author: DANIEL S. PEARSON, Judge.

text:
    Charles E. McGUIRE, II, Appellant, v. Pamela V. McGUIRE, Appellee.
    No. 79-1737.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Nelson & Nelson and Stephen H. Nelson, Hialeah, for appellant.
    Sepler & Berrín and Richard M. Sepler, Hialeah, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

The husband appeals from the trial court’s denial of his petition to set aside and vacate the final judgment of divorce and a property settlement agreement between the parties. The husband’s claim that the agreement was procured by overreaching, duress and coercion was, as the trial court found, overwhelmingly belied by his own admissions that (a) a ten-minute discussion with his wife led to his assent; (b) the agreement, except for his conveyance of his share of the minimal equity in the marital home, was substantially the same as an unchallenged temporary allowance agreement he had made several months before; (c) he acknowledged to the trial judge that he understood the agreement and it was entered into by him freely and voluntarily, without coercion or duress ; and (d) significantly, he agreed to its terms because at that time he was living frugally at home.

Moreover, under the parties’ circumstances, nothing about the agreement was unconscionable or oppressive. Essentially, the agreement provided that the wife waive all claims to rehabilitative or permanent alimony in exchange for the husband’s $3,000 share of the marital home, each assume certain minor debts, each pay his and her own attorney, and the husband pay minimal child support and provide medical insurance for the child.

Until now we have omitted the heart of the husband’s claim. He says that because he was without legal representation at the time he agreed, at the time he confirmed his agreement to the court, and at the time he executed the written instrument, the trial court erred in denying him relief. Moss-Jacober v. Moss, 334 So.2d 89 (Fla. 3d DCA 1976), does not, as he suggests, stand for the proposition that a party is entitled to set aside a voluntary and patently fair agreement on the ground that such party entered into it without the assistance of counsel. The lack of representation in Moss-Jacober was not critical to that decision. Instead, that case turns on the fact that the agreement was “outrageously unconscionable,” was a product of undue influence established by competent testimony, and that the trial court (observing that the agreement was patently oppressive) was misinformed by the advantaged wife that the agreement was masochistically brought about by the husband. The fact that in Moss-Jacober the husband was without legal representation served only to corroborate that the husband, without the insulating effect of counsel, was more susceptible to undue influence and less enlightened about the agreement’s oppressive terms.

Affirmed.

      . The meeting of the minds occurred shortly before a court hearing on January 15, 1979. Nine days later, the agreement was reduced to writing, and the husband, still without protest, executed it.

      . In fact, the trial judge remarked that the agreement was less onerous to the husband than what the court would have awarded the wife.

      . The husband had an attorney until several weeks before the final hearing. When this attorney withdrew, the husband chose not to hire new counsel until he decided to move to set aside the agreement. This action was taken within a month of the entry of final judgment.

      . Unlike the present case, the husband in Moss-Jacober was not before the court when the agreement was presented.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF MIRAMAR, Florida, Appellant, v. DCA HOMES, INC., f/k/a Oak Hill Homes, Inc., a Florida Corporation and Broward County Planning Council, Appellees.
    No. 80-19.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    James G. Kincaid, Fort Lauderdale, for appellant.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
   PER CURIAM.

Appellees’ motion to dismiss this appeal is granted. The trial court’s order denying appellant’s motion to dismiss the complaint is not one of those non-final orders from which an interlocutory appeal is authorized by Rule 9.130(a)(3)(C), Florida Rules of Appellate Procedure. The underlying motion to dismiss was based solely upon appellees’ failure to exhaust administrative remedies. Appellant’s contention that jurisdiction of the person is involved in the trial court’s determination of that motion is without merit. American Health Association, Inc. v. Heiprin, 357 So.2d 204 (Fla. 4th DCA 1978). Neither is jurisdiction over the subject matter, in the conventional sense of that phrase, involved here. The defense of failure to exhaust administrative remedies sounds more in policy than in jurisdiction. To be sure, the phrase primary jurisdiction has been employed to describe the seeming lack of power of a court to exercise jurisdiction where this defense is successfully interposed. Pushkin v. Lombard, 279 So.2d 79 (Fla. 3rd DCA 1973); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). However, we prefer the analysis and language of Jones v. Braxton, 379 So.2d 115 (Fla. 1st DCA 1979) that what is involved in these cases is policy, not jurisdiction. Because the order did not involve either jurisdiction over the person, appeala-ble under Rule 9.130(a)(3)(C), or jurisdiction over the cause, which may be raised at any stage of the proceedings, Bohlinger v. Higginbotham, 70 So.2d 911 (Fla.1954), we dismiss the appeal without prejudice to the parties’ right to raise the issue on plenary appeal.

DOWNEY, HERSEY, and HURLEY, JJ., concur.


author: ANSTEAD, Judge.

text:
    George GANGLER, Appellant, v. SOUTH FLORIDA CRANE SERVICE et al., Appellees.
    No. 80-48.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Edward G. Rubinoff of Preddy, Kutner & Hardy, P. A., Miami, for appellant.
    Anthony J. Beisler, P. A., Fort Lauder-dale, for appellee United States Fidelity and Guaranty Co.
    Albert P. Massey, III of Pyszka, Kessler & Adams, Fort Lauderdale, for appellee Aetna Ins. Co.
   ANSTEAD, Judge.

At issue is whether the lien rights of a workmen’s compensation insurer under the provisions of Section 440.39(3)(a), Florida Statutes (1975) include future medical benefits payable to the injured employee. The trial court considered such benefits in determining the amount due the insurer out of the recovery made by the injured worker from a third-party tortfeasor.

We believe the plain language of Section 440.39(3)(a) supports the trial court’s conclusion. That section provides in part:

Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of the law. [The employer or carrier shall recover . 100 percent of what it has paid and future benefits to be paid. . . . ] (emphasis added)

We believe “future benefits to be paid” includes future medical benefits.

The appellant cites two cases which he contends require a different result. The first, Baughman v. Aetna Casualty & Surety Co., 78 So.2d 694 (Fla.1955), held that future medical benefits could not be recovered under Section 440.39(3), the predecessor of (3)(a), because the unambiguous language of that section only provided for recovery of benefits already paid. In other words no future benefits, either wage loss or medical expenses, were provided for in the statute, so none could be recovered. We don’t believe Baughman is on point. However, the other case cited, General Fire & Casualty Co. v. First National Bank of Tampa, 306 So.2d 193 (Fla. 2d DCA 1975), does appear to hold that the statute in question there, the 1973 version of Section 440.39(3)(a), did not allow for recovery of future medical benefits even though future compensation benefits could be recovered. That case relied on Baughman, supra, and a reading of all of the provisions of Chapter 440. The only material difference we can observe in the 1977 version of the statute as compared to the 1973 version is the omission of the word “compensation” from the second sentence of Section 440.39(3)(a) so that instead of providing for the recovery of future “compensation” benefits to be paid, the section now provides for the recovery of future benefits to be paid. We are not certain of the reasons for the holding in General Fire, supra, but do not believe it can be predicated on the Baughman case, supra. It may be that the word “compensation” was deemed to limit the recovery of future benefits only to wage loss benefits. If so, that restriction no longer applies.

We believe that a plain reading of Section 440.39(3)(a) indicates that the carrier was entitled to recovery for both future wage loss benefits and future medical benefits. In this case the trial court, after determining the percentage of recovery to which the carrier was entitled, also provided that such percentage would apply to future benefits payable by the carrier. To us that makes good sense and is mandated by the clear language of the statute.

Accordingly, the judgment of the trial court is affirmed.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . See National Ben Franklin Insurance Co. v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976).


author: OTT, Judge.

text:
    Claire D. CAREY, Appellant, v. CAREY INVESTMENT CORPORATION, INC., Appellee. Claire D. CAREY, Appellant, v. BOYCE BUILT HOMES, INC., Appellee.
    Nos. 79-1454, 79-1455.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.

      Henry P. Trawick, Jr. of Trawick & Grif-fis, Sarasota, for appellant.
    0. Stephen Thacker, II of Watts & Thacker, and Fred J. Wilder of Wilder & Thacker, Clearwater, for appellees.
   OTT, Judge.

Appellant sold a trailer park to appellee and received cash plus two promissory notes for $25,000 and $140,000, respectively. The larger note did not conform to the terms of the written purchase agreement and was ambiguous in some respects. The trial court reformed that note and this appeal was taken. We affirm the judgment except for the matter of interest on the reformed note.

Because of the ambiguity in the note, the court admitted parol evidence bearing upon the intent of the parties and revised the note by (1) inserting a due date in fifteen (15) years, (2) making half the principal due unconditionally, (3) limiting interest to accrue on only that portion of principal unconditionally due, and (4) making the balance of the principal due only on certain stated conditions.

At oral argument appellant narrowed the focus of her attack to the revision limiting the interest to accrue on the note. Consequently, we address here only that issue.

