author: JORGENSON, Judge.

text:
    Michael L. SOLLOWAY, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION and Board of Medical Examiners, Appellee.
    No. 81-615.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Rehearing Denied Dec. 1, 1982.
    Horton, Perse & Ginsberg and Mallory W. Horton, Miami, for appellant.
    Deborah J. Miller, Tallahassee, for appel-lee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

Michael Solloway, M.D., appeals the revocation of his license to practice medicine by the Department of Professional Regulation, Board of Medical Examiners. He alleges as error an unconstitutional ex post facto application of Section 458.331, Florida Statutes (1979), and the failure of the Board to determine the standards by which it found his conduct to be unprofessional. We find no merit to either contention and, consequently, affirm.

The revocation was based on a Board finding that Dr. Solloway began an exploitative sexual relationship with a twenty-two-year-old female on May 16,1977, before he had properly terminated their psychiatrist/patient relationship. The statute in effect at the time of the incident was Section 458.1201(l)(m), Florida Statutes (1977). At the time the administrative complaint was filed, December 13,1979, the foregoing statute had been replaced by Sections 458.331(l)(k), (t), Florida Statutes (1979). The final order revoking Sollo-way’s license to practice medicine concluded that a violation of Section 458.1201(l)(m), Florida Statutes (1977), as codified in Section 458.331(l)(t), Florida Statutes (1979), had occurred.

A statute that is simultaneously repealed and re-enacted is regarded as continually in force. Goldenberg v. Dome Condominium Association, Inc., 376 So.2d 37 (Fla. 3d DCA 1979); 1A SUTHERLAND § 23.13 (rev. 3d ed. 1972). Only provisions omitted from the reenactment are considered repealed. Gewant v. Florida Real Estate Commission, 166 So.2d 230 (Fla. 3d DCA 1964). The applicable provisions in both enactments of Chapter 458 are similar, and both proscribe the conduct that is the subject matter of this appeal. The legislature merely explicitly condemned conduct which had previously been implicitly condemned. An amendment and re-enactment of a statute constitutes a continuation of those provisions which are carried into the new act and permits a prosecution under the original act irrespective of its nominal repeal. McKibben v. Mallory, 293 So.2d 48 (Fla.1974); Raines v. State, 42 Fla. 141, 28 So. 57 (1900); Skinner v. State, 383 So.2d 767 (Fla. 3d DCA 1980).

Appellant’s reliance on Lester v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977), is misplaced. The Lester court, in construing the same 1977 statute, concluded that Section 458.1201 should be strictly construed with any ambiguity being interpreted in favor of the licensee, this being so because of the penal nature of the statute. We agree with that proposition of the law; however, in the case sub judice there is no ambiguity since we conclude that the acts giving rise to the revocation were contemplated within the original statutory scheme.

Appellant’s second point concerns the definition of unprofessional conduct. He asserts that the Board’s failure to enunciate rules specifically dealing with sexual relationships between psychiatrist and patient require reversal. This point is also without merit. Unprofessional conduct includes “any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice.” Case-by-case determination of prevailing standards is permissible. McDonald v. Department of Banking and Finance, 361 So.2d 199 (Fla. 1st DCA 1978).

The record supports the Board’s finding that a fundamental ethical teaching in the psychiatric profession precludes sexual activity between a psychiatrist and his patient. Where the facts are obvious, specific findings are unnecessary. Little Man’s Club v. Schott, 60 So.2d 624 (Fla.1952).

For the foregoing reasons, the order of revocation is affirmed.

      . Her psychological problems, according to the Board’s Recommended Order of November 12, 1980, were, in part, “serious sexual problems and an intense fear of male sexuality.”

      . § 458.1201(l)(m), Fla.Stat. (1977), reads:
      (m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or without this state.

      .§§ 458.331(l)(k), (t), Fla.Stat. (1979), read:
      (k) Exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her physician.
      (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.


source: Caselaw Access Project

author: COBB, Judge. SHARP, Judge,

license: Public Domain

text:
    Margaret Alice POWELL, Appellant, v. Harry E. POWELL, Appellee.
    No. 81-731.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    Rehearing Denied Nov. 9, 1982.

      Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant.
    Tura Schnebly Paxson of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   COBB, Judge.

This is an appeal by the wife, Margaret Alice Powell, from a final judgment regarding property rights, alimony, attorney fees and costs awarded by the trial court in conjunction with a dissolution of her fourteen-year marriage to Harry E. Powell.

It is the contention of the appellant that the trial court erred in denying her claims for special equity and lump-sum alimony in regard to promissory notes due the parties resulting from the sale of stock in an incorporated family business, United Pest Control, Inc., and the real property from which the business operated; in denying her any special equity in another corporation owned by the husband, Tillis Exterminating, Inc.; in denying her permanent alimony; and in awarding her interest in a jointly-owned business, Robbins & Rollins, Inc., to the husband.

It is axiomatic that factual conflicts below must be viewed and resolved in favor of the appellee by this court. Viewed from that perspective, there was evidence before the trial court that these parties actually had become insolvent despite paper “assets,” thus rendering each party “needy,” and neither “able” to pay substantial alimony beyond that provided.

The trial court, in paragraph 12 of its judgment, stated “that neither party shall be entitled to alimony, either permanent or rehabilitative, from the date of this Order.” This statement is contrary to what the trial court actually awarded, and indicates a misconception by the court of the broad compass of the term “alimony.” The trial court ordered the defunct husband to pay joint liabilities of the parties in an amount of approximately $100,000, the equivalent in itself of an alimony award. In addition, the wife was awarded temporary alimony in the form of the right to occupy the marital home for a two-year period, the interest of the husband in a jointly-owned 1978 Cadillac, a monthly $500 payment of accrued alimony pendente lite until discharge of an aggregate amount of $4,800, all the furniture and furnishings in the marital domicile, and a 10% interest in the monthly payments due on a note given by the corporate purchaser of the pest control business, United Pest Control of Central Florida, Inc., which constitutes a monthly payment to her of $330. The ap-pellee concedes that, as a result of scrivener’s error, this latter sum is shown to be $300 in the final judgment, and should be corrected accordingly.

The pest control business of the parties was originally capitalized, insofar as the Powells are concerned, solely with the husband’s assets acquired prior to this marriage. It was testified that the wives of Powell and Huling were each issued a single stock share, as opposed to nine for each husband, only to avoid corporate dissolution in the event one of the couples divorced. This stock allocation was based upon the suggestion of the attorney handling the incorporation. There was evidence that the wife was paid a reasonable salary as an employee for all the work she did for the pest control business. There also was testimony that the wife was working daily at time of trial, that she had never applied for disability benefits, and that her mental problems were not disabling, either from an economic or physical standpoint. She herself testified that she had never been adjudicated incompetent nor even advised by an attending physician that she should not work. The note payable by the purchasers of the pest control business was of “questionable collectability” and was in default at time of trial.

