text:
    Eva Mae DIXON and all heirs of Lillie Lee Myers v. J. B. TORRENCE and A. B. Martin.
    No. 52748.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Edward B. Moyo, Page, Patton, Moyo & Young, Jackson, for appellants.
    John C. McLaurin, Jr., McLaurin & McLaurin, Brandon, for appellees.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    KENWORTH TRUCK SALES, INC. v. Clayton BROWN.
    No. 52648.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    James Leon Young, J. Michael Maloney, Young, Scanlon & Sessums, Jackson, for appellant.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Wayne E. Ferrell, Jr., Cothren, Pittman & Ferrell, Jackson, for appellee.

Before SUGG, WALKER and LEE, JJ.

AFFIRMED IN PART & REVERSED IN PART ON DIRECT APPEAL; AFFIRMED ON CROSS APPEAL.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and BROOM, BOWLING and HAWKINS, JJ., concur.


text:
    SUMRALL OIL SERVICES, INC. v. James Alvin COOPER and Betty D. Martin.
    No. 52698.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Rufus Creekmore, Robert G. Nichols, Jr., Jackson, for appellant.
    Al D. Eatmon, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED ON DIRECT AND CROSS APPEALS.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.


text:
    Glen Douglas STEVENSON v. STATE of Mississippi.
    No. 52713.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    C. McHenry Little, Jackson, for appellant.
    Bill Allain, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben Anderson, Judge.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and HAWKINS, JJ., concur.


text:
    TRANSAMERICA INSURANCE CO. v. The BANK OF WATER VALLEY, et al.
    No. 52757.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Thomas W. Prewitt, Luther T. Munford, Butler, Snow, O’Mara, Stevens & Cannada, Dick R. Wilhoit, Jackson, for appellant Bank of Water Valley.
    Murray L. Williams, Water Valley, for appellee.
   Appeal from Chancery Court, Yalobuska County; L. E. Hannaford, Sr., Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, and BOWLING, JJ., concur.

HAWKINS, J., took no part.


text:
    Melvin Lamar ROBINSON v. STATE of Mississippi.
    No. 52605.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Granville Jones, Jones, Shields & Woo-dall, Meridian, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and LEE and HAWKINS, JJ., concur.

BROOM and BOWLING, JJ., take no part.


author: BROOM, Justice for the Court:

text:
    Mae Rosie HOLLIDAY v. WEST POINT MUNICIPAL SEPARATE SCHOOL DISTRICT.
    No. 52754.
    Supreme Court of Mississippi.
    Aug. 5, 1981.

      Bennie L. Turner, Randolph Walker, Walker & Turner, West Point, for appellant.
    Thomas M. Tubb, Tubb, Stevens & Morrison, West Point, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   BROOM, Justice for the Court:

Reassignment of appellant Mae Rosie Holliday from the position of school principal to the position of administrative assistant in the office of the superintendent of West Point Municipal Separate School District (appellee herein) forms the background to this case appealed from the Chancery Court of Clay County, Mississippi. On appeal she argues (1) that she was deprived of her constitutional due process and statutory rights, and (2) that the evidence presented by the school was insufficient to support her reassignment. We affirm.

On September 18, 1979, school district superintendent Griffin notified Holliday that she was being relieved of her duties as principal and reassigned as an administrative assistant in the superintendent’s office continuing at her present salary. One day previously the school board had approved Holliday’s reassignment. She sued in federal court for a preliminary injunction prohibiting her removal until she was granted an impartial hearing, which court ordered that she receive a due process hearing pursuant to Mississippi Code Annotated § 37— 9-59 (Supp. 1980). By letter dated January 21, 1980, Griffin notified Holliday that the hearing officer would be the University of Mississippi’s Dr. Joseph Blackston who set the public hearing for February 6 and 7 in the Clay County Courthouse. The charges alleged that she was incompetent and derelict in her duties in the following areas: (1) in preparing for the opening of the school term, specifically her: (a) failure to schedule the sixth grade students according to the Office of Civil Rights (OCR) Guidelines, (b) failure to issue textbooks until after the second week of classes began, and (c) failure to provide prompt lunch service to qualified students; (2) in resolving parents’ complaints, more particularly a charge against one of the teachers, her sister, for not adequately testing the students; (3) in failing to use correct grammar in speaking and writing and in communicating with parents and students; and (4) in failing to maintain the standard of education at Central School.

The school district presented testimony from Griffin that Holliday was assistant principal of Central School when he became superintendent in 1976. In 1977 the principal’s office at Central School became vacant and he recommended Holliday for the position primarily because of a federal court order in effect which required that any administrator or principal “who was demoted under the desegregation court order. . .be offered and have the opportunity to turn down the first like position that became available.”

In a letter dated March 8, 1977, however, Griffin and the board appointed Holliday to the vacancy provided:

Our recommendation of you for the position and the election of you by the Board of Trustees provides that you display marked improvement in the following areas:
1. Oral and written communication;
2. Recognizing, diagnosing, and prescribing methods of improving ineffective teachers and teaching techniques;
3. Staff development;
4. Recognizing and demanding high standards of education; and
5. Working harmoniously with the school community, staff, and administration.

At the conclusion of the termination hearing, Dr. Blackston rendered his opinion on March 19, 1980, affirming Holliday’s removal and reassignment. On August 11, 1980, Chancellor Brand affirmed the action of the Board of Trustees and the hearing officer and Holliday appeals.

There is only one issue presently before us: DID THE CHANCELLOR, BASED UPON THE RECORD COMPILED AT THE TERMINATION/REASSIGNMENT HEARING, AND UPON HOLLIDAY’S CONTRACT OF EMPLOYMENT, COMMIT REVERSIBLE ERROR IN UPHOLDING THE HEARING OFFICER’S AF-FIRMANCE OF THE BOARD’S DECISION TO REMOVE AND REASSIGN HOLLIDAY? Deciding this issue requires a review of the testimony and charges raised at the hearing. According to Griffin, prior to the school board’s action on September 17, he had received numerous letters from concerned sixth grade parents (Central School has all of the sixth grade students for the entire school district) protesting the conditions at Central School. The parents complained that textbooks had not been issued, and that their children’s schedules had been repeatedly changed. After reviewing the complaints, the board approved Holliday’s removal and reassignment as an administrative assistant for administrative services in the superintendent’s office.

Testimony given at the hearing established at least by substantial evidence that Holliday did not properly cope with the problem of scheduling students.

Rev. John Bacot, a Presbyterian minister in West Point, also testified. Of Rev. Ba-cot’s three children, a daughter was in the sixth grade at Central School. Although his daughter was preregistered for Central School in the spring of 1979, Holliday had no record of such registration, and the registration procedure had to be repeated that August. When Holliday testified, she responded to Rev. Bacot’s complaints and stated that the records were requested in the spring of 1979, but, as in so many cases, the request for the records had to be made again. According to Holliday, Mrs. Blair, Holliday’s former secretary, told her that she had sent off for the records. On registration day, Rev. Bacot accompanied his daughter and made the following observation:

A. Blaaa [sic]. It was pandemonium, it was chaos. I have never seen a school like that.
Q. Well, specifically what are you talking about?
A. People were bananas. Students were milling around, the teachers were milling around, half the people didn’t know where they were, not to, all right, not to exaggerate, but I simply asked, you know, my child is new, she is a sixth grader, where can I find out where she is supposed [sic] to be. I don’t know. I said to a teacher. I asked another teacher. I don’t know. And another teacher, you know, as I mentioned, told me to go look on the board. I go look on the board, finally I went in and Mr. Fortera got my daughter registered or whatever was suppose [sic] to take place. I mean, he got her in a classroom.

Rev. Bacot also complained that his daughter had not been issued textbooks during the first couple weeks of school and was using encyclopedias to do her assignments. When Holliday was asked why textbooks had not been issued, she explained:

A. Teachers received their textbooks two or three days prior to the opening of school. The two years during my administrative position teachers have always issued their textbooks when they felt that the student was ready. Some teachers orientate and teach lesson skills before they issue their textbooks. Teachers and students are geared in activities that are geared to textbook instruction. This is not wasted time. Six years prior to my administrative position teachers never issued a textbook for the entire school year. Teachers kept one or two sets of books in the classroom and issued the students as they would come in for their class period. At the end of the period these books were picked up to be used for the next class. Students were not permitted to take the books home. If there were any parent that complained about a student not having a textbook the teacher would give him a totebook.

On cross examination, Holliday was asked what her philosophy was on issuing textbooks, to which she answered:

Q. What is your philosophy on issuing textbooks?
A. My philosophy of issuing textbooks is that I leave that in the possession of the teachers. They receive their textbooks the first two or three days prior to school opening and it was left up to them because may [sic] of the teachers like to orientate and teach lesson skills before they issue their books.

According to Holliday, teachers had their textbooks two to three days before school began.

