text:
    Leo Bernard GEARY and Jackson Marine Sales, Inc., Appellants, v. Ray STARR and Beverly Starr, his wife, Appellees.
    No. 81-159.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 1982.
    Rehearing Denied Sept. 22, 1982.

      Thomas D. Lardin of Weaver & Weaver, P.A., Fort Lauderdale, for appellants.
    H. Hugh McConnell of Lipton, Platt & McConnell, P.A., Miami, and Henry H. Wallace, Pittsburgh, Pa., for appellees.
   HURLEY, Judge.

This appeal involves an employer’s vicarious liability for punitive damages under the doctrine of respondeat superior. We are compelled to reverse part of the final judgment because the trial court permitted the jury to award punitive damages against the employer without the necessity of finding some employer fault.

This is an intentional tort case arising out of an altercation over the right to possess a small yacht. The plaintiffs, Ray and Beverly Starr, went to Jackson Marine Sales, Inc. (“Jackson Marine”) to retrieve their boat. While there, they were accosted by Leo Geary, an employee of Jackson Marine. Among other things, Geary held Mr. Starr at gunpoint. Later, Geary testified that he was merely doing his job. Other evidence suggested that he was acting with the approval or pursuant to orders of his employers.

The Starrs filed suit against Geary and Jackson Marine for assault, battery, false imprisonment, and intentional infliction of emotional distress. In addition, the Starrs alleged negligent hiring by Jackson Marine. They later dropped the negligent hiring count and amended their complaint to include other allegations of fault by Jackson Marine in its capacity as Geary’s employer. At oral argument, Jackson Marine conceded that the allegations of the complaint were sufficient to raise the issue of employer fault.

The case was tried before a jury which returned a verdict for the plaintiffs on each count; the verdict awarded compensatory and punitive damages against both Geary and Jackson Marine. The trial court entered a judgment in accordance with the verdict and this appeal ensued.

Jackson Marine maintains that the trial court erred by allowing the jury to award punitive damages based solely on the doctrine of respondeat superior without a finding of some fault by the employer. We agree; the jury instructions on this point were fatally defective. The Florida Supreme Court recently clarified the principles of law to be applied in respondeat superior eases as follows:

(1) An employer is vicariously liable for compensatory damages resulting from the negligent acts of employees committed within the scope of their employment even if the employer is without fault. This is based upon the long-recognized public policy that victims injured by the negligence of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. (2) Punitive damages, however, go beyond the actual damages suffered by an injured party and are imposed only as a punishment of the defendant and as a deterrent to others. (3) Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part. (4) Although the misconduct of the employee, upon which the vicarious liability of the employer for punitive damages is based, must be willful and wanton, it is not necessary that the fault of the employer, independent of his employee’s conduct, also be willful and wanton. It is sufficient that the plaintiff allege and prove some fault on the part of the employer which foreseeably contributed to the plaintiff’s injury to make him vicariously liable for punitive damages.

Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 549 (Fla. 1981); see also Life Insurance Co. of North America v. Del Aguila, 417 So.2d 651 (Fla.1982).

In the present case, and over Jackson Marine’s objections, the jury was allowed to assess punitive damages against the employer without finding employer fault. The plaintiffs contend that the trial court acted properly and attempt to distinguish Mercury Motors on the ground that this case concerns intentional torts rather than negligence. After carefully considering Mercury Motors, we conclude that the principles enunciated there were intended to apply in both intentional tort and negligence cases insofar as vicarious punitive damages are concerned. Accordingly, we conclude that the trial court erred.

Anticipating our agreement on the first point, Jackson Marine further argues that the cause should be reversed and remanded to the trial court with instructions to enter a verdict in favor of Jackson Marine on the issue of its vicarious liability for punitive damages. The argument is premised on two theories: (a) the plaintiffs failed to introduce any evidence of employer fault, and (b) the trial court made an explicit finding to this effect. We do not agree.

Taking the arguments in converse order, we consider the contention that the trial court made a finding of no employer fault. This is based on statements made by the trial court when it refused to give a proposed plaintiffs’ jury instruction. The proposed instruction stated: '

If you find for Plaintiffs and find also that either Defendant you found to be liable to Plaintiffs acted with malice, moral turpitude, wantonness, or reckless indifference to the rights of others, you may, in your discretion, assess punitive damages against such Defendants as punishment and as a deterrent to others .... [emphasis added].

The court modified the instruction by deleting the emphasized portion and substituting the name Leo Geary. In making this change, the court said, “there is no evidence which would support a verdict for punitive damages against Defendant, Jackson Marine Sales by reason of any acts other than the acts of the employees, which makes the [requested] charge a little bit confusing.”

We interpret this statement as a finding that there was no evidence to support a punitive damage award against Jackson Marine except on a vicarious liability theory. We do not interpret the court’s statement as a finding that there was insufficient evidence of employer fault to justify vicarious liability for punitive damages. The proposed instruction spoke of “malice, moral turpitude, wantonness or reckless indifference,” not of “some fault” by Jackson Marine. We believe the trial court could have properly rejected the instruction without deciding whether the plaintiffs had introduced sufficient evidence of “some fault” on the employer’s part.

As for the argument that plaintiffs failed to introduce any evidence of employer fault and that the trial court erred by not granting a directed verdict in favor of Jackson Marine, we have scrutinized the record and find that although the evidence of employer fault is somewhat sparse, it is sufficient to withstand a motion for directed verdict and, thus, to create a jury question. See McDaniel v. Great Atlantic & Pacific Tea Co., 327 So.2d 893 (Fla. 3d DCA 1976).

We have reviewed appellants’ other points on appeal and conclude they are without merit.

To summarize, we hold that the jury instructions were fatally defective because they omitted the requirement that there be proof of some fault on the part of the employer before it could be held vicariously liable in punitive damages for the tort of an employee. Consequently, we reverse and remand for a new trial on the question of Jackson Marine’s liability for punitive damages and the proper amount, if any, of such damages. In all other regards, we affirm.

REVERSED IN PART; AFFIRMED IN PART.

DOWNEY and BERANEK, JJ., concur.

      . We note that the Florida law governing vicarious liability was unsettled when this case went to trial and that the trial court’s actions were supported by some case law.

      . As ultimately given, the instruction provided:
      If you find Leo Geary to be liable to the Plaintiffs and that he acted with moral turpitude, wantonness or reckless indifference to the rights of others, you may, in your discretion, assess punitive damages against such Defendant as punishment and as a deterrent to others.

      . Our interpretation of the trial court’s ruling makes it unnecessary to address Jackson Marine’s argument that the plaintiffs cannot attack the trial court’s ruling because they did not file a cross-appeal.


source: Caselaw Access Project

author: MILLS, Judge. MILLS, Judge. MILLS, Judge.

license: Public Domain

text:
    Kenneth SINGLETARY, Appellant, v. MANGHAM CONSTRUCTION COMPANY, INC. and Aetna Life & Casualty Company, Appellee.
    No. AI-78.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1982.
    Rehearing Denied Sept. 9, 1982.

      Thomas E. Stone, Madison, for appellant.
    James N. McConnaughhay of McCon-naughhay & Roland, P.A., Tallahassee, for appellee.
   MILLS, Judge.

Singletary appeals the deputy commissioner’s denial of temporary total disability benefits for aggravation of a prior work-related injury. We reverse.

The issue here is whether Singletary’s act of stepping 16 to 18 inches off of a van was sufficient to break the chain of causation from a prior work-related injury.

Singletary was employed by Mangham Construction Company on 23 January 1980 when he was injured on the job. The com-pensability of this accident was not contested by the employer/carrier. Singletary reached MMI on 1 October 1980, with a rating of 12 percent permanent disability to the body as a whole.

In January of 1981, Singletary stepped out of a van to the ground, a distance of some 16 to 18 inches, and experienced a pain shooting up his leg. He injured the same part of his back that had been injured in the 1980 accident.

The deputy commissioner denied compensation for this subsequent injury on the basis that it was the result of an “identifiable trauma” instead of “normal activities.”

