support each of the Agency’s factual determinations of violation of Section 466.-028(1)(g), Florida Statutes (1979), and a violation of Section 466.028(1)(aa).

Upon review of an agency decision, an appellate court may not reweigh or reevaluate the evidence even though the court may disagree with the trial court’s resolution of that conflict. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla. 3d DCA 1976).

We note that even if we had determined that any one of the violations was not supported by the evidence, it would have been a useless act to remand on authority of Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978) for reconsideration of the length of suspension, which penalty we consider extremely harsh on these facts, in that a single violation under Section 466.-028(1)(aa) mandates a minimum six-month suspension.

Affirmed.

ON MOTION FOR REHEARING

PER CURIAM.

Following the issuance of our opinion of January 12, 1982 we granted appellant’s timely motion for rehearing. On rehearing, we now withdraw our reliance on Section 466.028(1)(aa), Florida Statutes (1979) as preventing remand for reconsideration of the penalty imposed. Though the statute was in effect at the time charges were filed, and possibly at the time of at least some of the alleged illegal acts of Tonya Fogg who was employed by Dr. Glenn until November 1, 1979, Dr. Glenn was not charged with violating Section 466.028(1)(aa), the statute is not mentioned in the Recommended Order of the Hearing Examiner or in the Final Order of Temporary Suspension and the agency does not contend either on appeal or on rehearing that the statute should apply. Accordingly, since we find the evidence insufficient to support a finding of violation as to the charges of directing and allowing Sandra Novotny to pre-size and cement orthodontic bands onto patients’ teeth, and directing and allowing Anabelle Winnan to clean and polish clinical crowns before obtaining a certificate, we reverse in part the agency’s findings and remand for reconsideration of the penalty. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978).


author: SHARP, Judge. COWART, Judge, SHARP, Judge.

text:
    Leroy DOUGLAS, Appellant, v. Dyer MICHEL, as Administrator and Custodian of the records of the Marion County Hospital District, d/b/a Munroe Regional Medical Center, Appellee.
    No. 80-612.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 1982.
    Rehearing Denied March 10, 1982.

      John B. Fuller and Bryce W. Ackerman, of Savage, Krim, Simons & Fuller, P. A., Ocala, for appellant.
    William G. O’Neill and James A. Cornelius, of O’Neill & Cornelius, Ocala, for appel-lee.
    W. E. Bishop, Jr., of Bishop & Behnke, Ocala, amicus curiae, for Emp. of Marion County Hospital Dist.
   SHARP, Judge.

Leroy Douglas (a resident of Marion County) appeals from a final order denying his petition for a writ of mandamus. He sought to obtain access to the employment records of the Marion County Hospital District, d/b/a Munroe Regional Medical Center, pursuant to Chapter 119, Florida’s Public Records Act. Douglas also seeks an award of attorney fees pursuant to sections 119.12(1) and 59.46, Florida Statutes (1979). The hospital employees whose records are involved in this case were allowed to intervene and file amicus curiae briefs. We reverse the lower court and remand for further proceedings not inconsistent with this opinion.

The lower court held a hearing pursuant to section 119.11(1), Florida Statutes (1979). It was stipulated that the person against whom the suit was filed is the custodian of the hospital records; that he is the person who has a duty (if one exists) under Chapter 119 to make the records available; and that the employee records sought are part of the permanent records of the hospital. Douglas originally requested inspection of certain employment applications in employee personnel records. His mandamus petition, however, seeks access to all materials contained in the employee personnel records. There is apparently no dispute that the hospital is an “agency” subject to Chapter 119.

The arguments expounded by the hospital and the employees to exempt or exclude these records from Chapter 119 are well7 reasoned. However, our research discloses they have been recently rejected by the Florida Supreme Court and other appellate courts in this state.

I. ARE EMPLOYEE RECORDS, KEPT AS PART OF THE HOSPITAL’S PERMANENT FILES AND RECORDS, GENERALLY “PUBLIC RECORDS” WITHIN THE SCOPE OF CHAPTER 119?

Section 119.011(1) defines as “public records”:

[A]ll documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

The hospital admitted that the personnel files sought in this case were part of its permanent records, and were kept as part of its operations, pursuant to the requirements of law and the direction of its management. There was no showing on the part of the hospital or employees that any of the records contained drafts or notes which may constitute “mere precursors of the government ‘records,’ not in themselves, intended as final evidence of the knowledge to be recorded.” Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633, 640 (Fla.1980). Clearly the records sought here were shown to be “public records” within the scope of Chapter 119. Shevin; News-Press Publishing Co., Inc. v. Gadd, 388 So.2d 276 (Fla. 2d DCA 1980); City of Gainesville v. State, 298 So.2d 478 (Fla. 1st DCA 1974); Office of the Attorney General, Florida Open Government Laws Manual 32 (1978).

II. ARE THE HOSPITAL'S EMPLOYEE RECORDS EXEMPTED FROM CHAPTER 119 BY SECTION 119.-07(3)(a) OR BY SECTION 119.-07(3)(f)?

The Public Records Act provides an exemption for public records “which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law.” When this hospital was created in 1965 by Chapter 65-1405, Laws of Florida, section 34 empowered the trustees to set up rules and regulations for operation of the hospital. One policy adopted was a rule of strict confidentiality for its employee personnel files. However, clearly a policy adopted by a governmental agency cannot exempt it from the application of a general law. Section 5 of the special act provided for public disclosure of the hospital books of account, business records and minutes. The hospital argues that by making some records open to public disclosure, the Legislature intended to exclude the balance. Expressio unius est exclusio alterius.

This Latin maxim may or may not be true depending upon the particular legislative context in which the statute was passed. Douglas points out that the disclosure provisions were written into the special act because in 1965 the Sunshine Law requiring public bodies to hold open meetings had not yet been passed. Section 5 was primarily concerned with the trustee’s records and operations. Chapter 119 had long been a Florida law by 1965, and the courts had recognized a strong public policy favoring disclosure of public records. State ex rel. Cummer v. Pace, 118 Fla. 496, 159 So. 679 (1935). In this context, the negative inference of the Latin maxim collapses.

We also do not agree that section 119.07(3)(f) affords any basis to exclude these records. It provides an exemption from Chapter 119 for “any information revealing surveillance techniques or procedures or personnel.” All of the special exemptions (d) through (k) of section 119.07(3) are concerned with protecting from public disclosure specific files, records, and information relating to the criminal justice system. The statute was amended with such specificity when it became clear that the courts were going to give Chapter 119 its literal meaning, by refraining from carving out any judicial exceptions, no matter how harmful and damaging the disclosure might be. See Rose v. D’Alessandro, 380 So.2d 419 (Fla.1980); Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979); Gannett Co. v. Goldtrap, 302 So.2d 174 (Fla. 2d DCA 1974). The context of section 119.-07(3)(f) and its grammatical structure strongly indicate the Legislature intended no general exemption for all types of personnel records.