Marcia Bryan, a sixth grade mother, also testified at the hearing. All four of the Bryan children attend public schools in West Point. Bryan was an active member of a volunteer group whose purpose was to enrich and support the public schools of West Point. On August 28, Bryan took her eleven-year old daughter to Central School for registration. She stated that from August 28 until September 10, her daughter did not know who her teachers were and was not assigned any textbooks. Bryan figured that anywhere between 250 to 300 sixth grade students were affected by the scheduling problem. On September 10, she returned to Central and observed the following:

A. I did go back to the school on the 10th because I am involved as an active parent in the volunteer organization. For some reason a lot of people, and I mean a lot of people were calling me and saying, “What is going on?” And I didn’t know what was going on.
I called the central office and I asked the superintendent and the assistant superintendent and I said, “Listen, we really have got a problem now. What is happening?” And they were embarrassed and confused. And they said, “We are trying to straighten it out.” But, at that point I was frankly concerned about the whole school system. Because community wide this was detrimental to our school. We are talking about maybe, I don’t know how many exactly, but 250 to 300 sixth grade students, 600 parents, maybe. And in a community this size when you have got a problem of that proportion it is a big problem.
And I think we will all agree that public education has taken a battering in the last few years. And I didn’t like this happening because a lot of people have worked too hard to make education, public education quality and good. So, on the 10th, I, you know, I was upset and nervous and I said, “I will just go to Central School. And I just want to see what is happening. I have heard too much.” I went to the school and it was chaotic, very confusing. There were children in the halls. There was no learning going on in classes, so I could not disrupt a classroom. I just wandered in and out and I never saw my daughter, so I didn’t really go to'find out where she was. I just chatted with teachers that I saw, or said what is going on, how is it. And I just observed.
Some of the teachers were calling rolls and is Joe Smith here, where is Joe Smith, or where is somebody else. They looked to me like they were dealing with an awful lot of paperwork in trying to find children.

After the plaintiff rested its case, Holliday testified in her defense at length. She attempted to counter many of the charges alleged against her by Griffin and Tennyson. She disputed the fact that Tennyson had ever offered to help her with the scheduling problem prior to her visit on September 9, 1979. As to the charge that she was not proficient in English grammar, Holliday responded:

A. Negroes cannot speak nor teach English. We chop our words. We mispronounce others, so says Mrs. Tennyson. But, I have always done whatever they asked me to do in writing. I remember one report that I had wrong which was the OCR report. And Mr. Griffin called me over and talked to me about it. And he said, “Go back, damn it, and get it right.”
Q. The standard of learning and education at Central School has not been maintained as it should have been during your two years as principal.
A. The standard of learning have [sic] been maintained at Central School. Students have been engaged in a variety of activities, programs, clubs, et cet-era. Teachers have been engaged in team and area meetings each month. They have also attended in-service workshops which have been enriching to the total school program.

She also attempted to counter the charge that eligible students did not receive their lunch tickets until September 10. She explained the free lunch program as follows:

A. The first week of school students buy or bring their lunch to school. No tickets are issued that first week of school. We were out on September 3rd for Labor Day. We came back September the 4th. Before a child can receive a free lunch ticket he must take home a free lunch application to be filled out and signed by the parent. That lunch form returns to the school. We in turn send it to the central office, to the lunch room supervisor. The lunch room supervisor evaluates the application to determine whether the child is eligible for free or reduced lunch. She then turns, makes a list of those students for free lunch and sends it to the lunch room manager of that school. The lunch room manager takes the list and writes out a ticket for each child on that list. When that process is completed she sends it to the secretary of the school. The secretary distributes those tickets out to the students. This takes several days for this process, sometimes from two to three weeks. But there could have been a few students who did not get a lunch ticket. But if his name was on the list, he did eat.

Several teachers testified on behalf of Holliday. Some of the testimony indicated that each teacher was responsible for obtaining textbooks from the storeroom at the beginning of the school year. One of the teachers, Earnestine Wicks, testified that it was left to each teacher’s discretion when to issue textbooks. Her testimony revealed the rather startling school policy:

A. Mr. Rushing didn’t believe in text, issuing of textbooks because he said that the, you know, the kids got them and they didn’t take them home anyway. And if a parent would call him and ask him why their child didn’t have a book he asked us, that if we didn’t want to issue our regular textbook to issue that child what he called a tote-book, just something to take home to pacify the parents.

Mrs. Neva Lane, a sixth grade English teacher, had taught school for approximately six years and had served under three principles. She stated that she had never made any comment to Marcia Bryan about conditions at Central School.

Ms. Arteria Evans, a public school teacher for twenty-one years, stated that she had not had any problems with scheduling and did not know of any other problems in the school.

After the defense rested, Dr. Blackston ordered the record typed to allow him a chance to review the testimony in order to render an opinion. He later upheld the reassignment and Holliday appealed to the chancery court.

Upon review of the hearing record per Mississippi Code Annotated § 37-9-113(3) (Supp.1980), the chancery court upheld Dr. Blackston’s ruling concluding:

The record before this Court clearly reflects a student situation of much confusion for want of adequate scheduling, the primary responsibility of the principal. The subsequent action by the superintendent was not arbitrary and capricious, but rather the fulfilling of his responsibility as superintendent, all of which he was justified in doing so.
It is the opinion of this court that the purpose for which any school district exists is to educate our young, not to provide employment opportunities for adults; that the “pole star” of all school administrators at every level should be that which is in the best interest of the children and their education, a State intent that was clearly anticipated by the conclusion of the reassignment clause in its form contract for publis [sic] school employment.

Citing Calhoun Cty. Bd. of Educ. v. Hamblin, 360 So.2d 1236 (Miss.1978), Chancellor Brand held that Holliday had been given the opportunity to present “matters in extenuation or exculpation — to present her position...” and, therefore, the statutory requirements of Mississippi Code Annotated § 37-9-101 (Supp.1980) had been complied with. The contract executed by Holliday with the school district provided:

That said person accepts employment in the school as indicated above but agrees to reassignment during said scholastic year when it is recommended by the county or district superintendent and approved by the Board of Trustees of said district.

Although this case was decided by the hearing officer on facts found by him which we think were amply supported by substantial evidence, the contract which Holliday executed contemplated that she would be subject to reassignment by action of proper authorities. In our view, courts should be very reluctant to second guess school authorities when reasonably acting pursuant to a solemn contract. Here there is no showing that the reassignment clause in the contract was improperly applied.

We are unable to find that any of Holli-day’s rights were viollated. Pertinent is the following language excerpted from Dr. Blackston’s fact finding:

There was ample evidence to indicate there were scheduling problems and confusion during the opening weeks of school. Parents, teachers and central office personnel were justified in their concerns over these problems. Information concerning new procedures for scheduling pupils was given to all principals in the West Point district during the Spring of 1979. Personnel in the central office were available to any principal for assistance. With this much preparation time, scheduling should not have presented any major problem. It is the opinion of the Hearing Officer that Mr. Griffin was justified in the reassignment of Mrs. Holli-day. . . . While many people are involved in the operation of a particular school, the principal is ultimately charged with the school’s successes and/or failures.

Appellant alleges that Dr. Blackston and the chancellor upheld her removal not on grounds of “incompetence, neglect of duty, immoral conduct, intemperance, brutal treatment of a pupil of [sic] other good cause.” While it is true that the chancellor relied heavily upon the fact that Holliday’s employment contract specifically provided for her reassignment upon the superintendent’s recommendation, he also noted that there had been a great deal of confusion as a result of inept student scheduling. This finding by the chancellor squarely falls within the incompetence category of the statute. See § 37-9-59 (Supp.1980); Stegall v. Jones, 241 So.2d 349 (Miss.1970). Accordingly, affirmance is required.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and HAWKINS, JJ., concur.


author: LEE, Justice for the Court:

text:
    C. G. IVY v. GRENADA BANK.
    No. 52723.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Mitchell M. Lundy, Lundy & Lundy, Grenada, for appellant.
    Edwin Tharp Gofer, Keeton, Cofer & Em-bry, Grenada, for appellee.
    , Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice for the Court:

The Chancery Court of Grenada County entered a decree against C. G. Ivy in favor of the Grenada Bank for the sum of $125,-000. Ivy has appealed and assigns three errors in the trial below. The assignments of error may be disposed of under one proposition, viz, whether or not the lower court erred in holding that Ivy was liable upon his continuing guaranty in the amount of $125,000, whether or not appellee was es-topped to claim the indebtedness and whether or not the indebtedness was can-celled.

On June 6, 1976, Ivy, Robert Lewis Smith and Judith G. Vick, stockholders in Elliott Industries, Inc., jointly signed a continuing guaranty agreement in order to establish a line of credit for such corporation. Each co-signer guaranteed to pay the Grenada Bank up to $125,000 of the corporation’s debts incurred to the bank. The instrument provided that it would continue in force until written notice of termination was delivered to one of the executive officers of the bank. In that event, the instrument would terminate but would not affect the liability of the co-signers for obligations arising prior to the termination. Ivy disposed of his corporate stock in November of 1976 and thereafter, one Russell Y. Greene bought an interest in the corporation. On January 31, 1977, Smith, Vick and Greene executed new continuing guaranties which were identical to that executed by Ivy, Smith and Vick on June 16, 1976.

Appellant contends that he was not given a copy of the instrument when he signed same, that he did not know its contents, that when he sold his interest in the corporation the Grenada Bank vice-president knew he had no further interest in the corporation and that the bank is equitably estopped from asserting the claim against him. However, Mr. W. R. Jones, vice-president of the Grenada banking system, who made the original loan to Elliott Industries, Inc., testified that he personally explained the full import of the guaranty to Ivy and that he would not release any of the original members from their liability on the notes of Elliott Industries, Inc. Appellant admitted that, after selling his interest in the corporation, he did not go to the Grenada Bank and ask to be released from liability on the instrument, that no one at the Grenada Bank told him he was released from such liability, and that he never went by to see the guaranty instrument. Mississippi Code Annotated section 75-3-415 (1972), defines an accommodation party as one who signs an instrument in any capacity for the purpose of lending his name to another party. In McCubbins v. Morgan, et al, 199 Miss. 153, 23 So.2d 926 (1945), the Court said:

“A person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him, and that he supposed the terms were different, unless he was induced not to read it or have it read to him by the other party on which he was entitled to rely.” (199 Miss. at 159, 23 So.2d at 927)

Birmingham v. Conger, 222 So.2d 388 (Miss.1969), held that a party claiming equitable estoppel must show (1) that he changes his position in reliance upon the conduct of another, (2) that he suffered detriment caused by his change of position in reliance upon such conduct.