The test for compensability for a subsequent injury is whether that injury is the direct and natural result of a compensa-ble primary injury. If the subsequent injury is attributable to claimant’s own negligence or fault, the chain of causation is broken. Sosenko v. American Automotive Corp., 156 So.2d 489 (Fla.1963). In this case, Singletary was not engaged in negligent conduct as was the claimant in Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12 (Fla.1960). Singletary’s activities here were as normal as those of claimant in Manatee Memorial Hospital v. Heiden, 389 So.2d 347 (Fla. 1st DCA 1980), and, therefore, compensable.

Employer/carrier insist on referring to Singletary’s “jumping” from the van. There is absolutely no evidence in the record to support such a finding, and the deputy commissioner did not so find in his order.

The deputy commissioner’s test for compensability seems to turn on whether some specific, traumatic event has occurred. This is incorrect. In order to break the chain of causation, there must be some intervening negligent or unusual conduct on the part of claimant or some third party. See D’Angelo Plastering Company v. Isaac, 393 So.2d 1066 (Fla.1980), where the intervening negligence of a third-party tort-feasor was held to have broken the causal chain. There was no such negligent or unusual conduct here.

We reverse the order of the deputy commissioner and remand the cause with instructions that Singletary be awarded temporary total disability benefits for the contested period.

BOOTH and THOMPSON, JJ., concur.

ON MOTION FOR REHEARING DENIED BUT CLARIFIED

MILLS, Judge.

Appellees’ motion for rehearing is denied.

Appellees’ motion for clarification is granted and the last paragraph of the Court’s opinion dated 18 August 1982 is amended to read as follows:

We reverse the order of the deputy commissioner and remand the cause with instructions that the deputy hold further evi-dentiary hearings to determine the period and amount of temporary benefits due claimant for the period subsequent to 27 January 1981, if any.

BOOTH and THOMPSON, JJ., concur.

MILLS, Judge.

Speaking for myself and not for the other Judges on this panel or the Court, I feel compelled to address a critical problem that exists in the appellate consideration of workers’ compensation cases.

Adhering to precedent is dead in workers’ compensation cases. Can it be resurrected? It can. How?

This court must stop complaining about the large number of workers compensation appeals. It is obligated to come up with a solution that does not violate the right of employers, insurance carriers and employees to appeal adverse decisions of deputy commissioners. It is obligated to come up with a solution that does not coerce settlements by employers and insurance carriers by assessing large attorneys fees against them if they fail to settle and lose on appeal.

Increasing the number of judges, increasing the number of law clerks, increasing the number of support personnel, increasing the court’s appropriation, are not the answers to the problem. Realigning the territory of the First District Court of Appeal, dividing the workers’ compensation jurisdiction between the five district courts, creating a specialized administrative court, will not solve the problem.

It is the writer’s opinion that the solution is simple. The court should create a permanent panel of three judges which will handle all of the pending workers’ compensation appeals and all of those to be filed with the court. This panel would exist for one year. It would have absolute authority to finally decide all workers’ compensation appeals, recede from prior decisions and resolve existing conflicts in the law. Its purpose would be to stabilize the workers’ compensation law in Florida and to assure that the constitutional and statutory rights of employers, insurance carriers and employees are equally protected and preserved.

The suggested solution will not only stabilize the law in workers’ compensation cases, but it will free nine judges to devote their entire energies to the disposition of criminal, civil, and administrative agency cases.

Although I do not approve of specialized panels, in this instance it is warranted; in fact, it is necessary. Not only will it be a stabilizing force, but the great amount of time it will save the judges in preparing for and attending the rapidly increasing en banc proceedings in workers’ compensation appeals alone will make the suggested solution worthwhile.

Workers’ compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of businesses, and the pocketbooks of consumers are affected daily by it.

Is the suggestion worth a try? We can do no less. And it will not cost the taxpayers of Florida one cent.

The workers’ compensation litigants, their attorneys, and deputy commissioners are entitled to rely on the law established by this Court. This Court should not change the law from day to day or from panel to panel. This Court should not be required to spend hours and hours resolving real, imaginary, or fanciful intracourt workers’ compensation conflicts. This Court can and should resolve the appellate workers’ compensation problem today.


author: CAMPBELL, Judge.

text:
    TAMPA WHOLESALE COMPANY, a Florida corporation, Americo M. Greco, a/k/a Mac Greco, Sr., Frank V. Giunta, Grace Giunta, Mac A. Greco, Jr., Larry Dickson, Wilbur Hall, First National Bank of Florida, Annie B. Greco, Nancy G. Dickson, Rena Janet Hall, Josephine Greco, Susan Edlan Giunta, Karen Elizabeth Giunta, Edward Franklin Giunta, Edward F. Giunta, II, and Eugene S. Greco, Appellants, v. John GRECO, Linda Jo Greco, Mary Josephine Castro, Jo Ann Greco, and Cynthia Marie Greco, as stockholders of Tampa Wholesale Company, and for and on behalf of Tampa Wholesale Company, a Florida corporation, Appellees.
    No. 82-239.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1982.
    Rehearing Denied Sept. 10, 1982.
    Donald A. Maney of Maney & Damsker, Tampa, for appellants.
    Paul Antinori, Jr. of Antinori & Thury, P. A., Michael L. Kinney, and Frank Ragano, Tampa, for appellees.
   CAMPBELL, Judge.

This appeal was taken by appellants following the entry of an amended nonfinal order granting appellees’ motion to receive dividends without waiving their rights in a separate dissenters’ suit. The dissenters’ suit grew out of the dissent by appellees, shareholders in Tampa Wholesale Company, to an agreement wherein Lucky Stores, Inc. had agreed to acquire substantially all of the assets of Tampa Wholesale. Appellees’ dissent had been rejected by Tampa Wholesale as not in compliance with section 607.-247, Florida Statutes. Appellees filed their action to support their position as dissenting stockholders, and the trial court subsequently entered summary judgment for Tampa Wholesale sustaining its rejection of the dissent. That summary judgment was appealed to this court.

Subsequent to filing the notice of appeal in this case, this court reached a decision on appellees’ appeal from the summary judgment for Tampa Wholesale in the dissenters’ action. Greco v. Tampa Wholesale Co., 417 So.2d 994, No. 80-1288 (Fla. 2d DCA Mar. 31, 1982). The decision in Greco is dispositive of the issues in the immediate appeal. That decision held that summary judgment terminating the Grecos’ rights as dissenting shareholders was in error. Since the appellees’ right to dissent from the exchange agreement was thereby upheld, they are now entitled to receive the fair market value of their stock as of the day prior to the date on which the vote was effected approving the proposed sale of assets of the corporation, pursuant to section 607.247, Florida Statutes. Since that date predated the dividend date, appellees are not entitled to receive dividends on their dissenting shares. The dividend checks which they received pursuant to the order appealed from must be returned to Tampa Wholesale.

We reverse the order of the trial court and remand this case for further proceedings consistent with this opinion and with Greco v. Tampa Wholesale Company.

REVERSED and REMANDED.

GRIMES, A. C. J., and SCHOONOVER, J., concur.


author: MILLS, Judge. BOOTH, Judge,

text:
    NATIONAL ADVERTISING COMPANY, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. AI-101.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    Rehearing Denied Sept. 14, 1982.
    Gerald S. Livingston of Livingston & Laubach, P.A., Orlando, for appellant.
    Margaret-Ray Kemper, Tallahassee, for appellee.
   MILLS, Judge.

National Advertising Company appeals a final order of Department of Transportation (DOT) ordering removal of its signs with no compensation.

National Advertising Company contends that DOT had the burden of proving not only that there was a violation of Section 479.11(1), Florida Statutes (1981), but also that the advertising structures did not fall within the exception provided in Section 479.111(2), Florida Statutes (1981), and that since the support poles for the signs were set in concrete prior to 8 December 1971, the signs were lawfully in existence on that date, thus compensation is due. We agree that DOT had the burden of proving a violation of Section 479.11(1), disagree with the other contentions, and affirm.

National Advertising, the owner of two outdoor signs located in Duval County, was cited by DOT for violation of Section 479.-11(1). The parties stipulated that both signs were within 660 feet of the right-of-way of 1-95. However, National Advertising contends that these signs fell within the statutory exception of Section 479.111(2).