III. SHOULD THE ACCESS TO THE PERSONNEL RECORDS BE BARRED BECAUSE IT CONSTITUTES AN INVASION OF THE EMPLOYEE’S FEDERALLY OR STATE PROTECTED RIGHT OF PRIVACY?

At the hearing it was established that the personnel records contain items which may well embarrass and harm the employees, if disclosed and published. For example, the hospital administrator testified there was information concerning prior felony convictions, drug and alcohol problems, unlisted phone numbers, physical and mental examinations, and communications from third persons who believed the information they furnished was confidential.

As an intermediate appellate court, we must follow the Florida Supreme Court’s rulings, even though as an original matter, we might have reached a different result. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944), Florida recognized and adopted for this state a form of the common law “right of privacy” relating to publication of a person’s “personality” without her consent. However in Shevin a majority of the Florida Supreme Court held that there was no state right of privacy regarding disclosure of private matters in the context of the Public Records Act, and that the federal right of privacy was as yet too amorphous and indefinite to allow this state’s courts to apply that doctrine as a basis for a decision.

After Shevin, the people of Florida adopted the right of privacy as an amendment to the Florida Constitution. However, by its own terms it is expressly made subservient to the public records law:

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. (Emphasis supplied).

Art. I, § 23, Fla.Const. Thus, Shevin still controls both the federal and state right of privacy issues.

IV. SHOULD THIS COURT CARVE OUT AN EXCEPTION FROM CHAPTER 119 FOR CONFIDENTIAL EMPLOYEE RECORDS FOR PUBLIC POLICY REASONS?

For the reasons stated by the Second District Court of Appeal in Wisher News-Press Publishing Co., 310 So.2d 345 (Fla. 2d DCA 1975), quashed, 345 So.2d 646 (Fla.1977), perhaps such an exception to Chapter 119 should be created. However, we cannot judicially create any exception, or exclusions to Chapter 119 for public records. If the people of this State no longer believe that unrestricted public access to public employee records is wise, they must address this problem to the Legislature, not the courts.

The appellant’s motion for attorney fees requires a finding by the trial court that the hospital unreasonably refused to permit the inspection of its records. Cape Coral Medical Center, Inc. v. News-Press Publishing Co., 390 So.2d 1216 (Fla. 2d DCA 1980). The record shows only that the hospital administration acted upon advice of counsel and at the direction of the hospital trustees. Upon remand, if the lower court determines the hospital acted unreasonably in denying access to the records, it should award reasonable attorney fees for bringing the suit and for this appeal.

REVERSED AND REMANDED.

ORFINGER, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially;

Very reluctantly, I concur. In this case citizens who are or were once employees of this hospital or who at some time made application for employment and others furnished information to the hospital relying on express promises that such employee personnel data would be kept strictly confidential. Now we apply a statute to force the hospital to break faith with and embarrass and harm employees and others who trusted it. Requiring public officials to provide the public with ready access to public records is one thing, but embarrassing the hospital janitor by disclosing for publication the confidentially obtained private details of his personal life is too much. It may be a great day for the public disclosure statute, but it is a sad day for fairness and decency under law. The legislature created this injustice and should remedy it promptly-

ON MOTION FOR REHEARING AND CLARIFICATION

SHARP, Judge.

Upon Motion for Rehearing and Clarification the Court hereby denies same but grants the appellant’s request to certify questions involved in this case to the Supreme Court of Florida, as being of great public importance:

I. ARE EMPLOYEE RECORDS, KEPT AS PART OF A TAX-SUPPORTED HOSPITAL’S PERMANENT FILES AND RECORDS, GENERALLY “PUBLIC RECORDS” WITHIN THE SCOPE OF CHAPTER 119?

II. ARE THE HOSPITAL’S EMPLOYEE RECORDS EXEMPTED FROM CHAPTER 119 BY SECTION 119.-07(3)(a) OR BY SECTION 119.-07(3)(f)?

III. SHOULD THE ACCESS TO THE PERSONNEL RECORDS UNDER CHAPTER 119 BE BARRED BECAUSE IT CONSTITUTES AN INVASION OF THE EMPLOYEES’ FEDERALLY OR STATE PROTECTED RIGHT OF PRIVACY WHERE THE RECORDS MAY CONTAIN HARMFUL OR DAMAGING INFORMATION?

ORFINGER and COWART, JJ., concur.

      . Section 119.12(1), Florida Statutes (1979), provides:
      Whenever an action has been filed against an agency to enforce the provisions of this chapter and the court determines that such agency unreasonably refused to permit public records to be inspected, the court shall assess a reasonable attorney’s fee against such agency.

      . Section 59.46, Florida Statutes (1979), provides in pertinent part:

        (1) In the absence of an expressed contrary intent, any provision of a statute ... providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.

      . § 119.011(2), Fla.Stat. (1979). The hospital was created by a special act, Chapter 65-1405, Laws of Florida, which established a "hospital district.” It is in part tax-supported.

      . § 119.07(3)(a), Fla.Stat. (1979).

      . R. Dickerson, The Interpretation and Application of Statutes 234 (1975).

      . Art. I, § 23, Fla.Const.

      . The non-existence of a federally or state protected right of privacy in this context also makes untenable appellee’s other constitutionally grounded arguments against the validity of Chapter 119.

      . Rose v. D’Alessandro, 380 So.2d 419 (Fla.1980); Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979) [specifically approving J. Schwartz in State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1977), cert. denied, 360 So.2d 1247 (Fla.1978)].

      . See Fla.R.App.P. 9.030(a)(2)(A)(v).


author: WIGGINTON, Judge. PER CURIAM.

text:
    DAN’S PLUMBING and CNA Insurance, Appellants, v. Robert SMITH, Jr., Appellee.
    No. AC-387.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    On Rehearing March 11, 1982.
    Peter C. Burkert, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    John Larson Lund, Fort Myers, for appel-lee.
   WIGGINTON, Judge.

The claimant/appellee in this workers’ compensation appeal suffered a compensa-ble accident on August 27, 1979, for which he was awarded temporary total disability (TTD) benefits. Claimant received these benefits from the date of the accident until they were terminated by the carrier on November 18, 1980. During that period of time, claimant was being treated by an authorized physician, Dr. Gardner, who was advising claimant not to return to work.

On October 9, 1980, however, claimant was referred by the carrier to a second physician, Dr. Angelides, who upon examining claimant concluded that he had reached maximum medical improvement (MMI) and was free of any disability based on his injury of August 27, 1979. On the basis of Dr. Angelides’ determination of MMI, the carrier terminated claimant’s TTD benefits. However, at that time it did not undertake to unilaterally de-authorize Dr. Gardner. Consequently, claimant continued to receive physical therapy from Dr. Gardner, who was still advising him not to return to work.