The record reflects that appellant knew he was signing the instrument to establish a line of credit for Elliott Industries, Inc., and knew he was liable to the extent of $125,000 for the debts of that corporation. The fact that he may not have read the instrument or received a copy of it does not absolve him from liability. Under the uncontradicted facts of the case, equitable estoppel will not afford relief. The lower court correctly entered the decree in favor of the Grenada Bank.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.


author: BOWLING, Justice for the Court:

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. John BENSON, Jr.
    No. 52710.
    Supreme Court of Mississippi.
    Aug. 5, 1981.
    Fred J. Lotterhos, Jackson, for appellant.
    Thomas L. Booker, Terry L. Jordan, Philadelphia, for appellee.
    Before SMITH and ROBERTSON, P. JJ., and BOWLING, J.
   BOWLING, Justice for the Court:

Appellant, Mississippi Employment Security Commission, brings this appeal from the Circuit Court of Neshoba County. That court reversed the decision of the Board of Review of the Mississippi Employment Security Commission. The Board of Review had affirmed the commission’s appeals referee which denied unemployment benefits applied for by appellee. We reverse and render judgment here for appellant.

Appellee was an experienced automobile body repairman. He had worked approximately twenty-two months for Saveli Body Shop in Philadelphia. During the prior year he had made approximately $1,000 per month while working on a fifty percent commission basis for his employer. He was making approximately $200 per week on February 20, 1978, when he advised his employer that he was quitting because “the work just got slow.” When asked, “Did you quit or did he lay you off?”, appellee testified, “Naw, I quit.” There was no contention by appellee that he was fired or that his job was terminated by his employer. The employer testified that appellee was a good body repairman and he was sorry appellee quit. They had had no personal disagreements of any kind. Appellee merely had quit because, according to him, the work was slow and he was “just tired of working for the general public and he was just going to take off for awhile.”

The circuit court in its opinion reversing all agencies of the Employment Security Commission did not give a reason for that action, and we can find none in the record before us. Appellant advances two assignments of error; namely:

I. The decision of the Board of Review was supported by the evidence, correctly applied the law to the fact, and should not have been reversed by the circuit court.
II. The circuit court should not have ordered payments from the trust fund to a claimant who “quit” because “the work just got slow.”

Section 71-5-3, Mississippi Code 1972 Annotated, sets out the reason for unemployment benefits being paid to an employee stating that funds are “to be used for the benefit of persons unemployed through no fault of their own.”

Under Section 71-5-513, under the heading “Disqualification” we find the following:

A. An individual shall be disqualified for benefits:
(1) For the week, or fraction thereof, which immediately follows the day on which he left work voluntarily without good cause, if so found by the commission, and for each week thereafter until he has earned remuneration for personal services (whether performed for an employer as in this chapter defined or otherwise) equal to not less than eight (8) times his weekly benefit amount, as determined in each case, provided that marital, filial, and domestic circumstances and obligations shall not be deemed good cause within the meaning of this subsection.

In certain circumstances an employee who quits his job is entitled to unemployment compensation benefits. As said in 81 C.J.S., Social Security § 232:

A substantial reduction in earnings is generally regarded as good cause for leaving one’s employment, and, hence, one who leaves for such reason is not disqualified for unemployment compensation on the ground of leaving his work voluntarily without good cause; but in this connection the surrounding circumstances should be considered in determining whether a particular reduction in pay constitutes good cause for leaving one’s employment.

As this Court stated in Mississippi Employment Security Commission v. Fortenberry, 193 So.2d 142 (Miss.1966):

The eligibility and disqualification provisions set out in the Mississippi Employment Security Law clearly indicate that this law is for the protection of persons who are part of the force of working employees who are ready, willing and able to perform their work, but who, through no fault of theirs, are not permitted to do so, and the law is not to be used to reward those who, for reasons of their own, refuse to work at suitable employment.

The courts are required to affirm the findings of the Board of Review of the Mississippi Employment Security Commission where those findings are supported by the evidence and properly applied to the law. Mississippi Employment Security Commission v. Fortenberry, supra; Mississippi Employment Security Commission v. Rakestraw, 254 Miss. 56, 179 So.2d 830 (1965); and Mississippi Employment Security Commission v. Blasingame, 237 Miss. 744, 116 So.2d 213 (1959).

We find that the appellant commission’s board of review was correct. Appellee was not entitled to unemployment compensation benefits when he admittedly quit because in his opinion the volume of his employer’s work was not sufficient for his satisfaction. Undoubtedly, there was work to do at the shop when he quit for which he could have continued drawing his usual compensation.

We find that the circuit court was in error in reversing appellant’s board of review. We therefore reverse the cause and render judgment here for appellant, who through its board of review denied compensation benefits to appellee.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and HAWKINS, JJ., concur.


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. James David STILLMAN, Respondent.
    No. 58352.
    Supreme Court of Florida.
    June 4, 1981.
    Rehearing Denied Sept. 4, 1981.
    Donald A. Smith, Jr., Asst. Staff Counsel, Tampa, and Scott K. Tozian, Bar Counsel, Miami, for complainant.
    James D. Stillman, in pro. per.
   PER CURIAM.

This attorney-discipline proceeding is before the Court upon the complaint of The Florida Bar. The cause was tried before a referee, who has made findings of fact underlying a grand larceny conviction and recommended disbarment. The respondent has petitioned for review. We agree with the report of the referee.

The record reflects that in the summer of 1976, respondent befriended Robert Fenlon when they were both attending group therapy sessions sponsored by the mental health association in Clearwater. On August 1, 1976, Fenlon was injured in an automobile accident. Respondent undertook to help Fenlon in pursuing his claims against an insurance company. In due course the insurer sent two checks, payable to Fenlon and to respondent as his attorney. Respondent took possession of the proceeds of one of the checks and agreed to apply the funds to the payment of Fenlon’s medical bills. Respondent appropriated the money to his own use, intending to later make restitution and pay the bills without harm to his client. On May 17, 1977, respondent misrepresented the facts to a Florida Bar grievance committee about this matter, because he still thought he could get his financial affairs in order and carry out his responsibility to pay the medical bills.

Based on this conversion of funds, respondent was charged with grand larceny in Pinellas County in 1977. He pled nolo con-tendere, was adjudicated guilty, and was sentenced to one year in prison. State v. Stillman, No. 77-03107 (Fla. 6th Cir.Ct. 1977).

The referee made findings of fact and recommendations based on the two counts of The Florida Bar’s complaint. Count one of the complaint recited respondent’s conviction in Pinellas County for grand larceny and asserted that in being convicted for grand larceny, respondent violated the Florida Bar Integration Rule, article XI, rule 11.02(2), (3)(a), and (3)(b) and the Code of Professional Responsibility, Disciplinary Rules 1-102(A)(3), (4), and (6) and 7-102(AX8).

Count two of the complaint alleged the facts underlying the grand larceny conviction, and asserted that by appropriating the client’s money to his own use, respondent violated the Integration Rule, article XI, rule 11.02(4) and (4)(a) and the Code, Disciplinary Rules 1-102(A)(3), (4), and (6) and 9-102(A), (B)(3), and (B)(4).

The referee’s report includes not only findings regarding the conduct charged by the Bar, but also other matters reflecting upon respondent’s integrity. In 1975, respondent pled nolo contendere in Dade County to two counts of forgery and one count of grand larceny. The circuit court withheld adjudication and placed respondent on probation. State v. Stillman, No. 75-1777 (Fla. 11th Cir.Ct. 1975). Moreover, at trial before the referee, respondent testified that Fenlon signed what respondent claimed to be a receipt acknowledging payment of the funds owed Fenlon by respondent. Fenlon denied signing the receipt. The referee submitted the document to a handwriting examiner, along with exemplars of Fenlon’s signature. The examiner concluded that it was not signed by Fenlon but was a forgery. The referee also concluded that Fenlon had not signed the receipt, despite respondent’s testimony to the contrary.

The referee recommended that respondent be disbarred.

It was proper for the referee, in making his report, to include information not charged in The Florida Bar’s complaint. Evidence of unethical conduct, not squarely within the scope of the Bar’s accusations, is admissible, and such unethical conduct, if established by clear and convincing evidence, should be reported because it is relevant to the question of the respondent’s fitness to practice law and thus relevant to the discipline to be imposed.

Respondent argues that the referee failed to take into consideration statements from respondent’s supervisors evidencing rehabilitated conduct. This argument ignores the fact that respondent has not had any fiduciary responsibilities as an attorney since at least December 10, 1977, when he was suspended from practice by order of this Court. Nor, apparently, has he been subject to the types of personal pressures he was suffering when he converted the funds of others on the two occasions leading to his convictions. Despite respondent’s recent performance as a nonlawyer employee of the Department of Health and Rehabilitative Services, we must agree with the referee that the record does not give us confidence that respondent would live up to his fiduciary obligations if he were placed in the same desperate economic conditions as existed in 1975 and later in 1977 and if he had access to funds of another.

The referee’s findings of fact, which are entitled to the same presumption of correctness as the judgment of a trier of fact in a civil proceeding, Fla.Bar Integration Rule, article XI, rule 11.06(9)(a)(l), concluding that respondent misappropriated funds entrusted to him by a client and was convicted of grand larceny based on that misappropriation, are approved. The referee’s conclusions that this dishonesty violated various provisions of the Integration Rule and the Code of Professional Responsibility are also approved.