As prepared and signed by the parties, the pertinent portions of the note provide:

PROMISSORY NOTE
$140,000.00 Holiday, Florida January 13, 1978
FOR VALUE RECEIVED, the undersigned jointly and severally promise to pay to the order of Claire D. Carey . . the principal sum of One Hundred Forty Thousand and 00/100 ($140,000.00) Dollars together with interest thereon from January 13, 1978, at the rate of Six (6%) Per Cent per annum on the unpaid balance until paid. . . . interest payments shall be made semiannually commencing on July 13,1978.

There is no ambiguity whatsoever in the interest provision and it was error for the court to rewrite it unless the evidence clearly and convincingly revealed a mutual mistake of fact. Nussey v. Caufield, 146 So.2d 779 (Fla. 2d DCA 1962).

The only evidence on this particular point came from the attorney who negotiated the sale for appellant. He testified that interest at the rate of 6% per annum was to be paid semiannually, until maturity, on the full $140,000. Appellee at no time controverted that testimony. Consequently, the court erred in reforming the interest provision.

Accordingly, those portions of the final judgment purporting to “reform” the semiannual interest provisions of said promissory note are hereby vacated and set aside, so as to leave intact the original language of the note calling for semiannual payments of interest at the rate of 6% per annum on the principal sum of $140,000, commencing July 13, 1978. In all other respects the judgment is affirmed.

SCHEB, Acting C. J., and CAMPBELL, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ENGLEWOOD, Appellant, v. Stephen H. LOCKWOOD and Robert F. Murphy, Appellees.
    No. 79-2124.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    John R. Wood of Wood, Whitesell & Karp, P.A., Sarasota, for appellant.
    Robert Jackson McGill of McGill, Dulmer & Tracy, Venice, for appellees.
    Harold B. Shore, Harvey Simon and John E. Gunther, Washington, D.C., for amicus curiae, Federal Home Loan Bank Bd.
    Stephen T. Dean, Lawrence M. Watson, Jr. and Robert L. Young of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for amicus curiae, Florida Ass’n of Realtors.
    W. Robert Fokes, Tallahassee, for amicus curiae, Florida Sav. and Loan League.
    L. Norman Vaughan-Birch of Kirk, Pinkerton, McClelland, Savary & Carr, P.A., Sarasota, for amicus curiae, Coast Federal Sav. and Loan Ass’n.
    William W. Merrill and Edwin L. Ford of Icard, Merrill, Cullis, Timm & Furen, P.A., Sarasota, for amicus curiae, First City Federal Sav. and Loan Ass’n.
   HOBSON, Acting Chief Judge.

Appellant First Federal Savings and Loan Association of Englewood (First Federal) appeals a final summary judgment in a mortgage foreclosure action entered in favor of appellees Stephen H. Lockwood and Robert F. Murphy. The judgment denied appellant the right to foreclose its mortgage “for failure ... to allege and prove any impairment of its security resulting from [Lockwood’s violation of the due-on-sale provision of the mortgage instrument].” The judgment further held that federal regulations which purport to divest the state court of its equitable jurisdiction in real estate mortgage foreclosure actions must yield to traditional state equitable considerations which “require judicial inquiry as to whether said security was impaired by the sale in breach of the due-on-sale clause.” We affirm the holding of the final summary judgment.

On January 24, 1973, appellee Lockwood executed a promissory note and mortgage in favor of First Federal. The note evidenced Lockwood’s indebtedness to First Federal in the principal amount of $90,700. The mortgage created a first lien against certain real estate owned by Lockwood.

Although the mortgage instrument executed by Lockwood did not itself contain a due-on-sale clause, it incorporated by reference all of the terms contained in First Federal’s master form mortgage previously recorded in Sarasota County. The master form mortgage contained the following due-on-sale provision:

No conveyance of said property, or any part thereof, shall be made by Mortgagor without the written consent of Mortgagee. Should the property covered by this mortgage be conveyed by the Mortgagor, its successors or assigns, to any third person without the written consent of the Mortgagor [sic], then at the option of the Mortgagor [sic], the whole sum of principal and interest payable under the note or notes secured hereby shall become immediately due and payable.

In February, 1978, Lockwood and Murphy approached certain personnel at First Federal’s offices and explained that they were contemplating the sale and transfer of the encumbered land from Lockwood to Murphy. First Federal personnel advised both men that the sale would not be approved unless the interest rate specified in the loan document was adjusted to reflect the current interest rate in effect at the time of the conveyance. Although First Federal’s president stated in deposition that he had no opinion as to whether the security was impaired by the transfer, Lockwood and Murphy contended that Murphy was told that he could assume the mortgage if he agreed to pay a higher interest rate. Lockwood and Murphy refused to accept First Federal’s position and in March, 1978, Lockwood conveyed the subject real property to Murphy without the prior written consent of First Federal. Lockwood continued to make the mortgage payments.

Upon learning of the conveyance in May, 1978, First Federal notified Lockwood and Murphy that the debt would be accelerated in accordance with the provisions of the due-on-sale clause. Neither Lockwood nor Murphy responded to the notice of acceleration and on August 18, 1978, First Federal instituted a foreclosure action in the circuit court.

In its complaint, First Federal based its right to foreclose solely on the technical violation of the due-on-sale clause. No allegation was made that the security had been impaired. Lockwood and Murphy defended on the grounds that the security had not been impaired and that First Federal had no equitable right to accelerate the debt. First Federal answered that the due-on-sale clause was authorized by the rules and regulations of the Federal Home Loan Bank Board and was pre-emptive of any state law to the contrary.

Both sides moved for summary judgments and the court denied First Federal’s motion. Subsequently, the parties entered into a stipulation of facts, the effect of which was to leave no material issue of fact for determination by the court. The sole legal issue was whether the due-on-sale clause was enforceable, absent a showing of impairment of security. At final hearing the court entertained extensive argument and ruled in favor of Lockwood and Murphy, denying First Federal the right to foreclose the mortgage.

PARTIES’ POSITIONS

The argument presented by First Federal and the Federal Home Loan Bank Board (Bank Board), as amicus curiae, centers around the proposition that federal law exclusively governs the validity and exercisa-bility of due-on-sale clauses contained in loan instruments of federal savings and loan associations. The particular regulation sought to be enforced in this case has been construed by the Bank Board in an advisory opinion which set out three reasons why federal associations must be allowed to exercise due-on-sale clauses:

1) To protect the security of the lender;
2) To allow the lender to adjust its loan portfolio in line with current interest rates;
3) To protect the “secondary mortgage market” in existing home loans.

In support of its argument, First Federal contends that the Bank Board’s plenary authority to create and operate federal savings and loan associations was delegated to the Bank Board by Congress, and the regulations promulgated under this authority have the force of federal law, with the result that states are not free to substitute their “notions of justice.”

Appellees, on the other hand, have challenged neither the validity of the due-on-sale clause nor the authority of the Bank Board to authorize and encourage its inclusion in the subject mortgage instrument. Rather, appellees’ position, joined by the Florida Association of Realtors as amicus curiae, is that, while due-on-sale clauses are not invalid per se, they may not be enforced in a state court of equitable jurisdiction absent a showing that the violation had impaired the security of the mortgage.

DISCUSSION

We have noted divergent lines of cases throughout the United States dealing with the issue of due-on-sale clause enforcement. The common thread running through the various theoretical approaches is that such clauses are considered restraints on the alienation of real property and are enforceable as reasonable restraints only if their enforcement is not inequitable and unjust under the circumstances. In other words, if the lender can demonstrate that his legitimate interests are threatened and the foreclosure is equitable under the circumstances, then the court may enforce the acceleration of the debt and subsequent foreclosure. The divergence in theories is predicated, at least in part, on what legitimate interests will suffice to justify an automatic enforcement of the acceleration clause.

One line of cases specifically holds that there is no inequity in conditioning the lender’s consent to transfer on the transferee’s agreeing to pay an increased interest rate. This is considered a legitimate interest of the lender and in line with prudent business practices.

Florida courts recognize that a lender has the right to accelerate a mortgage when the violation of the acceleration provision goes to the impairment of the lender’s security. They require that the lender in a foreclosure action bear the burden of demonstrating legitimate grounds for refusal to accept the transferee. By so doing, our courts protect borrowers by providing them with equitable defenses to inequitable accelerations by lenders. Clark v. Lachenmeier, 237 So.2d 583 (Fla.2d DCA 1970). This approach is based on the historical purpose of acceleration clauses, which is to protect the security of lenders.

We note with interest that First Federal included in its master form mortgage the statement: “It is the intent of this mortgage to secure payment of said note . and to secure any other amounts that may be added to the mortgage indebtedness. . ” Thus, the sole purpose set out by First Federal deals with the protection of its security. There is no mention anywhere in the mortgage instrument that rising interest rates will subvert the stated intent and serve to justify First Federal’s attempt to gain a commercial advantage.

Other jurisdictions have approached the problem of enforcement from a similar standpoint, holding that acceleration clauses are not automatically enforceable but must be justified by a showing that the breach has impinged on the lender’s security interest.

A close reading of the federal regulation in question reveals no procedural provisions for a distinct cause of action in federal court for enforcement purposes. Thus, a federal savings and loan seeking foreclosure against a Florida resident must file its action in a Florida circuit court. When a foreclosure complaint is filed in a Florida court seeking an equitable remedy, it follows that traditional equitable defenses and considerations, long recognized by these courts, are available to all the litigants. “It is a strange argument that permits one to pick and choose what portion of the law binds him.” First National Bank of Logan v. Walker Bank & T. Co., 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966).