Dr. Gardner was not de-authorized by the carrier until March 16, 1981, the date of the hearing of claimant’s claim for payment of unpaid medical bills and for benefits from November 18, 1980. It was claimant’s contention at the hearing that he had not reached MMI, based on Dr. Gardner’s opinion to the same effect. The deputy commissioner, however, accepted Dr. Angelides’ opinion as to MMI. Nevertheless, because of the dilemma that faced the claimant in having to choose between the advice given by two “authorized” physicians as to his ability to return to work, the deputy awarded claimant TTD benefits from the date they were terminated by the carrier until the date of the hearing. Although we agree that claimant was placed in a perplexing and inequitable position, we hold that the deputy commissioner erred as a matter of law.

It is axiomatic under workers’ compensation law that except under unusual circumstances not present here, the date of MMI marks the end of temporary disability benefits and the beginning of other disability benefits that may be due under the statute. Broward County Board of County Commissioners v. Damore, 391 So.2d 286 (Fla. 1st DCA 1981); Department of Offender Rehabilitation v. Godwin, 394 So.2d 1091 (Fla. 1st DCA 1981). Accordingly, the deputy commissioner erred in awarding TTD benefits beyond October 9, 1980, the date that Dr. Angelides determined claimant had reached MMI.

However, the carrier had a responsibility to de-authorize its designated physician, Dr. Gardner, upon its acceptance of Dr. Angelides’ determination of MMI, and a duty to notify claimant of his possible entitlement to wage-loss benefits. See sections 440.13(2) and 440.185(10), Florida Statutes (1979). Silence on the part of the carrier placed claimant in an inequitable position. Claimant could either obey Dr. Gardner’s instructions not to conduct a job search, thereby risking possible future compensation benefits, or disobey his instructions and seek employment, thus unduly prolonging his period of recovery. Clearly, the remedial spirit and purpose behind the Workers’ Compensation Act would mandate that claimant be compensated for the period between the termination of his TTD benefits by the carrier and the date of the hearing.

Accordingly, we hold that claimant is entitled to wage-loss benefits effective retroactively from November 18, 1980 through the date of the hearing and continuing so long as those benefits are proper. Further, the carrier shall be penalized for its delinquency in attending to its responsibilities and be estopped from asserting the untimeliness of claimant’s application for wage-loss benefits and his failure to conduct an adequate job search through the date of the deputy’s order. Dean v. Central Mutual Insurance Co., 381 So.2d 737 (Fla. 1st DCA 1980).

Consequently, the order is reversed and the case remanded for additional proceedings consistent with this opinion.

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

ON MOTION FOR REHEARING

PER CURIAM.

Appellants’ petition for rehearing is granted. We adhere to our opinion remanding the case to the deputy commissioner for consideration of additionál proceedings. However, the penultimate paragraph of the opinion has created some confusion in the minds of the employer/carrier. It is intended and directed that should the claimant seek wage-loss benefits for the period of time so designated, then and in such event the employer/carrier shall only be deprived of asserting the single defense of claimants’ failure to meet the job search requirement from November 18, 1980, through the date of the hearing on March 16,1981. The employer/carrier shall not be deprived from asserting against Smith any other defenses they may have to prevent or minimize wage-loss benefits during the four-month period or thereafter.

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


text:
    Jo DAVIDSON, Appellant, v. Murray DAVIDSON, Appellee.
    No. 81-50.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Rehearing Denied March 29, 1982.
    Martha C. Warner of Warner, Fox & Seeley, Stuart, for appellant.
    Jerrold A. Bross of Bross & Trachtman, P. A., Titusville, for appellee.
   OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

After dissolving the twenty-two year marriage of the parties, the court entered a separate judgment relating to monetary matters by which he awarded the fifty year old wife “lump sum” alimony in the amount of $124,800, payable $200 per week for twelve years, at which time the wife, at age sixty-two, would become eligible for social security benefits.

Not dissatisfied with the amount of the weekly award of alimony, the wife nonetheless contends that the alimony should have been awarded on a permanent periodic basis rather than as a lump sum. Although the award was designated as lump sum alimony, we conceive it to be permanent periodic alimony of $200 per week for a total of twelve years. Whether the wife will commence receiving social security benefits at age sixty-two and, if so, whether the amount of such benefits will adequately meet her needs, cannot and should not be determined at this time. It is error to provide for a change or termination of permanent or periodic alimony based on the anticipated occurrence of an uncertain future event. See, e.g., Eskridge v. Eskridge, 381 So.2d 754 (Fla. 4th DCA 1980); Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980); McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1980).

The award of “lump sum” alimony is modified to an award of permanent periodic alimony payable $200 per week. As thus modified, the monetary benefits payable to the wife by the provisions of the final judgment are affirmed.

The court awarded to the wife an equitable lien on certain real property awarded to the husband for the purpose of securing the wife’s award of lump sum alimony. In view of our changing the alimony award from lump sum to permanent periodic alimony, an equitable lien on the husband’s real property to secure the payment of such alimony is not required by the facts of this case and to that extent the judgment is reversed.

In all other respects the judgment is affirmed.

REVERSED IN PART and AFFIRMED AS MODIFIED IN PART.

ANSTEAD and BERANEK, JJ., concur.


author: WENTWORTH, Judge.

text:
    Mallory WEBB, III, Appellant, v. STATE of Florida, Appellee.
    No. XX-280.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Rehearing Denied March 25, 1982.

      Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction of third degree felony murder and a sentence which was enhanced pursuant to § 775.087(1), Florida Statutes. We affirm the judgment of conviction, but reverse the enhanced sentence since § 775.-087(1) is. expressly inapplicable when “the use of a weapon or firearm is an essential element” of the substantive offense.

Although the use of a weapon is not an essential element of the substantive offense of felony murder in all cases, it is an essential element of the felony murder offense charged and proved in this case. Appellant’s conviction was predicated upon an underlying felony of either aggravated assault or aggravated battery, established by proof of an assault/battery involving the use of a firearm. See §§ 784.021(1)(a) and 784.045(1)(b), Florida Statutes. The use of a weapon or a firearm is an essential element of both of these offenses; such an aggravated assault/battery is already an “enhanced penalty offense, and § 775.087(1) may not be applied to enhance the sentence for these offenses. See Knight v. State, 374 So.2d 1065 (Fla.3d DCA 1979), fn. 2, and Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). Since it was necessary to prove such an aggravated assault/battery in order to establish the felony murder in this case, the elements of the underlying offense were essential to this felony murder conviction, and § 775.087(1) is therefore inapplicable. See Harper v. State, 386 So.2d 808 (Fla. 1st DCA 1980) (concurring opinion).

Accordingly, appellant’s sentence is vacated and the cause remanded for resen-fencing.

ERVIN and JOANOS, JJ., concur.

      . The jury was instructed that the possible underlying felonies were aggravated assault, to wit: assault with a deadly weapon, and aggravated battery, to wit: battery involving the use of a deadly weapon. The deadly weapon referred to was appellant’s firearm.


author: PER CURIAM. BASKIN, Judge

text:
    Irving GOLDEN, Appellant, v. Zina GOLDEN, Appellee.
    Nos. 80-2421, 81-597 and 81-609.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1982.
    Rehearing Denied March 29, 1982.