Finally, the referee’s recommended discipline of disbarment is approved, and respondent, James David Stillman, is hereby disbarred, effective immediately. Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $1,027.83.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I agree that respondent’s misconduct has been serious but I dissent from the imposition of the ultimate discipline of disbarment. The reasons I would stop short of permanent deprivation of professional livelihood in this case are that the respondent was in a state of severe economic desperation at the time of his wrongdoing and that he has demonstrated substantial rehabilitation. I would suspend him from the practice of law for two years and allow him to prove rehabilitation after the suspension is served.

Respondent has been under suspension since his conviction in November of 1977. He served seven months in prison. Since his release from prison, he has been employed by the State of Florida, Department of Health and Rehabilitative services in a number of capacities, including that of public assistance eligibility examiner. Respondent submitted evidence showing that his work for the department has been of high quality. His superiors have spoken highly of his ability and his character. I would give him the chance to show rehabilitation and fitness to practice law after serving two more years under suspension.

      . We have jurisdiction. Art. V, § 15, Fla.Const.

      . When it was brought to the attention of the circuit court in Dade County that respondent had been convicted of grand larceny in Pinellas County, the court on May 24, 1978, entered an order nunc pro tunc revoking probation, adjudicating respondent guilty of two counts of forgery and one count of grand larceny based on his earlier plea, and sentencing him to one year in prison to be served concurrently with the sentence imposed in Pinellas County. State v. Stillman, No. 75-1777 (Fla. 11th Cir.Ct. 1978).


author: ADKINS, Justice.

text:
    In re ESTATE OF John W. FINCH, Deceased.
    No. 59367.
    Supreme Court of Florida.
    June 18, 1981.
    Rehearing Denied Sept. 4, 1981.
    Stephen J. McDonald of Hodges, Gossett, McDonald & Gossett, Hollywood, for petitioner.
    Robert I. MacLaren, II, and Marshall O. Lloyd of Osborne & Hankins, Boca Raton, for respondent.
   ADKINS, Justice.

We are asked to review the decision of the Fourth District Court of Appeal, reported at 383 So.2d 755, which passed on the validity and the compatibility of article X, section 4(c), of the Florida Constitution, and sections 732.4015 and 732.401(1), Florida Statutes (1977), relating to the devise of homestead property. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. We affirm.

The parties involved concede that the real estate in question was homestead property and that the descent of such property is governed by article X, section 4(c) of the Florida Constitution. At the time of his death, decedent, John W. Finch, was survived by his spouse and his two adult daughters, petitioner and her half-sister. His will devised his condominium in Boca Raton, Florida, to his wife, Madeline F. Finch, for life with a vested remainder interest to petitioner, Judy Lynn Finch.

Mrs. Finch, respondent herein, moved to set aside the devise as homestead real estate. Her petition alleged that the property in question was homestead, that decedent was survived by a spouse and lineal descendants, and that the property should descend as provided in section 732.401(1), Florida Statutes (1977).

Article X, section 4(c), Florida Constitution, provides as follows:

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be provided by law.

Similarly, section 732.4015, Florida Statutes (1977), states:

As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.

If a devise violates the Florida Probate Code and constitution, it descends by way of intestate succession, pursuant to section 732.401(1), Florida Statutes (1977), as follows:

(1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death.

The trial court considered the petition to set aside homestead and granted it over the objection of petitioner. On appeal, the district court affirmed.

Petitioner contends that the intent of the testator was to provide his wife with a life estate and the daughter of his choosing with a vested fee simple remainder interest, and that neither the statutes nor the constitution should frustrate this expressed intent. Furthermore, petitioner argues that neither the Florida Constitution, article X, section 4(c), nor section 732.4015, Florida Statutes, requires that the devise to the surviving spouse must be in fee simple absolute. We disagree with both of these contentions and adopt the position of the district court as our own. We hold, therefore:

[Wjhere a testator dies leaving a surviving spouse and adult children, the property may not be devised by leaving less than a fee simple interest to the surviving spouse. The Constitution states, “. . . except the homestead may be devised to the owner’s spouse if there be no minor children.” This exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein. Since the devise here was not a permitted one under the Constitution, the property passed in accordance with section 732.401(1), Florida Statutes (1977).

383 So.2d at 757.

The opinion of the district court is approved.

We overrule the decision of the fifth district in In Re Estate of Ritz, 385 So.2d 1102 (Fla. 5th DCA 1980).

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author: ENGLAND, Justice. SUNDBERG, Chief Justice,

text:
    Robert Dennis BINGER, et ux., Petitioners, v. KING PEST CONTROL, Respondent.
    No. 58882.
    Supreme Court of Florida.
    July 16, 1981.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg and Harry A. Gaines, Miami, for petitioners.
    Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for respondent.
   ENGLAND, Justice.

In this civil proceeding, we endeavor to reconcile conflicting district court decisions regarding the effect of a pretrial failure to disclose the names of witnesses. King Pest Control v. Binger, 379 So.2d 660 (Fla. 4th DCA 1980); Mall Motel Corp. v. Wayside Restaurants, Inc., 377 So.2d 41 (Fla. 3d DCA 1979); Hartstone Concrete Products Co. v. Ivancevich, 200 So.2d 234 (Fla. 2d DCA 1967). The situation which brings us the conflict arose when the Bingers were permitted to present at trial the testimony of an impeachment witness whose identity had not previously been disclosed to King Pest Control.

The detailed facts of this dispute, which are amplified in the district court’s opinion, begin with a pretrial order requiring each party to exchange witness lists at least 20 days prior to trial. Both parties complied with this order, and the Bingers not only specifically listed their primary witnesses but advised that they would call to testify “any and all necessary” impeachment or rebuttal witnesses.

Over a month before trial, King Pest Control filed an amended pretrial catalog naming as a witness Burton Murrow, an accident reconstruction expert. The Bing-ers took Murrow’s deposition approximately four days before trial and subjected it to scrutiny by their own privately-retained expert. The Bingers did not identify their expert for King Pest Control, however. Following Murrow’s testimony at trial, the Bingers sought to introduce the testimony of their own expert to impeach Murrow, and over King Pest Control’s objection they were permitted to do so.

King Pest Control successfully appealed the trial court’s action to the Fourth District Court of Appeal, obtaining a reversal of the Bingers’ judgment and a remand for a new trial. Noting considerable confusion in the case law regarding pretrial disclosure of witnesses’ names, the district court relied on the spirit of the discovery rules to suggest that

The court further concluded that a trial judge’s discretion in determining whether an unlisted witness can testify should be guided primarily by whether prejudice would accrue to the objecting party. The court defined prejudice to mean

[a court ordered witness list] should contain the names and addresses of all persons who, within reason, a party might call as a witness, be they for impeachment, corroboration or to adduce substantive proof, and regardless of the part of the trial in which they might appear. As we see it, the key to the proper administration of such a rule is the trial judge, clothed as he is, with a broad discretion in resolving questions arising during a trial.
that the objecting party might well have taken some action to protect himself had he timely notice of the witness and that there exist no other alternatives to alleviate the prejudice.. . .

We essentially agree with the district court’s analysis.

The Bingers argue here that the law in Florida is well-settled to the effect that impeachment witnesses need not be disclosed prior to trial. The rule, they suggest, is rooted in the belief that all witnesses, but especially expert witnesses, would be tempted to exaggerate or stray from the truth if they knew from looking at a witness list that their testimony was not going to be challenged.

King Pest Control argues that the rule permitting nondisclosure of impeachment witnesses is not so broad as the Bingers contend, but rather is limited to those situations in which the need for an impeachment witness is totally unforeseeable and arises from matters which come out for the first time during trial. They suggest that an impeachment witness who testifies on an issue disclosed by the pleadings or through discovery must be identified prior to trial, in order to prevent a party from secreting a witness and waiting to ambush his opponent’s witnesses. They argue that trials in Florida are no longer sporting matches, and that full disclosure is the order of the day. See, e. g., Kilpatrick v. State, 376 So.2d 386 (Fla.1979).

Although both parties’ urgings find support in Florida case law, we accept neither the Bingers’ nor King Pest Control’s view of the role of witness disclosure in civil trial practice. Moreover, whether and under what circumstances the names of court ordered witnesses must be disclosed prior to trial implicates the entire concept of witness disclosure underlying civil trial practice in Florida. For that reason, we decline the invitation of both counsel to limit our consideration to impeachment witnesses only, or to create jurisprudential niches for particular types of impeachment testimony such as expert or character witness testimony. For the reasons stated below, we essentially approve the Fourth District’s reasoning, which leaves ultimate control over witness disclosure problems to the broad discretion of the trial judge and focuses on prejudice in the preparation and trial of a lawsuit.

In order to resolve the dispute in this case and provide reasonable guidance to the bench and bar in future cases, it is not essential that we plow new ground in the field of civil practice. Existing Rule 1.200 of the Florida Rules of Civil Procedure provides an adequate framework, when supplemented by a faithful adherence to the notions of discovery which underpin civil trial practice and the good judgment of Florida’s trial judges. Conceding, however, the existence of a confusing string of witness disclosure cases, we can place Rule 1.200 in better perspective by providing a general overview of these precedents.