The parties further stipulated that at least the poles for the two structures were erected prior to 8 December 1971. There was uncontradicted testimony that there were no advertising faces on the poles until on or about 26 April 1972.

On 6 November 1981, DOT entered its final order directing that the signs be removed without compensation.

This court held in Henderson Sign Service v. DOT, 390 So.2d 159 (Fla. 1st DCA 1980), that the burden of proving entitlement to any of the exceptions of Chapter 479 is upon the one claiming the exception. Therefore, National Advertising had the burden of proving it fell within the exception of Section 479.111(2). This it failed to do.

In LaPointe Outdoor Advertising v. Florida DOT, 398 So.2d 1370 (Fla. 1981), the Florida Supreme Court ruled that no compensation need be made for removal of signs that were not lawfully in existence on 8 December 1971. In view of the definition in Section 479.01(1), bare poles do not constitute a “sign” within the meaning of Section 479.24(1). National Advertising’s emphasis on the word “intended” in Section 479.01(1) is misplaced. This word clearly refers to a present intent to advertise or to inform the public, not to an intent to build a sign sometime in the future. Therefore, since National Advertising’s signs were not lawfully in existence on 8 December 1971, no compensation is due.

AFFIRMED.

THOMPSON, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I respectfully dissent and would reinstate the recommended order of the hearing officer requiring that compensation be paid for the taking of private property in this case. Florida Statutes, Section 479.24, is susceptible of a construction that compensation be paid for signs begun prior to, but not completed until after, December 8, 1971. That construction should prevail in accordance with the basic principle of statutory construction that, where more than one interpretation of a statutory enactment is possible, the court avoid the interpretation which may render the enactment unconstitutional.


author: ERVIN, Judge.

text:
    Alfred TERRINONI (deceased) by Ann Terrinoni, Appellants, v. WESTWARD HO! and Kent Insurance Company, Appellees.
    No. AG-228.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.
    Rehearing Denied Sept. 20, 1982.

      Stephen Marc Slepin of Slepin, Slepin, Lambert & Waas, Tallahassee, for appellants.
    Kathleen V. McCarthy, Hialeah, for ap-pellees.
   ERVIN, Judge.

In this workers’ compensation case, the mother of a deceased employee appeals the order of the deputy commissioner finding that her dependency under the Workers’ Compensation Act has ended, and that, as a matter of law, she was not entitled to dependency benefits under Section 440.-16(l)(b)4, Florida Statutes (1979). We affirm.

In its cross-appeal, the employer, Westward Ho!, and its carrier appeal the deputy’s finding that at the time of decedent’s death he was an employee of Westward Ho! The employer/carrier argues that decedent was an independent contractor not covered by the Act. We affirm the deputy’s order as to decedent’s employee status without opinion.

The deceased was a police sergeant for the City of Coral Gables. He was killed on October 11, 1980, in an armed robbery while picking up the receipts in his off-duty job with Westward Ho! restaurant. Appellant is the 63-year-old divorced mother of decedent. The deputy found that appellant was dependent on the deceased at the time of his death, and appellees do not argue otherwise. Such finding is supported by competent, substantial evidence. The record shows the decedent gave his mother $125 in cash each month, helped pay off the mortgage on her house, and helped with her household purchases and expenses. Appellant’s former husband is under court order to pay alimony, but she does not receive payments. Although appellant worked at a clothing store and began receiving Social Security benefits in April, 1980, the deputy found that she was unable to support herself.

The deputy’s finding that appellant’s dependency ended is based on the fact that by December 31, 1980, she had received all benefits due her as her son’s sole heir and beneficiary. She received a total of approximately $155,000 from a combination of sources. As to that issue, the deputy concluded: “In order to give any meaning to § 440.16(2)(d), Florida Statutes [The statute is in fact Section 440.16(1)(b)4, Florida Statutes (1979).] ..., it is clear that it is contemplated that the dependency of a parent under the Workers’ Compensation Act can end.” Section 440.16(1)(b)4 states:

440.16 Compensation for death.—
(1) If death results from the accident within 1 year thereafter . . ., the employer shall pay:
(b) Compensation ... in the following percentages of the average weekly wages to the following persons entitled thereto on account of dependency upon the deceased, . . .:
* * * * * *
4. To the parents, 25 percent to each, such compensation to be paid during the continuance of dependency.

The deputy ordered the e/c to pay death benefits from the date of accident through December 31, 1980.

Appellant argues that dependency status is fixed on the date of the employee’s death; that she qualified for benefits by virtue of her dependency on the employee and his compensable death, and that the policy of workers’ compensation is to preclude continuous litigation. Thus, she continues, benefits cannot be terminated, for if a post-mortem event can terminate dependency and one’s workers’ compensation rights, then another event can reinstate dependency, consequently she concludes that the legislature did not intend to allow this open-ended condition leading to perpetual litigation and unmanageable administration.

Appellant supports this argument with a passage from Professor Larson:

Once rights as a dependent under an award have been acquired, the majority— but by no means unanimous — view is that they are not lost by a subsequent change in the dependent’s financial position, nor by any change short of the events, such as remarriage or attainment of a specified age, expressly terminating compensation by statute. Getting a self-supporting job, for example, or an inheritance from the deceased or others, or being adopted, or contracting a marriage later annulled, or living with and being supported by a man without benefit of marriage, will not interrupt the right to benefits as a dependent. While this may produce occasional results inconsistent with the spirit and purpose of compensation protection, the administrative convenience of crystallizing of rights as of some definite date once and for all probably counterbalances this objection.

2 Larson, The Law of Workmen's Compensation § 64.43 at 11-209 (1981).

However, this section is susceptible to another interpretation, especially when bolstered by the plain meaning of the statute. According to Larson, rights as a dependent can be lost by an event expressly terminating compensation by statute. Section 440.-16(2) expressly states that the dependence of a spouse of a deceased employee shall terminate with remarriage; the dependence of a child shall terminate with the attainment of eighteen years of age, twenty-two years of age if a full-time student, or upon marriage. Dependency is deemed not to continue past these events. The legislative intent is clearly to allow for termination of dependency.

There is no statutory language limiting termination of a parent’s dependency to the happening of a specific event. Perhaps the legislative intent was to allow for flexibility in the individual situations concerning parents.

We consider that the provisions of Section 440.16 should be read in pari mate-ria to achieve the statutory purpose to protect workers’ dependents against hardships that arise from workers’ deaths arising out of employment and occurring during employment, and to prevent those who depend on workers’ wages from becoming charges on the community. See, McCoy v. F.P. & L., 87 So.2d 809 (Fla. 1956). Here, a termination of benefits would not thwart such purpose.

Statutory language is not to be assumed superfluous; a statute must be construed so as to give meaning to all words and phrases contained within that statute. Vocelle v. Knight Brothers Paper Co., 118 So.2d 664 (Fla. 1st DCA 1960). Meaning must be given to the legislature’s clear and unambiguous words “[S]uch compensation to be paid during the continuance of dependency.” “Continuance” is the time during which something exists or lasts; duration. The American Heritage Dictionary 288 (1979). “Dependency,” for purposes of workers’ compensation, is a question of fact to be determined by the circumstances of the case. Thus, it must be shown that the claimant, because of physical or mental incapacity, or lack of means, is dependent on the deceased for support; that actual and substantial support must have been received by claimant from deceased, and that such support must be shown to have been made regularly with reasonable expectation to be made in the future, and that casual gifts at irregular intervals will not support a claim based on dependency. Panama City Stevedoring Co. v. Padgett, 149 Fla. 687, 6 So.2d 822, 823 (1942). The test is whether the claimant relies on the contributions to maintain his or her customary standard of living and, whether in the absence of continuance of support, the lifestyle of the claimant would be materially altered. See, Paul Spellman, Inc. v. Spellman, 103 So.2d 661, 664 (Fla. 2nd DCA 1958); Larson & Sons Developing, Inc. v. Ashley, IRC Order 2-3051 (1976).

Claimant is not dependent upon the workers’ compensation death benefits to maintain her customary standard of living. The evidence, including claimant’s testimony, shows that her standard of living is no less than it was while her son was alive.

