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

text:
    GREYNOLDS PARK MANOR and R. P. Hewitt & Associates of Florida, Inc., Appellants, v. Lovie GEORGE, Appellee.
    No. AC-84.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1982.
    Opinion Amended and Clarified on Denial of Rehearing Aug. 16, 1982.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellants.
    L. Barry Keyfetz of Keyfetz & Poses, Miami, for appellee.
   PER CURIAM.

This is an appeal from a worker’s compensation order directing the carrier to directly reimburse the United States Department of Health, Education and Welfare (Medicare) and Blue Cross for payment of certain medical bills made by those entities on behalf of claimant. We agree with appellant’s argument that a more general order conforming to White v. Bell Fruit Co., 4 F.C.R. 382 (1961) would have been appropriate in this case.

In White the deputy commissioner had ordered the carrier to pay for remedial treatment and care under the following terms:

Pay for the remedial treatment, care and attendance in the amounts and to the persons named in paragraph 29 of the above and foregoing order provided, however, that if any one or more of such persons advise that such amounts have theretofore been paid to them by or for the account of the claimant then the amount thereof shall be paid to the party making such payment. (Emphasis in original.)

The Commission said that the deputy commissioner did not err in ordering the employer to pay the costs of the remedial care furnished to the employee, but the Commission noted as follows:

However, it does not appear that there is a lien, as the result of the phraseology in the deputy’s Order, against costs of remedial treatment payable to the claimant. Actually, it appears that the effect of the Order of the deputy is to provide reimbursement to any party who has paid costs of any remedial expenses incurred by the claimant. We feel that the deputy’s Order should have confined itself to a statement that the employer pay for the costs of such remedial treatment and care incurred by the claimant, leaving to the parties the settling of any differences they may have regarding any contractual rights that may exist among the parties involved, for example, reimbursement of costs of remedial treatment paid by virtue of a private insurance policy covering sickness and accidents.

Apparently the Commission disapproved of the deputy’s order because although it would have been proper to reimburse claimant, specifying that there was a lien against those funds in favor of those who had paid on claimant’s behalf, it was not proper to direct the employer to pay directly persons or entities which had paid for the care but were not actually before the deputy. Similarly, in the instant ease the deputy did not err in ordering the carrier to pay the costs of the remedial care furnished to the employee — the parties do not dispute that the carrier is responsible for payment for the medical care that has been furnished to the claimant — however, the order specifically directed the employer to reimburse entities which were not before the deputy.

In order to conform to the decision in White, therefore, we reverse and remand to the deputy commissioner for entry of an order directing the employer/carrier to pay for the “remedial treatment and care incurred by the claimant, leaving to the parties the settling of any differences they may have regarding any contractual rights that may exist among the parties involved .. . . ” White at 384. Our decision does not mean that employer/carrier is temporarily absolved from the duty to pay for the treatment and care which was provided to the claimant. It means that the treatment and care are to be paid for by employer/carrier and collateral disputes as to reimbursement of outside entities not before the deputy commissioner are to be settled among the parties involved.

We agree with appellant’s second argument that under Wekiwa Concrete v. Reddick, 396 So.2d 832 (Fla. 1st DCA 1981), inasmuch as the record does not show that an order has been entered approving any fee arrangement between claimant and her attorney as reasonable and directing the manner of enforcing a lien, the deputy erred in ordering that compensation checks be made payable to both claimant and her attorney.

Reversed and remanded for entry of an order consistent with this opinion.

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

ON PETITIONS FOR REHEARING AND CLARIFICATION

PER CURIAM.