The true issue before us is not whether a due-on-sale clause may be authorized or even required in a federal association mortgage instrument, but whether the due-on-sale clause must be automatically enforced by a state court without regard to traditional principles of equity. In other words, where a federal savings and loan mortgage instrument includes an acceleration clause exercisable at the option of the lender, and the lender elects to activate the clause and, subsequently, to place the matter before a state court in an effort to obtain equitable relief in foreclosure, must the state court grant the desired relief without recourse to traditional equitable considerations? We answer the question by stating that a plaintiff who initiates a suit in equity must be subject to all of the applicable consequences of that action and not merely those to which he chooses to submit. This is especially true in the instant case where applicable federal regulations exhibit a noticeable gap in the area of enforcement.

For the reasons set out above, we hold that the trial court was correct in denying First Federal the right to foreclose its mortgage absent any allegation or proof of impairment of security. We therefore affirm the final order.

AFFIRMED.

OTT, J., and CHEATWOOD, J. CLIFFORD, Associate Judge, concur.

      . 12 C.F.R. § 545.6-11 (1975) is the Bank Board regulation governing the terms of the loan documents used by federal associations. This regulation provides:
      (f) Due-on-sale clauses. A Federal association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instruments whereby the association may, at its option, declare immediately due and payable all of the sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as provided in paragraph (g) of this section with respect to loans made after July 31, 1976, on the security of a home occupied or to be occupied by the borrower, exercise by an association of such an acceleration option (hereafter called a due-on-sale clause) shall be governed exclusively by the terms of the contract between the association and the borrower, and all rights and remedies of the association and borrower thereto shall be fixed and governed by said contract.

      . See regulation, supra, note 1.

      . Advisory opinion of the Federal Home Loan Bank Board, Resolution No. 75-647 (July 30, 1975) [submitted in Schott v. Mission Fed. Sav. & Loan Ass'n, CIV-75-366 WMB, C.D.Cal.]

      . In 1932, Congress passed the Federal Home Loan Bank Act, 12 U.S.C.A. §§ 1421-1449, creating the Federal Home Loan Bank Board and authorizing it to charter home loan banks. In 1933, the Home Owners’ Loan Act (HOLA), 12 U.S.C.A. §§ 1461-1468, was enacted to establish federally chartered savings and loan associations, organized and regulated by the Federal Home Loan Bank Board.

      . Tierce v. APS Co., 382 So.2d 485 (Ala. 1979) rehearing denied Mar. 28, 1980; Malouff v. Midland Fed. Sav. & Loan Ass’n, 181 Colo. 294, 509 P.2d 1240 (1973); Baker v. Loves Park Sav. & Loan Ass’n, 61 Ill.2d 119, 333 N.E.2d 1 (1975); Stith v. Hudson City Sav. Inst., 63 Misc.2d 863, 313 N.Y.S.2d 804 (1970); Crockett v. First Fed. Sav. & Loan, 289 N.C. 620, 224 S.E.2d 580 (1976); Gunther v. White, 489 S.W.2d 529 (Tenn.1973). Although these cases recognize the lender’s legitimate interest in maintaining its loan portfolios at current interest rates, the court in Nichols v. Evans, 92 Misc.2d 938, 401 N.Y.S.2d 426 (1978), while noting the Stith v. Hudson decision, denied the mortgagee’s motion for summary judgment in a foreclosure action because, inter alia, there was no demonstration of impairment of security.

      . Other Florida decisions have clearly relied on impairment of security as an essential element of a plaintiffs right to foreclose a mortgage. Delgado v. Strong, 360 So.2d 73 (Fla.1978); St. Martin v. McGee, 82 So.2d 736 (Fla.1955); Home Fed. Sav. & Loan Ass’n of Palm Beach v. English, 249 So.2d 707 (Fla.4th DCA 1971) (necessity of allegation of impairment of security recognized by trial court but appellate court found it unnecessary to rule on the question); Schechtman v. Grobbel, 226 So.2d 1 (Fla.2d DCA 1969)

        Accord, Brown v. Avemco Inv. Corp., 603 F.2d 1367 (9th Cir.1979), in which the court stated:
      Acceleration clauses are designed to protect the creditor from actions by the debtor which jeopardize or impair the creditor’s security. They are not to be used offensively, e.g., for the commercial advantage of the creditor. Acceleration is a harsh remedy with draconian consequences for the debtor. (Emphasis ours)
      603 F.2d at 1376.

        .Patton v. First Fed. Sav. & Loan Ass’n of Phoenix, 118 Ariz. 473, 578 P.2d 152 (1978); Baltimore Life Ins. Co. v. Harn, 15 Ariz.App. 78, 486 P.2d 190 (1971); Tucker v. Pulaski Fed. Sav. & Loan, 252 Ark. 849, 481 S.W.2d 725 (1972); Tucker v. Lassen Sav. & Loan Ass’n, 12 Cal.3d 629, 116 Cal.Rptr. 633, 526 P.2d 1169 (1974); Nichols v. Ann Arbor Fed. Sav. & Loan Ass’n, 73 Mich.App. 163, 250 N.W.2d 804 (1977); Sanders v. Hicks, 317 So.2d 61 (Miss.1975); Fidelity Land Dev. Corp. v. Rieder, 151 N.J.Super. 502, 377 A.2d 691 (1977); People’s Sav. Ass’n v. Standard Industries, Inc., 22 Ohio App.2d 35, 257 N.E.2d 406 (1970); Continental Fed. Sav. & Loan Ass’n v. Fetter, 564 P.2d 1013 (Okl.1977); Bellingham First Fed. Sav. & Loan Ass’n v. Garrison, 87 Wash.2d 437, 553 P.2d 1090 (1976).

      . Counsel for the Federal Home Loan Bank Board stated at oral argument in this case that in the event national interest rates decreased significantly, federal savings and loan associations would not lower the interest rates on existing mortgages upon sale of the encumbered property.


author: PER CURIAM. ANSTEAD, Judge,

text:
    A. N. SPENCE, as Personal Representative of the Estate of Edward Frank Newberger, Sr., Deceased, Appellant, v. William D. WALSH and Ann E. Walsh, his wife, Appellees.
    No. 78-2104.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    A. N. Spence, Miami, for appellant.
    J. Stephen Tierney, III of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellee.
   PER CURIAM.

Affirmed.

MOORE and BERANEK, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I cannot concur in the result reached by the majority. This was an action for a broker’s commission in which the broker lost. The written listing agreement provided that it could not be revoked for a period of nine months and further that it would continue thereafter until notice of termination was given in writing. The trial court instructed the jury, erroneously I believe, that such a listing agreement could “expire upon the lapse of a reasonable period of time.” In my opinion this constitutes an incorrect statement of the law applicable to the facts of this case. See Reinke v. West, 303 S.W.2d 419 (Tex.Civ.App.1957). It is true that the appellees had other valid defenses to the broker’s claim that were supported by the evidence. However, I cannot help but conclude that the jury may well have found against the appellant on the basis of this erroneous instruction alone, which was specifically referred to by the court as the first defense of the appellees.


text:
    Manuel BLANCO, d/b/a Blanco’s Fuel Oil, Appellant, v. DEPARTMENT OF REVENUE, the State of Florida, Appellee.
    No. 79-1430.
    District Court of Appeal of Florida, Second District.
    June 27, 1980.
    Alan F. Gonzalez of Gonzalez & Sca-glione, Tampa, for appellant.
    Linda C. Procta, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed on the authority of Belcher Oil Co. v. State, Department of Revenue, 382 So.2d 793 (Fla. 1st DCA 1980).

BOARDMAN, Acting C. J., SCHEB, J., and HENSLEY, ROBERT E., Associate Judge, concur.


author: SHARP, Judge.

text:
    SHEFFIELD STEEL PRODUCTS, INC., Appellant, v. POWELL BROTHERS, INC., Appellee.
    No. 00-111/T1-102.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.

      Edward E. Hedstorm of Hedstorm, Dunning & Smith, Palatka, for appellant.
    Patrick W. Gent of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellee.
   SHARP, Judge.

The plaintiff, Sheffield Steel Products, Inc., appeals the trial court’s order changing venue from Putnam County to Broward County. We have jurisdiction. Because the defendant failed to establish a sufficient basis for the venue change, we reverse the lower court’s order.

Sheffield sued the defendant, Powell Brothers, Inc., in Putnam County for failure to pay it for the fabricated steel and other materials it supplied to construct a bridge in Broward County, pursuant to a written contract. Sheffield’s steel fabricating plant is in Palatka, Florida, and some of the bridge elements were delivered F.O.B. Powell’s barge in Palatka, and some were F.O.B. the bridge site in Broward County. The contract did not expressly provide for the place Powell was to make its payments to Sheffield.

