author: JOANOS, Judge.

text:
    HOVNANIAN FLORIDA, INC., Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellee.
    No. YY-314.
    District Court of Appeal of Florida, First District.
    July 7, 1981.
    Rehearing Denied Aug. 21, 1981.

      Cynthia S. Tunnicliff, of Spector, Tunni-cliff & McCord, and Benjamin H. Ervin, Tallahassee, for appellant.
    Mary Jo M. Gallay, Tallahassee, for ap-pellee.
   JOANOS, Judge.

The controversy in this appeal involves the legality of an escalation clause in a condominium recreation lease; the clause provides for the yearly adjustment of rental payments in accordance with fluctuations of the Cost of Living Index. Contending that the escalation clause violated § 718.-401(8), Florida Statutes (1979), the Division of Florida Land Sales and Condominiums (the “Division”) ordered appellant, the developer of the condominium and original lessor of the recreation area, to show cause why a cease and desist order should not issue to prohibit enforcement of the escalation clause. After a hearing under § 120.-57, Florida Statutes, the hearing officer found that the clause was violative of § 718.401(8) and recommended that appellant be ordered to cease enforcement of the escalation clause and to discontinue collection from condominium unit owners of payments attributable to the clause. The Department of Business Regulation adopted the findings of fact and conclusions of law of the hearing officer, and it is from this order that appellant now appeals.

Appellant makes essentially two arguments: (1) that § 718.401(8) was applied retroactively in this case which resulted in an unconstitutional impairment of contract, and (2) that allowing the Division to orally amend the charges at the hearing deprived appellant of adequate notice and opportunity to defend. We find that the application of § 718.401(8) to invalidate enforcement of the escalation clause was not, under the circumstances of this case, a retroactive application. In addition, we find that appellant had ample notice of the charges against it prior to the hearing, and the amendment of the charges at the hearing did not prejudice its defense.

Appellant is the developer of a multiphase condominium project collectively known as “Covered Bridge Condominiums.” In 1971, Covered Bridge Condominium Association (the “Association”) was incorporated as the entity responsible for operation of the condominium; membership in the Association was a condition of unit ownership. On July 8, 1971, the Association (still developer-controlled since no condominium units had been built) entered into a long-term lease of recreation facilities with appellant which obligated the Association and its individual members for rental payments. The lease also contained the escalation clause now under attack.

At the time of the Association’s incorporation in June 1971, the plats of the property owned by the developer showed the anticipated construction of numerous condominium units on the corporate property with all unit purchasers to become members of the Association. The recreation area leased by the Association was also intended for eventual use by owners of condominium units to be built later. Declarations of condominium were not, however, simultaneously filed for each of the condominiums expected to be developed. Instead, the project proceeded in phases with condominiums “created” by declaration in various intervals. On December 14, 1978 appellant filed a declaration of condominium with the Palm Beach County Circuit Court creating Covered Bridge Condominium Number 18 (“Condo No. 18”). It is Condo No. 18’s relationship with the 1971 recreation lease (which contains the escalation clause) that is at issue before the court.

The 1971 recreation lease agreement was referred to in Condo No. 18’s declaration, attached as “Exhibit 3”, and “made a part hereof, just as though said lease were fully set forth herein.” Section 19 of the declaration provided that payments under the lease were declared to be common expenses, defined elsewhere as “the expenses for which the unit owners are liable to the Association.” In addition, § 19 required that each purchaser of a unit in Condo No. 18 execute a copy of the lease and that the lease be recorded together with the deed conveying the unit. Section 9(C) stated that the unit owners of Condo No. 18 would be bound by the Association bylaws as well as the provisions of the declaration and the lease.

After the declaration was recorded, the developer sold several units in Condo No. 18. The purchasers were required to and did sign acknowledgments of the lease agreement and agreed to be bound by all terms of the lease. On June 5, 1979 the Division served on appellant a “Notice to Show Cause” why a cease and desist order should not issue to prohibit enforcement of the escalation clause against Condo No. 18. The Division alleged:

(1) Covered Bridge, Phase 18, is a condominium created pursuant to the provisions of Chapter 718, Florida Statutes.
(2) The Respondent is offering for sale and has closed on contracts for sale of condominium parcels in the condominium.
(3) Article IX of the Declaration of Condominium binds the owner of a condominium parcel to the provisions of a long-term lease, attached to the Declaration of Condominium as Exhibit 3. Section XXIV of said long-term lease contains an escalation clause as defined and prohibited by Section 718.701(8)(a), Florida Statutes (1978 Supp.).

Initially, there is no dispute that the escalation clause in this case is contrary to the express terms of § 718.401(8)(a), which provides:

It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in leases or agreements for recreational facilities, land, or other commonly used facilities serving condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium lease or agreement which provides that the rental under the lease or agreement shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.

The controversy in this case revolves around the appellant’s perception that the statute is being applied retroactively in conflict with the Florida Supreme Court’s decision in Fleeman v. Case, 342 So.2d 815 (Fla. 1977). In Fleeman, the court held that the legislature did not intend that § 718.401(8) apply to contracts which preceded its effective date (June 4, 1975), and even if the legislature had intended retroactive application of the statute, it would be an unconstitutional impairment of the obligation of contract. See also Palm-Aire Country Club Condominium Association No. 2, Inc. v. F.P.A. Corporation, 357 So.2d 249 (Fla. 4th DCA), cert. denied 365 So.2d 713 (Fla.1978). Appellant argues that since the original lease of the recreation area between it and the Association pre-dated the effective date of § 718.401(8), the statute may not be used to defeat the escalation clause. In this regard, appellant views the creation of Condo No. 18 and the reaffirmation of the lease in its declaration as insignificant. We disagree. In our view, the fact that Condo No. 18’s declaration of condominium was recorded after the effective date of § 718.-401(8) is the critical factor which distinguishes this ease from those cited by appellant.

A declaration of condominium is “the instrument or instruments by which a condominium is created . .. . ” Section 718.-103(12). Under § 718.114, an association has the power to acquire leaseholds for recreational facilities, but “[a]ll of these leaseholds . . . and other possessory or use interests existing or created at the time of recording the declaration must be stated and fully described in the declaration.” Finally, § 718.104(7) provides that “[a]ll provisions of the declaration are enforceable equitable servitudes, run with the land, and are effective until the condominium is terminated.” Taking all of these statutory provisions together, the declaration not only “creates” the condominium form of ownership but sets forth the restrictions and interests (including recreation leases) that will govern the condominium until the declaration is amended or the condominium is terminated.

The developer ignores the nature of a declaration by arguing that the court should only consider the fact that the Association (which the declaration names as Condo No. 18’s association) entered into the lease before 1975. This 1971 lease could have no effect upon Condo No. 18 until 1978, when its declaration was recorded. Prior to that time, Condo No. 18 had no legal existence. In order for the recreation lease to be applicable to the unit owners of Condo No. 18, the lease had to be renewed by its incorporation into the declaration. Since Condo No. 18 could not be bound to the lease except through the declaration, § 718.401(8) would not be a retroactive impairment of a contract obligation if applied in this case; no “contract” between Condo No. 18 and the developer could take place prior to the creation of the condominium.

The essence of this case is that through the vehicle of the declaration, the developer sought to subject a newly formed condominium to a recreation lease which included an invalid provision. Section 718.401(8)’s prohibition against enforcement of an escalation clause applies to just this situation. In Fleeman, supra, the supreme court held that the prohibition against “enforcement” was not intended to give the statute retroactive effect. In a footnote, however, the court stated that

it can be argued with equal facility that the need for an ‘enforcement’ proscription arose from a perceived need to provide an express remedy in the event the prohibited provision was argued to be incorporated by reference or by implication, rather than simply included in future contracts or leases.

Fleeman, 342 So.2d at 817 n.5. To allow an escalation clause to be “incorporated by reference” into the declaration of a new condominium would mean that a developer could avoid the statutory proscription merely by writing the declaration of each condominium so as to subject it to a pre-1975 lease, rather than executing a new lease. This would be contrary to the legislative intent of § 718.401(8).

Proceeding to appellant’s second point on appeal, appellant argues that it was prejudiced when, at the beginning of the formal hearing, the hearing officer granted the Division’s oral motion to amend its Notice to Show Cause. Instead of referring to § 9 of the declaration as the provision binding the unit owners to the escalation clause, the amendment cited to § 19 of the declaration. When this amendment was allowed, appellant argued that permitting such a change without giving it a continuance of the hearing would deprive it of its right to defend. The hearing officer denied to continue the hearing believing that the Notice to Show Cause, the numerous notices of hearing (due to repeated rescheduling), the joint stipulation of facts, and the various motions and memoranda filed gave the developer notice of the issues involved.

We agree with the hearing officer’s evaluation. The Notice to Show Cause, as well as the other documents mentioned by the hearing officer, adequately informed appellant of the acts which the Division felt to be in violation of the statute. In plain terms, the Notice to Show Cause alleged that the declaration bound unit owners to an escalation clause which was illegal under § 718.401(8). Reference to a particular section of the declaration was unnecessary to put appellant on notice of the violation; therefore, amendment of the Notice merely to change the section number was not prejudicial. See Florida Board of Pharmacy v. Levin, 190 So.2d 768 (Fla.1966). Even assuming that the amendment effected a substantive change by its reference to a different section, the alteration would not have helped or hurt appellant’s defense. Both § 9 and § 19 operated to bind the condominium owners to the lease, although reference to the lease in § 9 was in more general terms. Nonetheless, it was the act of subjecting Condo No. 18’s purchasers to an escalation clause that the Division claimed to be prohibited; that issue remained clear both before and after the amendment.

AFFIRMED.

MILLS and SHAW, JJ., concur.

      . In 1974, the lease was assigned to K. Hovna-nian, who is not a party to this appeal.

      . Formerly § 711.231, Florida Statutes (1975).

      . The developer argued that if he had prior notice that § 19 was being challenged, he would have put on evidence of the purchasers’ understanding of the lease agreement. This argument has no merit. The statute prohibits the mere existence of an escalation clause without regard to the parties’ subjective intent.