      Goodwin, Ryskamp, Welcher, Carrier & Donoff, Kenneth L. Ryskamp and Pulvia A. Morris, Miami, for appellant.
    Cypen & Cypen and Stephen H. Cypen, Miami Beach, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

In consolidated appeals, both parties challenge various financial aspects of the final judgment which dissolved their twenty-one-year marriage. We find error only in three respects.

First, the court should have credited the husband, when the proceeds of the parties’ residence are distributed, with half the amounts he expended for mortgage payments, taxes, insurance, utilities, and repairs. Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981); Rutkin v. Rutkin, 345 So.2d 400 (Fla. 3d DCA 1977); Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968). In addition, we reverse the imposition of a $15,000 special equity in the home to the wife as unjustified by the record or the applicable law. Duncan v. Duncan, 379 So.2d 949 (Fla.1980); see, Ball v. Ball, 335 So.2d 5 (Fla.1976).

The other aspects of the court’s distribution of the Goldens’ assets represent an unassailable exercise of the trial court’s discretion under Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Because, however, the result of these determinations is to place the wife in a financial status at least equal to the husband’s, we set aside the order awarding her attorneys’ fees. E.g., Pepper v. Pepper, 388 So.2d 1342 (Fla. 3d DCA 1980); Pusey v. Pusey, 386 So.2d 269 (Fla. 3d DCA 1980).

With the exceptions, then, of the failure to credit Mr. Golden with 50% of the home expenses, and the $15,000 special equity and attorneys’ fee awards, all of which are reversed, the judgment and orders under review are affirmed.

Affirmed in part, reversed in part.

BASKIN, Judge

(concurring in part, dissenting in part).

The majority’s reversal of the trial court’s decision to award the wife a $15,000 special equity in the marital home discards a well-established principle of law: it is not the function of the appellate court to reevaluate the evidence and substitute its judgment for that of the trial court. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). An appellate court merely decides whether the judgment entered by the trial court was supported by competent evidence. Koeppel v. Koeppel, 351 So.2d 766 (Fla.3d DCA 1977). Applying that concept, I find that the wife presented testimony that her funds were used to purchase the house, and the evidence, though in conflict, was sufficient to support the trial court’s award. I would affirm.

The majority’s reversal of the award of attorneys’ fees to the wife departs from the holding of the supreme court in Cummings v. Cummings, 330 So.2d 134 (Fla.1976), in which the court reiterated that the purpose of awarding attorneys’ fees is to “insure that both parties will have reasonably the same ability to secure competent legal counsel.” Id. at 136, citing Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). The purpose of awarding fees is to enable the needier party to secure counsel on an equal footing, without regard to concerns that those fees will be deducted from the alimony subsequently awarded or will encumber existing assets. For that reason, it is not necessary that a spouse be completely unable to pay attorneys’ fees in order to be entitled to receive them. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981); Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978). The effect of the majority opinion is to diminish the alimony award, Canakaris v. Canakaris, supra; Wilds v. Wilds, 399 So.2d 1038 (Fla. 3d DCA 1981), a result not contemplated by the trial court. If that is the intent of the majority, the cause should be remanded to the trial court for reevaluation of its alimony award. In my view, however, the court's award of attorneys’ fees to the wife should be affirmed.

I concur in the remainder of the opinion.


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

text:
    Peggy J. BURKETT, Appellant, v. Don L. PARKER and wife, Jerene L. Parker; and United Services Automobile Association, Appellees.
    No. AB-340.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1982.
    Rehearing Denied March 25, 1982.
    Cecil G. Costin, Jr., Port St. Joe, for appellant.
    James B. Fensom, Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellees.
   PER CURIAM.

Peggy J. Burkett appeals a summary final judgment entered by the trial court dismissing her complaint for personal injuries for failure to meet the threshold requirements of Section 627.737(2), Florida Statutes, allowing a tort action for damages suffered in a motor vehicle accident for “permanent injury,” other than “scarring or disfigurement.” We reverse.

Summary judgment procedure is not a trial by affidavit or deposition, and may not be used as a substitute for trial. Manucy v. Manucy, 362 So.2d 478 (Fla. 1st DCA 1978); Navison v. Winn and Lovett Tampa, Inc., 92 So.2d 531 (Fla.1957); Jones v. Stoutenburgh, 91 So.2d 299 (Fla.1957). Where the evidence before the trial court is susceptible of more than one inference, one of which will support the plaintiff’s view of the facts, a summary judgment for the defendant should not be entered. Titan Agencies, Inc. v. S. Kornreich & Sons, 355 So.2d 457 (Fla. 3rd DCA 1978). The burden of the movant in a motion for summary judgment is not simply to show that the facts support his own theory of the case but rather to demonstrate that the facts show that the party moved against cannot prevail. Mejiah v. Rodriguez, 342 So.2d 1066 (Fla. 3rd DCA 1977).

Under the foregoing principles, we conclude that a genuine issue existed of whether plaintiff’s injury comes within the “permanent injury” requirement of the statute, Section 627.737(2), precluding summary judgment. See Johnson v. Phillips, 345 So.2d 1116 (Fla. 2nd DCA 1977).

Although Section 627.737 has been held unconstitutional in Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981), the constitutional issue was not raised in the trial court. Therefore, the statute is still applicable in this case, unless and until the ruling in Dillon v. Chapman, supra, is affirmed by the Florida Supreme Court.

REVERSED.

LARRY G. SMITH and WIGGINTON, JJ., concur.

ROBERT P. SMITH, Jr., C. J., dissents with opinion.

ROBERT P. SMITH, Jr., Chief Judge,

dissenting.

The question here is whether there is competent evidence tending to show that Burkett sustained a permanent injury entitling her to pursue a tort action arising out of a motor vehicle accident. She sustained a one-centimeter fracture in her left foot and, as is always the case, the resulting scar tissue is permanent in the sense that it will always be there. No physician, however, testified that by reason of scar tissue or otherwise Burkett would likely suffer permanent disability, discomfort, or other adverse effects. Plaintiff sued two months after her injury and defendant’s motion for summary judgment was determined eight months later. The treating physician expressed an opinion that there was no permanent injury though conceded, when pressed, “Is it possible? Yes, I suppose it is possible, yes,” permanency “could be possible.” His testimony that there was no likely permanent injury distinguishes this case from Graff v. McNeil, 322 So.2d 40 (Fla. 1st DCA 1975). No permissible inference of permanent injury otherwise arises from this record. Compare Sullivan v. Price, 368 So.2d 614 (Fla. 1st DCA 1979). I therefore think the trial court’s summary judgment was entirely correct, and that this claim is barred by section 627.737, Florida Statutes (1981). I would affirm.


author: NESBITT, Judge.

text:
    James Alexander ZIRKLE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-815.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 1982.
    Rehearing Denied March 29, 1982.