Powell filed an answer, counterclaim, and motion to transfer venue to Broward County. It alleged that payments under the contract were to be made in Broward; that all of the material witnesses are located in Broward; that Powell’s corporate offices are in Broward; and that Putnam would be an inconvenient forum for the defendant. Based on the unverified pleadings alone, the trial judge transferred venue because he “found” the contract was executed either in Dade County or Broward County, the bridge is in Broward County, and Broward is Powell’s corporate residence.

Section 47.051, Florida Statutes (1979), provides:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. .

Upon a proper showing, the trial court should grant a change of venue if a lawsuit is filed in the wrong county, or if it would be more convenient for the parties and witnesses to try the case in a different county. Where Powell made payments under the contract to Sheffield or where it should have made them was the critical fact determinative of the venue question. Venue is proper for suits on contract or other obligations in the county where payment should have been made. However the contract and the unverified pleadings in this case do not address this issue. Only the defendant’s unverified motion claimed that payments were to be made in Broward, but no hearing was held to establish that fact. Nor was there any basis to support a change of venue on the grounds of forum non conveniens.

The party seeking the change of venue must establish a sufficient record or basis for the relief requested. Magee v. Liberty Mut. Ins. Co., 366 So.2d 827 (Fla. 4th DCA 1979); Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977); Florida Forms, Inc. v. Barkett Computer Serv., Inc., 311 So.2d 730 (Fla. 4th DCA 1975). Sheffield was not required to plead or to prove that its selection of Putnam County was proper, in the absence of a sufficient challenge by the defendant. Stolley & Associates, Inc. v. Lawrence, 243 So.2d 446 (Fla. 4th DCA 1971). To paraphrase from the Stoliey case:

We do not know where the cause of action accrued. We do know that defendant has failed to prove and sufficiently assert, with specific averments, that the plaintiff’s venue choice was improper. Having so failed, the defendant must bear the consequences of having the suit maintained in [Putnam] County.

243 So.2d at 447.

The order appealed is REVERSED.

REVERSED.

CROSS, J., and BROWNLEE, Associate Judge., concur.

      . Fla.R.App.P. 9.130(a)(3)(A).

      . § 47.091, Fla.Stat. (1979).

      . § 47.122, Fla.Stat. (1979).

      . American Fidelity Fire Ins. Co. v. Allied General Contractors, Inc., 365 So.2d 442 (Fla. 3d DCA 1978); Florida Forms, Inc. v. Barkett Computer Serv., Inc., 311 So.2d 730 (Fla. 4th DCA 1975); Jones v. Hickman, 263 So.2d 275 (Fla. 2d DCA 1972); B & F of Clearwater, Inc. v. Wesley Construction Co., 237 So.2d 790 (Fla. 2d DCA 1970).

        .Bassett v. Talquin Elec. Coop., Inc., 362 So.2d 357 (Fla. 1st DCA 1978).


text:
    W. A. MARTIN and H. Elinor Martin, Appellants, v. Philip DiPRIMA and Julie DiPrima, Appellees.
    No. 78-1384/T4-146.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Meredith J. Cohen, Orlando, for appellants.
    No appearance for appellees.
   PER CURIAM.

The final judgment is affirmed, without prejudice to the right of appellants to apply for adoption under chapter 63 or for guardianship under chapter 744, Florida Statutes (1979), if they so desire. The temporary custody awarded to appellants by the final judgment shall continue in effect pending further order of the trial court.

ORFINGER, COBB and SHARP, JJ„ concur.


author: ORFINGER, Judge.

text:
    CESSNA AIRCRAFT COMPANY, etc., Petitioner, v. Arlene Lee KROL, et vir., Respondents.
    No. 80-564.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Carl D. Motes of Maguire, Voorhis & Wells, P.A., Orlando, for petitioner.
    No appearance for respondents.
   ORFINGER, Judge.

The petition for writ of certiorari is denied. It does not appear that there would be an inadequate remedy on appeal from a final judgment. Vanco Construction Company v. Nucor Corporation, 378 So.2d 116 (Fla. 5th DCA 1980).

Petition DENIED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: FRANK D. UPCHURCH, Judge.

text:
    Paul Eugene THATCHER, Appellant, v. STATE of Florida, Appellee.
    No. 78-2220/T4-252.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.

      Ed Leinster, Orlando, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   FRANK D. UPCHURCH, Judge.

Defendant, Paul Eugene Thatcher, entered a plea of nolo contendere to the offense of possession of phencyclidine, commonly known as P.C.P., and reserved his right to appeal all pre-trial motions.

The pre-trial order with which appellant is concerned is a motion to suppress wiretap evidence and certain oral statements.

We find no error and affirm.

Through clerical error, the judgment appealed failed to reflect the reservation of a right to appeal. This omission was not raised until the State filed its answer brief which did not address the points raised by appellant in his brief, instead, counsel for the State raised the point that this court does not have jurisdiction because of the omission of a reservation of a right to appeal as required under Rule 9.140(b), Florida Rules of Appellate Procedure. See also State v Ashby, 245 So.2d 225 (Fla.1971).

Appellant immediately filed an emergency motion to supplement the record on appeal. Although counsel for the State did not handle this matter at trial, he knew or, at the least, was charged with knowledge of the reservation of the right to appeal by appellant. Instead of acknowledging the error and cooperating in its correction, he sought to capitalize on the omission by responding to the motion and contended that, because jurisdiction had vested in the appellate court, the trial court should not be permitted to amend its judgment to reflect the reservation of the right to appeal. We granted the motion to supplement the record and appellant filed an amended judgment reciting reservation of appellant’s right to appeal.

Counsel for the State did not favor this court with a brief directed to the merits, but upon oral argument again insisted that this court could not consider the merits because of the omission in the original judgment. Even if we accepted the State’s contention that the omission, even though corrected, is determinative of this appeal, it probably would not be dispositive. We suspect that defendant could demonstrate that he entered the plea and the State accepted it based on the understanding that he could appeal the narrow point on which the case turned. In such event, defendant would be granted an opportunity to withdraw his plea. Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979); Tamers v. State, 284 So.2d 402 (Fla. 4th DCA 1973); Bookout v. State, 243 So.2d 188 (Fla. 4th DCA 1971). These tactics by the State are especially surprising in view of the strength of the State’s position on the merits.

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . Jurisdictional matters are normally raised by a motion to dismiss the appeal under Rule 9.300, Florida Rules of Appellate Procedure.


author: DAUKSCH, Chief Judge.

text:
    Stephen W. PURWIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1991/T4-206.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Richard L. Jorandfay, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, Chief, App. Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from three convictions of murder in the first degree. Appellant killed his wife and two of his children. The infant child apparently lived even though appellant would have had otherwise.

We have found no judicial error leading to the conviction of appellant but we have been requested to determine whether it is incumbent upon a sentencing judge to order a presentence investigation report in a case such as this, a multiple capital case where the state neither sought nor did the jury or judge require the death penalty.

It is our opinion the trial judge in this case should have ordered and considered a presentence investigation report before he sentenced this appellant to three consecutive life sentences.

Rule 3.710, Florida Rules of Criminal Procedure (1977), requires

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.
Committee Notes
1972 Adoption. The rule provides for the utilization of a pre-sentence report as part of the sentencing process. While use of the report is discretionary in all cases, it is mandatory in two instances, the sentencing of a first felony offender and of a defendant under 18 years of age. Of course, no report is necessary where the specific sentence is mandatory, e. g., the sentence of death or life imprisonment in a verdict of first degree murder.

This rule provides that where a sentencing judge has discretion as to what sentence may be imposed he may order a report and recommendation from the parole and probation commission and where the defendant is a first felony offender or is under 18 years old, then the judge shall order the report and recommendation. A felony is any crime to which the accused may be sentenced to death or a term of imprisonment in a state prison. First degree murder is a felony punishable by death or imprisonment for life with a mandatory minimum of twenty-five years in a state prison. Sections 775.081 and 775.082, Fla.Stat. (1979). This appellant was apparently a first felony offender.

Our Supreme Court has held “that once the jury returns a verdict of first degree murder, the trial court is exempt from the mandatory presentence requirements of Rule 3.710, Rules of Criminal Procedure.” Thompson v. State, 328 So.2d 1 (Fla.1976). See also Hargrave v. State, 366 So.2d 1 (Fla.1978). These cases are based upon the premise that because the sentencing judge has no discretion in his sentence that a report would be unnecessary and a futile effort on the part of the commission and the judge. Both of those cases involved a single capital conviction, but this case involves multiple convictions from a three count indictment.

The sentencing judge had discretion to sentence this appellant to a minimum of twenty-five years if he ordered the sentences to run concurrently or a minimum of seventy-five years, as he did when he ordered them to run consecutively. The rule and justice seem to require that when a sentencing judge has discretion in sentencing first felony offenders, then he should look into the background of the defendant to determine the best sentence for that defendant and society. See Thomas v. State, 356 So.2d 846 (Fla.4th DCA 1978). Nothing whatsoever will preclude the sentencing judge from awarding this appellant, or any other convict, the maximum legal sentence but it should be done in accordance with Rule 3.710. The committee note to that rule and the above cited supreme court cases all say no report is necessary where the specific sentence is mandatory. Here the specific sentence was not mandatory. It could have been either consecutive sentences or concurrent sentences. In fact, section 921.16(1), Florida Statutes (1979), says when two or more convictions result from the same indictment, the sentences shall run concurrently unless the judge directs otherwise.