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN AND FOREIGN INSURANCE COMPANY, Appellant, v. AVIS RENT-A-CAR SYSTEM, INC., Appellee.
    No. XX-143.
    District Court of Appeal of Florida, First District.
    July 9, 1981.

      Charles Cook Howell, III, Jacksonville, for appellant.
    John C. Taylor, Jr., Jacksonville, for ap-pellee.
   ON MOTION FOR REHEARING

OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Having considered the appellant’s motion for rehearing we grant the motion in part and withdraw the decision and opinion filed May 5, 1981, substituting the following decision and opinion in lieu thereof.

This appeal is a sequel to American and Foreign Insurance Company v. Avis Rent-A-Car System, Inc., 367 So.2d 1060 (Fla. 1st DCA 1979), cert. denied, 379 So.2d 202 (Fla. 1979).

Upon the going down of the mandate in that case, the trial court, pursuant to mandate, entered a final judgment awarding to American and Foreign Insurance Company (“American”) judgment against Avis for the principal sum of $100,000.00, together with costs, but denying to American any award for attorney’s fees. The issues on this appeal relate to American’s claim for attorney’s fees in connection with (1) its defense of its insured in the underlying tort action, and (2) its successful prosecution of an indemnification action against Avis.

A brief history of the case will be helpful. American’s insured, Hulsey, was a permissive user of an Avis automobile under a rental contract in which Avis promised insurance coverage in accordance with the standard provisions of an automobile liability insurance policy, with limits of $100,-000.00 as to each person. Hulsey negligently operated the Avis vehicle, causing injury to a fellow employee at a time when Hulsey and the fellow employee were engaged in the course of their employment for their common employer. The fellow employee’s suit against Hulsey (the “underlying suit”) was defended by American (and, initially, by Avis which subsequently withdrew). The resulting judgment against Hulsey for $233,000.00, plus costs, was paid by American.

American then brought a separate action against Avis for indemnification (to the extent of $100,000.00) plus costs and attorney’s fees. At trial, Avis successfully defended that action on the basis of the “cross-employee” exception allegedly contained in the liability insurance policy promised under the rental contract. On appeal, this Court reversed, holding that Avis had failed to prove that the liability insurance coverage promised by the rental agreement contained such an exclusion. After this Court’s mandate went down, the trial court entered judgment in favor of American and against Avis in the principal sum of $100,000.00 plus costs, but denied American an award of attorney’s fees.

American claims that is is entitled to attorney’s fees incurred by it in defending the underlying lawsuit because such expenses are a proper element of damages in an indemnification action. As a general rule, an indemnitee is entitled to recover, as part of his damages, reasonable attorney’s fees and reasonable and proper legal costs and expenses, which he is compelled to pay as a result of suits by or against him in reference to the matter against which he is indemnified. Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla. 4th DCA 1978); Borg-Warner Acceptance Corp. v. Philco Fin., 356 So.2d 830 (Fla. 1st DCA 1978); Insurance Company of North America v. King, 340 So.2d 1175 (Fla. 4th DCA 1976); Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.2d DCA 1969); Fountainebleau Hotel Corp. v. Postal, 142 So.2d 299 (Fla.3d DCA 1962). There is no reason that American, having already been determined by this Court to be entitled to indemnity, should fall outside of this general rule.

The fact that American, by its policy of insurance, had a duty to defend its insured does not deprive it of its right to be indemnified for the cost of that defense. American’s policy contained a clause making it excess over any other valid and collectible insurance. Irrespective of whether the insurance promised by Avis constituted it a self-insurer or whether the insurance was in fact furnished under a standard automobile liability policy (the terms and provisions of which were not established in the record), the corresponding duty to defend, like the coverage, would be primary. See Cunningham v. Austin Ford, Inc., 189 So.2d 661 (Fla.3d DCA 1966), cert. dism., 198 So.2d 829. As stated by the Court in American Home Assurance Company v. City of Opa Locka, 368 So.2d 416 (Fla.3d DCA 1979), at page 419:

“Expenses incurred by a secondarily liable carrier in the defense of its insured, have been universally awarded when that company sues a primary insurer of the same insured, which should have undertaken that defense. [Citations omitted]”

Argonaut Ins. Co. v. Maryland Gas. Co., 372 So.2d 960 (Fla.3d DCA 1979), in which the court denied to one insurer contribution from another insurer for the costs incurred by the first in defending their mutual insured is inapposite because in that case both insurance policies contained a “pro-rata other insurance” clause, and therefore that case did not involve the “primary-excess” dichotomy as here.

Appellant next contends that it was entitled to attorney’s fees for successful prosecution of the indemnification action against Avis. Appellant bases this claim upon Section 627.428(1), Florida Statutes (1977), which provides for attorney’s fees when a judgment is rendered against an insurer “. . . in favor of an insured or the named beneficiary under a policy or contract executed by the insurer... ”, contending that Avis as a self-insurer became liable for statutory attorney’s fees just as an insurance company would. The class of persons referred to by the statute — an insured or the named beneficiary — has been defined in Roberts v. Carter, 350 So.2d 78 (Fla.1977), as being limited to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured. American did not fit within any of these categories.

In American Home Assurance Company v. City of Opa Locka, supra, the court reversed that part of the trial court’s judgment which had awarded attorney’s fees for successful prosecution of the indemnification action. In its opinion the court noted, at footnote 7, its disagreement with the case of Brown v. Financial Indemnity Company, 366 So.2d 1273 (Fla. 4th DCA 1979), which held that a successful indemnitee could recover attorney’s fees for the prosecution of the indemnification case itself. The general rule appears to be that attorney’s fees incurred in defense of a claim indemnified against are part of the damages and allowable, but attorney’s fees incurred in establishing the right to indemnification are not allowed. See Jones v. Strom Const. Co., Inc., 84 Wash.2d 518, 527 P.2d 1115 (1974); 41 Am.Jur.2d, Indemnification, § 36 (Sup.1974); 42 C.J.S., Indemnity, § 13d (1944). It has long been the law of Florida for which case authority is legion that attorney’s fees incurred by a party may be awarded against the opposing party only when authorized by statue or by contract. We adhere to that view.

Summarizing, we hold that it was error to deny American an award of reasonable attorney’s fees incurred by it in defending the underlying lawsuit as to which it was entitled to be indemnified, but that the trial court correctly denied to American its claim for attorney’s fees in the successful prosecution of the indemnification action against Avis.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

      . This provision generally appears in the standard automobile liability insurance policy as an exception to the policy definition of the unqualified word “insured”. While frequently called an exclusion (since it has that effect), it is also sometimes called the “cross-employee exception”, see General Insurance Company of America v. Reid, 216 So.2d 41 (Fla. 4th DCA 1968), to avoid confusing it with the “employee exclusion”, a separate and distinct provision. See McRae v. Snelling, 303 So.2d 670 (Fla. 4th DCA 1974).

      . 367 So.2d 1020 (Fla. 1st DCA 1979).

      . The named insured, Hulsey, was operating a non-owned vehicle at the time of the accident.

      . Dixie Farms, Inc. v. Hertz Corp., 343 So.2d 633 (Fla.3d DCA 1977).

      . The absence of proof as to the terms and provisions of the liability insurance coverage promised by Avis enabled appellant to avoid the effect of the cross-employee exception which Avis had asserted as an affirmative defense; gleefully, Avis now points out that absent proof of the terms and provisions of the liability insurance coverage promised by Avis, there is no proof that Avis had a duty to defend Hulsey, a separate and distinct duty from the duty to pay.

      . See n. 4, supra.

      . While the court did not define “contracting insured”, the clear, unambiguous language of the statute speaks of “an insured.” It seems obvious that the court intended that a “contracting insured” is “an insured” as defined in the particular contract of insurance.

      .12 Fla.Jur.2d Costs, § 31.


author: LARRY G. SMITH, Judge.

text:
    Debra Jayne DeMONTMORENCY, Appellant, v. STATE of Florida, Appellee.
    No. VV-432.
    District Court of Appeal of Florida, First District.
    July 10, 1981.
    Rehearing Denied Aug. 17, 1981.

      Alan S. Ross and Ronald H. Dion of Weiner, Robbins, Tunkey & Ross, Miami, for appellant.
    Jim Smith, Atty. Gen., and Miguel Olivel-la, Jr., Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

This appeal presents an issue as to the parameters of the “open fields” exception to the warrant requirement of the Fourth Amendment, United States Constitution. The trial judge denied a motion to suppress marijuana found growing on a fenced parcel of land which also included appellant’s house trailer. Appellant relies for reversal upon contentions that she is entitled to the protection of the Fourth Amendment in that the area from which the marijuana was seized by trespassing officers was within the curtilage of her dwelling, surrounded by a forty inch hog wire fence topped with two strands of barbed wire, and in any event, the seizure was invalid because there was ample time for the officers to obtain a warrant. Our review convinces us that the trial judge correctly applied the “open fields” exception in denying the motion to suppress, so that the failure to obtain a warrant (assuming, without deciding, that probable cause existed), did not invalidate the seizure. We therefore affirm.

Acting on a tip that marijuana was being grown on appellant’s property, two officers drove through an open gate into a pasture adjacent to appellant’s property, parked their car, and crossed over a fence into a rough wooded portion of appellant’s property. Prior to crossing the fence they did not see the growing marijuana, but it was seen by them after traveling a distance of some 300 feet inside the fence. From the point where the growing marijuana was found the officers could not see appellant’s house trailer, which was located within the fenced property approximately 750 to 800 feet distant. After appellant was observed watering the plants she admitted it was her property, and she was arrested. At a point on adjoining property other than the place where the two officers crossed the fence it was possible to observe the growing marijuana plants from outside the fenced area. However, the officer who made this observation testified that the marijuana would not have been seen from this vantage point had not the two officers already located the marijuana on the property.