      Bennett H. Brummer, Public Defender, and Mitchell R. Bloomberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

Zirkle appeals his judgment of conviction for a lewd and lascivious act committed upon a child under the age of fourteen. The only point that we are concerned with in the present appeal is whether the trial court erred in denying his motion for discharge made and presented pursuant to Florida Rule of Criminal Procedure 3.191.

Zirkle was arrested on June 15, 1979. His trial was scheduled for September 4, 1979 and then rescheduled for September 18, 1979. At that time, a plea agreement was reached between the state attorney and defense counsel. The trial court accepted the negotiated plea on the condition that the defendant submit to a psychiatric examination aimed at determining whether he was a mentally disordered sex offender. Zirkle and his counsel clearly acquiesced in the court’s appointment, sua sponte, of a psychiatrist to conduct the examination and render a report. On November 7, 1979, following receipt of the psychiatric evaluation, the State filed a motion to withdraw its agreement to the proposed negotiated plea. The motion was granted and the case reset for trial on January 7, 1980. On December 13, 1979, Zirkle moved for his discharge for noncompliance with the speedy trial rule, Fla.R.Crim.Pro. 3.191, on the ground that more than 180 days had elapsed since his arrest. The motion was heard and denied on December 27, 1979.

The order denying the motion for discharge did not specify the basis for denial. We must affirm the denial of a motion for discharge if the ruling is supported by any basis in the record. Stuart v. State, 360 So.2d 406, 408 (Fla.1978).

The defendant concedes that had a motion been made to extend the time for placing him on trial, the motion would have been warranted under the exceptional circumstances doctrine set forth in Florida Rule of Criminal Procedure 3.191(f). We must reject defendant’s contention that an order under the cited rule was required, because we otherwise determine that the defendant was not continuously available for trial.

In Isley v. State, 354 So.2d 457 (Fla. 1st DCA 1978), the rule was expressed that a defendant is unavailable for trial during such period of time as his mental condition and competence to stand trial are being determined. The Isley opinion does not reveal whether the request for the examination was generated by either party or upon the court’s own motion. However, in Davis v. State, 386 So.2d 1287 (Fla.3d DCA 1980), we held that the trial judge’s conditional acceptance of a negotiated plea, pending the results of a presentence investigation, rendered the defendant not continuously available for trial as of the date the plea was received.

Thus, in the present case, the trial court’s conditional acceptance of the defendant’s plea bargain tolled the running of the speedy trial term. It is of no consequence whether the psychiatric examination was requested by a particular party or sought by the court itself. See Davis v. State, supra. During the period of time required to complete this type of medical evaluation, the defendant’s status is such that he is not continuously available for trial within the purview of Florida Rule of Criminal Procedure 3.191(e).

Affirmed.


author: COBB, Judge.

text:
    Victor Valentine WROBEL, Appellant, v. STATE of Florida, Appellee.
    No. 81-613.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.
    Rehearing Denied March 10, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Appellant Wrobel was charged with trafficking in stolen property. The state moved in limine to prohibit defense counsel from asking Wrobel during direct examination whether he had ever been convicted of a crime, which Wrobel had not. The trial court granted the state’s motion. The case went to the jury, and Wrobel was found guilty of dealing in stolen property. The trial court adjudged Wrobel guilty and sentenced him to 18 months imprisonment. Wrobel timely appeals.

The appellant argues that a defendant in a criminal trial has the right to introduce evidence to show his good character. This argument is based on section 90.404(1)(a), Florida Statutes (1979):

Character evidence; when admissible.—
(1) CHARACTER EVIDENCE GENERALLY. — Evidence of a person’s character or a trait of his character is inadmissible to prove that he acted in conformity with it on a particular occasion, except:
(a) Character of accused. — Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the trait.

This argument, however, omits the pertinent reference to section 90.405, Florida Statutes (1979), which provides the methods of proving character. This statute reads: Methods of proving character.—

(1) REPUTATION. — When evidence of the character of a person or of a trait of hia character is admissible, proof may be made by testimony about his reputation.
(2) SPECIFIC INSTANCES OF CONDUCT. — When character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of his conduct.

In Florida, the method of presenting character evidence is limited to testimony of reputation. Maloy v. State, 52 Fla. 101, 41 So. 791 (1906). A defendant may place in issue his general reputation for being a peaceful and law-abiding citizen. See Cornelius v. State, 49 So.2d 332 (Fla.1950).

It is clear that nothing under section 90.405 nor in the case law of Florida authorizes the defense to introduce evidence of the absence of prior criminal convictions as a substitute for reputation testimony, even when it has been pre-determined under section 90.404 that evidence of character or a trait of character is admissible under the facts of a given case.

While no Florida case has dealt directly with the issue presented herein, other jurisdictions have held that the good character of an accused may not be proved by testimony that he has never been previously charged with or convicted of a criminal offense. See, e.g., Hendricks v. State, 281 Ala. 376, 202 So.2d 738 (1967); City of Chicago v. Lowy, 40 Ill.App.3d 950, 353 N.E.2d 208 (1976); State v. Oliver, 247 La. 729, 174 So.2d 509 (1965); Smith v. State, 414 S.W.2d 659 (Tex.Crim.App.1967).

According, the trial court was eminently correct in granting the state’s motion in limine, and the judgment and sentence are

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.


author: COBB, Judge. SHARP, Judge,

text:
    MARION COUNTY, Florida, Appellant, v. Judith A. DeBOISBLANC and R. Scott Cross, Appellees.
    No. 81-665.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 1982.
    Rehearing Denied March 15, 1982.

      Preston T. Everett, Jr., and L. Michael Milbrath, County Attys., Ocala, for Marion County, and Marc B. Cohen of Wendel & Chritton, Chartered, Lakeland, for appellant.
    Judith A. DeBoisblanc and R. Scott Cross of Matthies & Cross, P.A., Ocala, for appel-lees.
    Howard B. Eisenberg, Washington, D.C., amicus curiae.
   COBB, Judge.

John Charles Ebbecke, along with a co-defendant, was charged by indictment with first-degree murder. Although Ebbecke originally was represented by the public defender’s office, the public defender was allowed to withdraw and the appellee, Judith deBoisblanc, was appointed to represent him. Ms. deBoisblanc subsequently moved the trial court to permit appellee, R. Scott Cross, to appear as co-counsel in this representation. At trial, the defendant was found guilty of second-degree murder and was subsequently adjudicated guilty and sentenced.

The appellees then filed a verified petition for attorney’s fees attaching documentation of the work and time expended in the case and affidavits of two local attorneys containing each attorney’s professional opinion as to what a reasonable fee in this particular case would be. The appellant, Marion County, was noticed for a hearing on the petition. At the hearing, the county conceded the reasonableness of this time spent but objected to the court paying more than one attorney or paying a fee above the statutory maximum.