The sentence is reversed and this cause is remanded for resentencing in accordance with this opinion.

JUDGMENT AFFIRMED; SENTENCE REVERSED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    John W. McCORD, Jr., Petitioner, v. AVIS RENT A CAR SYSTEM, INC., d/b/a Avis or Avis Rent A Car, and Sondra Davis, Respondents.
    No. 80-518.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.

      Wallace W. Hardy, of Law Offices of Meredith J. Cohen, Orlando, for petitioner.
    Jeffry R. Jontz, of DeWolf, Ward, Morris, Wohlust, Jontz & O’Donnell, P. A., Orlando, for respondent.
   SHARP, Judge.

John W. McCord, Jr., files a petition for writ of certiorari to review the order of the circuit court granting respondents’ motion to compel the state attorney and the Clerk of the Circuit Court of Orange County to unseal records in the case of State of Florida v. John Wesley McCord, Jr., Case No. CR-79-1257, for purposes of discovery and/or trial in petitioner’s action against respondent for false imprisonment, negligence and malicious prosecution. The records concern a criminal charge against McCord for “failure to return a hired vehicle,” the issuance of a “no information notice” by the state attorney’s office and the dropping of the criminal charges. Respondents allege that petitioner agreed to participate in the Orange County Pre-Trial Diversion Program and that he “entered into a contractual agreement with the state attorney’s office agreeing to waive speedy trial, to a probationary period, and to make restitution.”

We deny this petition because the record does not support petitioner’s claim that the lower court’s ruling constitutes a departure from the essential requirements of law in this case. Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977); Brown v. Bridges, 327 So.2d 874 (Fla. 2d DCA 1976).

PETITION DENIED.

COBB and FRANK D. UPCHURCH, JJ., concur.


text:
    Walter Issiac LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 79-443.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.

      James B. Gibson, Public Defender, and Ronald K. Zimmett, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction and a sentence after a negotiated plea of guilty to two counts of a twelve count information.

The history of this case is rather short but is of great concern to this court. The public defender of the Seventh Judicial Circuit represented the appellant below, as he does on appeal. The appellant pleaded guilty to the charge of burglary and grand theft and the remaining charges were dropped. There was no motion to set aside the guilty plea and there is no question the appellant could not appeal the conviction after his guilty plea. His counsel on appeal, who was not the assistant public defender who represented appellant in the trial court, has assured us in his Anders brief that appellant cannot appeal after a guilty plea so the appeal attacking the conviction is groundless and frivolous. This is true because section 924.06(3), Florida Statutes (1979), provides:

A defendant who pleads guilty or nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal. Such a defendant shall obtain review by means of collateral attack.

See also Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

The sentence is within the lawful limits and therefore an appeal from the sentence is groundless and frivolous. Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

Many hours and much money in public funds have been spent in a worthless fashion to reach no end but the one expressed in this opinion. The money and time spent in the representation of appellant in the trial court was well spent and the result reached was apparently a satisfactory one for society and the accused, appellant. The state attorney and the trial judge concurred with appellant and his counsel concerning the pleas, convictions and sentences. Then, for some reason unknown to this court, trial counsel filed a notice of appeal causing the clerk of the court to prepare a many-paged record on appeal; the court reporter to prepare two transcripts of proceedings in the trial court; the assistant public defender in charge of appeals to prepare a brief which had to be typed with many copies; the assistant attorney general to review the matter and file his brief and copies after his research, writing and typing was done; our clerk’s office to go through the many docketing and processing steps; a judicial aide of our court, a lawyer, to review the entire matter; and three judges of this court to spend time and effort in again reviewing the matter. The final result is that all agree, including the appellant who was given the opportunity to be heard, the appeal is groundless. We call it frivolous and deem it necessary to write this opinion to urge that something be done to assure that instances such as these do not occur again. The entire time-wasting, money-wasting and wheel-spinning procedure is not in anyone’s best interests and is disruptive of the justice system which should and could be better spent deciding truly important questions of law and disputes between parties.

Because this appeal is frivolous, is taken in a case where appeals do not lie, and is taken against good faith, it is quashed. Sec. 59.33, Fla.Stat. (1979).

APPEAL QUASHED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: McCORD, Judge.

text:
    Aaron E. STRONG, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. PP-69.
    District Court of Appeal of Florida, First District.
    June 30, 1980.
    Aaron E. Strong, in pro. per.
    Jim Smith, Atty. Gen., and Joseph A. Linnehan, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals the trial court’s denial of his petition for writ of habeas corpus alleging violation of due process in a prison disciplinary proceeding. He has raised eight points for review. One issue has merit. Appellant asserts that, according to Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Lightfoot v. Wainwright, 369 So.2d 110 (Fla. 1 DCA 1979), a prisoner must be given a copy of the written statement of the evidence relied upon and the reasons for the disciplinary action against him. We agree. We, therefore, reverse and remand with directions to the Department of Corrections to furnish a copy of the pertinent written statement to appellant. See Jerry v. Wainwright, 383 So.2d 1110 (Fla. 1 DCA, opinion filed May 13, 1980).

We affirm the trial court’s ruling that appellant was not unjustly denied the right to call witnesses on his behalf. Appellant’s petition did not show specifically that he was aggrieved by the alleged denial of the opportunity to call witnesses. Cf. Piccirillo v. Wainwright, 382 So.2d 743 (Fla. 1 DCA 1980); Willis v. Ciccone, 506 F.2d 1011 (8th Cir. 1974); and Jerry, supra.

We have considered appellant’s remaining points and find them to be without merit.

Affirmed in part and reversed and remanded in part.

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


text:
    John N. WILSON, Trustee, Appellant, v. SOUTHERN DISCOUNT COMPANY, Appellee.
    No. 79-1884.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.

      Hilton R. Carr, Jr., and L. J. Cushman, Miami, for appellant.
    Elliot L. Miller, Miami, for appellee.
    Before BARKDULL, HUBBART and PEARSON, DANIEL, JJ.
   PER CURIAM.

The final judgment of foreclosure, which is under review by this appeal and cross-appeal, is affirmed upon a holding that: (a) all the necessary pre-conditions to the subject foreclosure are shown on this record, (b) the appellee Southern Discount Company [the holder of a second mortgage on the subject realty] is not liable in trespass to the appellant John Wilson [the joint owner of the subject realty] for entering upon and managing the subject realty because the appellee did so with the acquiescence and consent of the appellant and the other joint owner of the subject realty under circumstances which adequately protected the interests of both joint owners, thus taking this case out of the rule stated in Bartley v. Church, 347 So.2d 838 (Fla.2d DCA 1977), and (c) the other errors urged on the appeal and cross-appeal have no merit. See Pros-ser on Torts § 13 (4th ed. 1971); 32 Fla.Jur. “Trespass” § 9 (1960).


text:
    Armondio RUIZ and Allied Fidelity Insurance Company, an Indiana Corporation, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1990.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Stone, Sostchin & Gonzalez and Gisela Cardonne, Miami, for appellants.
    Janet Reno, State Atty. and John P. Durant, Asst. State Atty., for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Sponheim, 366 So.2d 143 (Fla.2d DCA 1979); Resolute Insurance Company v. Brinker, 338 So.2d 861 (Fla.3d DCA 1976); Resolute Insurance Company v. State ex rel. Dade County, 289 So.2d 456 (Fla.3d DCA 1974); § 903.27(2), Fla.Stat. (1977).


text:
    James WOHL and Samuel Patent, d/b/a, Major Associates, Appellants, v. HARRY RICH CORPORATION, a Florida Corporation, Appellee.
    No. 79-2084.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.

      Smathers & Thompson and Maria E. Aris-ta, Miami, for appellants.
    Kavanaugh & Leiby and Larry R. Leiby and Carlos M. Hernandez, Miami, for appel-lee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Bruce Construction Corporation v. Federal Realty Corporation, 104 Fla. 93, 139 So. 209 (1932); Vassar v. State, 139 Fla. 213, 190 So. 434 (1939); Dadswell v. State, 186 So.2d 274 (Fla.2d DCA 1966); Joe Hatton, Inc. v. Conner, 247 So.2d 782 (Fla.4th DCA 1971); CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So.2d 73 (Fla.3d DCA 1973); Mart v. Leibman, 281 So.2d 367 (Fla.3d DCA 1973); Bali v. Papp, 317 So.2d 801 (Fla.4th DCA 1975).


text:
    Ingrid FEE, Appellant, v. NATIONAL AIRLINES, INC., Appellee.
    No. 79-2177.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Highsmith & Strauss and Phillip E. Glat-zer, Miami, for appellant.
    Steel, Hector & Davis and John M. Bark-ett, Miami, for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See: DeMarco v. Public Super Markets, Inc., 360 So.2d 134 (Fla.3d DCA 1978), certiorari denied 367 So.2d 1123 (Fla.1979) affirmed DeMarco v. Publix Supermarkets, Inc., 384 So.2d 1253 (Fla.1980).


text:
    Robert Lee DOUGLAS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1252.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Robert Lee Douglas, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


text:
    Herman Earl DURBIN, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-2232 and 78-150.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.
    Richard L. Jorandby, Public Defender, and Jon May and Wilber Stevenson, Jr., Asst. Public Defenders, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

These are timely filed consolidated appeals by the defendant from an order revoking his probation and sentencing him to fifteen years in prison for indecent assault upon a child in Case No. 77-2232, and from a subsequent judgment in Case No. 78-150 following a plea of guilty to the offenses of burglary and sexual battery, for which the appellant was sentenced to concurrent terms of life imprisonment. At issue is whether the trial judges committed error in failing to adhere to the statutory scheme for treatment of mentally disordered sex offenders.