It is clear, and was so conceded at oral argument by counsel for appellee, that no basis existed for the trial court to award the jointly-owned Robbins & Rollins stock to the husband. See Aguiar v. Aguiar, 386 So.2d 280 (Fla. 4th DCA 1980).

In Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), review denied, 412 So.2d 465 (Fla.1982), this court, in observing the guidelines from Canakaris, relied upon the following quote from that landmark case:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

With the exception of the award of the Robbins & Rollins stock, the indicated scrivener’s error, and the erroneous statement regarding alimony in paragraph 12, we cannot say that the judgment of the trial court, viewed in its totality, reflects a view which no reasonable man would take. Therefore, with those three exceptions, the judgment of the trial court should be affirmed and the cause remanded for the trial court to correct its final judgment in accordance with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case, and protest what I feel is a gross miscarriage of justice. The majority seals its denial of relief for the wife in this case with the truism that a discretionary ruling by a trial court should not be overturned because of its “superior vantage point.” Query if any such presumption should be given in this case where the trial judge, himself, did not hear the testimony. The record is composed of four sessions of testimony taken before a Special Examiner, from August 29, 1980 to February 19,1981, and it is transcribed like depositions. The Examiner made no findings of fact. Therefore, the trial judge was in no better position than this appellate court to weigh contrary testimony and resolve issues of credibility. Julian v. Julian, 188 So.2d 896 (Fla. 2d DCA 1966); Sconyer v. Scheper, 119 So.2d 408 (Fla. 2d DCA 1960). I. Special Equity or Lump Sum Alimony

Based on the undisputed portions of this record, I think the trial judge erred in not making a more equitable division of the assets of the parties acquired and built up during the course of their fourteen year marriage — either through the mechanism of granting the wife a greater ownership interest in the assets of the pest control business, above and beyond her ten percent interest due to her stock ownership, by calling it a special equity or through lump sum alimony.

The parties began their fourteen and one-half year marriage with few material possessions. When they married, the wife worked as a seamstress and the husband worked as a meat cutter. They pooled their earnings and both earned G.E.D. diplomas. The husband continued his studies and became licensed as a pest exterminator by the State of Florida. In 1974 or 1975 the husband and Mr. Roy Huling jointly began a pest control business named United Pest Control, Inc. The original capital for the Powell’s share of the business (some $6,000) was borrowed and the loan was secured by the parties’ jointly-owned car and stock, by some stock owned by the husband before the marriage, and by the wife’s fourteen hundred dollar ($1,400) certificate of deposit.

When the pest control business began to grow, about six months after its inception, both Mrs. Powell and Mrs. Huling quit their jobs and began working in the office. They were the office staff for the new enterprise — the bookkeepers, office managers, secretaries and clerks. They became supervisors as other employees were added. The wives worked long hours and took work home when the business required it. In addition, they performed their functions and duties as homemakers.

United Pest Control, Inc. prospered. The Hulings took over the Jacksonville division and the Powells ran the division in New Smyrna Beach. Mrs. Powell handled all of the bill paying, payroll, and billing for both offices, and later performed similar jobs for Tillis and Master Shield, two spin-off business which were begun with assets and accounts from United. Mrs. Powell worked in this capacity until November, 1979, when she was hospitalized for a mental illness and the parties separated.

In 1979 United provided both families with a good living. The wives were paid twelve thousand five hundred dollars ($12,-500) each and the husbands each received a salary of thirty-four thousand three hundred dollars ($34,300). United was a Sub-Chapter “S” corporation, and Mr. Powell said he and Mr. Huling split any excess profits as dividends. The corporation was set up with Mr. Huling and Mr. Powell each owning nine shares, and the wives each owning one share. The Powells deposited their earnings into a joint account and used them for joint living expenses, to acquire other assets, and to fund United.

In 1979, while Mrs. Powell was hospitalized for a mental illness, the stock of United was sold to two purchasers of the business (one in Jacksonville and one in New Smyrna Beach), and all of its assets, consisting of the real estate where the business offices were located, were transferred to a partnership owned solely by Mr. Huling and Mr. Powell. They then leased the properties back to the purchasers. The fair market value of the New Smyrna property was twenty-one thousand dollars ($21,000). The purchasers of the business executed notes for the balance of the obligation owed— roughly seven hundred thousand dollars ($700,000) — payable to Mr. Huling and Mr. Powell. Mr. Powell’s share was later limited to the New Smyrna purchaser and business, and he was receiving three thousand three hundred dollars ($3,300) per month from the sale of United’s stock at the time of the dissolution.

There was some question, as the majority opinion points out, about how well the new purchasers were running the pest control businesses at the time of the dissolution hearings. But at the last hearing Mr. Powell testified he received the February 1981 payment on time, and the mid-monthly payment was only three days late. He testified the note’s fair market value was forty-five thousand dollars ($45,000) and his share of United’s real estate was worth twenty-one thousand dollars ($21,000), net.

Even as a minority shareholder, Mrs. Powell should have fared better than she did under this judgment. The husbands both testified only they, not the wives, received dividends from United, and they used their cash distributions and United’s equipment and accounts to start other businesses in which only they, not their wives, had stock ownership. Some eight thousand dollars ($8,000) was put into Tillis in this manner. Although the final judgment recognized Mrs. Powell’s one-twentieth interest in United’s assets by awarding her one-tenth of the New Smyrna promissory note, it did not give her any interest in the spinoff business, nor in United’s real estate. Further, the final judgment did not scale down her fifty percent liability on a nine thousand seven hundred eighty-three dollar and twenty-nine cent ($9,783.29) bank loan to United secured by the parties’ jointly-owned twenty-four thousand dollar ($24,-000) certificates of deposit.

On the basis of this record, the denial of a special equity in the pest control business assets to the wife is contrary to established Florida case law. A wife who works in a family business and contributes her support and assets to it on a full-time basis should not leave the marriage with an interest measured by her stock ownership alone. Wives who work on both “fronts,” the home and the business, have been awarded special equities in the classical or pre-Canakaris sense. Carlton v. Carlton, 78 Fla. 252, 83 So. 87 (1919); Neff v. Neff, 386 So.2d 318 (Fla. 2d DCA 1980); Green v. Green, 228 So.2d 112 (Fla. 3d DCA 1969). Or, in its discretion, the court could have awarded the wife lump sum alimony to equalize somewhat the distribution of marital assets in this case. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980). Failure to make any award here to the wife beyond her one-twentieth stock ownership in the note appears to me an abuse of discretion, particularly since the trial court also declined to award the wife any periodic alimony.