Florida’s district courts seem to have taken four approaches to the problem of pretrial witness disclosure. Several cases suggest that a witness need not be disclosed if he is an “impeachment” witness. See Hartstone Concrete Products Co. v. Ivancevich, 200 So.2d 234 (Fla. 2d DCA 1967); A.A. Holiday Rent-A-Car, Inc. v. Edwards, 190 So.2d 362 (Fla. 3d DCA 1966). At least one case appears to conclude that, subject to the trial judge’s discretion, a “rebuttal” witness need not be disclosed prior to trial. See Williamson Truck Lines, Inc. v. Kellar, 301 So.2d 818 (Fla. 3d DCA 1974). Yet another case suggests that a witness need not be disclosed if he will respond to any new or surprise testimony brought out at trial. See Atlas v. Siso, 188 So.2d 344 (Fla. 3d DCA 1966).

The district court below identified each of these approaches and concluded that none “is adequate to furnish practical rules which can be used by the Bench and Bar to resolve this thorny problem in the midst of a trial.” We agree completely.

The vast majority of district courts in Florida, including the Fourth District in the instant case, have concluded that a fourth approach will best meet the objectives of modern civil trial practice in this state. That approach places all problems regarding the testimony of undisclosed witnesses within the broad discretion of the trial judge. It thus vests in the trial judge the interpretation and enforcement of any pretrial order mandating witness disclosure, and limits reviewing courts to reversals only in cases of a clear showing of abuse prejudicial to the affected party. See e. g., Fuller v. Rinebolt, 382 So.2d 1239 (Fla. 4th DCA 1980); McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So.2d 697 (Fla. 4th DCA 1973); Green v. Shoop, 240 So.2d 85 (Fla. 3d DCA 1970); County of Brevard v. Interstate Engineering Co., 224 So.2d 786 (Fla. 4th DCA 1969); Alvarez v. Mauney, 175 So.2d 57 (Fla. 2d DCA 1965).

The only prior decision of this Court directly addressing the issue of witness disclosure leaned toward this fourth approach. Rose v. Yuille, 88 So.2d 318 (Fla.1956). In that case the trial court’s pretrial order had directed the plaintiff to reveal the names of all his witnesses. Four days before trial the plaintiff learned of an additional, material witness and promptly notified the defendants of the witness’ name. Nothing was said, though, as to what the witness would say or whether his testimony would be material and admissible. The trial court refused to permit the witness to testify, and this Court affirmed that decision on the basis of no abuse of discretion.

Although Rose is somewhat dated, the general policy of full and open disclosure underlying the decision has been carried forward in Florida’s rules of discovery. The goals of these procedural rules are “to eliminate surprise, to encourage settlement, and to assist in arriving at the truth.” Spencer v. Beverly, 307 So.2d 461, 462 (Fla. 4th DCA 1975)(Downey, J., concurring), cert. denied, 314 So.2d 590 (Fla.1975). We recently reiterated those goals.

A search for truth and justice can be accomplished only when all relevant facts are before the judicial tribunal. Those relevant facts should be the determining factor rather than gamesmanship, surprise, or superior trial tactics.

Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980).

The goals underlying discovery practice are readily apparent in Florida Rules of Civil Procedure 1.200(c), which provides that a trial court’s pretrial order detailing the agreements made by the parties “shall control the subsequent course of the action unless modified at the trial to prevent injustice.” Consistent with this rule, we now hold that a pretrial order directing the parties to exchange the names of witnesses requires a listing or notification of all witnesses that the parties reasonably foresee will be called to testify, whether for substantive, corroborative, impeachment or rebuttal purposes. Obviously, a general reference to “any and all necessary” impeachment or rebuttal witnesses, as was the case here, constitutes inadequate disclosure. We expressly disapprove decisions in the first three categories of witness disclosure cases which hold or imply that certain types of witnesses are automatically exempt from the dictates of a pretrial disclosure order.

It follows, of course, that a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Requiring reasonable compliance with a pretrial order directing witnesses’ disclosure will help to eliminate surprise and avoid trial by “ambush.” The argument that the possibility of being ambushed by an unlisted impeachment witness encourages truthful testimony reflects an outdated methodology for ascertaining the truth at trials. It lacks the solid foundation on which courts should alone build exceptions to general discovery principles. Moreover, the logic of the proposition is fairly disputable. The listing of contradictory witnesses whose impeachment testimony can be discovered by interrogatory or deposition provides equal assurance that trial testimony will be accurate and truthful.

We cannot talk about pretrial discovery without mentioning local pretrial practices. We have intentionally left room for the operation of local rules and customs within the broad parameters of our decision. Local customs regarding pretrial disclosure of witnesses vary throughout the circuits in Florida, and these variations can and should continue. For example, in some circuits the pretrial disclosure order not only directs that witnesses’ names be exchanged, but expressly prevents the testimony of any witness not identified within a certain period of time. In other circuits, it is common for the order to exempt by category certain types of witnesses from being listed. Another local practice requires that counsel for each party demand witnesses’ names before a court order is entered or in lieu of a court-directed exchange of names. These local variations in discovery practice within the circuits of Florida in no way derogate from our decision, and we leave their interpretation and application, within the stated goals of discovery, to the presiding trial judge in each ease.

Applying the above rules to the instant ease, we agree with the district court that the Bingers should have listed their expert witness on an amended pretrial witness list. The only reasonable construction of the pretrial order of the trial court was that all witnesses’ names should have been exchanged. Since the Bingers knew the name of King Pest Control’s expert witness and the substance of his testimony approximately four days before trial, they knew or reasonably might have known that they would call their own expert as a witness. They knew, of course, who he was and what he would say. The only justification for not disclosing his name was a belief that they could impeach King Pest Control’s expert as a surprise tactic. This intentional nondisclosure, combined with the surprise and disruption occasioned by the use of the unlisted witness and inability to alleviate these problems, convinces us King Pest Control was prejudiced in the presentation of its case, and that the district court was correct in directing a new trial.

The decision of the district court is approved.

ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, Chief Justice,

dissenting:

Because I believe the majority confuses discovery with a party’s ability to call an unlisted impeachment witness, I respectfully dissent.

        . King Pest Control v. Binger, 379 So.2d 660 (Fla. 4th DCA 1980).

      . Id. at 663.

      . Id.

      . Our analysis assumes the existence of a valid pretrial order directing the parties to exchange the names of their witnesses. There is no continuing duty of disclosure under Florida’s Rules of Civil Procedure, as there is under our criminal rules. See Fla. R. Crim. P. 3.220(f).

      . We do, however, limit our analysis to pretrial disclosure of witnesses. Although similar considerations may apply to the pretrial disclosure of nontestimonial evidence, see Eastern Steamship Lines, Inc. v. Martial, 380 So.2d 1070 (Fla. 3d DCA 1980), cert. denied, 388 So.2d 1115 (Fla.1980)(defendants’ attempt to introduce photographs not listed on pretrial catalog), we are not prepared to say that other considerations may not be relevant in these situations.

      . King Pest Control v. Binger, 379 So.2d at 662.

      . Nothing in this concept of trial practice requires that one party disclose his case to the other in full. We are dealing only with an exchange of witnesses’ names. It remains the obligation of each attorney to learn through interrogatories, depositions or any other means he selects, the nature of the testimony which will be offered and the extent to which he intends to meet or deal with it at trial. Negligence in discovery is not an issue in this case.

        . See McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So.2d 697 (Fla. 4th DCA 1973); County of Brevard v. Interstate Eng’r Co., 224 So.2d 786 (Fla. 4th DCA 1969).

      . Green v. Shoop, 240 So.2d 85 (Fla. 3d DCA 1970). See also Fuller v. Rinebolt, 382 So.2d 1239 (Fla. 4th DCA 1980); Clarke v. Sanders, 363 So.2d 843 (Fla. 4th DCA 1978).

      . See DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3d Cir. 1978); Slomanson, Supplementation of Discovery Responses in Federal Civil Procedure, 17 San Diego L.Rev. 233, 258 n.149 (1980); Note, 43 Tenn.L.Rev. 124, 130-31 (1975).

        . See Mall Motel Corp. v. Wayside Restaurants, Inc., 377 So.2d 41 (Fla. 3d DCA 1979) (pretrial disclosure order specifically excluded impeachment witnesses).

      . All of these factors are readily evident from the record of this proceeding.


author: ADKINS, Justice. ALDERMAN, Justice,

text:
    Wanda Jean TOLIVER and Jan Yvonne Bishop, Petitioners, v. STATE of Florida, Respondent.
    No. 56537.
    Supreme Court of Florida.
    July 23, 1981.
    Carl S. McGimnes, Asst. Public Defender, Tallahassee, for petitioners.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

By petition for certiorari filed prior to the 1980 amendment of the jurisdiction of this Court, we have for review a decision of the First District Court of Appeal, (Toliver v. State, 367 So.2d 1129 (Fla. 1st DCA 1979)), which allegedly conflicts with other decisions which place a mandatory duty upon the trial court to instruct on the penalties when so requested by the defendant. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

Petitioners, Wanda Jean Toliver and Jan Yvonne Bishop, were each charged with and convicted of grand larceny. At trial, petitioners made a joint request, pursuant to Florida Rule of Criminal Procedure 3.390(a), that the court instruct the jury on the appropriate penalties. The request was denied and no instruction on penalties given.

Petitioners appealed their convictions to the district court, alleging, among other issues, that the trial court’s refusal to provide the requested instruction was error. The district court, in a decision without published opinion, affirmed the trial court. In light of our recent holding in Tascano v. State, 393 So.2d 540 (Fla.1980), we find that. the trial court erred by refusing to instruct the jury on the penalties.

In Tascano, we held that upon request of either the state or defendant, it is mandatory that an instruction be given on the maximum and minimum sentences which may be imposed. Petitioners specifically requested such an instruction, and so the trial court’s refusal to comply with the request was error. The record also shows that petitioners properly preserved this point on appeal, the state’s arguments to the contrary notwithstanding.