The plain meaning of the language and the facts frustrate claimant’s contention that “there is no warrant in law” for holding that dependency at death does not fix entitlement to benefits where the dependent receives an inheritance as a result of the death, as well her argument that once a parent’s dependency is established at any point in time, it continues regardless of changed circumstances.

The section in the Act concerning the dependency of parents has remained essentially unchanged since 1935. The phrase at issue appears to have been interpreted only once in Palm Beach Dairy Co. v. Ryan, 154 Fla. 648, 18 So.2d 537 (1944). There the deceased employee had lived with his mother who was dependent on him for support. The employee had been earning $17.50 per week at the time of his death. The insurance carrier had paid compensation to the deceased’s mother for 47 weeks at the rate of $6.25 per week. The carrier stopped payment because some half-brothers had entered into a contract to pay the mother $15.00 per week for a limited period. The court stated:

The question presented is whether such payments had the effect of relieving the mother of dependency as contemplated by Section 440.16, . . . and thereby destroy her claim for compensation.
We think this question requires a negative answer. Who are dependents under the Workmen’s Compensation Act is relative and may be influenced by many factors, but it is not limited to such as have a bare subsistence living or purchance a limited income from other sources. Somewhere along the road from rags to affluence, the right to workman’s compensation would no doubt be surrendered but we hold this point to be above the bare subsistence level.

Id., 18 So.2d at 537. (emphasis supplied) In Ryan, benefits were paid to maintain the mother’s customary standard of living. Here, unlike Ryan, the parent, after receiving approximately $155,000.00, if not affluent, could hardly be considered at “the bare subsistence level.” We believe that Ryan implies that there can be a dependency cutoff point.

Further support for our position is found in Edelbiut, Inc. v. Ford, IRC Order 2-2489 (1974), in which a finding of dependency of the deceased employee’s mother and minor siblings was affirmed, but which held also that once the mother secured employment, dependency terminated and payments should have been halted. Although the mother secured employment more than a year before the judge’s order was entered, the judge found the dependency to be continuing and ordered the e/c to pay compensation. On appeal the Commission stated that the act “provides for death benefits to be paid to the parents of a deceased employee from the date of death to such time as dependency has terminated.” With the advent of the deceased employee’s mother securing employment, her status as a dependent terminated, and payments should have also terminated. The Commission reversed the judge’s order with instructions to award death benefits only from the date of death to the date of employment.

We believe the above considerations outweigh any need for administrative convenience requiring crystallizing claims as of a definite date. At this point we need only observe that the Act, by its nature, allows for modification of orders in other situations.

Accordingly, the order of the deputy is AFFIRMED.

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

      . The deputy found that decedent’s death did not arise out of and in the course of his employment with the City of Coral Gables. This finding was not appealed and the city’s motion to be dismissed as a party has been granted by unpublished order of this court.

      . When this section appeared in Florida’s first Workmen’s Compensation Act, it read as follows:
      To the parents, 25 per centum to each. Such compensation shall be paid during the continuance of dependency. S. 16(c)(5) Ch. 17481, Laws of Fla. (1935).


author:
PER CURIAM.
      JO ANOS, Judge, dissenting.

text:
    Clarence Edward STINSON, Appellant, v. STATE of Florida, Appellee.
    No. AI-109.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.
    Rehearing Denied Oct. 1, 1982.
    Clarence Edward Stinson, in pro. per., for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

The judgment below is affirmed. Knight v. State, 394 So.2d 997 (Fla.1981).

BOOTH and SHIVERS, JJ., concur.

JOANOS, J., dissents with written opinion.

JO ANOS, Judge, dissenting.

The trial court entered a summary denial of Stinson’s motion to vacate, set aside or correct sentence on the basis that it was legally insufficient.

The allegations of the motion and the memorandum of law which was incorporated by reference concerning ineffective assistance of counsel did not contain mere conclusory allegations, which is often the case, but set forth in some detail acts or omissions which Stinson contended constituted ineffective assistance of counsel.

Stinson was convicted of trafficking in stolen property. His motion was filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. He specified the following alleged ineffective acts of counsel: failure to object to hearsay testimony offered by a police officer, failure to object to a question asked of the officer which was aimed at eliciting illegal comment on the defendant’s right to remain silent, failure to argue more than a generalized motion for judgment of acquittal at the close of the state’s case and thereby failing to preserve the issue for appeal, failure to make a motion for judgment of acquittal at the close of all the evidence and thereby failing to preserve the issue for appeal, failure to move for a mistrial when the arresting officer testified over objection as to items found in appellant’s automobile which were not the subject of the charge at issue in the case, and the failure to inquire into the criminal record or criminal charges pending against the state’s chief witness. Regarding the alleged comment on silence, Stinson asserted that the specific question put to the arresting officer was, “Well, did he ever say that he refused to talk to you?”, the answer being, “Well, not at that time, no.” Stinson urged that these acts constituted “a measurable deficiency below that of normal competent counsel” and when considered under the circumstances of the case caused substantial prejudice and affected the outcome.

Taking all of the specified acts together, I believe that appellant has set forth a sufficient showing as to his allegations of ineffective assistance of counsel to require the trial judge to consider the matter further. Under Rule 3.850, the matter should be remanded for the trial judge either to attach portions of the record which refute the allegations or conduct a hearing under the Rule to determine the merits of the motion. See Meeks v. State, 382 So.2d 673 (Fla.1980).


text:
    SCA SERVICES OF FLORIDA, INC., Appellant, v. CITY OF TALLAHASSEE, a municipal corporation, Appellee.
    No. AI-123.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.

      Donald M. Hinkle of Green & Fonvielle, P.A., Tallahassee, for appellant.
    Bryan Henry, City Atty., and Patrick E. Hurley, Asst. City Atty. and John D. Buchanan, Jr., of Henry, Buchanan, Mick & English, Tallahassee, for appellee.
   ERVIN, Judge.

After the Florida Attorney General refused appellant SCA Services of Florida’s request to bring an action in quo warranto challenging various municipal annexations, the appellant brought this action seeking invalidation of the annexation ordinances. The lower court dismissed the appellant’s petition for writ of quo warranto with prejudice, relying on this court’s opinion in a challenge to a different annexation attempt in SCA Services of Florida, Inc. v. City of Tallahassee, 393 So.2d 35 (Fla. 1st DCA 1981), rev. denied, 402 So.2d 612 (Fla. 1981). We affirm the lower court’s determination but for a different reason.

Annexation is a power reposing exclusively in the legislature. The vehicle utilized by the legislature to accomplish a municipal annexation is by special act. However, the legislature has determined to share the power to annex with municipal corporations by enacting Chapter 171, Florida Statutes, the “Municipal Annexation or Contraction Act.” North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So.2d 461, 464 (Fla. 1979), appeal dismissed, 444 U.S. 1062, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). That act provides that annexation by a municipality is accomplished by passage of a municipal ordinance utilizing the procedures set forth in Chapter 171.

Because the challenged annexations at bar were accomplished by several ordinances, any assault upon those ordinances focuses upon Chapter 171. By its own terms, “The purposes of this act [Chapter 171] are to set forth procedures for adjusting the boundaries of municipalities ... and to set forth criteria for determining when annexations . . . may take place . . . . ” § 171.021, Fla. Stat. (Supp. 1974). Reading the purposes of the act in pari materia with the legislative mandate in Section 171.022, preempting all other means by which a municipality may accomplish an annexation on its own, it is apparent that the legislature intended to provide a clearly defined and exclusive method by which an annexation could be accomplished.

The legislature has also set forth in Section 171.081 the method by which judicial review of any annexation by ordinance may be sought. Again, reading Section 171.081 in pari materia with the foregoing sections on preemption and the purposes of the act, it is apparent that the legislature has manifested its intent that there be a sole and exclusive procedure for challenging a municipal government’s failure to comply with Chapter 171, Florida Statutes. This procedure requires that the complainant: (1) be a “party affected”; (2) allege “that he will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in” Chapter 171 “or to meet the requirements established for annexation ... as they apply to his property”; (3) file his complaint seeking judicial review within thirty days following passage of the annexation ordinance, and (4) seek review by certiorari in circuit court.