After the hearing, the trial court entered an order holding section 925.036, Florida Statutes (1979), unconstitutional in that it constituted an unlawful usurpation by the legislature of a constitutional power vested solely in the judiciary. The order went on to award a single sum of $15,000 as attorney’s fees to both attorneys. Marion County appeals this order.

The issue in this case is whether or not the trial court has an inherent power to award an attorney fee irrespective of any attempted limitation by the state legislature. Section 925.036, Florida Statutes, became effective October 1, 1978. The Florida Supreme Court previously has upheld the constitutionality of a statutory fee limit, which was the predecessor of the 1978 enactment. MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973). Recently, the Florida Supreme Court again has upheld the constitutionality of the fee limitation statute against an attack that it violates the equal protection and due process clauses of the Constitutions of the United States and of the State of Florida. Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981). This court, applying the MacKenzie precedent, has upheld the constitutionality of the specific statutory limitation challenged by this appeal. County of Seminole v. Waddell, 382 So.2d 357 (Fla. 5th DCA 1980).

In Waddell the trial court had not directly passed upon the validity of the statutory limitation, but had held it to be directory rather than mandatory. We reversed on authority of MacKenzie and the clear wording of the statute. See also Pinellas County v. Maas, 400 So.2d 1028 (Fla. 2d DCA 1981); Dade County v. Goldstein, 384 So.2d 183 (Fla. 3d DCA 1980). In the instant situation, the trial court, despite the precedents of MacKenzie and Waddell, purported to invalidate section 925.036 on the ground that it was “a mandatory usurpation by the legislature of constitutional power vested solely in the judiciary under Article V, Section 1 of the Florida Constitution (1968), which power is removed from the legislature by Article II, Section 3, Florida Constitution (1968).... ” This holding by the trial court is in direct conflict with Bridges and MacKenzie and, therefore, must be reversed.

We also note that it has long been the established law in this country that there is an obligation on the part of the legal profession to represent indigents upon court order without any compensation. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In that opinion the United States Supreme Court stated at page 73, 53 S.Ct. 65:

Attorneys are officers of the court, and are bound to render services when required by such an appointment.

Accordingly, we vacate the trial court’s order awarding an attorney’s fee in excess of the statutory limit of $2,500.00.

VACATED.

ORFINGER, J., concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

I concur with the majority because there was no showing made in this case that the defendant’s right to counsel was abridged in any way by the statute limiting compensation to his attorneys to an amount below a “reasonable” fee. The attack on the statute in this case was similar to that in Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981): the instant case was complex and the criminal charges were serious. Unlike Bridges, a further showing was made in this ease that the statutory fee of two thousand five hundred dollars ($2,500) was far below a “reasonable” fee for handling this case — fifteen thousand dollars ($15,000).

However, this kind of showing is not sufficient under the test suggested by a majority of the Florida Supreme Court justices in Bridges. They recognized the statute would be subject to attack on constitutional grounds if a showing were made that it was “impossible” to secure effective counsel for an indigent defendant because of the fee limit. The majority opinion concludes such a showing is impossible because of the court’s inherent power to require attorneys to represent indigents. I recognize the difficulties of making such a showing, but I conclude we should recognize its theoretical existence, and leave for another case the problems of its proof. Perhaps by then we will have more guidance from our Supreme Court as to its dictum in Bridges.

      . This history of this obligation was comprehensively outlined by the United States Court of Appeals, Ninth Circuit, in its opinion in United States v. Dillon, 346 F.2d 633 (1965):
      In England, the obligation of the lawyer to serve upon court assignment apparently developed as a matter of common law. It was not until 1695 that there was a limited statutory recognition of this obligation: a statute was passed requiring the courts to appoint counsel upon the request of a person accused of treason. 7 and 8 W.3, c.3, s.1 (1695).
      However, in Colonial America, there was, in addition to the common law, a more extensive statutory recognition of the obligation of counsel to represent indigents upon court order. ...
      Thus the obligation of counsel to serve indigents is an ancient and established tradition of the legal profession. Any yet appointed counsel have generally been compensated, if at all, only by statutory fees which would be inadequate under just compensation principles and which are usually payable only in limited types of cases.
      In view of the foregoing it is not surprising that the vast majority of courts, which have been passed on the question, have denied claims of appointed counsel for nonstatutory just compensation, pointing out that representation of indigents under court order without a fee is a traditional obligation of the bar and therefore a condition under which lawyers are licensed to practice as officers of the court. [Citations omitted.]

      Clearly, the lawyer’s traditional obligation to represent indigents upon court order has not included any common-law right to compensation. And the statutory compensation which exists in some states usually contains limitations which in most cases would prevent a lawyer from receiving what his time is worth when working for private clients — limitations which would clearly be invalid if constitutional standards of just compensation were applicable....
      A Fifth Amendment “taking” does not occur when the state simply requires an individual to fulfill a commitment he has made. Kunhardt & Co. v. United States, 266 U.S. 537, 45 S.Ct. 158, 69 L.Ed. 428. An applicant for admission to the bar may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court, obligated to represent indigents for little or no compensation upon court order. Thus the lawyer has consented to and assumed this obligation, and when he is called upon to fulfill it he cannot contend that there is a taking.

        Id. at 636-38.

      . U.S.Const. amend. VI.


text:
    James W. STRADER, Appellant, v. Frances S. OAKLEY, Appellee. Frances S. OAKLEY, Appellant, v. James W. STRADER, Appellee.
    Nos. AD-202, AF-346.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.
    Rehearing Denied March 25, 1982.

      James J. Richardson and Cynthia S. Tun-nicliff, MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for appellee Strader.
    Robert I. Scanlan, Tallahassee, for appellant Oakley.
   WENTWORTH, Judge.

This case involves consolidated appeals of the defendant and the plaintiff. The defendant Strader appeals the order of the trial court enjoining him from building duplexes in Forest Lake Estates and awarding damages to the plaintiff. The plaintiff Oakley appeals the order denying her motion for attorney’s fees. We affirm on all points.

Strader is the president and major stockholder of Recreational Development, Inc., which purchased property on Springhill Road for a residential development. The property was divided into 57 lots, the first 35 of which were sold with a deed restriction stating that “only one (1) dwelling with appurtenances or only one (1) mobile home shall be erected on each parcel or tract hereby conveyed.” In March of 1976, Mrs. Oakley purchased lot 30 in the subdivision from one who had bought it from Recreational Development. Her deed contained the “one dwelling” restriction as well. Later, Recreational deeded several lots to Strader individually. These deeds are the only ones covering lots in the development (of those conveyed for residential purposes) that do not contain the “one dwelling” restriction. One of the deeds conveys lots 27, 28, 29, and “lot 31 and parts of lot 32 and 33.... ” Subsequently, Strader built a duplex on each of lots 27, 28, and 29, and two on lot 31.