Both appellants and appellee having sought clarification of the opinion of this court, dated January 6, 1982, in the above styled case, the fourth paragraph of the opinion is amended and clarified as follows:

In order to conform to the decision in White, therefore, we reverse and remand to the deputy commissioner for entry of an order directing the employer/carrier to pay for the “remedial treatment and care incurred by the claimant, leaving to the parties the settling of any differences they may have regarding any contractual rights that may exist among the parties .involved .... ” White at 384. Our decision does not mean that employer/carrier is temporarily absolved from the duty to pay for the treatment and care which was provided to the claimant. It means that the treatment and care are to be paid for by employer/carrier and collateral disputes as to reimbursement of outside entities not before the deputy commissioner are to be settled among the parties involved. As the White decision indicated would be appropriate, there shall be a lien, for the benefit of HEW and Blue Cross, against the payments due which are to be paid to the claimant and she shall insure that those entities are properly reimbursed.
In other respects, rehearing is denied.

MILLS and SHIVERS, JJ., concur.

ROBERT P. SMITH, Jr., C. J., dissents, with opinion.

ROBERT P. SMITH, Jr., Chief Judge,

dissenting.

How futile it is, if productive judicial labor is one of our goals, and how unfortunate, if achieving substantially just and practicable results under chapter 440 is another, that we have uncritically acquiesced these past three years in the role pressed upon us by adversariness. That role we illustrated by our decision announced January 6,1982, which predictably satisfied none of the contenders, not even those whose appeal first found fault with the deputy’s order we reversed; and now on rehearing we play that role again. I refer to the Court’s continuing attempts to administer, from a distance both geographic and functional, every fine detail of a workers’ compensation system which the adversaries refuse to administer themselves, as designed, and in which adversariness all too often faults reasonable efforts of deputy commissioners to fill the void.

Consider the problem that was brought to the Court for judicial solution on the tacit assumption that neither the parties nor the deputy could satisfactorily resolve it: The worker, injured in a compensable industrial accident, incurred a $5,600 hospital bill. The bill was paid not by claimant but by Medicare and Blue Cross. The hospital has been paid and is not complaining. Medicare and Blue Cross, distant and apparently unaware of the fracas, are not complaining. Those complaining are claimant’s lawyer, who says the carrier has a chapter 440 obligation to pay the amount of the hospital bill to someone, be it the hospital (already paid), the claimant (already treated and out no money), or Medicare and Blue Cross (not parties before the deputy or the Court, and so far as the record shows not yet asking for payment). The carrier’s lawyer says, sure, the carrier has a chapter 440 obligation to pay the amount of the hospital bill, but not to the hospital (already paid), not the claimant (already treated and out no money), and not Medicare and Blue Cross (not parties before the deputy or the Court and not, so far as the record shows, asking for payment).

Ah, there’s a conundrum worthy of judicial labors. Evidently the carrier was not interested in solving this problem through telephone calls to the hospital and to Medicare and Blue Cross. Evidently this complex problem is beyond administrative solution by the Division of Workers’ Compensation. Evidently the skills of the Chief Commissioner, section 44Q.45(3)(a), (d), (f), (j), and (k), Florida Statutes (1981), are unequal to the task. The deputy commissioner’s solution (let the carrier directly reimburse Medicare and Blue Cross) is unacceptable to the carrier, who says (a) neither has asked for reimbursement; (b) neither is a party; (c) under federal regulations Medicare may not be reimbursable anyway; and (d) this is a matter to be resolved between the carrier, the government, and the hospital.

There is a special poignancy in the carrier’s argument that, as a matter of law, the carrier should be permitted to work this out with other affected parties. That, of course, was the Industrial Relations Commission’s prescription for administrative chores such as this. White v. Bell Fruit Company, 4 FCR 382, 384 (1961), envisioned that the deputy should enter an order

leaving to the parties the settling of any differences they may have regarding any contractual rights that may exist among the parties involved, for example, reimbursements of costs of remedial treatment paid by virtue of a private insurance policy covering sickness and accidents.