SCAs asserted that its constitutional right of access to courts is barred since it is not a “party affected.” Art. I, § 21, Fla. Const. Section 171.031(5), Florida Statutes, defines “parties affected” as “any . . . firms owning property in, or residing in, either a municipality proposing annexation ... or owning property that is proposed for annexation.... ” (e.s.) SCA has alleged that it has the exclusive franchise for hauling garbage in the unincorporated area of Leon County. Certainly, an exclusive franchise right is a property right, see 36 Am. Jur. 2d Franchises § 5 (1968), and this right exists in the unincorporated area. Thus, appellant is a “party affected’’ and meets the first criterion under Section 171.081.

The appellant has alleged and argued that certain prerequisites for annexation under Chapter 171 were not satisfied by the City, including the failure to plan for garbage services in the areas to be annexed, and that its exclusive franchise rights may be harmed by the annexation. This satisfies the second criterion, but appellant’s efforts falter as to the third and fourth requirements of Section 171.081. Appellant sought a writ of quo warranto but should have sought certiorari. More significant is the fact that appellant filed this action more than thirty days after passage of the annexation ordinances.

Thus, appellant’s action, having been untimely filed, was properly dismissed.

AFFIRMED.

McCORD and BOOTH, JJ., concur.

      . The City of Tallahassee enacted ordinances annexing the Tallahassee and Governor’s Square Malls and the Goosepond area of Leon County.

      . Section 171.022, Florida Statutes, states: Preemption; effect on special laws..—
      (1) It is further the purpose of this act to provide viable and usable general law standards and procedures for adjusting the boundaries of municipalities in this state.
      (2) The provisions of any special act or municipal charter relating to the adjusting of municipal boundaries in effect on October 1, 1974, are repealed except as otherwise provided herein.

      . Section 171.081, Florida Statutes, states:
      Appeal on annexation or contraction.—
      No later than 30 days following the passage of any annexation or contraction ordinance, any party affected who believes that he will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction or to meet the requirements established for annexation or contraction as they apply to his property may file a petition in the circuit court for the county in which the municipality or municipalities are located seeking review by certio-rari. In any action instituted pursuant to this section, the complainant, should he prevail, shall be entitled to reasonable costs and attorney’s fees.

      . Appellant has relied on Orange County v. City of Orlando, 327 So.2d 7 (Fla. 1976) for its authority to seek review by a means other than as provided for in Chapter 171. In that case the Florida Supreme Court stated that upon the Attorney General’s refusal to challenge a municipal annexation by means of quo warranto, a party could seek relief by injunctive and declaratory relief. Id. at 8. We find that case inapplicable for two reasons: First, the case involved a challenge to three annexation ordinances passed pursuant to the requirements of a special act. See City of Orlando v. Orange County, 309 So.2d 16 at 16 (Fla. 4th DCA 1975). Second, the facts suggest that the case involved annexations occurring prior to the October 1, 1974 effective date of the “Municipal Annexation or Contraction Act,” Chapter 171, Florida Statutes. See Ch. 74-190, § 3, Laws of Fla. Although we now hold that Chapter 171 provides the exclusive means by which citizens may attack a municipal annexation accomplished by ordinance, it is unclear whether the legislature also sought to preempt the Attorney General’s right to proceed in quo warranto to challenge an annexation by ordinance. Because that question is not before us, we decline to address it.


author: JOANOS, Judge.

text:
    STARDUST MOTEL and Casualty Reciprocal Exchange, Appellants, v. Anne P. ST. CLAIRE, Appellee.
    No. AJ-169.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.
    Rehearing Denied Sept. 24, 1982.
    Summers Warden, Miami, for appellants.
    Ronnie Klein Witlin of Witlin & Witlin, Miami, for appellee.
   JOANOS, Judge.

The employer/carrier appeals the deputy commissioner’s (DC) order awarding temporary total disability (TTD), attorney’s fees assessment, medical treatment and “appropriate penalties.” We affirm the order to the extent it awards TTD, attorney’s fees and medical treatment, but reverse the award of “appropriate penalties” and remand for clarification.

The DC erred in ordering the payment of “appropriate penalties” without making findings of fact as to why or which penalty was imposed. The imposition of the proper penalty should not be left to inference, but should be set forth in a finding by the DC that states the ultimate facts and conclusions supporting the imposition of the penalty. The DC has the same obligation to state the ultimate facts and conclusions supporting the imposition of a penalty as he has in regard to any other award of benefits. Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981).

The award of “appropriate penalties” is reversed and remanded with instructions to proceed in a manner consistent with this opinion.

McCORD and ERVIN, JJ., concur.


author: McCORD, Judge.

text:
    STATE of Florida, Petitioner, v. Jeffrey KIRKSEY Chamblin, Jerry Wayne Duncan, and Bryan Kerwin, Respondents.
    No. AM-8.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1982.

      Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Peter Antonacci, Asst. State Atty., for petitioner.
    Dana C. Matthews, Ronald A. Mowrey, Silas Eubanks, and William Corry, Tallahassee, for respondents.
   McCORD, Judge.

Petitioner, the State of Florida, has filed a petition for writ of certiorari to review an order of the trial court granting respondents’ motion for disclosure of the identity of the State’s confidential informant. We reject respondents’ contention that this Court does not have jurisdiction to entertain this petition. See Fla.R.App.P. 9.100 and 9.030, and Affiliated of Florida v. U-Need Sundries, 397 So.2d 764 (Fla. 2d DCA 1981). Compare also State v. Martinez, 381 So.2d 1183 (Fla. 3rd DCA 1980). On the merits, the petition is granted, and the trial court’s order is quashed.

Respondents have been charged with several drug-related offenses. The events leading to the filing of the charges against them included a search of the home of respondent Duncan and the surrounding area. The affidavit for the warrant to search those premises outlined numerous observations of respondents’ activities made by members of the Big Bend Narcotics Force over the course of a month. The facts set forth in the affidavit were as follows, in summary: On February 22, 1981, a small airplane piloted by Michael Small crashed on takeoff from the commercial airport in Leon County, Florida. A quantity of visqueen (plastic covering), several rolls of duct tape and numerous aeronautical maps showing the route to South America were found inside the plane. Small suffered minor injuries, was taken to the hospital for treatment, and later released. Because of the suspicious nature of the materials found inside the plane, the Leon County Sheriff’s Department began conducting an extensive investigation into the matter which included observation of the activities of all of the respondents.

During the following weeks, the respondents were seen in and around George’s Motel in Panacea, Florida, making numerous calls from pay telephones at all hours of the day and night, driving to and from respondent Duncan’s home, and driving to Tallahassee to make calls on a pay phone. Respondent Chamblin was seen checking out of George’s Motel on February 22, and he used evasive maneuvers to proceed to Tallahassee, where he booked a flight to Memphis, Tennessee. On March 16, he returned to George’s Motel. On that day, Duncan was seen circling through the parking lot of the Oaks Restaurant in Panacea, proceeding into Franklin County, then returning two hours later. On the morning of March 17, Chamblin ate breakfast at the Oaks Restaurant, scribbled furiously in a notebook, then made numerous nontracea-ble calls from a pay telephone. After-wards, he drove to Duncan’s residence where he stayed for an hour before he returned to the motel and ¿hen drove back to Duncan’s residence. The same vehicle reappeared approximately 30 minutes later, driven by respondent Kerwin and another man. They proceeded to a minute market, made several calls from a pay phone, and returned to Duncan’s house. On that same afternoon, numerous vehicles were observed parked on the Duncan property and four vehicles were parked in the vicinity of a large barn.

On March 18, Duncan and Chamblin ate breakfast at the Oaks Restaurant, after which Duncan returned to his house and Donovan proceeded to a grocery store to make a phone call. He then drove to Duncan’s house. Later that day, Chamblin left Duncan’s house, heading toward Tallahassee. He was driving in an erratic manner and was stopped by the affiant, Sergeant Donnie Crum. Upon conducting a pat-down search, Sergeant Crum found a small quantity of marijuana'and conflicting identification papers on Chamblin’s person. Chamblin was and taken to jail, where his motel room keys were discovered. Upon determining that he had not paid for an additional night’s lodging, officers entered his motel room. In the room, they found numerous writings that indicated that a large marijuana transaction was taking place in Wakulla County. Those papers outlined the landing of aircraft, the price of marijuana, and the names of those who were to make the purchase. In the papers numerous references were made to respondents Duncan and Kerwin regarding their participation in the transaction. The concluding sentence of the affidavit was: “While preparing this affidavit, your affi-ant received an anonymous call indicating that the stuff was hidden in the woods behind the barn.” That anonymous caller is the subject of the order requiring disclosure.