Initially we accept appellant’s contention that law enforcement officers trespassing in a constitutionally protected area cannot, absent some exception to the warrant requirement, justify the seizure of contraband on the ground that it is in “plain view.” State v. Morsman, 394 So.2d 408 (Fla.1981); and see Ensor v. State, 403 So.2d 349 (Fla.1981). We further accept appellant’s contention that she is entitled to the protection of the Fourth Amendment to the extent of the curtilage of her dwelling. State v. Morsman, supra; State v. Parker, 399 So.2d 24 (Fla. 3rd DCA 1981). These cases and the authorities upon which they rely seem without question to extend the legitimate expectation of privacy to the home and the surrounding area coming within the definition of “curtilage.” Hester v. United States, supra, clearly distinguishes “open fields” from the home and its curtilage:

[T]he special protection accorded by the Fourth Amendment to the people in their “persons, houses, papers and effects,” is not extended to the open fields. The distinction between the latter and the house is as old as the common law. (Emphasis supplied)

It has been said that expectations of privacy are “inherent” in the common law concept of “curtilage.” United States v. Van Dyke, 643 F.2d 992 (4th Cir. 1980). See United States ex rel. Saiken v. Bensinger, 546 F.2d 1292, 1296 (7th Cir. 1976), cert. den. 431 U.S. 930, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977); and see also, Giddens v. State, 156 Ga.App. 258, 274 S.E.2d 595, 596 (1980), recognizing an expectation of privacy arising under “the traditional rules applied to one’s dwelling or surrounding curtilage.”

If the search and seizure occurred within appellant’s curtilage, then it is clear that the trial judge erred in failing to suppress the evidence. If not within the curtilage, then we must determine whether the trial judge correctly applied the “open fields” exception to the warrant requirement, particularly in light of the more recent standards concerning claimed Fourth Amendment violations, under which we are required to focus less upon property concepts, and increasingly upon whether there is a legitimate expectation of privacy in the invaded area. Katz v. United States, supra (footnote 4); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The two-step test of legitimacy, as recently reiterated in Norman v. State, 379 So.2d 643, 647 (Fla.1980), is stated as follows:

That expectation [of privacy] will be recognized as legitimate if a person has exhibited an actual (subjective) expectation of privacy, and the expectation is one that society is prepared to recognize as reasonable.

Thus, while we find courts expressly acknowledging the continued viability of the “open fields” doctrine as an exception to the Fourth Amendment’s warrant requirement, State v. Brady, 379 So.2d 1294, 1296 (Fla. 4th DCA 1980), Giddens v. State, supra, 274 S.E.2d at 597, application of the doctrine, especially in the case of enclosed property, presents some difficulty.

This court’s decision in Phillips v. State, 177 So.2d 243 (Fla. 1st DCA 1965), although a pre-Katz decision, furnishes rather strong support for the trial judge’s decision in this case that the search of appellant’s land was not unlawful. Phillips held that a whiskey still located in an oak hammock 50 to 60 yards behind a dwelling was not within the curtilage, although the house and the still were on a parcel of some eight acres leased to the defendant for hog-raising purposes. In that case the court undertook to define the term “curtilage” as follows (Id. at 224):

It has been described as the yard, courtyard, or piece of ground lying around or near to a dwelling house, included within the same fence. ... It means the yard or court for the protection and security of the mansion house; an enclosure belonging to a dwelling house.... For a structure or an enclosed parcel of ground which is separate and apart from one’s dwelling to be regarded as the “curti-lage,” it must be customarily used in connection with a person’s dwelling, and it is not brought within the curtilage by the fact that the occupants of the dwelling make use of it on special occasions or in exceptional circumstances.... (citations omitted)

In Phillips, the court reasoned that the whiskey still was “disassociated from any purpose reasonably connected with the conduct of affairs incident to the normal use and occupancy of the dwelling,” (Id. at 245), and was therefore not within the curtilage. Later cases refer to the protected area as that portion of the premises “used in connection with a dwelling,” Antone v. State, 382 So.2d 1205 (Fla.1980), or a part of the “area surrounding and related to the dwelling,” State v. Parker, supra.

Although the court decided in Norman v. State, supra, that the “open fields” exception of Hester v. United States, does not extend to “a warrantless search of a closed structure on fenced property” (379 So.2d at 647), we do not read in the opinion an absolute prohibition against warrantless searches and seizures on enclosed land. Furthermore, Norman v. State is clearly distinguishable from the case before us in that entry in that case was accomplished by a sheriff who climbed a fence, after he found the gate locked, and observed' marijuana inside a tobacco barn by peering through the window with the aid of a flashlight. There is no evidence in the present case of a gate, locked or otherwise, except for a gate located in front of the house trailer itself, and the marijuana in question was growing in a cleared patch of ground within a wooded area, not concealed in a closed building.

State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980), obviously represents a rather firm view that enclosed occupied (perhaps even unoccupied) land cannot lawfully be subjected to search by trespassing officers. In Brady, entry was made by officers without a warrant onto 1,800 acres of land which was well fenced, locked and posted property, upon a portion of which the defendant lived in a trailer. Also, the Brady opinion points out that the deputies gained entrance to the property by cutting with bolt cutters the chain lock on a gate. The opinion furnishes no further details as to proximity of the point of entry to the dwelling itself, nor is there further description of the nature of the fenced area or surrounding property. The locked gate, the fact that the property was posted, and the forced entry are facts which tend to distinguish Brady from the case now before us. Further, the Brady opinion questioned this court’s decision in Norman v. State, 362 So.2d 444 (Fla. 1st DCA 1978), because of its reliance upon the concept of property rights surrounding the dwelling house and curtilage, rather than the reasonable expectation of privacy test enunciated by the United States Supreme Court in recent decisions. Although the Fourth District was prophetic in sensing the demise of our Norman v. State decision, it appears to us that the Supreme Court of Florida’s decision quashing (Norman v. State, 379 So.2d 643 (Fla.1980)) was based primarily upon the warrantless entry of the closed barn [not an “open field”] within which the contraband was concealed, rather than the mere fact that the property itself was enclosed by a fence, although the court also noticed the fact that entry was made by climbing the fence after the sheriff found the gate locked.

Cases from the federal courts indicate that the open fields doctrine may be applicable to fenced as well as unfenced property. Martin v. United States, 155 F.2d 503 (5th Cir. 1946); United States v. Diaz-Segovia, 457 F.Supp. 260 (D.C.Md.1978); United States ex rel. Saiken v. Bensinger, supra; Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968), cert. den. 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968); United States v. Greenhead, Inc., 256 F.Supp. 890 (N.D.Cal.1966); Monnette v. United States, supra (footnote 3). See, however, United States v. Van Dyke, 643 F.2d 992 (4th Cir. 1981), in which the court observed that the government cited no cases in which a building or area within an exclusionary fence surrounding a residence was found to be outside the curtilage, and further stated (Id. at 994):

Assuming that sheer distance could in some instances lead us to conclude that a particular area was outside the curtilage even though inside a fence surrounding a residence, this case does not present such a situation.

Giddens v. State, 156 Ga.App. 258, 274 S.E.2d 595 (1980), cert. denied Giddens v. Georgia, -U.S. -, 101 S.Ct. 1733, 68 L.Ed.2d 222 (1981), on facts very similar to those in Norman v. State, supra, reached the opposite result. The facts in Giddens were that officers crossed a wire fence (four strands of barbed wire) onto a field upon which was a storage building containing marijuana. The officers also found marijuana growing amidst corn in the field. A gate to the field was locked, but this fact was unknown by the officers. The court held that the open fields doctrine survived Katz v. United States, supra, and concluded that any “expectation of privacy” the defendant had in regard to the field was not reasonable under the circumstances. See also United States v. Diaz-Segovia, supra.

Our conclusion from our examination of the cases is that it is by no means absolutely clear to what extent the open fields doctrine may be applied where property is fenced, particularly where the fence encloses a residence. However, it is clear, in our opinion, that the growing marijuana in this case was not located in an area falling with the “curtilage” as traditionally defined for the reason that the marijuana was “disassociated from any purpose reasonably connected with the conduct of affairs incident to the normal use and occupancy of the dwelling.” (Phillips v. State, supra, 177 So.2d at 245). And furthermore, although the presence of a fence manifests an actual (subjective) expectation of privacy to a degree, the growing marijuana was in fact visible from adjoining property, was located in a wooded area, and was separated from the dwelling by a distance equal to more than two football fields. Appellant’s expectation of privacy, under these circumstances, is not one that we would expect society is prepared to recognize as reasonable. As stated by this court in Phillips v. State, supra (177 So.2d at 245):

To extend the concept of immunity from unreasonable search and seizure so as to prohibit the search of any property included in a fenced area in which a dwelling may be located without having first obtained a search warrant, would extend the protection afforded by the Constitution to an absurdity.

Accordingly, the judgment and sentence appealed are AFFIRMED.

McCORD, J., and LILES, WOODIE A., Associate Judge (Ret.), concur.

      . Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

      . Testimony of the officers given at the suppression hearing reveals that the house trailer itself was protected by three dogs, whose presence made it necessary for the officers to solicit the assistance of appellant in restraining the dogs when the officers later returned to search the trailer (pursuant to a search warrant which the trial court found invalid). Presumably these dogs were within some type of enclosure in the yard, but the testimony does not permit us to determine whether there was a second fence enclosing the trailer and its yard, or whether a single enclosure surrounded the entire property, including the marijuana patch. It would be helpful, particularly in proceedings where constitutional issues are being determined, if both counsel and the trial judge would see that the facts are developed to the extent necessary to enable a reviewing court to understand them. We must also observe that neither appellant nor appellee have bothered to favor this court with the exhibits introduced at the suppression hearing, and they have not been referred to in the briefs.

      . The issue of Fourth Amendment violation is not determined, however, solely by the mere fact that the officers were or were not trespassing upon the property where the seizure occurred. Hester v. United States, supra (footnote 1); Cobb v. State, 213 So.2d 492 (Fla. 2nd DCA 1968); State v. Belcher, 317 So.2d 842 (Fla. 2nd DCA 1975); Monnette v. United States, 299 F.2d 847 (5th Cir. 1962).

      . Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980).

       Proceeding for review pending in Supreme Court of Florida, Case No. 59054.

      . Cf. Norman v. State, supra, 379 So.2d at 647:
      “Whatever the precise parameters of this longstanding but seldom-used doctrine ...” (referring to the “open fields" doctrine).

      . Decision quashed, Norman v. State, 379 So.2d 643 (Fla.1980).

      . The Bensinger opinion contains a collection of federal cases and a table showing the distances from the house and the search area or building in each case. The “Outside Curtilage” distances range from 80 to 750 feet; the “Within Curtilage” distances range from 20 to 240 feet.

      . Van Dyke rejects the analysis of Bensinger in so far as Bensinger relies upon distance as the criteria for determining whether the curtilage has been invaded. However, Van Dyke approved the ultimate decision by the Bensinger court based upon other facts, namely, that between the goose house where the body was found and the dwelling were another fence, a farm road, and a parking area.

      .The Giddens court observed (274 S.E.2d at 597): “The wire fence of a type commonly used to restrict movement of livestock posed little obstacle to the entrance of law enforcement officers who were only later aware that the gate to the field was locked. The officers received no notice prior to their entry that the owner or rightful occupant forbade such entry” (citing Georgia Code provisions).

      . One witness characterizes the fence here as “So called fence, it wasn’t all that good, but a fence ...and as to parts, “Fairly good fence, it wouldn’t hold a hog.”

      . This quotation implies that the opinion of the court applies to property protected by a fence. Unfortunately, however, the court’s opinion does not contain the factual details relative to any fences located upon the defendant’s property.


author: ERVIN, Judge.

text:
    STATE of Florida, Appellant, v. Alphonso WALLACE, Appellee.
    No. ZZ-183.
    District Court of Appeal of Florida, First District.
    July 10, 1981.

      Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellant.
    Michael E. Allen, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellee.
   ERVIN, Judge.

The state of Florida appeals an order dismissing an information which charged Wallace with the offense of escape. The lower court dismissed the information on the ground that Wallace was deprived of his constitutional right to speedy prosecution. Because appellee has failed to demonstrate that he was prejudiced by the nearly three-and-a-half-month delay between the date of his return to custody and his first interview with the public defender, we reverse.

The record reveals that Wallace was charged with escaping from the Lawtey Correctional Institution on August 27,1978; that he was taken into custody in Georgia on June 5, 1980, and returned to Florida on June 14, 1980; that he was provided a first appearance on August 28, 1980, at which time the public defender was appointed to represent him, but that the public defender did not contact and interview him until more than a month thereafter, or until October 2, 1980.

The public defender’s motion to dismiss the information, filed November 19, 1980, generally recited that the failure to provide appellee with a timely first appearance had “resulted in an inability of the defense to timely and contemporaneously interview witnesses for and against the defendant and to reconstruct the scene, the atmosphere, and the circumstances leading to the charge against defendant in this cause; . . . . ” It was additionally alleged that as a result of the delay, appellee was forced to resort to stale testimony, long-past recollection of witnesses, and the possible loss of witnesses who might have information concerning his case due to their transfer within the prison system.

Although appellee’s allegations, if established, would no doubt support an order of dismissal, the difficulty with appel-lee’s case is that no evidence was presented at the hearing on the motion to dismiss, only arguments by counsel. The burden was upon the appellee to establish by competent and substantial evidence the thrust of his allegations. State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977). Unshown in the record is whether the delay caused by the state was a hindrance greater to appel-lee in the preparation of his defense than was the nearly two-year delay caused by appellee’s absence from the confines of the prison until his return to it. As Barker v. Wingo, 407 U.S. 514, 534, 92 S.Ct. 2182, 2194, 33 L.Ed.2d 101 (1972) states, the prejudice caused by the state must be more than merely minimal. The evidence must show more than that there was a delay in bringing appellee to trial. Consequently, we must hold under the circumstances that Wallace was not deprived of his due process right to a speedy trial.

Reversed and remanded for further consistent proceedings.

LILES, WOODIE A. (Retired) and PEARSON, TILLMAN (Retired), Associate Judges, concur.

      . No contention was made, nor could one have been made, that the delay was a violation of Florida Rule of Criminal Procedure 3.191.


author: PER CURIAM.

text:
    Audrey L. NORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1905.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Bennett H. Brummer, Public Defender and John W. Thornton, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. McNamara v. State, 357 So.2d 410 (Fla.1978); Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); People v. Rogers, 52 N.Y. 527, 439 N.Y.S.2d 96, 421 N.E.2d 491 (May 7, 1981); State v. Maier, 378 So.2d 1288 (Fla. 3d DCA 1979); Knight v. State, 392 So.2d 337 (Fla. 3d DCA 1981); Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980).


text:
    The STATE of Florida, Appellant, v. Norbert SCHNEIDER and Allen Joseph Marrella, Appellees.
    No. 80-1426.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.

      Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    Rex Ryland, Jr. and Harvey Watnick, Miami, for appellees.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the trial court’s orders suppressing a quantity of marijuana and other evidence seized from a camper vehicle occupied by Schneider and Marrella upon a holding that (1) the anonymous telephone tip received by a Public Safety Department detective was sufficiently rich in detail, and when promptly acted upon by the police, sufficiently corroborated, so as to justify a stop of the vehicle, State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979), approved and adopted, Hetland v. State, 387 So.2d 963 (Fla.1980); See also P.S.D. v. State, 388 So.2d 1069 (Fla. 3d DCA 1980); (2) the smell of marijuana emanating from the camper and detected at the time of the lawful stop provided probable cause to conduct a warrantless search of the vehicle, Miranda v. State, 354 So.2d 411 (Fla. 3d DCA 1978); (3) the lawfulness of the stop is unaffected by the fact that the detective receiving the tip did not make a contemporaneous written record of the information conveyed, particularly in light of testimony that he immediately related the contents of the conversation to his superior, including the significant fact that the camper would depart from its location shortly, which under all the circumstances satisfied the salutary, but far from absolute, caveat of State v. Hetland, supra; (4) despite defendants’ contrary suggestion, the record does not reflect any finding of fact by the trial court that the testimony concerning the tip, the corroborative observations, or the stop and smell was unworthy of belief.

Reversed and remanded.

      . The State’s appeal is limited to Schneider and Marrella. Presumably, the State is not appealing the suppression of evidence later seized from a Toronado vehicle which was also the subject of the anonymous tip and was seen with the camper. It would aid the court if, when the State appeals orders which simply grant motions to suppress, it makes clear exactly which searches are at issue on appeal.

      . The defendants made no claim that there were no exigent circumstances and that a warrant should have been procured.


author: FERGUSON, Judge.

text:
    Joseph Alphonso LA ROCCA, Appellant, v. The STATE of Florida, Appellee.
    No. 80-608.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.

      Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BASKIN and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   FERGUSON, Judge.

In his appeal from a jury conviction of first degree murder, Joseph La Rocca raises several issues on appeal, two of which merit discussion.

First, La Rocca claims that his confession should have been suppressed because under the circumstances of the case, the “minimization process” used by the polygraph examiner was a deceptive practice which amounted to psychological coercion. La Rocca and a co-defendant Dorothy Wright were charged with first degree murder of 18-year-old Barbie Hall. The uncontrovert-ed testimony is that the victim fell to the ground after being shot at least once by Wright. There is evidence that La Rocca then took the gun from Wright and fired additional shots into the victim’s prostrate body. The medical examiner testified to finding three bullet wounds in Hall’s body, any one of which could have been the cause of death. During the polygraph test, the examiner implied that where someone else had fired the first shot, La Rocca’s involvement would be minimized.

It is settled Florida law that a confession made subsequent to promises or inducements which delude a defendant as to his true position or have the effect of exerting improper and undue influence over his mind will be suppressed as the product of illegal psychological coercion. Brewer v. State, 386 So.2d 232 (Fla. 1980); Frazier v. State, 107 So.2d 16 (Fla. 1958); State v. Beck, 390 So.2d 748 (Fla.3d DCA 1980).

It is equally well established that where a mentally competent defendant has been given Miranda warnings and has not been placed in fear of material or physical harm, or given false inducements, his voluntary confession may properly be admitted into evidence. See, e.g., Palmes v. State, 397 So.2d 648 (Fla. 1981); Wilson v. State, 304 So.2d 119 (Fla. 1974); State v. Caballero, 396 So.2d 1210 (Fla.3d DCA 1981); State v. Beck, supra; Barnason v. State, 371 So.2d 680 (Fla.3d DCA 1979); DeCastro v. State, 359 So.2d 551 (Fla.3d DCA 1978).

The record here supports the finding that La Rocca was given and knowingly and intelligently waived his Miranda rights, that the statements were given voluntarily and that La Rocca was not coerced by deprivation of food or sleep. See, e.g., State v. Riocabo, 372 So.2d 126 (Fla.3d DCA 1979), dismissed, 378 So.2d 348 (Fla. 1979) (trial court’s determination will not be reversed unless clearly shown to be without basis); Churney v. State, 348 So.2d 395 (Fla.3d DCA 1977) (trial court’s ruling on motion to suppress comes to appellate court with presumption of correctness).

Under the totality of circumstance present here we do not find the examiner’s minimizing statements to the effect that because defendant did not fire the first shot, what he did was not “that big of deal,” constitutes coerciveness, see, e.g., Burch v. State, 343 So.2d 831 (Fla. 1977), or were so psychologically effective as to break La Rocca’s will and produce the confession, see, e.g., State v. Caballero, supra; Barnason v. State, supra.