Inexplicably, this court had no problem recently overturning a trial court’s denial of special equity to a husband in Hipps v. Hipps, 418 So.2d 1234 (Fla. 5th DCA 1982). The husband in Hipps worked at a blue collar job, and after work helped build the parties’ marital home on land belonging to the wife. He did five thousand dollars ($5,000) labor on the home and helped pay the construction mortgage. This court reversed, holding the husband was entitled to a special equity in the marital home property, to the extent of a one-half ownership interest in it. This decision is in apparent conflict with Gallagher v. Gallagher, 399 So.2d 75 (Fla. 5th DCA 1981), and Smith v. Smith, 418 So.2d 1053 (Fla. 1st DCA 1982), and the cases cited therein. I agree with the result in Hipps, but would characterize the award as equitable distribution to a spouse not entitled to alimony — a remedy not foreclosed by Canakaris. See Thomas v. Thomas, 418 So.2d 316 (Fla. 4th DCA 1982).

II. Permanent Alimony

In my view, the trial court also abused its discretion in not awarding the wife permanent alimony, or at least in not reserving jurisdiction to do so, because the evidence clearly showed there was a substantial question whether the wife would ever be able to support herself again. I welcome the majority’s restatement of the judgment as constituting “rehabilitative” alimony (since that is better than nothing), although other than the wife’s right to live in the house for two years, there is no basis for such a view. Rehabilitative alimony is no substitute for an award of permanent alimony to a spouse who is disabled and in need. Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981).

The record showed that at the time of the final hearings, the wife was not employed, and that since she stopped working for United in 1979 she had not earned any income. I cannot find any basis for the majority opinion’s statement that the wife “was working daily at time of trial.” The only testimony which tends to support that conclusion is Mr. Jennings’ statement that Mrs. Powell visited him at his business in 1979 and handed out business cards for the ABC Travel Agency, showing herself as a “consultant.” When he called twice and tried to order tickets through her some months later, he was told she was not there. She never earned the first commission from ABC.

Other than the temporary alimony awarded, the wife testified (without any dispute) that she had no other income. Mrs. Powell’s living expenses, as established by her testimony and financial affidavit, total more than the final judgment permits her to collect from her stock interest in United. She testified that when Mr. Powell failed to pay the previously ordered temporary alimony, she had difficulty buying groceries and other necessities and she was in default on the car and house payments.

The record did not establish any realistic prospect for Mrs. Powell’s becoming self-supporting. Both parties testified Mrs. Powell has a history of mental illness. She was hospitalized in November and December of 1979 under the Baker Act. Mr. Powell testified she was diagnosed as being a schizophrenic paranoid type and delusional. He said she was violent and had a “major mental disorder.” However, he did not relate her inability to function either on a social level or in the work force to her disorder. Mrs. Powell testified she had left job applications with banks and a hospital for work in 1979, but after her second hospitalization she felt she could not work. She even required help running her household and buying groceries, and, throughout the span of the hearings, she was under the care of a psychiatrist.

Mrs. Powell’s condition is, unfortunately, typical of a person with her kind of mental illness. It is rarely curable, and there usually is marked impairment in role functioning as a wage-earner, student, or homemaker. Both parties agreed Mrs. Powell was, at the time of the final hearing, sufficiently disabled to qualify for social security disability payments. If that alone- does not establish a need for permanent alimony, I confess I do not know what does. There was no countervailing testimony that Mrs. Powell has any prospects for becoming self-supporting in the job market. Under these circumstances, it is an abuse of discretion not to award permanent periodic alimony, if the former husband can contribute to her support.

In this case the record showed Mr. Powell had a net weekly income of eight hundred sixty-five dollars and thirty-eight cents ($865.38) from the United note and real' estate rentals. He testified the collectibility of the note was “shaky” and he was having to work in the business to ensure its ' payment. However, the note was current at the final hearing, and semi-monthly payments had been made consistently since the dissolution hearings began — a span of fourteen months. In any event, Mr. Powell was healthy and he held a license in the pest control business. He also held security interests in United’s stock and assets that would permit him to take it back and run it. He was clearly far more able to earn a living than was Mrs. Powell.

Mr. Powell’s financial affidavit showed he was having difficulty paying Mrs. Powell one thousand three hundred dollars ($1,300) in temporary alimony per month, and maintaining his new wife and child and eighteen year old son. He testified the liabilities shown on his affidavit were either related to his new family, or were related to the sale of United and litigation arising out of the sale and prior debts of the business. Although the record showed Mr. Powell was having financial problems meeting all of his obligations, his income and earning ability were far superior to Mrs. Powell’s. The disparity in their financial situations after the dissolution is too great to be equitable. Holland v. Holland, 406 So.2d 496 (Fla. 5th DCA 1981); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980); Aguiar v. Aguiar, 386 So.2d 280 (Fla. 4th DCA 1980); Bradley v. Bradley, 385 So.2d 101 (Fla. 5th DCA 1980).

      . During this two-year period, the husband is required to pay one-half of the home mortgage, insurance, and taxes. This constitutes “support.” Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). Therefore, the trial court judgment provided a two-year executory period within which the wife could petition for modification and extension of the alimony award without a showing of increased need or “change of circumstances,” but rather upon a showing that “notwithstanding reasonable and diligent efforts on (wife’s) part, substantial rehabilitation has not indeed occurred.” Reid v. Reid, 396 So.2d 818 (Fla. 4th DCA), review denied, 402 So.2d 612 (Fla.1981); Lee v. Lee, 309 So.2d 26 (Fla. 2d DCA 1975).

      . Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

      . See Weider v. Weider, 402 So.2d 66 (Fla. 4th DCA 1981); Aguiar v. Aguiar, 386 So.2d 280 (Fla. 4th DCA 1980).

      . The majority opinion says the United business was begun with the husband’s assets owned prior to the marriage. I dispute that is a fair statement of what the record shows, but even if it were true, that is no basis upon which to deny a special equity or equitable distribution to a spouse, given other relevant factors as were shown in this case.

      . Connor v. Connor, 386 So.2d 595 (Fla. 5th DCA 1980).

      . The other grounds given were: payment of liabilities and accrued arrearages; and the award of 10% interest in the note. The $100,-000 in liabilities related primarily to United Pest Control debts and liabilities and those incurred by the husband for his second wife and family. Accrued arrearages of alimony are not “rehabilitative” alimony, but a debt owed which the court cannot, without violating due process, fail to enforce. The “award” of the wife’s ten percent interest in the note was just part of what she was entitled to, due to her ten percent stock ownership in the corporation.

      . Her share of the mortgage on the marital home and her car payments together exceed her monthly three hundred dollar ($300) share of the promissory note, without even considering her other living expenses.

      . The husband’s Petition for Dissolution alleges:
      The Respondent has a history of mental illness and has been institutionalized on different occasions for treatment. Most recently, Respondent was admitted to ... Halifax Hospital Medical Center ... where, on November 13, 1979, a “Baker Act” hearing was held in the psychiatric unit of that hospital.... Respondent [was diagnosed] as suffering from schizophrenia, paranoid type, and being delusional.... Respondent is likely to injure herself or others and may not be able to adequately care for herself.
      At a hearing in 1980, Mr. Powell was asked: Do you feel she is still likely to injure herself or others and may not be able to adequately care for herself as you allege in your petition?
      He answered:
      Yes, I do. I don’t know about caring for herself but I’m sure she maybe along the road may injure somebody. I’ve been told that by a qualified physician, so I’ve got to go along with it.