Because we find that the trial court erred in the foregoing manner, we need not address the other issues raised by petitioners. The decision of the district court of appeal is quashed and the cause is remanded with instructions to reverse the judgments of conviction and to remand same to the circuit court for a new trial.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and McDONALD, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting:

The trial court refused to instruct the jury on the maximum and minimum penalties for the crime charged. Upon appeal, the district court affirmed without opinion. I disagree with the majority that the trial court reversibly erred in failing to give this instruction and that the district court’s decision must therefore be quashed. As I said in my dissent in Tascano v. State, 393 So.2d 540 (Fla.1980), a mandatory penalty instruction is inconsistent with instruction 2.15 of the Florida Standard Jury Instructions in Criminal Cases. “The defendant cannot logically be entitled to reversal of his conviction upon the basis that the jury was not afforded information which it was obligated under the law and the court’s instruction to disregard.” 393 So.2d at 542 (dissenting opinion).


text:
    Tillman WRIGHT, Petitioner, v. GULF AND WESTERN FOOD PRODUCTS and Risk Management Services, Inc., Respondents.
    No. 56817.
    Supreme Court of Florida.
    July 23, 1981.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for petitioner.
    Robert D. McAliley of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for respondents.
   ADKINS, Justice.

We have for consideration a petition for writ of certiorari directed to the Industrial Relations Commission pursuant to the authority of article V, section 3(b)(3), Florida Constitution (1972). Since the filing of this petition, the Industrial Relations Commission has been abolished, and the jurisdiction to review orders of Judges of Industrial Claims has been transferred to the District Court of Appeal, First District.

The facts of the case are basically undisputed. Claimant, at the time of his hearing before the Judge of Industrial Claims, was a sixty-year-old black man with no formal education who started working on a farm at the age of eight, who could neither read nor write, could not make change, and had been missing his left arm since the age of fifteen. His right knee was injured by an accident arising out of and in the course and scope of his employment on December 5, 1976. After receiving treatment for this injury, claimant attained maximum medical improvement on January 30, 1978.

The Judge of Industrial Claims conducted a hearing to determine the extent of claimant’s disability and found that the merger, of the knee injury with the preexisting loss of arm, considered in conjunction with claimant’s illiteracy, resulted in permanent total disability. In addition, the judge, noting that the claimant would need the most benevolent employer to hire him in sheltered employment for what work he was capable of doing, found that he was unemployable in the existing labor market.

Upon review, the Industrial Relations Commission reversed the order, holding that the lack of medical opinion or lay testimony that the knee injury interacted with the loss of the left arm to enhance the permanent physical impairment resulting from the knee injury precluded the use of wage-earning capacity loss criteria. On the employability issue, the commission decided that claimant had not undertaken a viable work search as required by Exxon Company v. Alexis, 370 So.2d 1128 (Fla. 1978), since his physical impairment did not approach the level at which a work search could be excused.

Commissioner Shaw dissented, stating that he believed that there was competent, substantial evidence that the combination of the knee injury, arm loss, and other factors operated to completely destroy claimant’s wage-earning capacity. On the issue of work search, he believed that the claimant had made an adequate showing as required by Exxon.

The scope of this Court’s review of orders of the Judge of Industrial Claims and Industrial Relations Commission has been the subject of much discussion. Perhaps the most definitive statement was made in Colvin v. State Department of Transportation, 311 So.2d 366 (Fla. 1975), in which we specifically wrote:

JIC findings and awards or denials thereof can be overthrown only if not well founded under applicable legal principles, which would include a misapplication of applicable law, or upon a showing of a lack of competent evidence to support the findings or the ruling of the trial judge. IRC affirmance when there is such a lack of evidence or reversal where the evidence is in fact sufficient, would constitute a “departure from the essential requirements of law” which would vest jurisdiction for certiorari in the Supreme Court.

Id. at 368.

Under applicable law, we believe the Judge of Industrial Claims had substantial competent evidence upon which to base his order.

In relation to the issue of the so-called “merger” of the knee injury with the arm loss, the Commission has taken too strict a view. A reading of the entire JIC order leads to the conclusion that the use of the term “merger” was not in any medical sense but rather in the more general sense of a combination, in this case the combination of all the factors which influence claimant’s employability, to wit, physical disabilities, age, education, job skills, and rehabilitation prospects.

In Henderson v. Sol Walker and Company, 138 So.2d 323 (Fla. 1962), this Court stated that loss of wage-earning capacity must be determined in accordance with the facts of the case and that relevant considerations included physical condition, age, industrial history, education, and inability to obtain work. In that case, the claimant was an illiterate fifty-seven-year-old black man with a second-grade education and no formal or technical training. The work-related injury he suffered resulted in amputation of his right foot, his sole physical impairment. However, we held that the combination of all factors, including the inability of the employment service to place claimant in a job in his employment category, made an award of permanent total disability appropriate.

In other cases, we have reached a similar conclusion. In Florida State Turnpike Authority v. Garvey, 234 So.2d 354 (Fla. 1970), we held that a work-related injury to the knee creating a twenty-five per cent functional disability merged with previous disabilities (amputations of right hand and left leg) to result in a permanent total disability. In Hogan v. Central Sand Company, 141 So.2d 576 (Fla. 1962), the claimant, who was an illiterate laborer capable of performing only manual labor, suffered a work-related injury resulting in amputation of the right leg below the knee. In reversing the order of the Commission awarding an eighty-five per cent wage-earning capacity disability, we held that a permanent total disability was appropriate since claimant fit into a class embracing those who could not uninterruptedly do even light work owing to physical limitations. In Ross v. Roy, 234 So.2d 99 (Fla. 1970), we reversed a decision by the Commission which failed to award a permanent total disability. Claimant, who was sixty-three years old and had only a third-grade education, had suffered a work-related injury to his leg, which caused him to need the assistance of a cane for ambulation and precluded his standing for more than fifteen or twenty minutes at a time. We held, upon review of the totality of the evidence, including the nature and extent of anatomical disability as it related to age, education, and employment history (manual type labor), that a “reasonable stable labor market commensurate with claimant’s ability to perform regular employment services is unlikely to exist”. Id. at 101.

We believe that there was competent substantial evidence to support the finding of the Judge of Industrial Claims that the combination of factors relating to claimant’s physical impairment and employability are such as to justify an award of permanent total disability. Medical testimony indicated that an individual with degenerative arthritis should avoid climbing, lifting heavy objects and other forms of undue physical stress. Additionally, there was testimony that an individual without a left arm would be required to place more emphasis and get more assistance from his legs, especially in climbing activity.

Concerning the work search issue, the general rule in determining whether a claimant has made a sufficient effort was explicated in Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975). Therein, we stated that when a claimant affirmatively demonstrates that some effort was made to obtain employment within the claimant’s physical limitations, the burden shifts to the employer to demonstrate that suitable work is in fact available. Accord, Stanley v. Master Masonry Construction, Inc., 287 So.2d 67 (Fla.1973), wherein we held that it is incumbent upon an employer to show some form of employment within reach of a claimant to obviate a determination of permanent total disability.

In the instant case, the record demonstrates that claimant made numerous efforts to obtain work; through his former employer, the Florida State Employment Office, and individual effort. Vocational rehabilitation proved to be of no value. The claimant, having demonstrated that some effort was made to obtain employment, the burden falls upon, the employer to demonstrate availability. This burden has not been met by the employer.

The order of the Industrial Relations Commission is quashed and the order of the Judge of Industrial Claims is reinstated.

It is so ordered.

SUNDBERG, C. J., and BOYD, ENGLAND and McDONALD, JJ., concur.

OVERTON and ALDERMAN, JJ., dissent.


author: PER CURIAM. ENGLAND, J.,

text:
    STATE of Florida, Petitioner, v. Richard Earl LEWIS, Respondent.
    No. 58046.
    Supreme Court of Florida.
    July 23, 1981.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, Miami, for respondent.
   PER CURIAM.

The order of the district court, 375 So.2d 344 (Fla. 3d DCA 1979), reversing the circuit court’s denial of relief under Florida Rule of Criminal Procedure 3.850 is quashed, and the cause is remanded for action consistent with State v. Segarra, 388 So.2d 1017 (Fla.1980).

It is so ordered.

Order on mandate, 403 So.2d 598.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

ENGLAND, J.,

dissents for the reasons expressed in State v. Segarra, 388 So.2d 1017 (Fla.1980).


author: McDONALD, Justice.

text:
    PIONEER OIL CO., INC., Petitioner, v. STATE DEPARTMENT OF REVENUE, Respondent.
    No. 59147.
    Supreme Court of Florida.
    July 23, 1981.

      Kenneth G. Oertel & Laramore, Tallahassee and Judith S. Kavanaugh of Dye, Cleary, Scott & Deitrich, Bradenton, for petitioner.
    Jim Smith, Atty. Gen. and Linda C. Proc-ta, Asst. Atty. Gen., Tallahassee, for respondent.
   McDONALD, Justice.

The Court accepted jurisdiction to review alleged conflict between Pioneer Oil Co., Inc. v. State Department of Revenue, 381 So.2d 263 (Fla. 1st DCA 1980), and Anderson v. State Department of Revenue, 380 So.2d 1083 (Fla. 3d DCA 1980), disapproved, 403 So.2d 397, (Fla.1981). Art. V, § 3(b)(3), Fla.Const. Although we consolidated these cases for oral argument, we choose to issue separate opinions. We approve the First District’s decision in Pioneer.