Mrs. Oakley brought suit seeking equitable relief and damages. The trial court found that the restrictive covenant prohibited the construction of duplexes. Therefore, Strader was enjoined from further construction of more than one family residences and was ordered to pay Mrs. Oakley $3,500 damages. The court denied Mrs. Oakley’s motion for attorney’s fees, finding that “the award of attorney’s fees is not appropriate in this case and that there is no provision by contract or statute to support the request for such fees in this instance.”

I

The basic issue in this case involves the definition of the term “one dwelling” as it is used in the restrictive covenant found in the deeds conveying residential tracts in Forest Lake Estates. Where the language in a covenant is unclear, the intent of the parties must be determined in light of the instrument as a whole and the surrounding circumstances. Heisler v. Marceau, 95 Fla. 135, 116 So. 447 (1928); Barrett v. Leiher, 355 So.2d 222 (Fla. 2d DCA 1978). In this case, although the record reflects some evidence to the contrary, there is ample support for the trial court’s finding that the parties intended to permit the construction of only single family residences and that accordingly the construction of duplexes is prohibited. We do not, of course, overturn an order of the trial court which is supported by competent substantial evidence.

Opinions cited by appellant define the term in question, alone or in phrases such as “dwelling house,” as it may apply in constitutional exemptions, criminal law, or zoning ordinances, but uniformly recognize that “the meaning .. . may vary with the context of its usage.” State v. Harvey, 68 So.2d 817 (Fla.1963); Smith v. State, 80 Fla. 315, 85 So. 911 (1920); Overstreet v. Tubin, 53 So.2d 913 (Fla.1951). Ambiguity is apparent from conflicting decisions on usage in restrictive covenants. Anno. 14 A.L.R.2d 1376, 1387. We resolve that ambiguity in favor of the trial court’s conclusion and contrary to the single structure meaning argued by appellant, based on the record evidence already noted and on analogy to the restriction of “one residence” construed in Mayes v. Hale, 82 Fla. 35, 89 So. 364 (1921), to prohibit multiple living units.

II

Each of the deeds to lots in Forest Lake Estates contains a clause by which the purchaser agrees to pay any costs and attorney’s fees necessary to the enforcement of any of the restrictive covenants. Based on this clause, Oakley maintains that the trial court erred in denying her motion for attorney’s fees, since the effect of the final judgment is to enforce the restrictive covenant as if it were implicitly contained in Strader’s deed. We agree with Oakley that a deed restriction is properly classified as a right arising out of contract and therefore may be subject to an agreement regarding attorney’s fees. However, an award of such fees is in derogation of common law and is allowed only when specifically provided by contract or statute. Estate of Hampton v. Fairchild-Fla. Const. Co., 341 So.2d 759 (Fla.1977); Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla.1973); Charles Stewart Agency v. Doisy, 399 So.2d 127 (Fla. 1st DCA 1981). Since the restriction enforced in this case is not among the covenants imposed by explicit contractual provisions in Strader’s deed, he did not expressly agree to pay attorney’s fees in an action to enforce it. Therefore, the trial judge did not err as a matter of law in ruling that there was no explicit contractual basis for awarding the fee.

The order is accordingly affirmed.

MILLS and THOMPSON, JJ., concur.

      . Strader also argues that he is not bound by the covenant since it is not contained in his deed or chain of title. Therefore, Strader contends, he had no constructive notice of the covenant. See Hall v. Snavely, 93 Fla. 664, 112 So. 551 (1927); Hagan v. Sabal Palms Inc., 186 So.2d 302 (Fla.App.1966). This argument is unavailing because the record clearly shows that there was a common scheme or plan to include the covenant on all residential lot sales and that Strader had actual notice of the covenant.

      . Board of Instruction v. Bay Harbor, 81 So.2d 637 (Fla.1955).


text:
    Thomas L. BARTHOLF, Appellant, v. WESTSIDE AUTOMOTIVE, INC., a Florida corporation, d/b/a Westside Automotive, Appellee.
    No. ZZ-133.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Rehearing Denied March 24, 1982.

      V. James Facciolo of Searcy & Facciolo, Jacksonville, for appellant.
    Jack W. Shaw, Jr., and S. Grier Wells of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for appellee.
   WENTWORTH, Judge.

Bartholf appeals a judgment entered on directed verdict for the appellee Westside garage, defendant below in a negligence action for injuries Bartholf suffered when his car lurched forward as he stood in front to start it. We reverse.

The controlling issue on appeal is that of alleged error in excluding testimony of Dr. Thomas Hardin offered by Bartholf. Hardin’s testimony was excluded because he was an examining physician who based his opinion of permanent disability in part on the history of the accident related to him, along with his medical examination and evaluation of Bartholf’s condition at the time of trial. Bartholf stipulated below that without the excluded testimony West-side was entitled to a directed verdict because a permanent injury was not otherwise shown as required by § 627.737, Florida Statutes.

Just before Bartholf brought his car to Westside for engine work, the ignition switch had been altered to start by contacting wires when he lost his keys on a trip. He used that ignition method briefly after learning that it would work only if the transmission was in park, and would not start the car in a drive position. His complaint against Westside was that its mechanics, while engaged in other work, altered the ignition in a different way to permit jump-starting by touching the solenoid, and they did not tell him that the new ignition method would start the car in a drive position. After Westside’s work the car was not used, was started only once, and had been towed to a service station for work on the engine mounts on the day when the accident occurred. Bartholf was injured when the car ran into him as he started the engine while standing in front of his car at the station.

Bartholf’s leg fractures were treated by a physician in the hospital emergency room. At that time a family friend, Dr. Hardin, reviewed x-rays and, at the request of Bart-holf’s father, discussed the case, with the treating physician and reassured Bartholf that he was getting good care. Before removal of his leg cast, Bartholf returned to school in Kentucky and did not see a physician for ten months except for a routine physical examination. On the day before trial he was examined by Dr. Hardin, whose opinion as to permanent injury was proffered and rejected as detailed below. The only other medical evidence was from the original treating physician who examined Bartholf on the day of trial and testified that he could not assess permanency without further diagnostic testing.

Westside’s alternative arguments in support of the summary judgment have no apparent merit. We conclude that the trial court properly rejected the contention that the act of putting the car in gear was the sole independent intervening cause of the accident regardless of any negligent modification or failure to warn. We do not treat further argument with respect to threshold requirements of § 627.737(2), Florida Statutes, which was never specifically raised below.

On the remaining ground for summary judgment, i.e. lack of any evidence of permanent injury because of exclusion of the proffer of Hardin’s opinion, Westside defends by reliance on Marshall v. Papineau, 132 So.2d 786 (Fla. 1st DCA 1961), and its progeny on the following proposition:

... the rule that the opinion of a physician ... based wholly or in part on the history of the case as told to him by [plaintiff] ... is inadmissible when the examination was made for the purpose of quaiifying the physician ... to testify as a medical witness.... 132 So.2d 787. [e.s.]