      . American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1980). This manual describes Schizophrenia Paranoid Type as being characterized by:
      Sudden and unpredictable change in effect involving inexplicable outbursts of anger.... Nearly always there is some disturbance in self-initiated goal-directed activity, which may grossly impair work of other role functioning. This may take the form of inadequate interest or drive or inability to follow a course of action to its logical conclusion. Id. at 183.

      . Id. at 185.
      Invariably there is impairment in several areas of routine daily functioning, such as work, social relations, and self-care. Supervision may be required to ensure that nutritional and hygenic needs are met and to protect the individual from the consequences of poor judgment, cognitive impairment, or actions based on delusions or in response to hallucinations.

        Id.

      . Id. at 189.

      . Weider v. Welder, 402 So.2d 66 (Fla. 4th DCA 1981); Burke v. Burke, 401 So.2d 921 (Fla. 5th DCA 1981); Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1980); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980). See O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982); Hinebaugh v. Hinebaugb, 403 So.2d 451 (Fla. 5th DCA 1981). See also this court’s recent decision in Nichols v. Nichols, 418 So.2d 1198 (Fla. 5th DCA 1982).

      . Part of Mr. Powell’s difficulties were self-created. It was his decision to sell the successful pest control business, which had provided him with a good income source. Further, his newly acquired obligation to support his second wife and child, although obviously affecting his ability to pay alimony, should not totally extinguish his obligations to Mrs. Powell.


author: ORFINGER, Chief Judge.

text:
    David Richard GALLAGHER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1543.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    Rehearing Denied Nov. 10, 1982.

      Michael H. Lambert, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

The trial court revoked appellant’s probation which had been imposed following a plea of nolo contendere to a charge of vehicular homicide. He appeals. We affirm.

Appellant attacks the revocation order by arguing that two of the conditions of probation originally imposed are vague, arbitrary, indefinite, overbroad and not reasonably related to the offense for which he was placed on probation. But, this is not an appeal from the original order of probation. The attack on the conditions comes only after a violation is charged, some twenty months later, and such attack is too late. We reiterate what we said in Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982).

“At sentencing, the trial court should clearly delineate all terms upon which he deems it necessary to condition probation and the defendant should clearly state of record his objections and refusal to accept conditions of probation, failing which he should be deemed to have accepted such conditions. In the event the trial court imposes such conditions upon a defendant over the defendant’s clear objection, the defendant must appeal from the original probation order rather than attacking the imposition of a condition after its breach.” (emphasis added).

Id. at 1366. See also, Bouie v. State, 360 So.2d 1142 (Fla. 2d DCA 1978); Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974).

Appellant’s arguments on the sufficiency of the allegations of violation and on the sufficiency of the evidence to sustain the revocation order are without merit. The order revoking probation is

AFFIRMED.

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


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

text:
    Clinton E. MORRIS, Jr., Appellant, v. FLORENTES, INC., et al., Appellees.
    No. 81-1473.
    District Court of Appeal of Florida, Fifth District.
    Oct. 6, 1982.
    Rehearing Denied Nov. 18, 1982.

      James 0. Cunningham of Billings, Morgan & Cunningham, Orlando, and Marcia K. Lippincott, Sanford, for appellant.
    E. Clay Parker of Parker, Johnson, Owen & McGuire, Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Clinton Morris, Jr. appeals from an order dismissing his second amended complaint with prejudice for failure to state a cause of action.

Morris was riding a motorcycle known as a “dirt bike” on property owned by Flo-rentes, Inc. and was injured when his bike hit the bank of a ditch which cut across the trail. Morris filed suit against Florentes alleging that Florentes knew or should have known that its property was commonly used in the recreational operation of dirt bikes, that such use had not been restricted or prohibited by Florentes, that Morris was a foreseeable but uninvited user of an existing bike trail on the property, that the ditch presented an extreme danger to those unfamiliar with the bike trail, that Florentes had a duty to warn of this condition, and that as a result of Florentes’ negligence, Morris sustained serious injuries.

We agree that the second amended complaint failed to state a cause of action. The appropriate duty of care owed a visitor by the owner or occupier is determined by the status of the visitor. Post v. Lunney, 261 So.2d 146 (Fla.1972). Here, Morris was, at best, an uninvited licensee; at worst, a trespasser. This court has recently noted that the distinction between the duty owed by a landowner to these two classes is hazy (if a distinction exists), but that the labels have been preserved. Dougherty v. Hernando County, 419 So.2d 679 (Fla. 5th DCA 1982) [1982 F.L.W.1815]. The duty owed by a landowner to an uninvited licensee or a discovered trespasser is essentially the same; to avoid willful and wanton harm to him, and to warn him of a defect or condition known by the landowner to be dangerous when such danger is not open to ordinary observation by the licensee or trespasser. Post v. Lunney.

When the factual allegations of Morris’ second amended complaint (as distinguished from its conclusions), are measured against Florentes’ obligations to him, it becomes clear that a cause of action was not stated. There is no allegation that Flo-rentes acted in a willful and wanton manner. Florentes’ duty to warn related only to those dangerous conditions known to it which were not open to ordinary observation by the licensee. Even assuming that the ditch was a dangerous condition, it was nevertheless, open to ordinary observation. It cannot be said that the property owner should have reasonably contemplated that a ditch could not be readily seen in broad daylight.

Our holding is consistent with section 342 of the Restatement (Second) of Torts (1965) which states:

Dangerous Conditions Known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved, (emphasis added)

AFFIRMED.

COBB and COWART, JJ., concur.

      . See Savignac v. Department of Transportation, 406 So.2d 1143 (Fla. 2d DCA 1981); Libby v. West Coast Rock Co., Inc., 308 So.2d 602 (Fla. 2d DCA 1975).

      . We suspect that dirt bikers specifically seek rough terrain because that is where their vehicles are designed to be used and their skills best demonstrated.


author: PER CURIAM.

text:
    EDWIN KALMUS & COMPANY and Chubb Group of Insurance Companies, Appellants, v. William BERKARICH & Division of Workers’ Compensation, Appellees.
    No. AJ-54.
    District Court of Appeal of Florida, First District.
    Oct. 12, 1982.
    H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    Mark A. Rutledge of Adams, Kelley, Kro-nenberg & Rutledge, Miami, for appellees.
   PER CURIAM.

Employer/carrier appeals an order to pay certain medical bills, urging (1) lack of authorization and (2) failure to submit medical reports. The first contention is essentially factual in nature, and we do not disturb the deputy’s determination that record evidence substantiated a need for medical care “beyond that offered” by authorized physicians, who had released claimant for work and advised that nothing more could be done at the time. Continued authorization of those physicians therefore did not permit carrier’s rejection of claimant’s request, and the award for costs of additional services obtained by claimant is affirmed.