Second, we consider La Rocca’s argument that the testimony of the polygraph examiner that La Rocca stated he took the “Vegas Roll,” and “lost,” was an improper implication that La Rocca had failed a lie detector test. The general rule that absent stipulation of the parties, the results of polygraph examinations are not admissible, Young v. State, 387 So.2d 512 (Fla.1st DCA 1980), does not compel reversal where, as here, the error in the introduction of or comment upon polygraph evidence was introduced by the defendant on cross-examination. See, e.g., Jackson v. State, 359 So.2d 1190 (Fla. 1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979) (appellant cannot initiate error, then seek reversal based on that error); Ellison v. State, 349 So.2d 731 (Fla.3d DCA 1977), cert. denied, 357 So.2d 185 (Fla. 1978); White v. State, 348 So.2d 1170 (Fla.3d DCA 1977).

Affirmed.


text:
    McCRORY CORPORATION d/b/a McCrary's Department Store, Appellant, v. Gloria BADER, as personal representative of the Estate of James Bader, for the use and benefit of the estate of James Bader, and for the use and benefit of Gloria Bader; and Gloria Bader, individually, as wife of the deceased, James Bader, Appellee.
    No. 80-1765.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellant.
    Maguire & Friend, Coral Gables, for ap-pellee.

      Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The jury awarded appellee, the Estate of James Bader, fifty thousand ($50,000.00) dollars compensatory damages and one hundred thousand ($100,000.00) dollars in punitive damages; his widow was awarded twenty five thousand ($25,000.00) dollars in compensatory damages in an action for the wrongful death of Mr. Bader which was alleged to have resulted from a can of disinfectant being thrown or having fallen from a second story window of the defendant’s downtown Miami store and hitting Mr. Bad-er on the forehead, causing his death.

Appellant seeks reversal of the final judgment on the grounds that the trial court erred in admitting hearsay testimony and in failing to direct a verdict on the issue of punitive damages.

We have carefully considered both points on appeal in the light of the record and briefs and have determined that no reversible error has been demonstrated. Accordingly, the judgment appealed is affirmed.

Affirmed.


text:
    James WESTLEY, Appellant, v. Melody WESTLEY, Appellee.
    No. 81-992.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Lawrence B. Friedman, N. Miami Beach, and Robert F. Tacher, Miami, for appellant.
    Leonard Frishman and Henry M. Cain, Coral Gables, for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

After skirmishing in two States under the uniform child custody law [see: Section 61.132 et seq., Florida Statutes (1979)], the mother was ultimately awarded the custody of two minor children by the Circuit Court of the Eleventh Judicial Circuit in and for Dade County. Subsequently, the trial judge awarded her counsel attorney’s fees in the amount of $8,000.00, which is the subject of this appeal. We reverse.

The services may have warranted a fee, but the record fails to disclose that the father has assets that will enable him to respond to such an order. We therefore reverse the order of fees here under review, and return the matter to the trial court for a further hearing on the petition for fees, at which time fees should be awarded, if any, based on the needs of the mother and her ability or inability to pay a fee and the father’s ability or inability to pay. Patterson v. Patterson, 348 So.2d 592 (Fla.1st DCA 1977); Snider v. Snider, 375 So.2d 591 (Fla.3d DCA 1979); Droubie v. Droubie, 379 So.2d 1331 (Fla.2d DCA 1980); Section 61.-16, Florida Statutes (1979).

Reversed and remanded for further proceedings.


text:
    Carlos Lorenzo JACKSON a/k/a Carlos Jackson, Appellant, v. The STATE of Florida, Appellee.
    No. 80-38.
    District Court of Appeal of Florida, Third District.
    July 14, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The defendant appeals from an order of sentencing and an order denying his motion for recommitment to a program for mentally disordered sex offenders. The record reflects the following.

The defendant was charged with three counts of kidnapping, two counts of involuntary sexual battery, two counts of robbery, and one count of unlawful possession of a firearm while engaged in a criminal offense. He pleaded guilty to every count but Count 4, to which he pleaded nolo. The defendant was also charged with burglary of a conveyance, petit theft, and unlawful possession of a firearm while engaged in a criminal offense. He pleaded guilty to all three counts. After evaluation, the court adjudicated the defendant guilty and committed him as a mentally disordered sex offender, to the custody of the Department of Health and Rehabilitative Services.

On July 5,1979, the Department made its annual report to the judge, stating that: “It was the concensus of the Board that Mr. Jackson is responding somewhat to treatment and should remain in the program with no extension of privileges at this time.” The report further stated, however, that: “It is apparent that Mr. Jackson has assumed a ‘tough guy’ image and, with the help of his size and sporadic incidents of physical violence, he intimidates both staff and his peers. Additionally, he has been overheard to say that he will attempt to physically harm program members who confront him.”

Thereafter, on August 22, 1979, the Department forwarded a letter to the court terminating his commitment to the program in that he was not responding to the treatment and had made little progress. The court ordered the defendant to be returned for sentencing; it ordered a pre-sen-tence investigation from the Florida Parole & Probation Commission on October 4,1979. A hearing was held on the Department’s letter on December 6,1979. After considering the pre-sentence investigation, the court denied the defendant’s motion for recom-mitment and sentenced him.

The defendant now appeals, claiming that he did not obtain a fair hearing on the issue of whether the Department has “exhausted all treatment”. Durbin v. State, 385 So.2d 172 (Fla.4th DCA 1980); Gerardo v. State, 383 So.2d 1122 (Fla.2d DCA 1980); Cross v. State, 378 So.2d 114 (Fla.5th DCA 1980).

The statute which governs this proceeding reads, in part, as follows:

“917.20(2) At any time after commitment, the department may file a written report with the committing court stating . . . that the department has exhausted all appropriate treatment for the offender .... if the department returns an offender to the court because the department has determined that it has exhaust-' ed all treatment for the offender, the court shall remove the offender from the custody of the department. . . . ”

Pursuant to the authority of the statute, the Department terminated the appellant’s participation in the program. The statute then pronounces that the court “shall” remove the offender from the program, whereupon he would then be returned to the trial court for sentencing. This the trial court did in the instant proceeding, and we affirm. See: Cummings v. State, 379 So.2d 988 (Fla.1st DCA 1980). Even though we find that it was mandatory on the part of the trial judge to remove the appellant after the Department terminated the appellant’s participation in the program, we would also sustain the exercise of the trial judge’s discretion, if he were required to do so, in light of the hearing that transpired before him. See and compare: Strachen v. State, 380 So.2d 487 (Fla.3d DCA 1980).

We also note that the 1979 Legislature has now made it clear that a trial court is not to exercise any discretion to continue a convicted felon in the program after the Department has terminated him. See: Section 917.011, Florida Statutes (1979).

Therefore, for the reasons above stated, the orders under review be and the same are hereby affirmed.

Affirmed.

      . The Durbin and Gerardo cases cited by the appellant did not involve a report terminating an offender in the program. The Cross opinion did involve an order to terminate, but the matter was reversed because defense counsel had only two hours’ notice of it prior to its consideration by the court and sentencing. We find them not to be applicable to this case.


text:
    Carvel A. KLEE, Appellant, v. Louisa COLA, Appellee.
    No. 80-2165.
    District Court of Appeal of Florida, Fourth District.
    July 15, 1981.
    Rehearing Denied Aug. 24, 1981.

      Carvel A. Klee, pro se, appellant.
    Richard W. Glenn of Albury, Park & Glenn, West Palm Beach, for appellee.
   PER CURIAM.

Louisa Cola, plaintiff in the trial court, brought an action against Carvel A. Klee, to establish and enforce a New Jersey judgment in the State of Florida. From the final judgment of the circuit court giving full faith and credit to the foreign judgment, Klee appeals. We affirm.

Attached to the complaint in the Florida action was an exemplified copy of a New Jersey judgment in favor of appellee/Cola and jointly and severally against five defendants, including appellant/Klee. The parties herein stipulated to the existence of the New Jersey judgment and to appellant’s failure to make payment thereunder. Following a non-jury trial, final judgment was entered for Cola and this appeal ensued.

While the notice of appeal filed by appellant refers to the circuit court judgment as the order to be reviewed, appellant’s arguments on appeal deal solely with the New Jersey proceeding. In other words, appellant is attempting to use this appeal to relitigate the issues dealt with by the New Jersey court. This he cannot do. The merits of an original cause of action may not be re-litigated in an action on a judgment. See Whiteside v. Dinkins, 86 Fla. 261, 97 So. 517 (1923); 47 Am.Jur.2d Judgments § 931; 19 Fla.Jur. Judgments and Decrees § 510. Therefore, since appellant has failed to allege any error in the Florida proceedings, we affirm the judgment being appealed.

Affirmed.

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


author: RYDER, Judge.

text:
    Muriel Florence WALKER, Appellant, v. Bobby L. WALKER, Appellee.
    No. 80-855.
    District Court of Appeal of Florida, Second District.
    July 15, 1981.

      Douglas H. Smith, P.A., Lake Alfred, for appellant.
    L. Guerry Dobbins, Jr. and Walter W. Manley, II, Lakeland, for appellee.
   RYDER, Judge.

The appellant appeals from an order entered by the trial court setting aside a certain portion of a final judgment. The trial court’s order was entered pursuant to appellee’s motion for relief from judgment under rule 1.540(b), Florida Rules of Civil Procedure. Both the appellee’s rule 1.540(b) motion and the trial court’s order were filed after appellee had filed a notice of appeal from the original final judgment. This court has not been asked to relinquish jurisdiction for this purpose.

We hold that the lower court lost jurisdiction to enter an order pursuant to a rule 1.540(b) motion once the notice of appeal from the final judgment was filed. Hutchison v. Wintrode, 286 So.2d 231 (Fla.2d DCA 1973); Liberman v. Rhyne, 248 So.2d 242 (Fla.3d DCA 1971). In addition, we observe that the appellant asserts in her statement of the case and facts that the lower court entered the order setting aside a certain portion of the final judgment without a hearing being held or a notice being given to appellant. It appears from the brief filed by appellee that he accepted appellant’s assertion.

Accordingly, we REVERSE and VACATE the order entered below.

HOBSON, Acting C.J., and GRIMES, J., concur.