Appellant has a history of sexually-related criminal activity and has received extensive psychiatric treatment including some 16 months of inpatient treatment at the South Florida State Hospital.

On August 20,1975, appellant was placed on ten years’ probation for indecent assault. In August of 1977 appellant was charged with violating his probation by committing a burglary and alleged sexual battery on an eleven year old child. The trial court, acting upon a motion filed by appellant to determine his mental competence, ordered that appellant be examined by two psychiatrists, Doctors O’Lone and Eichart, and that the psychiatrists determine whether appellant was competent and whether he was in need of psychiatric treatment because of his sexually abnormal behavior. In their reports, one doctor was of the opinion that appellant was not a mentally disordered sex offender while the other felt appellant “might” come under the provisions of the act. Both reports detailed appellant’s extensive criminal activity and psychiatric treatment. At the conclusion of the revocation hearing, the court revoked appellant’s probation and denied appellant’s request for a formal hearing as to his possible status as a mentally disordered sex offender, within the meaning of Chapter 917, Florida Statutes (1977).

Thereafter, appellant was prosecuted by information with regard to the offenses which led to the revocation of his probation. Again, two different doctors, Taubel and Cohn, were appointed by the court and submitted reports as to appellant’s status as a mentally disordered sex offender. The reports again detailed appellant’s unhappy past and unsuccessful psychiatric treatment. Dr. Taubel concluded that appellant was a mentally disordered sex offender but that since no tangible change in his behavior had occurred following his sixteen months of treatment at the state hospital, the value of additional treatments was questionable. The doctor suggested that a more informed response concerning the value of additional treatment could be obtained by asking medical personnel at the hospital, who were familiar with appellant, whether appellant would be an acceptable patient for re-entry into their program. Dr. Cohn agreed with Dr. Taubel’s assessment of appellant’s status. He also noted appellant’s observation that, to him, the clinical advantage of the sex offender treatment program at the state hospital had been limited. At the sentencing hearing, following appellant’s guilty plea to the offenses of burglary and sexual battery, the court conducted a hearing on appellant’s request to be adjudicated a mentally disordered sex offender and concluded that appellant was a mentally disordered sex offender. However, the court refused to commit the appellant for treatment as a sex offender on the grounds that such treatment would be an exercise in futility in view of the extensive treatment already received by the appellant. The appellant was sentenced to concurrent terms of life imprisonment.

The procedure contemplated under Chapter 917 has been succinctly summarized in the recent decision of Gerardo v. State, 383 So.2d 1122 (Fla.2d DCA 1980):

Section 917.14, Florida Statutes (1977), provides for an examination and hearing in the circuit court to determine whether a defendant is a mentally disordered sex offender:
(1) If a defendant has been convicted of or has pleaded guilty or no contest to an offense or attempted offense in a current prosecution, the court may defer sentencing and certify him for a hearing and examination in the circuit court to determine whether he is a mentally disordered sex offender.
(2) The court may certify a defendant under subsection (1) on its own motion, on motion by the State Attorney or the defendant, or on application by affidavit of the defendant.
Under Sections 917.14 through 917.20 the court appoints not less than two experts to make personal examinations of the defendant. These experts make a written report to the court including all facts necessary to assist the judge in passing sentence on or committing the defendant. The court then holds a hearing to determine whether the defendant is a mentally disordered sex offender. The court or the parties may call the appointed experts, and the parties may cross-examine them in the same manner as any other witness. Additional witnesses may be called to give material testimony. If the court finds that the defendant is a mentally disordered sex offender it must commit him to the custody of the Department of Health & Rehabilitative Services for care, treatment and rehabilitation. The department is periodically required to file a report describing treatment received and a diagnosis of the offender’s current condition. Within sixty days of receipt of this report the court must set a hearing date. If the court determines the offender is still dangerous, it orders his return for further treatment. However, if the court finds the department has exhausted all treatment for the offender or that he has improved to the extent he no longer meets the definition of an offender, the court orders him discharged from the department’s custody. Upon his discharge, criminal proceedings recommence. If the court finds the offender has been successfully rehabilitated by the treatment program, it may place the offender on probation. If the court, however, finds the offender continues to present a danger to others it may sentence him.

Appellant first contends that the court which revoked his probation improperly refused to certify him for a hearing pursuant to Section 917.18 after it had ordered appellant’s examination by two psychiatrists and received reports which contained equivocal findings by both psychiatrists that appellant may or may not be a mentally disordered sex offender.

We believe that the reports were sufficient to require the trial court to conduct a hearing when requested to do so by the defendant claiming such status under the law. Donaldson v. State, 371 So.2d 1073 (Fla.3d DCA 1979); Hendricks v. State, 360 So.2d 1119 (Fla.3d DCA 1978). Both reports detailed the defendant’s extensive history of deviant behavior and psychiatric problems including his previous hospitalization as a mentally disordered sex offender. Although the two psychiatrists seemed to be of different opinions as to the defendant’s current mental status, both agreed that the defendant had serious problems. Under these circumstances the trial court had little choice in order to resolve the factual issue raised as to defendant’s status but to order a hearing so that findings and conclusions thereon could be made.

Appellant also contends that the second trial judge committed error by failing to commit him to the custody of the Department of Health and Rehabilitative Services after determining that he was a mentally disordered sex offender. We agree. Section 917.19 requires that a mentally disordered sex offender shall be committed to the custody of the Department of Health and Rehabilitative Services for care, treatment, and rehabilitation. Gerardo v. State, supra; Hendricks v. State, supra; Donaldson v. State, supra. Once adjudicated as a mentally disordered sex offender the court is without authority to sentence such an offender to prison before he receives treatment. Gonsovowski v. State, 350 So.2d 19 (Fla.2d DCA 1977).

While we concur in the trial court’s conclusion that appellant’s prior hospitalization, his extensive history of ineffective treatment, and his recurrent sexually related criminal activity make him a poor candidate for further treatment, the statutory scheme as it then existed clearly provided that the authority to determine whether all appropriate treatment for the offender had been exhausted rests with the Department of Health and Rehabilitative Services. Section 917.20 provides that any time after commitment, the department may file a written report with the committing court stating the facts which show that the department has exhausted all appropriate treatment for the offender. That report could, of course, include information relating to previous unsuccessful treatment. The committing court, following an appropriate hearing, can then order the offender removed from the custody of the department, and once removed, sentence him accordingly under the provisions of Section 917.215.

Although we believe it would be wiser to allow the trial court, prior to its decision to commit the offender for treatment, to assess the viability of further treatment for an individual adjudicated for the second time as a mentally disordered sex offender, the statute makes no provision for such authority. The current statute, Section 917.012(l)(f), Florida Statutes (1979), alleviates that situation by providing that no person previously committed to the Department of Health and Rehabilitative Services as a sex offender under Chapter 917 who commits a subsequent offense shall again be committed for treatment pursuant to the act. However, the clear import of that statute, as well as the preceding Section 917.011, convinces us that the legislature did not intend for the new act to apply retroactively. This conclusion is buttressed by our belief that the provision of the new act alters substantive rights conferred by the 1977 statute. It is axiomatic that statutory changes in law are presumed to apply prospectively. Johnson v. State, 371 So.2d 556 (Fla.2d DCA 1979).

Because of the course of events that have occurred in this case, we find it unnecessary to remand for a formal hearing in Case No. 77-2232 as to appellant’s possible status as a mentally disordered sex offender. Accordingly, the orders sentencing appellant are reversed and this cause is remanded with directions in both cases that appellant be committed to the custody of the Department of Health and Rehabilitative Services subject to the continuing authority of the trial courts to resentence the appellant upon release from the custody of the Department.

REVERSED AND REMANDED WITH DIRECTIONS.

MOORE and BERANEK, JJ., concur.

      . Statutes will not be given retroactive application unless such application is stated in clear and explicit terms. See e. g. Trustees of Tufts College v. Triple R Ranch, Inc., 275 So.2d 521 (Fla.1973); Taylor v. Florida Crimes Compensation Commission, 367 So.2d 720 (Fla.3d DCA 1979).

      . See Castle v. State, 305 So.2d 794 (Fla.4th DCA 1975), affirmed 330 So.2d 10 (Fla.1976).


author: BERANEK, Judge.

text:
    CONTINENTAL INSURANCE COMPANY, Appellant, v. Philip CASTORA, Jr., and Carol Castora, his wife, Todd Fopiano, Robert Fopiano, et al., Appellees.
    No. 78-1960.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.