Appellant’s burden, in urging reversal on the second point, is to show abuse of discretion by the deputy in ordering payment absent proper medical reports. Torres v. Eden Roc Hotel, 238 So.2d 639 (Fla.1970); Ranch House, Inc. v. Jackson, IRC Order No. 2-3824 (May 25, 1979). Although the order refers only to carrier’s refusal of authorization, the record adequately amplifies the basis for excusing reports. We affirm because “unless it can be said that the deputy’s holding was erroneous, and not merely the reasons which he gave therefor, his order should not be reversed.” Escarra v. Winn Dixie Stores, Inc., 131 So.2d 483 (Fla.1961).

Appellant’s contention here is that lack of prejudice to carrier is irrelevant to existence of cause for excusal initially. We conclude to the contrary, and find that appellant fails to show abuse of discretion in the order for payment in this case. The deputy could reasonably believe that the reports would have served no useful purpose, based on record facts including the physician’s testimony that he called to report claimant’s visit and request authorization for treatment, and was told “We don’t want to talk to you and we don’t want to hear what you have to say ....”

AFFIRMED.

McCORD, BOOTH and WENTWORTH, JJ., concur.


text:
    Helene CUTLER, Appellant, v. Edward CUTLER, Appellee. Edward CUTLER, Appellant, v. Helene CUTLER, Appellee.
    Nos. 81-150, 81-217.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dee. 3, 1982.
    Simon, Schindler & Hurst and Judith A. Bass, Miami, for Helene Cutler.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for Edward Cutler.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

Helene Cutler appeals from a final judgment following a dissolution proceeding which terminated the marriage of sixteen years. For the reasons which follow, we reverse in part, affirm in part and remand.

The parties were married in 1964. Three children were born of the marriage and, at the time of final judgment, were twelve, thirteen and fourteen years of age. The two eldest children have learning disabilities which require special schooling.

With the exception of an eighteen-month period during the marriage when she worked, Mrs. Cutler has no significant employment history, nor does she have any advanced educational background which would assist her in finding her way into the job marketplace. When the youngest child reaches majority, Mrs. Cutler will be fifty-three years old.

Dr. Cutler, a board-certified cardiologist and internist, has an annual salary of approximately $58,000.00 and is sole stockholder of his P.A. During the course of the marriage, many of the domestic expenses were paid directly by the P.A. Dr. Cutler, at the time of dissolution, had a conservative net worth of $242,775.00. Mrs. Cutler had a net worth of approximately $125,-550.00. The net worth computations included each of the parties’ interest in the marital home, valued by them at $250,000.00, which was subject to a $39,000.00 mortgage.

The trial court granted custody of the children to Mrs. Cutler and ordered child support for each of them. Neither party appeals that portion of the trial court’s judgment.

Mrs. Cutler claims the trial court erred in ordering that the marital domicile be sold and the proceeds therefrom be divided between the parties. We agree in the absence of compelling circumstances not present here an award of exclusive possession of the marital home should be made to the wife, when she is given custody of the minor children. Duncan v. Duncan, 879 So.2d 949 (Fla.1980); Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979). We believe the trial court abused its discretion by not making such an award.

With respect to alimony, the trial court originally ordered Dr. Cutler to pay a lump sum of $84,000.00, payable at the rate of $700.00 per month over a period of ten years. The court further ordered $500.00 per month rehabilitative alimony for a period of two years. At a subsequent hearing, the trial court receded from its lump sum alimony award and indicated that, instead, the award be regarded as periodic and contingent upon the death of either spouse, the remarriage of Mrs. Cutler, or a change in the economic status of either spouse. A similar hybrid alimony award case was specifically disapproved of in Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1980). We, likewise, disapprove such a hybrid award.

We agree with the appellant that both lump sum and permanent alimony are required in this case. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Kuvin v. Kuvin, 412 So.2d 900 (Fla. 3d DCA 1982); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980). Permanent rather than rehabilitative alimony is indicated on these facts. Kuvin, supra; Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); Bowen v. Bowen, 347 So.2d 675 (Fla. 3d DCA 1977).

Mrs. Cutler also claims as error the trial court’s failure to include reasonable dental expenses, in addition to the medical expenses which had been ordered by the trial court, on behalf of the children. Mrs. Cutler’s final point concerns the method by which the trial court dealt with the special educational expenses of the two eldest children. We need not address these issues in light of our direction to the trial court to award both permanent and lump sum alimony. On remand, we direct the trial court to re-address these issues.

On cross-appeal, Dr. Cutler alleges as error the trial court’s order to pay, on Mrs. Cutler’s behalf, any federal income tax for which she might become liable as a result of the alimony award. In view of our remand, we do not address this issue. But see Sumner v. Tart, 362 So.2d 344 (Fla. 1st DCA 1978); Tsavaris v. Tsavaris, 307 So.2d 845 (Fla. 2d DCA 1975); Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971). .

Dr. Cutler also complains that the trial court erred in assessing an accountant’s fee as part of the wife’s costs. We find no merit to this contention and affirm.

Affirmed in part, reversed in part and remanded for further proceedings consistent with the views expressed herein.

      . The eldest child has organic brain damage which requires special schooling and treatment. The middle child has psychological problems which, also, result in his need for special schooling and treatment.

      . A date of July 1, 1981, was specified by the trial court for the sale. That order was stayed by this court pending the outcome of this appeal.

      . On remand, the trial court may wish, when considering the lump sum award, to be guided by the principles announced in Seum v. Seum, 384 So.2d 223 (Fla. 3d DCA 1980); Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980); Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980); MacDonald v. MacDonald, 382 So.2d 50 (Fla. 2d DCA 1980).


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. William J. DWYER, as Personal Representative of the Estate of Timothy Lee Dwyer, deceased, Appellee.
    No. 81-1660.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 6, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward Perse, Miami, Bernard Butts, Hialeah, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Liberty Mutual Insurance Company appeals from a judgment declaring that plaintiff’s decedent, Timothy Dwyer, was entitled to uninsured motorist coverage under a policy issued by Liberty Mutual to Auto Rental Corporation. The trial court found, and it is undisputed here, that neither Liberty Mutual nor its agent complied with Section 627.727(1), Florida Statutes (1979), in that Dwyer, a long-term lessee, had never been given the opportunity to reject uninsured motorist coverage.

Since appellants have failed to satisfy their statutory duty, we affirm the trial court in its coverage determination. See Midland Ins. Co. v. Hochberg, 394 So.2d 449 (Fla. 3d DCA), pet. for rev. den. 402 So.2d 611 (Fla.1981).