The record contains deposition testimony of Deputy Landrum who stated that while the search warrant affidavit was being typed, he informed the affiant, Sergeant Crum, that he had received a call from an informer who told him that the contraband was in the woods behind the barn. The informant did rfot tell him that the “stuff” would be found in a car. He testified that he knew who the informer was but that he did not disclose his identity to the other officers. He stated that he had talked with the source numerous times and may have talked to him more than once on the day the affidavit was prepared. Landrum felt that the tip was a “secondary thing that came through.”

Investigator Wayne Hicks testified that during the execution of the warrant, he was stationed in the back part of the property to be searched. He stated that, on his own, he noticed a white Cadillac parked in the woods behind the property; that he smelled marijuana coming from the Cadillac; that he thereupon walked over to the Cadillac, looked in, and .saw the marijuana. The marijuana was then seized.

In its order the trial court gave the following reasons for compelling disclosure:

1. The anonymous call referred to in the Search Warrant does not comply with the criteria as a Confidential Informant;
2. The State failed to prove to the Court that they had knowledge of the identity of the caller and/or if he met the criteria of a Confidential Informant by being an upstanding citizen, whom they had reason to believe was truthful and trustworthy and/or if they had used this caller in the past as an Informant;
3. The State failed to prove to the Court that in fact there was a Confidential Informant;

The above-quoted reasons are insufficient to require disclosure and appellees have shown no other legally sufficient basis therefor.

Public policy favors nondisclosure of confidential informants. The general rule is that the State has the privilege of nondisclosure of the identity of a confidential informant, and the burden is on the defendant to show why disclosure should be compelled. Elkins v. State, 388 So.2d 1314 (Fla. 5th DCA 1980); Treverrow v. State, 194 So.2d 250 (Fla.1967). Florida Rule of Criminal Procedure 3.220(c)(2) provides:

Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.

The State is not required to disclose the identity of a confidential informant who merely furnishes the probable cause basis for a search or arrest. Martinez, supra. To effect an exception to the nondisclosure policy, the one seeking disclosure has the burden to show that disclosure is essential to his defense. U. S. v. Toombs, 497 F.2d 88 (5th Cir. 1974). The test is one of fairness. Woods v. State, 355 So.2d 437 (Fla. 4th DCA 1978); McCants v. State, 363 So.2d 362 (Fla. 1st DCA 1978). The motion for disclosure or the evidence must show that the informant’s testimony is relevant and material to the establishment of the defense which the defendant has or proposes to present. Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975). Among the relevant factors to be considered in determining whether disclosure of the identity of an informant is material and essential to a fair determination of the case are: whether the informant was an active participant in the offense, possible significance of the informant’s testimony, whether it is necessary for the prosecutor to refer to the informant in the presentation of his case, and whether there is independent evidence of the accused’s guilt. Hawkins; Woods; Treverrow; Rowell v. State, 382 So.2d 886 (Fla. 1st DCA 1980).

In the motion for disclosure, respondents’ counsel asserted two grounds: (1) that because the tip provided probable cause for the search warrant affidavit, the name of the confidential informant should be disclosed; and (2) the informant was an active participant in the offense since he made a phone call, and, therefore, his name should be disclosed. Respondents made no argument before the trial court that disclosure of the informant is essential and material to their defense. Their assertion of that fact on appeal is merely conjectural and does not amount to such a showing. Compare Toombs. Thus, respondents have fallen far short of the burden placed upon them to overcome the privilege of nondisclosure.

Petition for certiorari is granted and the trial court’s order granting the motion for disclosure of the confidential informant is quashed.

MILLS and SHIVERS, JJ., concur.


author: PER CURIAM.

text:
    Caroline Marie McCULLER, Appellant, v. JACKSON MEMORIAL HOSPITAL PUBLIC HEALTH TRUST and Jane Chatfield, jointly and individually, Appellees.
    No. 81-2540.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 1982.
    Rehearing Denied Sept. 24, 1982.
    Rudolph Browd, Miami, for appellant.
    Robert A. Ginsburg, County Atty. and Craig H. Coller, Asst. County Atty., for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. City of Miami v. Wardlow, 403 So.2d 414 (Fla. 1981).


text:
    Sam TAYLOR, Chairman of the Municipal Recall Committee of Fort Walton Beach, Appellant, v. Patricia M. THORNBER and John R. Franklin, Appellees.
    No. AG-178.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.

      F. Lloyd Blue, Jr. and J. LaDon Dewrell, of Dewrell, Blue & Brannon, Fort Walton Beach, for appellant.
    George E. Day, Fort Walton Beach, for appellees.
   JOANOS, Judge.

This case and the companion case of Taylor v. Bagley, 418 So.2d 1156, Case No. AG-179, released this date, involve an attempt to recall members of the municipal government of Fort Walton Beach. Of relevance here is the fact that the trial court entered a temporary and then a final injunction halting the recall effort. Section 100.361(6), Florida Statutes (1979), provides:

When petition may be filed — Except as otherwise provided, no petition or recall of any member of the governing body of a municipality shall be filed until he has served ¼ of his term of office ....

Since the officials challenged had not served one-fourth of their terms of office, the judge held that the petitions were untimely. We affirm.

The argument of appellant concerning statutory construction and statutory language is based on appellant’s apparent belief that the statutory language discussed was in effect at the time of this action. Unfortunately (for him), this is not the case; the statute was amended in pertinent part in 1977, not 1981 as stated in the brief. Furthermore, the attorney general’s opinion relied upon interpreted the 1974 statute, not the post-1977 statute. Accordingly, we find the argument without merit.

We further note that appellee’s brief argues at some length about the merits of the allegations in the recall petitions. The merits of the allegations are irrelevant to the issue on appeal.

As for the merits, we find the provision of Section 100.361(7) to be straightforward and unambiguous. Accordingly, the decision of the trial judge is AFFIRMED.

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

      . The argument focused on the “as otherwise provided” language of Section 100.361(6) and the language of Section 100.361 (1)(b). Prior to 1977, the latter section stated that grounds for removal shall “include” specified acts. Chapter 77-175, Laws of Florida, amended that provision to state that grounds shall “be limited to” the specified acts.


text:
    Sam TAYLOR, Chairman of the Municipal Recall Committee of Fort Walton Beach, Appellant, v. Kathryn P. BAGLEY, as Mayor of City of Fort Walton Beach, Florida, Appellee.
    No. AG-179.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.
    F. Lloyd Blue, Jr., and J. LaDon Dewrell, of Dewrell, Blue & Brannon, Fort Walton Beach, for appellant.
    No appearance for appellee.
   JOANOS, Judge.

Affirmed. See Taylor v. Thornber, 418 So.2d 1155 (Fla.1st DCA, 1982).

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


text:
    MERIDITH CORPORATION, and Maryland Casualty Co., Appellants, v. Thomas COOPER, Appellee.
    No. AH-388.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1982.
    Bernard J. Zimmerman and Michael M. O’Brien of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   JOANOS, Judge.

In this appeal, we reverse a workers’ compensation order in which the claimant’s attorney was awarded a $12,000.00 fee.

Claimant was injured on January 10, 1975. After he reached maximum medical improvement on January 10, 1977, the employer/carrier accepted claimant as permanently totally disabled, and began paying compensation benefits at a rate of $105.00 per week. On May 13, 1977, the employer/carrier reduced the compensation rate from $105.00 to $69.65 per week because the claimant was receiving Social Security benefits. As a result of this reduction, claimant’s attorney filed an application for hearing on July 5, 1977. Seventeen days later, on July 22, 1977, the employer/carrier reinstituted the payment of compensation at the correct rate of $105.00 per week after taking the deposition of the payroll clerk at claimant’s previous place of employment.