Section 206.87(1), Florida Statutes (Supp. 1978), imposes an eight-cent excise tax on each gallon of special fuel sold and makes dealers responsible for collecting the tax and remitting it to the state. Sales for home, industrial, commercial, agricultural, or marine purposes are specifically exempted from the tax levy. § 206.87(4)(a), Fla. Stat. (Supp.1978). Pioneer, a licensed dealer of fuels, sold special fuel to several unlicensed dual users, but failed to comply with the Department of Revenue’s (DOR’s) rule 12B-5.03, Florida Administrative Code. Specifically, Pioneer accepted improperly filled out resale certificates from its purchasers.

At an administrative hearing, Pioneer showed that the fuel was used for exempt purposes. Nevertheless, an administrative order issued, requiring payment of taxes, penalties, and interest. The First District affirmed the order, holding that in the absence of a properly executed blanket exemption and/or resale certificate the initial dealer remained responsible for collecting and remitting the tax.

In its petition for review, Pioneer claims that subsections (3) and (4) of rule 12B-5.03 improperly negate the statutory exemption and that, in promulgating and enforcing this record-keeping rule, DOR has exceeded its power. We disagree.

Exemptions contained in taxing statutes are special favors granted by the legislature and should be strictly construed against the taxpayers. State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973); United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959). Section 206.59(1), Florida Statutes (1977), gives DOR the power to make rules and regulations, with the force and effect of law, to govern the reports and accounts of all dealers in order to ascertain liability for the special fuel tax. DOR is also authorized to prescribe all forms upon which reports are to be made. § 206.14(1), Fla.Stat. (1977). Acting under the authority of these sections, DOR promulgated rule 12B-5.03.

We find that rule 12B-5.03 does not exceed DOR’s statutory power. Additionally, we agree with the district court that this rule does not impose a tax for failing to keep records. Chapter 206 imposes a tax on the sale of fuels and places on initial sellers the responsibility for collecting and remitting that tax. Rule 12B-5.03 sets out the method by which an initial seller can transfer this liability to a purchaser, whose use may or may not be exempt. By failing to follow the proper procedures, Pioneer retained its statutory responsibility.

We approve the decision of the First District Court of Appeal.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.

      . Dual users have both taxable use and nontaxable consumption of special fuel.

      . Fla.Admin.Code rule 12B-5.03 provides, in pertinent part, as follows:
      [l](b) Every sale, use or consumption of motor fuel or special fuel is taxable under Chapter 206, F.S., unless such sale, use or consumption is specifically exempt. Any distributor or dealer who sells special fuel must maintain in his files a sales invoice which shows the date of sale, the customer’s name and address, type of special fuel sold, number of gallons, unit price per gallon, total sales price and on all taxable sales the tax separately stated. The exempt status of the transaction must be established by the distributor or dealer. Unless the distributor or dealer has obtained from the purchaser a resale or exemption certificate, the sales invoice, with respect to any sale for which exemption is claimed, must show the exempt purpose for which the special fuel was purchased, that the special fuel was not placed into the receptacle connected to the fuel supply system of a motor vehicle and that the special fuel was not purchased for resale or for a dual use. Any dealer of special fuel as defined in Rule 12B-5.05(2), who obtains from his purchaser a resale or exemption certificate and, in good faith, sells special fuel to such purchaser tax free shall not be required to collect from the purchaser any tax levied by Chapter 206, F.S. . . .
      (2) A resale certificate is required from every dealer or distributor who purchases motor fuel or special fuel for resale. Otherwise, the dealer or distributor making the sale is required to collect and remit the tax to the department. . . .
      (3) In cases where the purchaser has both taxable use and non-taxable consumption [dual use] of special fuel, and such purchaser is licensed as a dealer of special fuel, he shall furnish the dealer who makes the sale to him a resale or exemption certificate covering all of his purchases of special fuel... . Unless such purchaser is licensed as a dealer of special fuel and shall furnish the dealer making the sale to him with resale certificate, the dealer making the sale is required to collect and remit the tax to the department.

      (4) A distributor or dealer shall refuse to accept a resale certificate, and shall collect the tax unless the purchaser has obtained a distributor's or dealer’s license from the Florida Department of Revenue and his license number is stated on the resale certificate.

      (Emphasis supplied.)


author: PER CURIAM.

text:
    John BUFFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 59426.
    Supreme Court of Florida.
    July 23, 1981.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.
   PER CURIAM.

Under Pressley v. Wainwright, 367 So.2d 222 (Fla. 1979), we belatedly accepted jurisdiction in this cause because of the express conflict contained in the Fifth District Court of Appeal opinion reported at 383 So.2d 928 (Fla. 5th DCA 1980). We resolved the conflict in Butterworth v. Fluellen, 389 So.2d 968 (Fla. 1980), decided subsequent to the district court opinion. The petition for review is therefore discharged.

No motion for rehearing will be entertained.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.


text:
    John S. CHIROGIANIS, et al., Petitioners, v. Bessie ANDERSON, Respondent.
    No. 59534.
    Supreme Court of Florida.
    July 23, 1981.
    Sutton G. Hilyard, Jr. and George A. Meier, III of Pitts, Eubanks & Ross, Orlando, for petitioners.
    Ned N. Julian, Jr. of Stenstrom, McIntosh, Julian, Colbert & Whigham, Sanford, for respondent.
   McDONALD, Justice.

We accepted jurisdiction of this cause because it appeared that the district court reweighed and reevaluated the evidence and then set aside the verdict because of “contradicted” evidence. Anderson v. Chirogianis, 384 So.2d 1289 (Fla. 5th DCA 1980). If true, there would have been conflict with Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1211 (Fla. 1978), and Schmidt v. Tracey, 150 So.2d 275 (Fla. 2d DCA 1963), cert. denied, 159 So.2d 645 (Fla. 1964). A closer review of the record, however, discloses that the district court followed the tests authorizing a new trial enunciated in Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (Fla. 1941), as supplemented in Short v. Grossman, 245 So.2d 217 (Fla. 1971), and Griffis v. Hill, 230 So.2d 143 (Fla. 1969). We therefore discharge the writ.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and ENGLAND, JJ., concur.

ALDERMAN, J., concurs in result only.


author: OVERTON, Justice.

text:
    Stanley DOBER, M.D., Alan B. Cohen, M.D., and H. John Richmond, M.D., Petitioners, v. Julian WORRELL and Roselynn Worrell, his wife, co-administrators of the Estate of Jason Worrell, a deceased minor, and Julian Worrell and Roselynn Worrell, individually, Respondents.
    No. 59608.
    Supreme Court of Florida.
    July 23, 1981.

      Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for petitioners.
    David T. Price and Peggy J. Tribbett of Price, Byrne & Tribbett, Fort Lauderdale, for respondent.
   OVERTON, Justice.

■ This is a petition to review a decision of the Fourth District Court of Appeal, reported at 384 So.2d 897 (Fla.4th DCA 1980). The issue is whether an appellant on appeal from summary judgment may raise for the first time an affirmative defense to the statute of limitations and have the appellate court remand to the trial court for repleading of the newly asserted defense.

In its opinion, the district court noted that “[tjhere is considerable confusion among the authorities.” We find conflict. See Forte v. Tripp & Skrip, 339 So.2d 698 (Fla.3d DCA 1976). We hold that failure to raise an affirmative defense before a trial court considering a motion for summary judgment precludes raising that issue for the first time on appeal.

In the instant case, respondents Worrell alleged medical malpractice and sued petitioner doctors for the wrongful death of their infant son. The doctors defended by answering that the applicable statute of limitations barred the claim. The respondents filed no responsive pleading to this defense. The trial court agreed that the limitations period barred the action and thereafter granted the doctors’ motion for summary judgment. On appeal, the Fourth District Court analyzed the limitations question, determined that the trial court had properly decided it, and affirmed the summary judgment. In the appeal, however, respondents asserted for the first time that the period of limitations was extended because of the doctors’ alleged fraudulent concealment of the facts surrounding the infant’s death. Even though the record revealed that respondents had knowledge of the alleged concealment when initiating the suit, the district court determined that the cause should be remanded so that respondents would have an additional opportunity to amend their pleadings and assert the fraudulent concealment issue.

We agree with the district court in its construction and application of the applicable statute of limitations. That matter is not in issue here. The sole question for our determination is the appropriateness of the district court’s remand after its affirmance of the summary judgment to allow for re-pleading of the affirmative defense not previously raised.

In other areas of the law we have previously held it inappropriate to raise an issue for the first time on appeal. For example, an appellate court will not consider issues not presented to the trial judge either on appeal from an order of dismissal, Lipe v. City of Miami, 141 So.2d 738 (Fla. 1962), or on appeal from final judgment on the merits, Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla.1971); Mariani v. Schleman, 94 So.2d 829 (Fla.1957); Jones v. Neibergall, 47 So.2d 605 (Fla.1950). We now add to this list and hold it inappropriate for a party to raise an issue for the first time on appeal from summary judgment.

This Court held in Landers v. Milton, 370 So.2d 368 (Fla.1979), that a party seeking to toll the statute of limitations has the burden of proving and pleading the circumstances that in fact toll the statute. Florida Rule of Civil Procedure 1.100(a) is explicit: “[i]f an answer . .. contains an affirmative defense and the opposing party seeks to avoid it, he shall file a reply containing the avoidance.” The instant record is clear that respondents, although aware of their affirmative defense before initial pleading, chose not to file a reply until appeal. This in effect waived the affirmative defense.