Having concluded the trial court correctly determined coverage, we nevertheless vacate the award of attorney’s fees, without prejudice to re-apply to the trial court for fees. Our view is that the attorney’s fees’ determination is directly related to the damage issue yet to be decided.


text:
    Corina BOULTON, et al., Appellants, v. NATIONAL CAR RENTAL SYSTEM, INC., Appellee.
    No. 81-1797.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 1, 1982.
    Joe N. Unger, Robert M. Sussman, Miami, for appellants.
    Henderson & Willing and David L. Willing, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

We reverse the order granting a new trial after the appellant, as plaintiff in the trial court, refused to remit 50% of a jury verdict in the amount of $154,617. Adams v. Wright, 403 So.2d 391 (Fla.1981); Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981); Kasper Instruments, Inc. v. Maurice, 394 So.2d 1125 (Fla. 4th DCA 1981); Gulf Life Insurance Company v. McGabe, 363 So.2d 846 (Fla. 1st DCA 1978).

Therefore the order granting a new trial is reversed with directions to reinstate the jury verdict and enter a final judgment in favor of the plaintiff.

Reversed and remanded with directions.


text:
    NEW YORK CAPITAL GROUP, INC., Appellant, v. S.J. RUDOLPH, Trustee, Marvin Rosenberg, and Cortez Development Co., Appellees.
    Nos. 81-1864, 81-2497.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 3, 1982.
    Greenfield & Duval and Marvin D. Mi-chaels and Leo Greenfield, North Miami, for appellant.
    Myers, Kaplan, Levinson, Kenin & Richards and Bruce J. Berman and William M. Grodnick, Smathers & Thompson, Miami, and Debra L. Brady, Coral Gables, for ap-pellees.
    Before NESBITT, BASKIN, and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (Fla.1982); Ethyl Corp. v. Balter, 386 So.2d 1220, 1223 (Fla. 3d DCA 1980), pet. for review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981).


text:
    Nicholas G. PERDOMO and Mary Perdomo, his wife, Appellants, v. SAVINGS BANK OF BALTIMORE, Appellee.
    No. 81-2274.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 1, 1982.
    Irma V. Hernandez and Fernando E. He-ría, Hialeah, for appellants.
    Fieldstone, Oliver, Sumberg & Mondre and David W. Trench and Jeffrey Roth, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.500(e), 1.540(b); Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980); John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980); McAlice v. Kirsch, 368 So.2d 401, 404 (Fla. 3d DCA 1979); Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978).


author: BARKDULL, Judge.

text:
    Itapura CARDOSO a/k/a Japura Jose Cardoso, Appellant, v. The STATE of Florida, Appellee.
    No. 82-176.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.
    Rehearing Denied Dec. 1, 1982.
    Bennett H. Brummer, Public Defender, and Paul Morris, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Marty Roth-enberg, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   BARKDULL, Judge.

When there was evidence before a trial court in a probation violation proceeding that a defendant had the capacity to “understand” and the “intelligence” to be a “willing participant” in a Mentally Disordered Sex Offender Program and he had determined “not to cooperate” therein, a trial court will be sustained in revoking the defendant’s probation.

The record in the instant case supports such a finding of willful failure on the part of the defendant to complete such a program which was a special condition of probation. Hines v. State, 358 So.2d 183 (Fla.1978); Brown v. State, 400 So.2d 812 (Fla. 3d DCA 1981); Ordonez v. State, 408 So.2d 760 (Fla. 4th DCA 1982); Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980); Owens v. State, 354 So.2d 118 (Fla. 3d DCA 1978).

The appellant relied heavily on Donneil v. State 377 So.2d 805 (Fla. 3d DCA 1979) as controlling the instant case. We do not agree. It is clear from the Donneil case that the defendant was of limited capacity and was not able to comprehend the program to which he was assigned as a special condition of probation. In the instant case, all the witnesses agreed that the defendant in this cause, had the intelligence and the capacity to participate in the program; therefore, we find the cited case distinguishable on the facts. The orders revoking probation and sentence thereafter, are hereby affirmed.

Affirmed.


author: DAUKSCH, Judge.

text:
    FIRST NEW ENGLAND FINANCIAL CORPORATION, f/u/b/o City Trust, Appellant/Cross-Appellee. v. Randall R. WOFFARD, Appellee/Cross-Appellant.
    No. 81-423.
    District Court of Appeal of Florida, Fifth District.
    Oct. 13, 1982.
    Rehearing Denied Nov. 10, 1982.

      David W. Boone, Fort Lauderdale, for appellant/cross-appellee.
    Henry J. Martocci, Cocoa, for appel-lee/cross-appellant.
   DAUKSCH, Judge.

This is an appeal from a judgment rendered in favor of the appellant on the main claim and in favor of the appellee on the counterclaim.

The facts are as follows: Appellee decided to purchase a 36-foot sailing yacht from a yacht brokerage company. The broker suggested that appellee talk to First New England Financial Corporation, a bank servicing firm representing out of state banks interested in making marine loans. Appellee agreed to finance his purchase with First New England which had first checked appellee’s credit standing. Appel-lee entered into a retail installment contract with the brokerage. The contract was a pre-printed form supplied by First New England and which prominently displayed that name. The contract, by its own terms, was simultaneously assigned to First New England.

The following day, First New England assigned the contract to City Trust, a Connecticut bank and the named appellant. The only notice of this assignment given to appellee was 1) the bank’s name, address and telephone number appearing under the assignee’s name and address (First New England), located at the top of the front page of the contract in a section entitled “Identification of Creditors”; (2) a sentence located near the bottom of the front page stating that First New England would reassign the contract to a bank, and 3) the coupon payment book bearing the name of City Trust which was received by appellee weeks later.

Upon first possession and voyage of the yacht, appellee discovered several manufacturing defects. Within twenty-four hours of delivery of the yacht and discovery of the defects, appellee documented his complaints by telegram to the manufacturer, the brokerage, and First New England. Upon learning of the final assignation of the contract, appellee gave notice to appellant. Appellee continued his monthly payments for eight months, ceasing when it became evident the parties were unwilling to remedy the defects.

Appellant through its agent, First New England, filed the complaint seeking a writ of replevin to recover the yacht purchased by appellee. The complaint alleged that appellant was the holder in due course of a retail installment contract upon which ap-pellee had defaulted in the amount of $42,-054.25. Appellee asserted three affirmative defenses in his answer: 1) failure of consideration, 2) breach of implied warranty of fitness for a particular purpose, and 3) breach of implied warranty of merchantability. Additionally, appellee counterclaimed for damages, alleging that appellant, as assignee, agreed to accept assignment of the contract subject to all claims and defenses existing between the original parties to the contract. Appellee sought damages suffered as a result of the breaches of implied warranty: return of his down payment ($12,349.56), return of monthly installment payments made, and costs incurred for docking, storage and maintenance of the yacht.

Following a bifurcated trial, appellee prevailed on the counterclaim. Appellant prevailed in the replevin action and was awarded attorney’s fees and costs. On appeal appellant claims the trial court erred in holding the assignee of an installment sales contract liable for a breach of implied warranty by the seller/assignor of the contract. On cross-appeal appellee claims error in regard to the judgment of replevin and the award of attorney’s fees and costs to appellant.