This worthy aspiration by the IRC— “leaving to the parties the settling of any differences they may have” concerning the details of putting admittedly due benefits into the right hands — connotes and assumes some degree of initiative and responsibility in the lawyers who advise claimants and carriers. Yet what the lawyers in this matter initiated was not a routine dispersal of funds but a circular course of litigation resulting first, on March 9, 1981, in a deputy’s order for direct reimbursement to Medicare and Blue Cross; then, on January 6,1982, in our Solomonic decision, in accordance with White, that “collateral disputes as to reimbursement of outside entities not before the deputy commissioner are to be settled among the parties involved”; and now, in response to protests by both lawyers on petitions for rehearing and clarification, in a further court order that the amount of the hospital bill be paid to Lovie George, the injured worker, but subject to both a lien in favor of Medicare and Blue Cross and an admonition that Lovie George “shall insure that those entities [Medicare and Blue Cross] are properly reimbursed.”

That we should think this rerouting of the money is a solution superior to that ordered by the deputy, or is one effectively remedying the parties’ failure to initiate some nonlitigious resolution of this manufactured problem, reveals how unconsciously and passively this Court has become the bound prisoner of litigious instincts ingrained in the workers’ compensation bar and through them in clients who supposedly are self-administering this “self-administered” system. Even as new appeals to this Court for judicial administration of the “self-administered” system continue to pour in at the rate of 60 to 80 per month, we reward that litigation by arbitrating minor issues that, according to the principle we nominally embrace, “are to be settled among the parties involved.” Litigation in this Court thus becomes the means by which counsel avoid compliance with the principle on which the Court stands; and without protest we participate in this exhausting and destructive process. “When me they fly,” said the poet, “I am the wings.” That is the futility of a court indulging litigation to enforce, against the parties’ wills, a rule against litigation.

This litigation thus ends as it began, with an assumption by the lawyers, acquiesced in first by the deputy and then by the Court, that zealous representation of their clients prevented their fulfilling the professional role implied for them by White, “the settling of any differences they may have regarding any contractual rights that may exist among the parties involved.” If at any point in the controversy the lawyers had suggested any mutually agreeable solution, or even one that neither objected to with great vehemence, the deputy or this Court would gladly have adopted that recommended course. But while our opinion, of January 6, 1982, did not satisfy either counsel’s exacting standards for judicial resolution of problems counsel should have resolved long ago, so also in the beginning, at the deputy’s hearing on January 21,1981, counsel displayed adversariness not conciliation, and moreover they stated their irreconcilable positions on this minor issue quite unproductively. When the deputy inquired of the carrier’s lawyer, “You want to pay Medicare back?,” he obscurely replied, “To whomever my client owes the money to.” And when counsel representing Lovie George said, “I will be happy to give the Court the [federal] regulations” entitling Medicare to reimbursement only from his client, who must therefore be paid by the carrier, the deputy responded, “Show me the law, then I will decide.” To that counsel replied, “I do not have it with me.” After other inconclusive exchanges on this and other matters, the deputy announced: “We are finished for today. We do not have anything else to do.”

For my part, I think in these circumstances of counsel’s failure to initiate a White-prescribed settlement that the deputy’s solution was as good as any. With apologies to my colleagues for my late coming to this viewpoint, therefore, I would therefore withdraw entirely the opinion on this subject that we filed January 6, 1982, and affirm the deputy.

I would also reconsider the holding in our January opinion that Wekiwa Concrete v. Reddick, 396 So.2d 832 (Fla. 1st DCA 1981), requires reversal of the deputy’s order that future checks, apparently including those intended to reimburse Blue Cross and Medicare, be made payable as well as to claimant’s attorney. As to the Blue Cross and Medicare payments, this means of managing disbursements to the medical providers seems to me on further reflection not to be error. Insofar as the deputy intended by this arrangement to recognize the attorney’s fee interest in these checks and any others that might be issued in the future, the deputy conditioned disbursement of the checks upon a “future determination . .. regarding the amount of any reasonable attorney fee and the responsible party therefor.” That provision, I think, fairly meets the objection our January decision voiced. Moreover the impediment to this urged by the carrier on appeal, that the fee hearing should have preceded this arrangement, was nowhere urged by the carrier upon the deputy. Again we encounter the irony that for three years has accompanied our strict scrutiny of deputies’ orders as though they involved on every point fundamental constitutional rights that must be guarded even when not asserted below: in the name of protecting the injured worker’s interest in receiving the compensation benefits undiminished by unapproved attorney fees, we justify the carrier’s decision during the appeal not to pay those benefits at all, so keeping use of the money. Even if objection had been made to the deputy on the ground generated during the appeal for faulting his order, I would be inclined to affirm the order as accomplishing substantial justice. But as things stand I ■ would affirm that portion of the deputy’s- order because the ground for assailing it was not raised before the deputy. Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA, 1982):