It is our view that a procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the “finality” concept in our system of justice. Clearly, this procedure would substantially extend litigation, expand its costs, and, if allowed, would emasculate summary judgment procedure.

Respondents claim that our decisions in Roberts v. Braynon, 90 So.2d 623 (Fla.1956), Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963), and Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971), authorize the district courts to remand causes in which proper summary judgments have been entered for repleading on issues not previously raised.

In Roberts, this Court was attempting to harmonize the new pretrial conference rule, which allowed the trial judge to simplify issues by granting a summary judgment, with the new summary judgment rule and its notice provisions. The situation arose because “[ajfter pleadings were closed, a pretrial conference was noticed by the circuit judge, and thereafter a motion for summary judgment was filed by the defendant and set for hearing on the same day as the pretrial conference.” 90 So.2d at 626. Although this scheduling left plaintiff with insufficient summary judgment notice time under then Florida Rule of Civil Procedure 1.16, the trial court granted the summary judgment under the pretrial conference rule. The plaintiff objected to the lack of sufficient notice. This Court said: “[bjecause we have not previously attempted to harmonize pretrial procedure with summary judgment procedure, we are particularly solicitous of the rights of plaintiff-appellant in this case.” Id. at 627. To prevent any prejudice which resulted from the insufficient notice period, the Court affirmed the summary judgment but did so without prejudice so that plaintiff could amend her complaint within a time set by the trial court.

In Hart Properties, the Court was making it clear that Florida trial courts had the authority under the summary judgment rule to treat summary judgments the same as granting a motion to dismiss. This Court expressly held that a trial court could grant summary judgment but allow the losing party a set period of time within which to amend his pleadings. We emphasize that this decision did not concern presentation of an issue for the first time on appeal because the trial court had already permitted the pleading amendment during the course of a jury trial.

We are aware that our decision in Gold Coast Crane Service, Inc. v. Watier does not conform to the views expressed in this decision, and, to the extent that it is inconsistent, we recede therefrom. We approve the decision of the district court to the extent it affirms the summary judgment of the trial court but disapprove that portion which remands for repleading of issues not previously raised.

It is so ordered.

SUNDBERG, C. J., and BOYD, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

ADKINS, J., dissents.

      . An explanation of this rule and the requirement to plead a defense to the statute of limitations is explained fully in an article by Henry P. Trawick, Jr. See Trawick, To Reply or Not to Reply? 47 Fla.B.J. 702 (1973); see generally Florida Civil Practice Before Trial § 10.4 (3d ed. 1975); H. Trawick, Florida Practice & Procedure § 11-6 (1980).


text:
    STATE of Florida, Petitioner, v. Thomas David McGRAW, Respondent.
    No. 59707.
    Supreme Court of Florida.
    July 23, 1981.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    Louis G. Carres and Theodore E. Mack, Asst. Public Defenders, Tallahassee, for respondent.
   PER CURIAM.

The instant decision of the First District Court of Appeal reported at 387 So.2d 444 (Fla. 1st DCA 1980), is quashed and remanded for consideration in light of this Court’s decision in Ensor v. State, 403 So.2d 349 (Fla.1981).

It is so ordered.

SUNDBERG, C. J., and OVERTON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

ADKINS and BOYD, JJ., dissent.

Opinion after remand, 404 So.2d 817.


text:
    G. E. J., J. B., D. J., M. M., G. J., I. A. D., W. D., T. E. C., W. P. W., J. R. H., Children, Appellants, v. STATE of Florida, Appellee.
    No. 59943.
    Supreme Court of Florida.
    July 23, 1981.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   OVERTON, Justice.

Twenty-seven juvenile appellants appealed their respective convictions for escape under section 39.112, Florida Statutes (1979), to the First District Court of Appeal. The district court, in its opinion reported as R. P. v. State, 389 So.2d 658 (Fla. 1st DCA 1980), consolidated the appeals and held: (1) as to all twenty-seven appellants, that the Jacksonville Youth Development Center was a “training center” from which escape by a juvenile was prohibited under section 39.112, and (2) as to seventeen of the appellants, that section 39.112 was not violative of article III, section 6, Florida Constitution. With respect to the second issue, because the trial courts' in the remaining ten cases passed upon the constitutional validity of section 39.112 prior to April 1, 1980, the district court found appellate jurisdiction for those causes was properly in this Court under article V, section (3)(b)(l), Florida Constitution (1972), and transferred these causes to this Court pursuant to Florida Rule of Appellate Procedure 9.040(b). These are the cases we now have before us for review.

Subsequent to the instant district court decision, this Court rendered its decision in State v. J. R. M., 388 So.2d 1227 (Fla.1980), which upheld section 39.112 from the identical constitutional attack as asserted in the instant case. We reaffirm that decision and affirm the instant trial court decisions.

As to the training center question, we are in full agreement with the district court’s holding that the Jacksonville Youth Development Center was a training center from which a juvenile could escape within the meaning of section 39.112. To hold otherwise would allow a state agency rule to improperly restrict a Florida statute. While administrative rules and usage may be considered in construing a statute, they are not conclusive or determinative.

We are aware that the 1980 legislature amended section 39.01, Florida Statutes, to include a definition of “training school” and that the Jacksonville center was not among those schools expressly named. See ch. 80-290, § 1, Laws of Fla. The district court held, and we agree, that the 1980 amendment does not apply retroactively.

The decisions below are affirmed in all respects.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.


author:
PER CURIAM.
      BOYD, Justice,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. L. V. LAWRENCE, as father and next friend of Kathryn L. Lawrence, a minor, Respondent.
    No. 60167.
    Supreme Court of Florida.
    July 23, 1981.
    Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, for petitioner.
    J. Lester Kaney of Cobb & Cole, Daytona Beach, for respondent.
   PER CURIAM.

Denied, conflict resolved in South Carolina Ins. Co. v. Kokay, 398 So.2d 1355 (Fla. 1981).

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND and McDONALD, JJ., concur.

BOYD, J., dissents with an opinion.

ALDERMAN, J.: “I would dismiss for lack of jurisdiction.”

BOYD, Justice,

dissenting.

Although the action taken by the Court in this case today is a denial of the requested review, it represents a determination that we have the constitutional power to hear and decide the case. The statement that the conflict has been resolved in a recent or simultaneously issued decision of this Court presupposes that there was conflict adequate to support the exercise of jurisdiction. I dissent and would dismiss the petition for review.

The decision of the district court brought before us by the petition for review was announced in an opinion that reads, in its entirety:

AFFIRMED on the authority of Day v. United States Fidelity and Guaranty Co., 388 So.2d 351 (Fla. 5th DCA 1980). Contra, MeLellan v. State Farm Mut. Auto. Ins. Co., 366 So.2d 811 (Fla. 4th DCA 1979).

State Farm Mutual Automobile Insurance Co. v. Lawrence, 391 So.2d 761 (Fla. 5th DCA 1980). I believe the question of whether we have jurisdiction to decide this case is directly controlled by Dodi Publishing Co. v. Editorial America, S. A., 385 So.2d 1369 (Fla. 1980). We held there that a decision of a district court, announced without opinion other than a citation of authority, cannot expressly and directly conflict with another decision.

We reject the assertion that we should reexamine a case cited in a per curiam decision to determine if the contents of that cited case now conflict with other appellate decisions. The issue to be decided from a petition for conflict review is whether there is express and direct conflict in the decision of the district court before us for review, not whether there is conflict in a prior written opinion which is now cited for authority.

Id. at 1369. That a decision of a district court brought before us for review, announced in a short-form opinion without discussion but with citations, is headed up with the name of a judge rather than “per curiam,” does not create a difference sufficient to distinguish the case from Dodi Publishing.

In 1956 the people of Florida amended article V of the constitution to create the district courts of appeal and to re-define the jurisdiction of Florida courts. See Comm. Sub.H.J.Res.810 (1955). The language provided that the supreme court could “review by certiorari any decision of a district court of appeal. . . that is in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law. . . . ” Art. V, § 4(2), Fla.Const. of 1885 (1956).

In Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla. 1965), the Court held that a decision of a district court announced without opinion could be reviewed if it was determined from the “record proper” that the decision created the requisite conflict. This decision has been much criticized over the years and was widely blamed for the Court’s increasing case load and for undermining the intended effect of the 1956 reform. See England, Hunter, and Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L. Rev. 147 (1980), and sources cited therein.

In 1980 the people again amended article V, so that the “conflict” category of discretionary jurisdiction to review district court of appeal decisions requires that the decision “expressly and directly” conflict with a decision of another district court of appeal or the supreme court. Art. V, § 3(b)(3), Fla.Const.; Sen.J.Res. 20-C (1980). The intent of the amendment was to restore the district courts of appeal to their originally intended stature as courts of final appellate jurisdiction and to eliminate the practice by attorneys of automatically seeking review on behalf of litigants who lose their cases in the district courts.

Today’s decision is to the 1980 reform what the Foley decision was to the 1956 amendment. It is the first chink in the armor that guards this Court against an onslaught of petitions for review. It is the first step in returning to the view that regards the district courts as mere intermediate appellate courts. Like Foley, the decision today authorizes us to look beyond the published decision of a district court. It sanctions our examination of the cited cases to search for conflicting views.

We should dismiss the petition for review because the Court simply has no jurisdiction. Only by firmly adhering to the letter of the 1980 amendment can we assure that it achieves the purpose the people intended. If we make an exception, such as we make in this case, then attorneys will come forth with ingenious arguments asserting that their cases fall within the exception. Countless petitions will be filed which might otherwise have been thought patently unmeritorious. The people have rejected the Foley doctrine. The door should remain firmly closed.

I respectfully dissent.