The lower court denied appellant the status of a holder in due course, based on the decision of Rehurek v. Chrysler Credit Corp., 262 So.2d 452 (Fla. 2d DCA 1972). We affirm the trial court’s judgment for other reasons.

The Contract in the present case, entitled “Marine Security Agreement-Retail Installment Contract” contains the provision set forth in 16 CFR § 433.2:

NOTICE

Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.

This provision allows a consumer to set up, against one who finances a purchase, those claims and defenses which could be asserted against the seller of goods. Immediately following that provision is:

NOTICE ABOVE DOES NOT APPLY IF:

a) the amount financed ... exceeds $25,-000.00. In such case, holder, nevertheless, shall be subject to all defenses which Buyer may have against Seller under this contract pursuant to the applicable State law since the Notice above is a Federal rule rather than a State rule and does not eliminate defenses under State law.
or
b) This Consumer Contract form is used for a boat purchased primarily for corn-mercial or business use. In such case, Buyer agrees not to assert any claim or defense arising out of this sale against Seller as a defense, counterclaim or setoff to any action by any assignee for the unpaid balance of the total of payments or for possession of the boat.

As the amount financed in this consumer transaction exceeds $25,000.00, we look to applicable state law to determine whether appellant is subject to appellee’s claims/defenses. Under section 679.206(1), Florida Statutes (1981), an agreement by a buyer waiving any claims/defenses against the seller is enforceable by an assignee who takes his assignment for value, in good faith and without notice of any claim/defense. Such an agreement waiving claims/defenses often appears in the form of a waiver of defenses clause in a contract. There is no such clause in this contract. Section 679.206(1) also provides that a buyer who as part of one transaction signs both a negotiable instrument and a security agreement makes such an agreement waiving claims/defenses. The contract does not meet the requisites of negotiability and does not appear to be a negotiable instrument as defined in Chapter 673, Florida Statutes (1981). Thus, section 679.-206(1) is inapplicable.

The contract created a purchase money security interest to be retained by the seller or seller’s assignee. Section 679.-206(2) provides that “when a seller retains a purchase money security interest in goods, the chapter on sales (Chapter 672) governs the sale and any disclaimer, limitation or modification of the seller’s warranties.” Before reaching the merits of appellee’s counterclaim for breach of warranty, governed by Chapter 672, we must first see if any other state law prevents appellee’s assertion of the claim against the assignee.

Section 679.318, Florida Statutes (1981) provides in part:

1) Unless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale as provided in Section 679.206, the rights of an assignee are subject to:
a) All the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom; and
b) Any other defense or claim of the account debtor against the assignor which accrues before the account debt- or receives notification of the assignment.

An assignee has traditionally been subject to defenses or set-offs existing before an account debtor is notified of the assignment. When the account debtor’s defenses on an assigned claim arise from the contract between him and the assignor, it makes no difference whether the breach giving rise to the defense occurs before or after the account debtor is notified of the assignment. The account debtor may also have claims against the assignor which arise independently of that contract: an assignee is subject to all such claims which accrue before, and free of all those which accrue after, the account debtor is notified. The account debtor may waive his right to assert claims or defenses against the assignee to the extent provided in section 679.206, Florida Statutes. Uniform Commercial Code, § 9-318, Official Comment, 1972. This is in accord with the general rule in sales transactions that the assignee takes his assignment subject to the purchaser’s defenses, set-offs and counterclaims against the seller. 39 FLR 3d 518. Restatement Contracts 2d, § 336 provides:

* * * * * *
2) The right of an assignee is subject to any defense or claim of the obligor which accrues before the obligor receives notification of the assignment, but not to defenses or claims which accrue thereafter except as stated in this section or as provided by statute.
* * * * * *
4) An assignee’s right against the obligor is subject to any defense or claim arising from his conduct or to which he was subject as a party or a prior as-signee because he had notice.

Just as an assignee is subject to defenses and claims accruing before the ob-ligor receives notification, so a sub-assignee is subject to defenses and claims accruing between the assignee and obligor before the obligor receives notice of the sub-assignment. Defenses and claims arising from the terms of the contract creating the right are available to the obligor regardless of when they accrue.

Section 671.201(26), Florida Statutes, defines the giving and receipt of notice:

A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person “receives” a notice or notification when:
a) It comes to his attention; or
b) It is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.

Appellee’s claim of breach of warranty arose out of the terms of the contract and also accrued before receipt of notification of assignment. Testimony during trial proved that appellee told the seller that he specifically wanted to buy a sailing yacht that he could live aboard full time and also use for pleasure sailing. Appellee told the seller the yacht must be suitable for “blue water” sailing, i.e., ocean sailing. Thus, if there was a breach of warranty, it arose out of the terms of the contract (as incorporating the sales agreement) and accrued before appellee received notification of assignment, in this case by receipt of the coupon payment books.

The contract contains the following provision, set in different type and in a conspicuous position:

WARRANTY DISCLAIMERS
IF THE BOAT IS A NEW BOAT, THERE ARE NO WARRANTIES OF SEAWORTHINESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS SELLER GIVES BUYER A WRITTEN WARRANTY, IN WHICH EVENT, THE FOREGOING WARRANTY DISCLAIMER IS INOPERATIVE. IF THE BOAT IS A USED BOAT, BUYER ACKNOWLEDGES THAT HE HAS EITHER CAUSED A SURVEY OF THE CONDITION OF THE BOAT TO BE MADE OR HAS BEEN GRANTED SUFFICIENT TIME TO HAVE SUCH A SURVEY MADE AND HAS WAIVED SUCH SURVEY AND, THEREFORE, RELIES ENTIRELY ON SUCH SURVEY OR UPON HIS OWN INSPECTION OF BOAT AND PURCHASES THE BOAT “AS-IS”.

Relevant portions of section 672.316, Florida Statutes (1981), provide:

1)Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate a limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (§ 672.202) negation or limitation is inoperative to the extent that such construction is unreasonable.
2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “there are not warranties which extend beyond the description on the fact hereof.”
3) Notwithstanding subsection (2):
a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty;

Unless excluded or modified, a warranty of merchantability is implied in a contract for sale of goods if the seller is a merchant with respect to goods of that kind. Sec. 672.314, Fla.Stat. The warranty disclaimer as to a new boat effectively excludes the implied warranty of merchantability, as it contains the word “merchantability” and is set forth conspicuously. Sec. 672.316, Fla.Stat. A warranty of fitness for a particular purpose arises when the buyer relies on the seller’s skill or judgment to select the goods and the seller at the time of contracting has reason to know the buyer’s purpose and that the buyer is relying on the seller’s skill and judgment. Sec. 672.315, Fla.Stat. Appellee has shown that the seller knew of appellee’s particular purpose and that appellee was relying on the seller’s judgment in choosing the best yacht for that purpose, i.e., crossing oceans as opposed to weekend lake sailing. Thus, the only issue left is whether the disclaimer effectively excluded any implied warranty of fitness for particular purpose.