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

text:
    Grace M. ROBERSON, Appellant, v. John A. ROBERSON, Jr., Appellee.
    No. XX-409.
    District Court of Appeal of Florida, First District.
    July 17, 1981.
    James G. Roberts of Roberts & Roberts, P. A., Jacksonville, for appellant.
    Frank M. Scruby of Scruby & Lee, Chtd., Orange Park, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

Appellant’s persuasive claim for permanent alimony is overcome only by the presumption of correctness attending the chancellor’s decision and our assurance that the chancellor retained jurisdiction to review alimony questions at the end of appellant’s period of economic rehabilitation. Concerning appellant’s contention that the appellee husband should be required to make mortgage payments on the marital home during the period of appellant’s exclusive occupancy by order of the court, we cannot determine, in the light of the court’s general order that “the husband shall assume and hold the wife harmless from all debts incurred by the parties prior to June 30, 1980,” whether the court intended that the husband or the wife exclusively should make the mortgage payments, with corresponding adjustments in their equity shares, or that both should remain responsible to make those payments. See Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979); Gully v. Gully, 311 So.2d 745 (Fla. 3d DCA 1975). Therefore the judgment is AFFIRMED but the case is REMANDED for clarification of the court’s resolution of the money issues pertaining to the marital domicile.

JOANOS and THOMPSON, JJ., concur.


text:
    ARKIN BUILDING CORPORATION and Travelers Insurance Company, Appellants, v. Frank MILLER, Appellee.
    No. XX-124.
    District Court of Appeal of Florida, First District.
    July 21, 1981.
    Randolph W. Adams and Nancy Little Hoffman, Fort Lauderdale, for appellants.
    Gerald T. Nolan of Nolan & Usdan, Fort Lauderdale, for appellee.
   PER CURIAM.

The order of the deputy commissioner is affirmed except insofar as it requires the employer/carrier to reimburse claimant for medical expenses incurred and to pay outstanding medical bills. Appellant argues that claimant did not comply with the reporting requirements of Section 440.13, Florida Statutes, and the record does not indicate such compliance. The employer/carrier raised this issue below, and the deputy should have made findings regarding compliance with this requirement of the statute or excuse for noncompliance. See Broward Industrial Plating, Inc. v. Weiby, 394 So.2d 1117 (Fla. 1st DCA 1981).

The order is REVERSED and REMANDED on this issue for further proceedings in light of this opinion. In all other respects, the order is AFFIRMED.

McCORD and SHIVERS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Osvaldo LOPEZ, Appellant, v. PENNSUCO CEMENT & AGGREGATES, INC., Insurance Company of North America and the Division of Workers' Compensation, Appellees.
    No. WW-63.
    District Court of Appeal of Florida, First District.
    July 21, 1981.
    Alfred D. Bieley, Miami, for appellant.
    Summers Warden, Miami, for appellees.
   PER CURIAM.

Claimant appeals an order denying his claim for nursing and attendant care services. He contends that the order does not accord with the evidence in the record. We agree and reverse.

Claimant is permanently and totally disabled as a result of the inhalation of manganese fumes in the course and scope of his employment. Because of the manganese poisoning, claimant has difficulty in walking, suffers from alterations in gait and balance, speech disorders, clumsiness of movements, and an expressionless face. In the morning, his wife helps him out of bed, helps him attend to personal functions, assists him in dressing, fixes his food, and puts out his medicine. Sometimes after his wife leaves for work, he feels so bad he is unable to get up and eat his lunch, take his medicine, or go to the bathroom. Without help, he is unable to do his physical therapy exercises which his therapist testified he must do to prevent further deterioration. On occasion, claimant has gotten dizzy, fallen on the floor, and remained there until his wife comes home from work. His wife testified she loses time from work because she has to care for her husband. Further, she corroborated her husband’s testimony concerning his falls stating that she has arrived home on several occasions and found her husband lying on the floor in a fallen position, from which he is unable to extricate himself. He has hurt himself in these falls, although not badly. Dr. Penal-var, a specialist in manganese poisoning, testified that the biggest problem with manganese poisoning patients is that they fall repeatedly. He felt claimant was deteriorating physically and mentally and that claimant needs a person to assist him continuously to prevent him from having a serious injury such as a fracture. On the basis of this record, the deputy commissioner found that the frequency of claimant’s falls does not warrant continual attendant care at this time. He recognized that at some time in the future, claimant may require someone to help him 100% of the time. However, he did not feel the evidence establishes this at the present time. The claim for attendant care and attorney’s fees was therefore denied.

Although the employer/carrier argue that since two physicians failed to recommend attendant care services, the deputy commissioner’s order is supported by competent substantial evidence, we think the overwhelming weight of the evidence in this record supports claimant’s need for close supervision. The employer is required to furnish such attendant care services as the nature of the injury and the process of recovery may require. This includes the palliative attentions of another to mitigate the conditions or effects of the injury to claimant. Craftsmen’s Village, Inc. v. Benach, IRC Order 2-2561 (1974), cert. den. 302 So.2d 762 (Fla.1975). As a result of the work-related manganese poisoning, claimant is subject to spells of dizziness and repeated falls. This is a condition or effect of his injury which we feel entitles him to attendant care services. In State of Florida Department of Transportation v. Cato, IRC Order 2-3138 (1977), the IRC affirmed that portion of the deputy commissioner’s order which awarded attendant care services during that period of time in which claimant needed someone to prevent him from hurting himself (presumably by falling), to provide him with the medication he needed, and to assist him in using the bathroom and in bathing. We reject the notion that the worker’s compensation law requires that the claimant must first suffer a catastrophic additional injury from falls which stem from his disabling condition before he is entitled to any attendant care.

Accordingly, the deputy commissioner’s order is REVERSED and the cause is remanded to the deputy commissioner for reconsideration of claimant’s need for attendant care in light of the views expressed herein.

McCORD and LARRY G. SMITH, JJ., and LILES, WOODIE A. (Ret.), Associate Judge, concur.


text:
    KILLEBREW MANUFACTURING COMPANY and the Home Indemnity Company, Appellants, v. James P. DAWSON, Appellee.
    No. SS-71.
    District Court of Appeal of Florida, First District.
    July 21, 1981.

      J. Michael McCarthy of McCarthy & Sawyer, Lakeland, for appellants.
    Michael B. Murphy of Stanley, Wines & Smith, Auburndale, for appellee.
   PER CURIAM.

The employer/carrier challenge the deputy commissioner’s order which reduced by ten percent the weekly compensation rate paid to Dawson for permanent total disability and which required payment for remedial psychiatric care. We affirm in part and reverse in part.

On January 15, 1977, and April 23, 1977, Dawson suffered compensable injuries while employed by Killebrew. The employer/carrier began paying Dawson for a five percent and later an additional ten percent permanent partial disability. Dawson ultimately filed a claim for additional benefits.

On deposition, Dawson’s physician testified Dawson suffered a pre-existing back condition which accounted for ten percent of Dawson’s total fifteen percent disability. The deputy commissioner rendered an order awarding permanent total disability benefits and determining that Dawson reached maximum medical improvement on May 25, 1977.

On appeal, the Industrial Relations Commission reversed and remanded for apportioning out of ten percent of the disability attributable to the pre-existing back condition.

On September 17, 1979, the deputy commissioner entered an order apportioning out ten percent of Dawson’s total loss of wage-earning capacity and reassessing his weekly compensation rate at ninety percent for permanent total disability. The deputy also awarded payment for psychiatric treatment based upon a new claim.

We find no reversible error in apportioning out ten percent of Dawson’s disability attributable to the normal progression of degenerative joint disease.

However, a remedial treatment may not be awarded for the period following May 25, 1977, the date of maximum medical improvement. Remedial treatment is inappropriate after determining a date for maximum medical improvement. The deputy erred and we must reverse on this issue. We reverse without prejudice to Dawson to seek palliative treatment as provided by statute and not prohibited by the statute of limitations.

MILLS, McCORD and THOMPSON, JJ., concur.


text:
    Glenn TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2289.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Bennett H. Brummer, Public Defender and Ronald S. Lieberman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Theda R. James, Asst. Atty. Gen., and Joseph Corey, Legal Intern, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

No motion for mistrial having been made to the opening argument comment of the prosecutor, which Taylor now contends was objectionable, the suggested error of the comment was not properly preserved for our review. State v. Cumbie, 380 So.2d 1031 (Fla.1980); Clark v. State, 363 So.2d 331 (Fla.1978). We have reviewed Taylor’s other point on appeal and find it to be without merit.

Although Taylor did not challenge on appeal the fact that he was sentenced, albeit concurrently, for both the crimes of robbery during the course of which defendant carried a firearm (Count One) and possession and display of that firearm during the commission of that robbery (Count Two), we reverse the sentence imposed on Count Two. Davis v. State, 392 So.2d 947 (Fla.3d DCA 1981). See Gonzalez v. State, 392 So.2d 334 (Fla.3d DCA 1981).

Taylor’s failure to raise any objection before or after the entry of the judgment adjudicating him guilty of both counts waives any claim of double jeopardy and precludes us from setting aside the conviction on Count Two. Williams v. State, 397 So.2d 438 (Fla.3d DCA 1981). See Davis v. State, supra, at 949 n. 2.

The convictions are affirmed; the sentence imposed on Count Two is vacated.


text:
    Thomas Jefferson HINES, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1432.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Defendant, Hines, was charged by information in Count I with possession of a controlled substance and, in Count II, with sale or delivery of a controlled substance. He pleaded not guilty. After jury trial, the defendant was found guilty on both counts. He now appeals and claims, among other things, error in that the trial court violated the single transaction rule by sentencing him on both counts.

We affirm the judgment and sentence for sale and the judgment for possession. However, we vacate the sentence for possession.

The State concedes that the record at trial reflects that Hines’ convictions and sentences arise from the possession and sale of the very same item of narcotics. The effect of the concession is that the offense of possession is a category four lesser-included offense of sale. Anderson v. State, 392 So.2d 328 (Fla. 3d DCA 1981).