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

On reconsideration of this case, therefore, I would affirm the deputy’s order.


source: Caselaw Access Project

author: HOBSON, Acting Chief Judge. OTT, Judge,

license: Public Domain

text:
    John GRECO, Cynthia Marie Greco, Mary Josephine Castro, Linda Jo Greco, Jo Ann Greco and Exchange Bank of Tampa, as Trustee, in the name of Tampa Wholesale Company, Appellants, v. TAMPA WHOLESALE COMPANY, Appellee.
    No. 80-1288.
    District Court of Appeal of Florida, Second District.
    March 31, 1982.
    As Amended on Denial of Rehearing Aug. 18, 1982.

      Paul B. Johnson of Gregory, Cours, Pan-iello, Johnson, Hayes & Hoft, Tampa, for appellants.
    David A. Maney of Gordon & Maney, Tampa, Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, Tampa, and William T. Keen, Tampa, for appellee.
    Bruce A. Walkley and David H. McClain of McClain, Walkley & Stuart, P. A., Tampa, as amicus curiae.
   HOBSON, Acting Chief Judge.

Appellants John Greco, his four daughters, and Exchange Bank of Tampa, as Trustee, appeal three orders: a final summary judgment rendered in favor of Tampa Wholesale Company, and two orders denying appellants’ motions for order compelling discovery. We reverse the final summary judgment and affirm the orders denying motions for order compelling discovery.

Tampa Wholesale is a closed family corporation formed in 1948. Its outstanding stock consisted of 4,000 shares owned equally by the families of four individuals: Joe Greco, Americo (Mac) Greco, Frank Guinta, and John Greco. After the death of Joe Greco in January, 1977, the remaining shareholders discussed the possibility of locating a buyer for Tampa Wholesale Company. As that possibility neared reality, John Greco voiced his disapproval of a sale and subsequently filed a complaint asking the trial court to restrain the sale of the assets of Tampa Wholesale. In April, 1978, an order on request for temporary relief was entered, restraining the sale of the assets of Tampa Wholesale and, pursuant to stipulation, a temporary injunction was entered by the trial court. In January, 1979, these orders were dissolved.

In November, 1978, an exchange agreement between Tampa Wholesale and Lucky Stores, Inc. was executed by all shareholders of the corporation except appellants in this action. Under the terms of the exchange agreement, Lucky Stores agreed to acquire substantially all the assets of Tampa Wholesale for the sum of $9,000,000, plus 225,641 shares of Lucky Stores voting preference stock.

In December, 1978, Tampa Wholesale sent appellants a document entitled “Notice to Nonconsenting Shareholders Pursuant to Florida Statutes, Section 607.394,” advising that on December 22, 1978, Tampa Wholesale had consented in writing to the sale of its assets and that the sale had been consented to by holders of outstanding stock having not less than a minimum number of votes necessary to authorize the sale as required by section 607.241, Florida Statutes (1979). A copy of the statute was furnished to each appellant: Appellants were informed of their rights under a paragraph captioned “Rights of Dissenting Shareholders.” They were advised that if they wished to dissent they should make a written demand on Tampa Wholesale within fifteen days of the mailing. Appellants filed timely dissents and written demands for payment of the fair value of their shares in Tampa Wholesale Company. They advised the company that they were dissenting as to all but one share owned by each appellant; thus, they retained a total of six shares of stock.