The disclaimer states there are no warranties as to seaworthiness, merchantability or fitness for a particular purpose. Under Florida and Code law, all implied warranties, whether of merchantability or fitness for a purpose, are excluded, unless the circumstances indicate otherwise, by any language making it plain that there is no implied warranty. Sec. 672.316(3)(a), Fla.Stat.

To be effective, a seller’s disclaimer of warranties in the sale of consumer goods must be part of the basis of the bargain between the parties. Knipp v. Weinbaum, 351 So.2d 1081 (Fla. 3d DCA 1977). The evidence indicates that appellee and seller entered into the sales agreement on the premise that the yacht was suitable for appellee’s purposes. Circumstances indicate that seller’s disclaimer of warranty of fitness for a particular purpose was not made a part of the bargain; to the contrary, seller’s warranty of fitness for the particular purpose was an essential factor in the initial agreement between the parties.

Appellant has not convinced this court that the lower court erred in ruling in appellee’s favor on the damages claim. The contract provides for payment by the installment buyer of court costs plus attorney’s fees upon default. The lower court correctly awarded costs and attorney’s fees to appellant in the replevin action. As ap-pellee has not presented any contractual or statutory authority supporting an award of attorney’s fees on the counterclaim, such request is denied.

AFFIRMED.

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

      . The defects included a defective keel causing misalignment in excess of two inches, engine malfunctions and unpainted bottom areas.

      . While apparently there is no statutory authority providing for pleas of counterclaim in-replevin actions in the ordinary sense in which they are allowable in other forms of action, courts have allowed a defendant to plead and prove a claim for damages against the plaintiff arising out of the same transaction. Jacksonville Paper Co. v. Smith & Winchester Manufacturing Co., 147 Fla. 311, 2 So.2d 890 (Fla.1941); Delco Light Co. v. John LeRoy Hutchinson Properties, 99 Fla. 410, 128 So. 831 (Fla.1930). The court in the latter case, Id. at 836, cites to Cobbey on Replevin, 2d Edition, § 795 to state:
      A defendant in a replevin suit may plead a counterclaim as a defense and as an offset to the damages. Where plaintiff claims damages for detention, defendant may plead and prove a counterclaim arising out of the same transaction against such claim for damages. The subject matter of litigation in replevin is the property mentioned in the complaint, and the defendant cannot claim the release and return of other and distinct personal property, even though he present such a case as would have enabled him to recover in an independent action. In replevin by the seller of goods, after notes given in payment therefor and secured by mortgage thereon have become overdue, defendant may show payment in part and damages from breach of warranty. A breach of warranty may be used as a cause for an original action, a counterclaim, or as a matter of defense, at the option of the warrantee. (Emphasis supplied).

      . Appellant authorized First New England to effect repossession of the yacht, which was returned to the brokerage and sold in its defective condition at a profit.

      . The trial court relied upon Rehurek v. Chrysler Credit Corporation, 262 So.2d 452 (Fla. 2d DCA 1972). Rehurek held that a financer to which an automobile dealer had assigned a retail installment contract and which was formed exclusively for the purpose of financing the sale of the auto manufacturer’s products and which furnished the forms of the sales contract and investigated the credit rating of the purchaser did not take the assignment in good faith and thus the purchaser was not precluded from raising certain defenses under the contract which provided for waiver of defenses against the assignee. The Rehurek court applied one of the three rationales courts sympathetic to consumer needs have employed in order to circumvent the statutory test of actual knowledge on the part of the consumer note holder (holder in due course). The rationales often used are (1) principal-agency relationship between financial institution and seller, (2) financial institution as original party to transaction, and (3) close connection between seller and financial institution (as in Rehurek). The close connection theory supplies an exception to the holder in due course doctrine where the financial institution has a close working relationship with the seller in a consumer credit transaction. See Mutual Finance Company v. Martín, 63 So.2d 649 (Fla.1953).

      . It is not disputed that appellee purchased the yacht for his own personal use. Thus, the contract was for the purchase of “consumer goods”, defined in section 679.109(1) as “goods ... used or bought primarily for personal, family or household purposes.”

      . Section 679.206, Florida Statutes (1981):
      1) Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the chapter on commercial paper (Chapter 673). A buyer who as part of one transaction signs both a negotiable instrument and a security agreement makes such an agreement.
      2) When a seller retains a purchase money security interest in goods the Chapter on sales (Chapter 672) governs the sale and any disclaimer, limitation or modification of the seller’s warranties.

      . The waiver is valid except if the claim/defense is one which could be asserted against a holder in due course of a negotiable instrument. The purpose of a waiver of defenses clause is to give the assignee the status of a holder in due course of a negotiable instrument. ANDERSON on the Uniform Commercial Code, Vol. 4, § 9-206:11.

      . “Account debtor” is defined as a “person who is obligated on an account, chattel paper, or general intangible.” Sec. 679.105, Fla.Stat. (1981). “Account” means any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper whether or not it has been earned by performance. Sec. 679.106, Fla.Stat. (1981). “Chattel paper” means a writing or writings which evidence both a monetary obligation and a security interest in or a lease of specific goods. Sec. 679.105, Fla.Stat. (1981). “General intangibles” means any personal property other than goods, accounts, chattel paper, documents, instruments and money. Sec. 679.106, Fla.Stat. (1981).

      . On the question of whether a debtor can assert against the assignee a counterclaim based on the obligation of an assignor maturing subsequent to the assignment but before notice thereof:
      The clear historical ground for supporting the general rule is that the legal right to the assigned claim still is in the assignor, and that therefore in an action on the claim there may be set off a claim against him unless it is inequitable for the defendant to assert the right. It is inequitable if the set-off was acquired after notice of the assignment. The reason for maintaining the old rule, in spite of changed procedure, allowing the assignor to sue in his own name, is because the rule is just. Until notice of the assignment, the debtor should be allowed to assume that he is under contract with the assignor whether the assignor’s claim or his own is matured or not. It may be urged that it is inequitable in any case for the defendant to assert his set-off when the real plaintiff in interest, whether nominally plaintiff or not, is an assignee, unless the assignor is insolvent, since otherwise the defendant might collect his claim from the assignor who really ought to pay it. This limitation, however, of the debtor’s right to set-off does not seem to have prevailed. It seems rather to have been thought equitable for the debtor to be allowed to assert the right and to compel the assignee then to sue the assignor.
      Williston Contracts, Third Edition, § 432.

      . The code distinguishes between “particular purpose” (use to which the goods are not ordinarily put) and “ordinary purpose” (use for which the goods are ordinarily used). Sec. 672.315. Living aboard a sailboat and “blue water” sailing constitutes a “particular purpose,” considering the small size of the yacht.