While agreeing that Hines’ conviction for possession should be affirmed, we do so only because Hines waived any claim of double jeopardy by failing to raise, in the trial court, the issue of his convictions for the included and greater offense. Anderson v. State, supra; Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980). See: Keefer v. State, 397 So.2d 1181 (Fla. 3d DCA 1981). That waiver, however, does not affect the sentencing error [Anderson v. State, supra; Williams v. State, 377 So.2d 755 (Fla. 1st DCA 1979)] which, because of the State’s concession that Hines was concurrently sentenced for both the greater offense of sale and the included offense of possession, is patent. For the reasons expressed in Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981), we find it improper to burden the trial court with a Rule 3.850 proceeding, the result of which inevitably must be to vacate the sentence imposed for possession.

Therefore, we vacate the sentence on the possession conviction and affirm in all other respects.

Affirmed as amended.


author: DANIEL S. PEARSON, Judge.

text:
    Debra Sue SCOTT, Appellant, v. Angus M. SCOTT, Jr., Appellee.
    No. 80-1095.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Jeffrey A. Schwarz, North Miami, for appellant.
    Genet & Milner and Sandor Genet, North Miami Beach, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The final judgment of dissolution of marriage gave to the appellee-father custody of the parties’ three-year-old child during the months of March, June, September and December, and gave the appellant-mother custody of the child during the remaining months. There is not the slightest circumstance shown in the record which would tend to show that this rotating custody provision would be in the best interests of the child, and, indeed, the only justification advanced on behalf of this peripatetic arrangement is that both parents were found to be, euphemistically, less than ideal. That finding may justify some other suitable custody order, but it hardly justifies plaguing the child with both their houses. There being no circumstance which would ameliorate the undesirable effects of the rotating custody arrangement, and every circumstance which would exacerbate such undesirable effects, the custody provision of the final judgment is reversed, see Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla.3d DCA 1980), and cases cited therein, and the cause remanded to the trial court for a determination of custody in accordance with the present best interests of the child.

We also reverse the ruling of the trial court precluding the appellant-wife from seeking alimony or attorneys’ fees on the ground that she had not sought this relief in an appropriate pleading before the court. It is apparent that the wife’s answer to the second amended complaint requested this precise relief and that an earlier written stipulation between the parties reserved to her the right to seek this relief. There is absolutely no showing that Mr. Scott was prejudiced by the lateness of the answer, and, indeed, the financial circumstances of the parties were in issue before the court in the context of child support.

Reversed and remanded for further proceedings in accordance with this opinion.

      . The judgment, perhaps to avoid the impact of the rule disfavoring split-custody provisions, see Bienvenu v. Bienvenu, infra, calls for the four separate months to be spent with the father “visitation.” We call it custody, and counsel for the father concedes it is.

      . During the progress of this appeal, we permitted the matter of custody to be revisited by the trial court in light of circumstances arising after the final judgment was entered. We are apprised by the parties that while matters bearing on this issue have been presented to the trial court, that court has withheld ruling, and the custody provision of the final judgment is still in effect.


author: SCHWARTZ, Judge.

text:
    Alan M. KORNBLUH and Sidney Crown, Appellants, v. Celia LOWENBERG, as President of and Trustee for Gilbros Associates, a dissolved Florida corporation; and Celia Lowenberg, individually, Appellees.
    No. 80-2029.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Colodny & Fass, North Miami, for appellants.
    Patton, Kanner, Segal, King & Kubit and J. Alberto Gonzalez-Pita, Miami, for appel-lees.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

After a non-jury trial on the complaint and answer, the lower court entered a money judgment in favor of the defendants and against the plaintiffs, even though no counterclaim or any other pleading or demand for such relief had ever been filed. This was plainly improper. Pond v. McKnight, 339 So.2d 1149 (Fla.2d DCA 1976); see also, Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Dysart v. Hunt, 383 So.2d 259 (Fla.3d DCA 1980), review denied, 392 So.2d 1373 (Fla. 1980). The appellees’ reliance on Fla.R. Civ.P. 1.190(b) in support of the action taken below is entirely misplaced. This rule provides for the amendment of existing pleadings to reflect issues tried by express or implied consent; it does not permit the creation of pleadings from the whole cloth. The judgment under review is therefore reversed. Upon remand, the trial court should allow the filing of additional pleadings by both sides and thereafter proceed to an appropriate determination of the issues thus presented.

Reversed and remanded with directions.


text:
    Gilberto ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1058.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Bennett H. Brummer, Public Defender and Laurence Besser, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant Alvarez seeks reversal of his conviction for robbery, burglary of a dwelling, and sexual battery, citing improper prosecutorial comment during closing arguments. We find no error and affirm.

The challenged remarks are as follows: On the other hand, if there was evidence in this case of [fingerjprints that would definitely have acquitted and pointed in the direction of somebody else, I would have thought you would have heard something concerning that in this case as well ... If there is any other evidence in this case which might definitely exonerate the defendant and point to somebody else that committed this crime you might expect that you would have heard from them as well.

We conclude that the prosecutor’s comment was an appropriate response to defense counsel’s earlier argument which suggested, without the slightest evidentiary support, that the police had compared the latent fingerprints removed from the knife with those of the defendant, found that they did not match, and kept that evidence from the jury. See, e.g., Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975), appeal dism., 330 So.2d 725 (Fla.1976); Dixon v. State, 206 So.2d 55 (Fla. 4th DCA 1968); United States v. Tasto, 586 F.2d 1068 (5th Cir. 1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1263, 59 L.Ed.2d 484 (1979).

Affirmed.


text:
    David Allen ADKINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1951.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    David Allen Adkinson, in pro. per.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

This is a pro se appeal by David Allen Adkinson from denial of his motion for post-conviction relief under Florida Rules of Criminal Procedure 3.850. Adkinson alleges violation of the speedy trial rule and ineffective assistance of counsel. We affirm.

An issue which could and should have been raised on direct appeal is not a proper subject matter for post-conviction motion. Foster v. State, 400 So.2d 1 (Fla.1981) (1981); Pell v. State, 393 So.2d 1140 (Fla. 3d DCA 1981) (violation of speedy trial rule could have been raised on direct appeal). Cf. Snow v. State, 399 So.2d 466 (Fla. 2d DCA 1981) (appeal of imposition of sentence allegedly in violation of speedy trial rule not foreclosed by plea of guilty).

Appellant failed to meet his burden of establishing ineffectiveness of counsel. See, e. g., Knight v. State, 394 So.2d 997 (Fla.1981). See also Foster v. State, supra; Washington v. State, 397 So.2d 285 (Fla.1981).

Affirmed.


text:
    Raymond ROMINE, etc., Appellant, v. METROPOLITAN DADE COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 78-69.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Tew, Spittler & Berger and Jeffrey Allen Tew, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

This case was heretofore before this court, wherein we affirmed a summary judgment for the County. The matter was then certioraried to the Supreme Court of Florida, 385 So.2d 1368, which remanded the cause to us for further proceedings in light of their opinion in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Thereafter the matter was further briefed by the parties and came on for additional oral argument. We again affirm.

The appellant attempts to impose upon the County the duty of clearing trees and shrubbery from intersections in the unincorporated area. We reject any responsibility on the part of the County government in this regard. The facts indicate that the accident in question occurred under the following circumstances.

The accident occurred at the intersection of S.W. 137 Avenue and 152 Street. At this location, S.W. 137 Avenue runs north and south; S.W. 152 Street runs east and west. There are stop signs controlling east/west traffic on S.W. 152 Street; the north/south traffic has the right of way. Approximately 300 feet east of the intersection there is a “Warning Stop Sign Ahead” sign posted for westbound traffic. The southeast corner of the intersection is overgrown with trees and bushes which obstructed the vision of motorists entering the intersection. The County never undertook to trim or clear out this overgrowth, so as to improve visibility at the intersection. At approximately 7:00 P.M., December 24, 1976, the appellant was driving his pickup truck (with his wife as a passenger) north on S.W. 137 Avenue. He collided with a motor vehicle being driven westward on S.W. 152 Street by one James J. Tepley. Both Tepley and the appellant’s wife died as a result of injuries sustained in the accident.

The appellant relies principally upon the cases of Commercial Carrier Corporation v. Indian River County, supra; Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla. 3d DCA 1979) for County liability. We do not find these cases applicable because the County never undertook any responsibility in regard to trees and shrubbery at this intersection. If they had, a different result might have obtained. In this connection see the following authorities: Commercial Carrier Corporation v. Indian River County, supra; Welsh v. Metropolitan Dade County, supra.

In the case of Commercial Carrier Corporation v. Indian River County, supra, the governmental entity had placed traffic control devices at the intersections and were charged with failure to maintain those devices, thereby creating an unreasonable hazard. In Welsh v. Metropolitan Dade County, supra, the governmental entity was charged with negligent design, construction and maintenance of a dead end street and barricade intended to protect the public from a canal paralleling the roadway. In these cases, the governmental entities had in fact gone past the planning stage, taking affirmative steps to bring into being those traffic control devices complained of.

In the case sub judice, the negligence complained of was the failure of the County to make a decision to control the intersection with a device or devices different than that chosen and a decision as to whether or not to cut back undergrowth adjacent to the intersection. Clearly, this would constitute planning or discretionary governmental decisions (under the guidelines set forth in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), commended to our use in Commercial Carrier Corporation v. Indian River County, supra) for which the County cannot be held liable in tort. See: Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980). Compare: Elliott v. City of Hollywood, 399 So.2d 507 (Fla. 4th DCA 1981).

Therefore, for the reasons above stated, the summary final judgment here under review be and the same is hereby affirmed.

Affirmed.

      . Romine v. Metropolitan Dade County, 369 So.2d 957 (Fla. 3d DCA 1978).