The deputy commissioner found that the employer/carrier had arbitrarily reduced the compensation payments and that, pursuant to Section 440.34(1), Florida Statutes (1973), claimant’s attorney was entitled to a reasonable fee for securing the restoration of benefits. Additionally, the deputy commissioner found that claimant’s attorney was successful in securing an extra $5,087.58 in payments for medical expenses incurred as a result of claimant’s treatment at Duke University Medical Center. Having initially denied claimant’s request for treatment at this facility, the employer/carrier acquiesced on March 30, 1976, after claimant had filed a request for hearing on the matter on February 25, 1976. After receiving evidence on the nature of the services rendered, the deputy commissioner awarded claimant’s attorney a fee of $12,-000.00.

This Court has held that an “award of attorney’s fees is not based solely on whether the appellants, by unsuccessfully resisting payment, forced the employee to file a claim. Such liability is avoided upon payment of the claim within 21 days of receipt of notice thereof.” Coca-Cola Co. Foods Division v. Sutton, 379 So.2d 1319, 1320 (Fla. 1st DCA 1980); Sue Ann’s Capri Lounge v. Harhalos, 377 So.2d 989 (Fla. 1st DCA 1979). Here, the employer/carrier reinstituted payments at the original rate seventeen days after claimant filed his request for hearing. Claimant’s attorney is, therefore, not entitled to fees based on the increase in payments from $69.65 to $105.00 per week.

We note that this is not a case in which the employer/carrier acted in bad faith. The employer/carrier felt that it was entitled to the Social Security offset and administratively took the deduction. Upon being notified of discrepancy and after proper investigation, the employer/carrier promptly increased the benefits to the original level.

We do find, however, that claimant’s attorney is entitled to a reasonable fee for securing the benefits for treatment at Duke University. Accordingly, the cause is remanded for determination of a reasonable fee based upon the securing of those benefits.

REVERSED and REMANDED.

McCORD and SHIVERS, JJ., concur.


text:
    Ralph S. MACRO, Appellant, v. Michael Joseph MIELE and Eugene R. Macro, Appellees.
    No. 81-958.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Rehearing Denied Sept. 28, 1982.
    Robert A. Huth, Jr., Fort Lauderdale, for appellant.
    John Korthals of Musselman, Welch & Korthals, Pompano Beach, for appellee.
   PER CURIAM.

The appellant raised three points on appeal; each concerns a question of whether the judgment is supported by substantial competent evidence. We have concluded that the trial court, acting as the finder of fact, resolved the conflicts in the evidence in a permissible manner and that the judgment is supported by substantial competent evidence.

One legal point deserves passing mention. The appellant has relied extensively on the appellee’s admission that the parties never agreed on how the profits from their joint venture would be divided. That admission, however, does not necessarily negate the existence of a joint venture because joint adventurers, like true partners, share equally in the profits of the business venture unless there is an agreement to the contrary. See generally 8 Fla.Jur.2d Business Relationships §§ 495, 496 and 681 (1978).

AFFIRMED.

DOWNEY, HURLEY and DELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Richard John MARZANO and Richard Michael Leclaire, Appellees.
    No. 82-653.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 1982.
    Rehearing Denied Sept. 22, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    John S. Berk, Fort Lauderdale, for appel-lees.
   PER CURIAM.

The state appeals an order suppressing physical evidence. We conclude that the trial court misapprehended the appropriate rule of law and, consequently, we reverse.

This case involves the suppression of contraband found aboard a boat. Initially, the trial court ruled that the stop of the vessel was justified because the officers had an articulable suspicion of criminal activity. Subsequently, however, the court reversed its decision and suppressed the evidence on the theory that “an investigatory stop, even when based on a reasonable suspicion of law violation, is illegal unless the vessel was initially seen in customs waters.” We respectfully disagree.

A stop of a vessel may be justified if there is evidence that the vessel has recently crossed the border or there is evidence giving rise to an articulable suspicion that the defendants were engaged in illegal activity. State v. Doyle, 409 So.2d 1168 (Fla. 3d DCA 1982); State v. Zafra, 408 So.2d 745 (Fla. 3d DCA 1982); Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981). Having found a lawful justification for the stop, the trial court erred in requiring proof that the vessel was seen in customs waters. Accordingly, the order of suppression is reversed and the cause is remanded for further proceedings.

REVERSED and REMANDED.

DOWNEY, HURLEY and DELL, JJ., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    RAMADA INN, Appellant, v. Millicent GATES, Appellee.
    No. AB-51.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.
    Alan Meltzer, Palm Beach Gardens, for appellant.
    Janet W. Freeman and J. J. Goodmark, West Palm Beach, for appellee.
   PER CURIAM.

The employer/carrier appeals a workers’ compensation order awarding temporary total disability benefits, payment of certain outstanding medical bills, transportation and drug reimbursement costs. The employer/carrier first contends that the Deputy Commissioner erred in accepting claimant’s testimony that she sustained a compensable accident on December 4, 1979, while rejecting other large portions of her testimony as “inherently difficult to believe” because of “their lack of plausiblity” and because of claimant’s demeanor. However, the claimant’s testimony that a com-pensable accident occurred while she was cleaning a bathroom in the course of her employment as a maid at Ramada Inn was corroborated by that of other witnesses as well as by the history recorded by her physician shortly after the accident. Therefore, the Deputy’s finding on this issue was supported by competent substantial evidence and must be affirmed.

The Deputy Commissioner erred, however, in finding that unauthorized medical treatment rendered by Drs. Simon and Sherman, including expenses related to claimant’s January 18, 1980 abortion, was the responsibility of the employer/carrier. Immediately after claimant informed her employer that an accident occurred on December 11, 1979, she was provided with authorized medical care by Dr. Green, an orthopedic surgeon, who instructed her to return if she had further problems. Nevertheless, without following the procedures set forth in Section 440.13(2), Florida Statutes (1979), or seeking alternative treatment, claimant continued to receive duplicate unauthorized treatment by Dr. Simon, including treatment for nausea and vomiting which were unrelated to her industrial accident. The Deputy’s finding that such treatment was “reasonable and necessary” does not excuse the failure to obtain authorization. Palm Beach Newspapers, Inc. v. Roston, 404 So.2d 174 (Fla. 1st DCA 1981). The award of Dr. Sherman’s bills was also erroneous, as claimant was referred to Dr. Sherman by Dr. Simon, who was unauthorized, again without notifying the employer/carrier. Cf., McKinney v. McKinney Farms, 380 So.2d 469, 470 (Fla. 1st DCA 1980). Therefore, we reverse the award of payment of Dr. Simon’s and of Dr. Sherman’s outstanding medical bills, as well as transportation costs, incurred while the employer/carrier was providing authorized care by Dr. Green.

We note that the employer/carrier specifically controverted the payment of medical bills. Whether the medical bills were to be paid or not was a stated issue before and was determined by the deputy. Indeed, claimant does not contend that the issue is not properly before us on appeal.

Since we do not interpret Paragraph 11 of the Deputy Commissioner’s order reserving “jurisdiction ... to consider payment of wage loss benefits” as finding that claimant is entitled to such benefits, we find it unnecessary to rule on this question at this time.

REVERSED and REMANDED for proceedings in accordance with this opinion.

ERVIN, J., concurs in part and dissents in part with written opinion.

BOOTH and THOMPSON, JJ., concur.

ERVIN, Judge,

concurring in part and dissenting in part.

I concur in all portions of the majority’s opinion except that part reversing the deputy’s order directing the employer/carrier (e/c) to pay the medical services performed by Doctors Simon and Sherman. At the outset it should be observed that the order did not specify the amount of the medical services that were required to be paid by the e/c. Although I have doubts as to whether that portion of the order is a final, appealable order, cf. Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982); The Wash House v. Tucker, 413 So.2d 813 (Fla. 1st DCA 1982); General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982), because of the lack of consistency in this court’s opinions distinguishing between orders which are final and non-final, see Deinema v. Pierpoint Condominiums, 415 So.2d 811 (Fla. 1st DCA 1982), I am content to consider the order final.