      Stephen W. Bazinsky and Ronald D. Pol-torack of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
    R. David Donlin of George V. Lanza, P. A., Coral Gables, and Harry A. Gaines, P. A., Miami, for appellees, Castora.
   BERANEK, Judge.

This is an appeal by a workmen’s compensation insurance carrier, Continental Insurance Company, from an order entered by the Circuit Court on equitable distribution of a personal injury settlement as provided by Section 440.39(3)(a), Florida Statutes (1975). The Circuit Court denied the carrier’s petition for equitable distribution of the plaintiff/worker’s recovery in his suit against a third party tortfeasor. We reverse.

The plaintiff/appellee sustained injuries in a work related accident in November, 1974, within the coverage of appellant, Continental Insurance Company. The appellee sustained additional injuries in a subsequent automobile accident in October, 1975, which was not within the insurance coverage of appellant.

The injured employee filed a suit to recover for personal injuries against a third party tortfeasor involved in the earlier accident. After a settlement of the claim against the third party tortfeasor, the trial court was called upon to determine equitable distribution under the workmen’s compensation law. In doing so, the trial court considered the combined effects of both accidents in concluding that the employee “did not recover the full value of damages sustained.” In considering the combined effects of both accidents, the trial court erred. The order on equitable distribution denying appellant any recovery whatsoever is vacated and the cause remanded for further proceedings consistent with the above-cited statute and this opinion.

REVERSED AND REMANDED.

HERSEY and GLICKSTEIN, JJ„ concur.


text:
    CITY OF NEW SMYRNA BEACH et al., Appellants, v. INNKEEPERS MOTOR LODGE, INC., Appellee.
    No. 79-157.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.

      Charles A. Hall and Charles J. Hardee, III, New Smyrna Beach, for appellants.
    Thomas S. Hart of Kinsey, Vincent, Pyle, Williams & Tumbleson, Daytona Beach, for appellee.
   DAUKSCH, Chief Judge.

This appeal is dismissed. See Agriesti v. Clevetrust Realty Investors, 381 So.2d 753 (Fla. 4th DCA 1980).

COBB, J., and BOOTH, JOHN W., Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    HILLSBOROUGH COUNTY SCHOOL BOARD and Insurance Company of North America, Appellants, v. Peter Louis PEREZ, a minor, by and through his parents and next friends, Evelio Perez and Velia Perez, Evelio Perez and Velia Perez, Individually, Walter Molkenthin, a minor, by and through his parents and next friends, Paul W. Molkenthin and Irmgardt Molkenthin, and State Farm Fire & Casualty Company, Appellees.
    No. 79-1109.
    District Court of Appeal of Florida, Second District.
    July 2, 1980.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.
    Joel D. Eaton and Walter H. Beckham, Jr. of Podhurst, Orseck & Parks, Miami, and Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, for appellees Perez.
    Gary S. Rabin of Lane, Massey, Trohn, Clarke, Bertrand & Smith, for appellees Molkenthin and State Farm Fire and Cas. Co.
   BOARDMAN, Judge.

Hillsborough County School Board and its insurer, Insurance Company of North America, two of the defendants below, appeal a final judgment against them and in favor of plaintiffs/appellees Peter, Evelio, and Velia Perez. We affirm in part and reverse in part.

The minor plaintiff, Peter Perez, was accidentally injured by a shotput thrown by a schoolmate, Walter Molkenthin, during practice. Peter’s parents, both individually and on Peter’s behalf, sued Walter, Walter’s parents, and Walter’s parents’ insurer. They also sued appellants on a theory of negligent supervision. The case was tried by jury. The jury found that neither Peter nor Walter was negligent; that the school board was 100% negligent; that Peter’s damages were $150,000; and that his parents’ damages were $20,000. Final judgment was entered in accordance with the jury’s verdict. Appellants’ motions for re-mittitur and for new trial were denied. This appeal followed timely.

On this appeal appellants challenge both the determination of liability and the amounts of the damage awards. We see no basis for disturbing the jury’s finding on the issue of negligence or its assessment of Peter’s damages. However, we agree that the amount of the damages awarded to Peter’s parents is not supported by the evidence. The jury was authorized to consider only two elements of damages to Peter’s parents: (1) past medical expenses resulting from the accident and the future medical expenses for the few months until Peter became eighteen years old and (2) the loss of any services to the parents until Peter became eighteen years old. Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926); City Stores Co. v. Langer, 308 So.2d 621 (Fla. 3d DCA), cert. dismissed, 312 So.2d 758 (Fla.1975).

Peter was fourteen years old at the time of the accident, seventeen at the time of trial. The uncontroverted evidence of his past medical expenses established a total expense of $5,815.65.

As to future medical expenses, two clinical psychologists testified that Peter needed future psychological treatment, and there was evidence from which the jury could have found that Peter’s need for psychological counseling was due in large part to the restrictions on his physical activities made necessary by the injury he had received in the accident. However, the only testimony as to the cost of the treatment indicated was the estimate of one of the psychologists that the maximum cost would be $60 per week. Assuming Peter’s parents to be responsible for such treatment for the period of less than one year until Peter became eighteen, the evidence would support an award of a maximum of approximately $3000 for future medical expenses.

There was no testimony establishing that the parents had sustained any significant loss of Peter’s services or that they would sustain any significant loss of services in the short period of time until Peter became eighteen, although Peter may have done a few minor chores around the house prior to the accident. Indeed, plaintiff’s counsel admitted during closing argument that: “The loss of services around the house, I don’t think we have very much proof of that.” Plaintiffs’ counsel suggested a figure of $240 for loss of services.

We conclude that the evidence presented to the jury will not support an award to the parents greater than $10,000. We therefore vacate the award of damages to Peter’s parents and remand for a remittitur to $10,-000 or a new trial on only this issue at the parents’ option. The judgment is otherwise affirmed.

SCHEB, C. J., and OTT, J., concur.


text:
    George McClay VAUX, Jr., Appellant, v. Frances Ann VAUX, Appellee.
    No. 80-689.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Hodges, Gossett & McDonald and Ronald P. Gossett, Hollywood, for appellant.
    Melvyn B. Frumkes and Sharon L. Zeller, Miami, for appellee.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

In January, 1980, Mr. and Mrs. Vaux instituted separate, subsequently consolidated, domestic actions against each other in the Dade County Circuit Court. Two months later, after extensive activity in the Dade County proceedings, the husband moved to transfer the cases to St. Lucie County under the forum non conveniens statute, Section 47.122, Florida Statutes (1979). We find no abuse of discretion in the trial court’s denial of that motion. See McGraw-Edison Co. v. Van Pelt, 350 F.2d 361 (8th Cir. 1965); McMichael v. Harris, 127 Fla. 861, 174 So. 323 (1937); Kuvin, Klingensmith & Lewis, P. A. v. Florida Insurance Guaranty Ass’n., Inc., 371 So.2d 214 (Fla. 3d DCA 1979); Bassett v. Talquin Electric Cooperative, Inc., 362 So.2d 357 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979); Velez v. Mell D. Leonard & Associates, Inc., 338 So.2d 896 (Fla. 2d DCA 1976); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975).

Affirmed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Jaime CHACON, Appellee.
    No. 79-1517.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellant.
    Horton, Perse & Ginsberg, Lawrence Rodgers, Miami, for appellee.
    Before SCHWARTZ and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Holloway v. State Farm Mutual Auto. Ins. Co., 370 So.2d 452 (Fla.4th DCA 1979).


author: DANIEL PEARSON, Judge.

text:
    Donald J. DOWD, d/b/a Lums Restaurant, Individually, and Donald J. Dowd, d/b/a Lums Restaurant, Francis Naughton, Elaine Naughton, Thomas Seay and Ruth Seay, f/u/b/o Centennial Insurance Company, Appellants, v. STAR MANUFACTURING COMPANY, a division of Peabody Galion Corp., a Foreign Corporation, and Hartford Accident & Indemnity Company, Appellees.
    No. 79-1544.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.

      Harold C. Knecht, Jr. and David A. Crowley, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL PEARSON, Judge.

In July 1974, a Lums Restaurant in Marathon, Monroe County, Florida, .owned by Dowd, was totally destroyed by a fire that originated in a Fryolator (deep fat fryer) manufactured by Star Manufacturing Company. Dowd (and his insurer) sued Star (and its insurer) for damages. The gravamen of Dowd’s complaint was that Star’s Fryolator did not contain, but should have contained, a safety device which would cut off the electric current in the event that thermostat failure allowed the fat to reach self-ignition temperatures. Star’s defense was that there was nothing wrong with its Fryolator, and not even the first hot dog would have been overcooked had it not been for Dowd’s various acts of negligence. The jury rendered a verdict on special interrogatories in favor of Star, finding that Star was not guilty of any negligence which was the legal cause of Dowd’s damages and had not manufactured, assembled or designed a defective Fryolator which was the legal cause of Dowd’s damages.