      . The case still pends in the trial court against the defendant driver.


text:
    Gloria BORENSTEIN and Charles Borenstein, Appellants, v. Robert RASKIN, M.D. and Maurice Lebowitz, M.D., Appellees.
    No. 80-183.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Horton, Perse & Ginsberg and Edward A. Perse, Cohen & Kokus, Miami, for appellants.
    Thornton & Herndon and John Edward Herndon, Jr., Miami, for appellees.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Gloria Borenstein, plaintiff below, appeals from a final judgment entered against Dr. Robert Raskin, defendant below, in a medical malpractice action in which the jury by special verdict found Dr. Raskin to be five percent negligent and appellant Mrs. Borenstein to be ninety-five percent negligent. Charles Borenstein, the husband, appeals from a jury verdict of zero dollars on his derivative claim for loss of consortium. Appellant Mrs. Borenstein contends that the court erred in instructing the jury on comparative negligence over objection of her counsel.

In February of 1975, Mrs. Borenstein began experiencing low back pain and a tingling sensation in her feet. Mrs. Boren-stein saw a family doctor who gave her an injection and advised bed rest. Her condition worsened and she developed sores around her buttocks and groin. On March 11, 1975, Mrs. Borenstein went to see Dr. Greenberg who perceiving a serious problem immediately called Dr. Raskin, a neurologist at Parkway General Hospital, and set up an appointment for Mrs. Borenstein that same day.

Upon examining Mrs. Borenstein, Dr. Raskin could detect only faint femoral pulses in her feet and noted a rash in her groin and hip area. Mrs. Borenstein was hospitalized from March 11, 1975 until April 5, 1975. While hospitalized, Mrs. Borenstein developed discolored areas on her feet. Dr. Raskin indicated these areas would clear up and recommended a dermatologist. From April 5 until April 15, 1975, Mrs. Borenstein treated the lesions on her hips, buttocks and feet at home. On April 25, 1975 Mrs. Bor-enstein went to see a dermatologist who gave Mrs. Borenstein instructions for at-home treatment. On May 5, 1975 Mrs. Bor-enstein was again examined by Dr. Raskin who recommended that, after the groin lesions improved, she see Dr. Spear a vascular surgeon. At trial Dr. Raskin testified that the reason he did not recommend that Mrs. Borenstein see Dr. Spear immediately was that “No surgeon is going to do any surgery on the lower aorta to remove blockage in the face of infected lesions of the groin.” From May 13, 1975 until July 8, 1975, Mrs. Borenstein continued the at-home treatment. On July 8,1975 Mrs. Borenstein saw a dermatologist and on July 10, 1975 again went to see Dr. Raskin who noted the degeneration in her condition and referred her immediately to Dr. Radlauer, a plastic surgeon. On July 11, 1975 Mrs. Borenstein was examined by Dr. Radlauer who detected large necrotic areas on both feet and on the left hip. Dr. Radlauer had Mrs. Boren-stein immediately admitted to Parkway General Hospital and called Dr. Chang Wu, a vascular surgeon and cardiologist. Dr. Wu diagnosed an obstruction in the aorta leading to the lower extremities and performed the required surgery. Mrs. Boren-stein subsequently underwent surgery for removal of one toe on each foot and plastic surgery.

As a defense to the malpractice action, Dr. Raskin claimed that Mrs. Borenstein’s delay in seeing a vascular surgeon was comparative negligence. During the hearing on the proposed jury instructions, counsel for Mrs. Borenstein objected to the use of the jury instruction on comparative negligence on the grounds that there had been no evidence at all that Mrs, Borenstein was in any way negligent with respect to her own care, that there was no testimony that she did anything but follow the instructions of the various doctors and there was no testimony linking any of her actions as a causal factor to the damages sustained by her.

In order to establish the defense of comparative negligence Dr. Raskin had to prove each of the elements of negligence; that Mrs. Borenstein owed herself a duty of care, that she breached that duty and that the breach was the proximate cause of the damages she sustained. Proximate cause means that the alleged wrong of the party caused the damage. There must be such a natural, direct and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act, the injury would not have occurred. Cassel v. Price, 396 So.2d 258 (Fla. 1st DCA 1981); Fellows v. Citizens Federal Savings & Loan Assoc., 383 So.2d 1140 (Fla. 4th DCA 1980).

There is no evidence that any delay on the part of Mrs. Borenstein in seeing a vascular surgeon between April 5 and July 11, 1975 was a proximate cause of her damages. Where reasonable persons can come to but one possible conclusion, issues of negligence become questions of law, and should not be submitted to a jury. See, e.g., Cassel v. Price, supra at 260, Fellows v. Citizen Federal Savings & Loan Assoc., supra at 1141. Accordingly, we find that the trial court erred in submitting the instruction on comparative negligence to the jury over the prior objection of counsel.

We leave intact the jury verdict awarding the husband zero dollars on his claim for loss of consortium because here the failure to move for a directed verdict or new trial prevents Mr. Borenstein from raising the issue for appellate review. See, e.g., 6551 Collins Avenue Corp. v. Millen, 97 So.2d 490 (Fla.3d DCA 1957), cert. quashed, 104 So.2d 337 (Fla.1958) (failure to move for directed verdict precludes appellate review. Cf. Hagens v. Hilston, 388 So.2d 1379 (Fla.2d DCA 1980) (trial court erred by granting motion for new trial on damage for loss of consortium).

The appeal of Charles Borenstein is dismissed; the finding of comparative negligence against Gloria Borenstein is reversed and the cause is remanded with instructions to enter judgment for the full amount of damages.

      . We note that the issue is preserved for appellate review because counsel objected to use of the jury instruction prior to submission to the jury and the giving of the instruction was erroneous and prejudicial. Smith v. McCullough Dredging Co., 152 So.2d 194 (Fla.3d DCA 1963), cert. denied, 165 So.2d 178 (Fla.1964) (issue of jury instruction over objection of counsel preserved for appeal where instruction erroneous and prejudicial.) See, e.g., Aragon v. Florida Equipment Company of Miami, Inc., 368 So.2d 90 (Fla.3d DCA 1979) (erroneous jury instructions given in comparative negligence introduced confusion).


text:
    Hannah E. STYER, Appellant, v. HOME LIFE INSURANCE COMPANY, Appellee.
    No. 80-2057.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Mark J. Feldman, Miami, for appellant.
    Dixon, Dixon, Hurst, Nicklaus & Webb and H. Clay Roberts, Miami, for appellee.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Couch v. Connecticut General Life Ins. Co., 216 So.2d 72 (Fla.2d DCA 1968).


text:
    L. E. OLIVER; Mary Alice Oliver, his wife; Robert K. Kipping; and Beulah B. Kipping, his wife, Appellants, v. Robert O'NAN and Richard Sebree, Appellees.
    No. 81-371.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Max G. Fischer, Key West, Billingsley & Ivers, Carrollton, Ky., for appellants.
    W. Ted Ernst, Key West, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed on the authority of Iglehart v. Phillips, 383 So.2d 610 (Fla.1980).


text:
    Manuel Gonzalez GOENAGA, Appellant, v The BANK OF MIAMI, et al., Appellees.
    No. 81-279.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Richard N. Friedman, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Alan T. Dimond, Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed: § 57.105, Fla. Stat. (1979); Roberts v. Askew, 260 So.2d 492 (Fla.1972); Moore v. Florida State Bank of Tallahassee, 386 So.2d 867 (Fla. 1st DCA 1980); City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112 (Fla. 3d DCA 1980).


text:
    James PRICE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-323.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.

      Bennett H. Brummer, Public Defender, and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Jess v. State, 384 So.2d 328 (Fla. 3d DCA 1980); Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974).


author: SHARP, Judge.

text:
    Jean E. DUNHAM, Appellant, v. BREVARD COUNTY SCHOOL BOARD and Department of Education, Appellees.
    No. 79-465.
    District Court of Appeal of Florida, Fifth District.
    July 22, 1981.
    Bill McCabe, Orlando, for appellant.
    Kay Latona, Fort Lauderdale, and Bill Walker, Titusville, Co-Counsel for Appellee (Brevard County School Board).
   SHARP, Judge.

Dunham appeals from an order of the trial court dismissing Count I of her second amended complaint on the grounds that she had elected her remedy by participating in an administrative proceeding after this suit was filed, and that the court lacked jurisdiction over the subject matter. Count I alleged a cause of action against the Brevard County School Board for sex discrimination in employment under the Fair Labor Standards Act of 1938 as amended 1977. In a prior appeal the Fourth District Court of Appeal held that state courts have concurrent jurisdiction to hear sex discrimination cases under this federal law, and that the trial court erred in dismissing this cause of action.

That holding is the “law of this case.” Implicit in the mandate of the earlier appeal is the holding that the complaint states a cause of action requiring a response from the appellee. No other grounds for motion to dismiss are thereafter appropriate. Sax Enterprises v. David and Dash, 107 So.2d 612 (Fla. 1958); S/D Enterprises v. Chase Manhattan Bank, 375 So.2d 1109 (Fla.3d DCA 1979); Goodman v. Olsen, 365 So.2d 393 (Fla.3d DCA 1978).

“Sovereign immunity” and “subject matter jurisdiction” were specifically argued to the trial court in the prior motion to dismiss and they were therefore settled adversely to appellee by the prior appeal. The “election of remedies” ground was available to the appellee for argument at the time of the prior dismissal, since the record shows Dunham had engaged in an administrative kind of hearing. It also should be barred. But even if it were not, it would be inadequate because the jurisdiction to consider causes arising under the Fair Labor Standards Act is in the circuit courts, not administrative tribunals, by express statutory grant and in addition, a violation of this law by “state action” presents constitutional issues which must be heard by circuit courts. Department of Transportation v. Morehouse, 350 So.2d 529 (Fla.3d DCA 1977).

REVERSED and REMANDED with directions for further proceedings in accordance with this opinion.

FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.

      . 29 U.S.C. § 206(d)(1).

      . Dunham v. Brevard County School Board, 372 So.2d 516 (Fla. 4th DCA 1979).

      . Fla.R.Civ.P. 1.140.

      . Fair Labor Standards Act of 1938, 29 U.S.C. § 216 as amended 1977.