The numerous Florida cases applying this rule are reconcilable by recognizing, as Marshall indicates, that such testimony should be excluded when the plaintiff’s subjective recitals are one of the essential predicates for the examining physician’s opinion and his conclusions are therefore conditioned on the truth of hearsay matters not otherwise known to him or properly stated as a hypothetical. This follows from the rationale for the exclusion stated in Marshall, i.e. the distinction between statements to a treating physician, presumed to be truthful, and those made to a physician for purposes of litigation, more likely to be merely self-serving. However, none of the later opinions have repudiated the Supreme Court’s decision in Howland, note 2 supra, finding that two examining physicians’ testimony was not “based for the most part on self-serving declarations made by plaintiff . . . at the examination,’’ and approving admission of such testimony when “based on the findings ... in their actual examinations.” The Court noted “[i]t is elementary that almost any examination made by a physician relative to internal disorders ... resulting from previous injuries must be based in part on the case history of the patient.” This position, that the exclusion applies to opinions which are necessarily based in material or substantial part on plaintiff’s self-serving declarations, appears to be fully consistent with current evidence code revisions and case law in other jurisdictions.

The witness in this case stated unequivocally that without any reference to plaintiff’s history “my answer would be about the. same.” For that reason and the further fact that at the time of the proffered alternative hypothetical there had been submitted ample independent evidence of the circumstances of injury (as to which appel-lee presents no argument on appeal), we conclude the objection should not have been sustained with respect to testimony based on the history and personal examination, review of x-rays and consultation with the treating physician at the time of injury, and description of objective data denoting scope of injury. This assumes the proper classification of the witness as an examining physician under the Marshall doctrine, although all of his contacts with plaintiff were plainly not solely for the purpose of qualifying him to testify.

The summary judgment is accordingly reversed and the cause remanded for further proceedings consistent herewith.

ERVIN and JOANOS, JJ., concur.

      . Gatlin v. Argonaut Ins. Co., 360 So.2d 459 (Fla. 1st DCA 1978), reh. denied; Bondy v. West, 219 So.2d 117 (Fla.2d DCA 1969), disapproved on other grounds, Hall v. Haldane, 243 So.2d 571 (Fla.1971); Troj v. Smith, 199 So.2d 285 (Fla.2d DCA 1967), reh. denied.

        . Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472, 475 (1940); Marine Exploration Co. v. McCoy, 308 So.2d 43 (Fla.3d DCA 1975); Wilkinson v. Grover, 181 So.2d 591, 593 (Fla.3d DCA 1966); Raydel, Ltd. v. Medcalfe, 162 So.2d 910, 915 (Fla.3d DCA 1964).

      . § 90.704, Florida Statutes (1979).

      . 51 A.L.R.2d 1051-1082, later case service, p. 293-297.

      . Texas Employers’ Ins. Asso. v. Hall, 295 S.W.2d 478 (Tex.Civ.App.1956).

      . Santos Wrestling Enterprises, Inc. v. Perez, 367 So.2d 685 (Fla.3d DCA 1979), citing Great American Ins. Co. v. Cornwell, 191 So.2d 435 (Fla. 1st DCA 1966).

      . See also Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981), relating to constitutional aspects of the statute here involved, now subject to Supreme Court review.


author: JOANOS, Judge.

text:
    The STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellant, v. Derrick EDWARDS, Appellee.
    No. AG-184.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Algia R. Cooper, of Knowles, Randolph & Cooper, Tallahassee, for appellant.
    Barry Richard, of Roberts, Miller, Bag-gett, LaFace, Richard & Wiser, Tallahassee, for appellee.
   JOANOS, Judge.

The issue presented in this appeal is whether the trial court erred in transferring venue of a negligence action against the Department of Corrections, an agency of the state, from the Second Judicial Circuit, which includes the county of the agency’s official residence, to the Twentieth Judicial Circuit, over the objection of the state agency. We find that it was error and reverse.

The motion for change of venue was filed pursuant to Section 47.122, Florida Statutes (1977), which allows changes of venue for the convenience of parties or witnesses or in the interest of justice. The record reveals that the incident at issue occurred in Collier County (which is in the Twentieth Judicial Circuit), treatment of the plaintiff took place in Collier County, all of the personnel of the Department of Corrections who were involved in the incident are located in Collier County, and all other witnesses are located in Collier County with the exception of one treating physician who is from Dade County.

While we may agree with the trial court that the public policy considerations favor the transfer of venue, we are constrained by the Supreme Court’s decision in Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978), to conclude that venue must lie in Leon County since the state did not waive its common law privilege to be sued in the county where the state agency maintains its headquarters. In Carlile the Court specifically asserted that although there are exceptions to the common law venue privilege, a cause of action sounding in negligence is not one of them.

REVERSED and REMANDED for further proceedings consistent with this opinion.

BOOTH and SHIVERS, JJ., concur.

      . Chapter 81-317, Laws of Florida, amends Section 768.28, Florida Statutes, to provide that an action in tort may be brought in the county where the cause of action accrued “if the affected agency or subdivision has an office in such county for the transaction of its customary business.” Even if this amendment were otherwise applicable, which we do not decide here, it would not be applicable to this cause of action because it was made explicitly effective only as to causes of action accruing on or after October 1, 1981.


author: PER CURIAM.

text:
    Michael Joseph OATES, Appellant, v. STATE of Florida, Appellee.
    No. AG-237.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Rehearing Denied March 29, 1982.
    Wm. J. Sheppard and Hugh A. Carithers, Jr. of Sheppard & Carithers, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Harry M. Hipler, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We reverse and remand this cause solely for resentencing because the trial court imposed an illegal split sentence. See Segal v. Wainwright, 304 So.2d 446 (Fla.1974); Rozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980). The judgment is otherwise affirmed.

McCORD, ERVIN and SHAW, JJ., concur.


text:
    Robert H. WRAY, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. AG-465.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Thomas L. Powell of Douglass, Davey & Cooper, Tallahassee, for appellant.

      Joseph W. Lawrence, II, Tallahassee, for appellee.
   JOANOS, Judge.

We affirm the order of the trial court insofar as it held Chapters 120, 455, and 458, Florida Statutes, to be facially constitutional and denied the Motion for Injunction and the Petition for Writ of Prohibition.

We must, however, disagree with the trial court’s determination that the petitioner has waived the privilege afforded by Section 90.503, Florida Statutes (1979). First of all, the privilege at issue, the psychotherapist-patient privilege, inures to the patient, not the psychotherapist, and can be waived only by the patient or someone acting on the patient’s behalf. Section 90.-503(2) and (3), Florida Statutes (1979). Secondly, we agree with the contention of the Department of Professional Regulation that the issue of waiver of the privilege was not ripe in the proceedings before the Circuit Court. There are factual determinations yet to be made before questions as to the applicability of the psychotherapist-patient privilege and as to waiver can be resolved.

Accordingly, the provision in the order finding that petitioner has waived the privilege afforded by Section 90.503, Florida Statutes, is stricken. The order, as amended, is AFFIRMED.

BOOTH and SHIVERS, JJ., concur.