Tampa Wholesale notified each appellant that, pursuant to section 607.247(10), they had 20 days from the date of demand in which to submit their stock certificates to Tampa Wholesale for notation of their demands. Appellants had through and including February 8, 1979, within which to tender their stock certificates for notation.

On February 14,1979, Wilbur Hall, President of Tampa Wholesale, mailed letters to appellants advising them that, inasmuch as they had failed to comply with section 607.-247(10), Tampa Wholesale Company was exercising its option to terminate their rights as dissenting shareholders. On February 23, an associate of the law firm representing appellants appeared at the corporate offices of Tampa Wholesale in order to submit the certificates for notation. Mr. Hall was not present in the corporate offices at that time. The associate delivered certain correspondence dated February 23 from appellants’ counsel and Exchange Bank, as Trustee. The letters reiterated appellants’ objection to the proposed corporate action, denied any waiver of their rights as dissenting shareholders, and demanded payment of the fair value of the shares pursuant to chapter 607, Florida Statutes.

Appellants’ attorney returned on February 26 with the certificates. At that time Mr. Hall advised him that after a conference with his attorneys he would not insert the notations on the certificates.

On March 1,1979, the sale of the assets of Tampa Wholesale was effected and on March 2 appellants advised Tampa Wholesale that it was obligated to make a written offer to them to pay for their shares at the fair value of the stock. Tampa Wholesale responded by asserting that the statutory procedure was not appropriate and that Tampa Wholesale was refusing to abide by section 607.247(5).

On April 20, 1979, appellants filed a complaint for determination of the fair value of shares of stock and Tampa Wholesale answered, asserting that appellants had failed to comply with section 607.247(10) and were barred from maintaining the action. Tampa Wholesale filed a motion for summary judgment, which was granted and subsequently became the subject of this appeal.

The parties have not directed us to, nor have we been able to locate, a Florida case dealing with the precise issue of this appeal. We can, however, turn to decisions from those states which have similar statutes controlling corporations. Although these decisions vary as to the degree of procedural compliance required of dissenting shareholders, we have determined that the courts of New York are most closely aligned with our viewpoint in this matter.

Two New York cases were cited to us by the parties to the instant appeal. Both cases deal with New York Business Corporation Law, section 623 (formerly section 21), which is essentially identical to section 607.247(10), Florida Statutes.

In re Weider sum, 41 Misc.2d 936, 246 N.Y.S.2d 638 (1964), deals with dissenting stockholders who timely filed their written demand for payment, but did not submit their certificates for notation until six months and sixteen days after the deadline. The trial court noted that there had not been “even token compliance” with the statutory timetable. Further, the stockholders offered no excuses, but, rather, argued that their substantive right to payment was vested upon notification to the corporation of their dissent and demand for payment. The trial judge stated:

Although the courts have excused, under certain circumstances, minor departures from the literal requisites of section 21 ..., to grant such relief to the present petitioners would so drastically tilt the sensitive equilibrium of interests ... as to constitute complete rejection of the mandate.

In the case of Saseen v. Danco Industries, Inc., 20 A.D.2d 657, 246 N.Y.S.2d 440 (1964), the appellate court reversed the dismissal of the dissenting stockholder’s action for determination of value of shares. The facts are almost identical to those of the instant case. Saseen and other dissenting shareholders of the closely held corporation made their timely objection to the sale and demanded payment of the value of their shares. They were then obliged to submit their shares for notation by February 25, 1963. They failed to submit their shares before the deadline, but instead filed an action for determination of the value of their shares on March 21, 1963. The shareholders were in communication with the corporation at all times prior to filing the action. The appellate court stated:

Throughout this interval of time the corporation had no reason to believe that petitioners would relinquish their right to appraisal and to demand payment. Denial of relief to petitioners would result in substantial prejudice to them. They would be deprived of their right to payment and would be relegated to their status as minority stockholders. It is undisputed that respondent is a close corporation and there is no market in its shares. On the other hand, the corporation has not been prejudiced whatsoever.