My more serious concern with the majority’s reversal is that the point urged on appeal — the physician’s non-authorization— in my judgment has not been preserved for appellate review; hence the majority’s opinion appears to conflict with our prior opinion in Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982), which declined to honor issues that were first raised on appeal. I have been unable to find in the record any objection raised by the e/c before the deputy encompassing the point it now asserts before us— the doctors’ nonauthorization to provide medical treatment. Perhaps the primary reason for the failure to object was the fact that the medical bills were never admitted into evidence. Their nonadmission was entirely consistent with the parties’ apparent tacit agreement that the determination of the medical bills’ validity would be contingent upon the deputy’s prior determination that the injury was one that occurred within the scope and course of the employment; or, if so, a further hearing would be conducted to ascertain the amount of the bills. Thus, at the commencement of the hearing, the deputy stated: “In the event this claim is held compensable it may be necessary to conduct a further hearing on medical bills, past medical bills. It depends upon whether they come in in evidence today.” As reflected in the deputy’s final order, and in the e/c’s notice to controvert, there was in effect only one issue in controversy— whether the injury arose within the scope and course of employment. The notice to controvert listed the following defenses:

1. No accident occurred as claimed by the Claimant.
2. No injury occurred as claimed by the Claimant.
3. No disability exists or existed as claimed by the Claimant.
4. No medical care, treatment or attention was required or given to the Claimant; or will be required or will be given to the Claimant in the future because of the occurrence of any accident, injury or disability as claimed by the claimant.
5. No wage loss occurred as claimed by the Claimant.

My belief that the defenses were limited only to the above issue is further bolstered by the portion of the record in which the deputy stated in the presence of the attorneys for both parties during the pretrial stipulation conference that the e/c had adopted the position stated in its notice to controvert. Moreover, at the conclusion of the conference the deputy asked both attorneys whether there was anything either wished to add, to which both responded negatively.

I had thought that such improvidently raised questions as those now before us had been finally laid to rest in Sunland, where we forcefully declared:

We decline to become the tribunal of first resort on complex questions latent in the record but not substantially raised before the deputy. To the extent our own record of decisions these past three years may have given the appearance of a present and continuing readiness to decide questions not substantially raised before the deputy, thus misleading counsel, we now forswear that implication.

415 So.2d at 785. It now appears from the majority’s opinion that Sunland’s forswearance of such practice was in fact premature.

For the reasons stated, I respectfully dissent to that portion of the majority’s opinion reversing the deputy’s order directing the e/c to pay the medical treatment furnished to the claimant by Doctors Simon and Sherman.

      . Dr. Green was deauthorized by the employer/carrier by letter on April 14, 1980, subsequent to claimant’s treatment by Drs. Simon and Sherman.

      . R. 15.


text:
    Joe W. CORDELL, George S. Taff and Hugh E. Williams, Jr., Appellants, v. WORLD INSURANCE COMPANY, Appellee.
    No. AB-413.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1982.

      Robert M. Ervin, Thomas M. Ervin, Jr., and Dean Bunch of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    J. Marshall Conrad of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   JOANOS, Judge.

This appeal is from a final order dismissing with prejudice all class action allegations from appellants’ second amended complaint. We affirm.

The relevant facts are that appellants all held disability insurance policies with World Insurance Company which contained a clause allowing the company to reserve the right to decline to renew the policy only if all renewals were declined on all policies of that series which had been issued to those in the professional occupation named in the policy schedule in Florida. In May of 1976, each of the appellants received a non-renewal letter from the president of the company stating that the company was declining to renew all like policies. Appellants filed a complaint alleging that the company had not declined to renew all such policies, the company had accepted and negotiated a check or checks in renewal of a policy or policies of the series, and the company had not complied with the provision of the insurance contract whereby renewal could be denied.

The second amended complaint attempted to turn the action into a class action by stating that it was an action for damages sustained by each plaintiff and on behalf of all others similarly situated. Discovery had revealed that 151 of the 154 policyholders had been non-renewed, but three policyholders who had policies within the same series were not nonrenewed. The three policyholders omitted were then sent notices of non-renewal and a refund of the premiums accepted since the May of 1976 decision to non-renew. All three parties involved accepted the return of premiums. The insurance company characterizes the failure to non-renew the three policyholders as simply an oversight; appellants characterize it as fraud and breach of contract.

The insurance company filed a motion to dismiss the second amended complaint challenging at length the allegations both as to the individuals and as to the class. The initial order granting dismissal was somewhat unclear in tha it appeared to dismiss the class action allegations in some, but not all, of the counts of the complaint, and did so with a citation of case law concerning recovery for fraud. In response to a motion for clarification, however, the court specified that it was dismissing with prejudice all class action allegations from all counts of the amended complaint. Such action is an appealable final order, as was determined by this court in a prior appeal of Cordell v. World Insurance Company, 352 So.2d 108 (Fla. 1st DCA 1977).

I

We agree with the trial court’s dismissal of the class action aspects of the case. Under the circumstances here the members of the asserted class have a corn-munity of interest in spite of the fact that the members have entered into separate contracts. The situation is distinguishable from that which occurs when the interest of one policyholder does not depend upon and is not related to the interest of any other policyholder. Andrews v. Equitable Life Assurance Society of United States, 124 F.2d 788 (7th Cir. 1942). Here, the interests of all the policyholders of the particular kind of policy in non-renewal have been made dependent upon and coextensive with the interests of the others. See also, Alvarez v. Pan American Life Insurance Company, 375 F.2d 992 (5th Cir. 1967).

In Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977), the Florida Supreme Court reiterated its prior holdings that even though property owners may have separate rights, a class action may be maintained if there is a common question of law and fact.

However, community of interest is only one of the requirements to be met when one is attempting to maintain a class action. See Harrell v. Hess Oil and Chemical Corporation, 287 So.2d 291 (Fla.1973). Another requirement, and one which we believe appellants fail to meet, is that the character of the relief sought must be applicable to all the members of the class. State ex rel. Devlin v. Dickinson, 305 So.2d 848 (Fla. 1st DCA 1974). See also, Frankel. In the instant case, there is no agreement even among the named plaintiffs as to the remedy sought. The pleadings show the claims for relief as including specific performance, rescission, and damages. Furthermore, it is clear that these particular remedies may be subject to separate and distinct defenses. Thus, it appears to us that appellants have failed to establish that they can adequately represent the class. In order to represent a class, parties must show more than that they exist in the class. Southern Bell Telephone and Telegraph Company v. Wilson, 305 So.2d 302 (Fla. 3rd DCA 1975).

Since we agree with the trial court that dismissal of all class action aspects of the cause was proper, we need not deal with the separately urged issue regarding the sufficiency of the fraud allegations.

II

At the same time that the trial court dismissed the class action aspects, it denied those portions of the motion to dismiss directed at other aspects of the cause. Appel-lee filed a notice of cross-appeal and in its brief disputed the partial denial of its motion. Appellants filed a motion to dismiss the cross-appeal and to strike those portions of appellee’s brief directed to the issues on cross-appeal. At the time the court denied appellants’ motion, we had not considered this cause on the merits. Now that we have examined the ease more thoroughly, we realize that the issues raised in the cross-appeal are not ripe for review and that the order appealed from is, as to those issues, interlocutory in nature, Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974); Habelow v. Travelers Insurance Company, 389 So.2d 218 (Fla. 5th DCA 1980).

Accordingly, the cross-appeal is DISMISSED. The order dismissing the class action with prejudice is AFFIRMED.

WIGGINTON, J., and OWEN, WILLIAM C., Associate Judge, concur.

      . There were two other prior appeals in this cause. In Cordell v. World Insurance Company, 355 So.2d 479 (Fla. 1st DCA 1978), this court ruled essentially that the dismissal of the class action aspects of the case was premature and the trial court should reserve ruling on the motion to dismiss until the party seeking to represent or maintain a class action has had opportunity to employ sufficient discovery to ascertain the information that must be pleaded. In Cordell v. World Insurance Company, 358 So.2d 223 (Fla. 1st DCA 1978), this court again reversed, holding that the trial court erred in requiring plaintiffs to elect between the remedies of rescission and damages prior to answer and discovery.