On appeal, Dowd’s sole complaint concerns the admission of certain testimony of one Randall Mernes, the captain of the volunteer fire department of Marathon. Mernes testified that the fire code in effect in Marathon in July 1974 was the National Fire Code, which required, inter alia, that a restaurant contain a fire extinguishing system above its cooking facilities. Dowd did not object to this testimony at the time it was elicited. When, during cross-examination, Mernes stated that he had learned from others that Monroe County had adopted these National Fire Code requirements, Dowd unsuccessfully moved to strike Mernes’ testimony on this subject.

Mernes’ testimony on direct examination relating to the requirements of the Monroe County Code, whether Mernes was purporting to state what he had read in the Code or had heard from others, was objectionable in the first instance. An untimely motion to strike is not a substitute for a timely objection. Wicoma Investment Company v. Pridgeon, 137 Fla. 540, 188 So. 597 (1939); Platt v. Rowand, 54 Fla. 237, 45 So. 32 (1907). Dowd’s failure to make timely objection results in this point on appeal not being properly preserved for our review. If, arguendo, Dowd’s untimely motion to strike were sufficient to invoke review, we would find that the testimony of Mernes was harmless. § 59.041, Fla.Stat. (1977); State v. Galasso, 217 So.2d 326 (Fla. 1968); Henry v. State, 290 So.2d 73 (Fla. 2d DCA 1974); James v. State, 223 So.2d 52 (Fla. 4th DCA 1969).

Affirmed.

      . Since Mernes was relating the contents of a public record, his testimony arguably violated both the hearsay and best evidence rules.

      . The jury was not instructed about the fire code of Monroe County, nor was it told it could find Dowd negligent if it found he violated any code provisions. Star’s attorney made only a passing reference to Mernes’ testimony in closing argument and conceded that the restaurant was built before any code requirement and that there was no evidence the code was retroactive. Moreover, abundant other evidence was introduced to show that the manufacture, design and assembly of the Fryolator were not the legal cause of the destruction of Lums.


author: HERSEY, Judge.

text:
    Alex SALKAY, Appellant, v. Basil C. DEUSCHLE, Jr., Robert L. Lambert and Harvey E. Ramsey, Individually and as Trustees of Manor Grove Land Corporation, and Ann Salkay and Patricia Ann Williams as Personal Representatives of the Estate of Ann Salkay, Appellees.
    No. 79-543.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Alex Salkay, pro se.
    Gerry L. Dondanville of Spear, Deuschle & Curran, Fort Lauderdale, for appellees, Basil C. Deuschle, Jr., Robert L. Lambert and Harvey E. Ramsey, Individually and as Trustees of Manor Grove Land Corporation.
   HERSEY, Judge.

This is an appeal from a final order dismissing with prejudice the third amended complaint and supplemental complaint of appellant, Alex Salkay.

Appellant was injured in an automobile accident. A workmen’s compensation award entered by a judge of industrial claims determined that appellant was entitled to benefits from Manor Grove Land Corporation, his employer. The corporation was neither insured nor properly qualified as a self-insurer under the Workmen’s Compensation statutes. The corporation was subsequently liquidated and appellant’s award went unsatisfied, although separate proceedings remain pending seeking enforcement.

Appellant then filed a complaint against the appellees individually and as trustees of the liquidated corporation. After a series of motions, hearings and amendments to pleadings the order appealed from was rendered. The trial court based dismissal on res judicata, estoppel by judgment and lack of jurisdiction of the court over the subject matter. In part the court concluded:

E. That because of the foregoing the Third Amended Complaint and Supplemental Complaint cannot be cured by further amendment, and thus, should be dismissed with prejudice.

We disagree and reverse.

The issues tried and triable in the workmen’s compensation proceeding were appellant’s status as an employee injured in the course of and within the scope of his employment, the amount of his entitlement, the identity of his employer and methods of enforcement of the award. The complaint in the instant case is an attempt to allege that appellees in their capacity as trustees liquidated the corporation and thereafter, in their individual capacities, wrongfully, fraudulently and with intent to deprive appellant of his just entitlement, converted, concealed and secreted those assets. While the statute, Chap. 440, Florida Statutes, 1979, provides certain remedies for the enforcement of awards, the thrust of those provisions is to enable a claimant to proceed against the recalcitrant employer. Appellant’s complaint alleges that the individual appellees, by the commission of independent torts, have not only made it impossible for the corporate employer, now defunct, to respond in damages, but also have substantially aggravated those original damages.

We have not found a Florida case precisely on point. However, in Grice v. Suwannee Lumber Mfg. Co., 113 So.2d 742, 744 (Fla. 1st DCA 1959) the court stated:

Appellant proceeds upon the basic premise that the Workmen’s Compensation Act is a substitute for the common law rights and liabilities of the employee and employer only on the subjects which it covers, and within its self contained limitations. That it does not affect rights which are not within the purview of the act or which by necessary implications or negation are excluded therefrom, we agree.
The court, in Grice, supra, concluded: . [I]t follows that an employee is free to pursue his common law remedies for damages resulting from injuries not encompassed within the express provisions or intendments of the Act.

And in Reed v. Hartford Accident & Indemnity Company, 367 F.Supp. 134 (E.D.Pa. 1973) the District Court held that an action based on economic duress, fraud and bad faith in the payment of a compensation claim is not governed exclusively by the compensation act. By this opinion we align ourselves with the reasoning of this and the preceding case.

We therefore determine that a cause of action could be stated against appellees in their individual capacities by alleging the commission of one or more intentional torts. Further, we hold that the injuries complained of and not compensated for by the existing award are sufficiently independent to withstand an assault based upon res judi-cata or estoppel by judgment.

We concur with the trial court that the third amended complaint and the supplemental complaint are defective. We disagree that they cannot be cured by further amendment.

The record discloses that Ann Salkay became deceased during the pendency of these proceedings. Her personal representative did not join in this appeal. The decedent’s cause of action, if any, is therefore extinguished by the final judgment.

Accordingly, we reverse the order appealed from and direct that appellant be permitted to amend his pleadings so that a determination may be made as to the merits of appellant’s claims.

REVERSED AND REMANDED.

LETTS, C. J., and HURLEY, J., concur.


text:
    GRAFCO REALTY, INC., a Florida Corporation, Appellant, v. E. Llwyd ECCLESTONE, Jr. et al., Appellee.
    No. 79-1032.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Daniel Neal Heller, of Heller & Kaplan, Miami, for appellant.
    S. Lee Crouch, Hallandale, for appellee Campanelli, Inc.
    J. Michael Burman of Montgomery, Ly-tal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellees Ecclestone and Florida Management Co.
   PER CURIAM.

Appellant/plaintiff, Grafco Realty, Inc., takes this interlocutory appeal to challenge an order which granted a motion for change of venue and transferred the cause from Broward to Palm Beach County pursuant to Section 47.122, Florida Statutes (1979). We affirm.

Section 47.122, the change of venue statute, by its very language, reposes broad discretion in the trial court. Peterson, Howell & Heather v. O’Neill, 314 So.2d 808 (Fla. 3d DCA 1975). Furthermore, we have consistently held that the exercise of the trial court’s discretion will not be disturbed except upon a clear showing of abuse. Hertz Corporation v. Rentz, 326 So.2d 216 (Fla. 4th DCA 1976); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975).

We have carefully reviewed the record in this cause which consists of the complaint, two motions for change of venue and an affidavit in support thereof, and conclude that appellant has failed to demonstrate an abuse of discretion. Accordingly, the appealed order is AFFIRMED.

DOWNEY, BERANEK and HURLEY, JJ., concur.


text:
    FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, Appellant, v. Diane FICHERA, Appellee.
    No. 79-1939.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.

      John P. Wiederhold of Pomeroy, Betts & Wiederhold, West Palm Beach, for appellant.
    Philip M. Warren of Sullivan, Ranaghan, Bailey & Gleason, P. A., Pompano Beach, for appellee.
   PER CURIAM.

ON MOTION TO DISMISS

In Florida Farm Bureau Casualty Ins. Co. v. Fichera, 366 So.2d 867 (Fla.4th DCA 1979), we reversed in part and affirmed in part a final judgment in this cause and remanded the cause for further proceedings. Upon remand the trial court entered what was styled an “Amended Final Judgment,” which for all intents and purposes tracked the original final judgment with two exceptions. First, the “Amended Final Judgment” changed the provision of the original judgment which was reversed having to do with the unconscionability of a one year limitation provision of the policy. Secondly, the “Amended Final Judgment” found appellee was entitled to an attorney’s fee and retained jurisdiction to determine the amount thereof at a later date.

Appellant has filed a plenary appeal from the so-called “Amended Final Judgment.” Although we previously denied appellee’s motion to dismiss this appeal for lack of jurisdiction, we now do so because on more mature reflection, with the records and briefs before us, we perceive that the order to be reviewed is not a final order subject to plenary appeal, nor is it a non-final order subject to interlocutory appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3).

Accordingly, this appeal is dismissed without prejudice, of course, to appellant’s right to appeal from the final judgment awarding attorney’s fee, if and when such order is entered.

LETTS, C. J., and DOWNEY and HURLEY, JJ., concur.