In the case sub judice, appellants’ objection to the sale of the corporate assets was vociferous and continuous. The record shows conclusively that the other stockholders and the corporate officers were acutely aware at all times of appellants’ position.

The purpose of the notation requirement in section 607.247(10) is to protect the corporation in a situation where the dissenting shareholder transfers his certificates to a third party, thereby exposing the corporation to a third-party claim inconsistent with the dissenter’s demand for payment. There was no possibility that appellants in the instant case could have disposed of their shares to third parties, since the corporation was a closely held one and the certificates contained an endorsement which restricted their transfer to third parties and required that the shares be first offered to the corporation for purchase. Thus, the fifteen-day delay in submitting the shares for notation was not prejudicial to the corporation.

Appellee stated in its brief that appellants made no effort to have a court set aside their failure to submit the shares for annotation and reinstate their dissenters’ rights during the entire seventeen-month period from February 14,1979, until July 2, 1980, the date of the final summary judgment. This inaction, appellee argues, allowed appellants to take a position of being able to “wait and see” how the sale turned out. In view of the fact that appellants objected repeatedly before, during, and after the sale, we fail to see the logic of this argument. Moreover, the violation of the time limitation was not seventeen months. The procedural position of the dissenting shareholders in the Saseen case was identical to that of appellants in this cause. The filing of a complaint for determination of the fair value of stock serves to allow a court of competent jurisdiction to consider whether the dissenters have shown good and sufficient cause for their failure to comply with the time limits. Even if we disregard appellants’ submission of their certificates for notation on February 23, the complaint for determination of value was filed on April 20, 1979. Thus, appellee is mistaken on two points, 1) that appellants had no option but to obtain an order setting aside their failure to comply with section 607.247(10) before they could file a complaint for determination of value of shares, and 2) that the failure to comply was of a seventeen-month duration.

In this case there is no factual conflict and the evidence was not in dispute. Under these circumstances it was held in Holland v. Gross, 89 So.2d 255, 258 (Fla.1956):

A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion.

See also In Re Estate of Donner, 364 So.2d 742 (Fla. 3d DCA 1978).

It was held in B & B Super Markets, Inc. v. Metz, 260 So.2d 529, 531 (Fla. 2d DCA 1971), cert. den. 267 So.2d 834 (Fla.1972):

Generally, appellate Courts will not disturb findings of the trier of facts, but if such findings are contrary to the manifest weight of the evidence, or are contrary to the legal effect of the evidence, the reviewing Court has not only the authority and power, but it is its duty, to reverse. (Emphasis added)

Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975); Hamilton v. Title Insurance Agency of Tampa, Inc., 338 So.2d 569 (Fla. 2d DCA 1976); Hill v. Parks, 373 So.2d 376 (Fla. 2d DCA 1979).

In this case, the findings are contrary to the legal effect of the evidence. The evidence conclusively shows that the purpose of section 607.247(10) was fully realized.

We find that appellants showed good and sufficient cause why their rights as dissenting shareholders should not be terminated. The underlying purpose of section 607.247(10) was not thwarted by the untimely submission. Further, we believe that the procedure by which a dissenting shareholder enforces his rights should be liberally construed in circumstances where no prejudice is shown to the corporation. We reverse the final summary judgment rendered in favor of Tampa Wholesale Company and remand this case for further proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

RYDER, J., concurs.

OTT, J., dissents with opinion.

OTT, Judge,

dissenting.

I dissent. Section 607.247(10), Florida Statutes, specifically gave appellee the option to consider appellants’ failure to comply with the statute as a complete termination of their rights as dissenting shareholders. That option was subject to only the power (not duty) of the court below to “direct otherwise” for good and sufficient cause shown.

On the facts presented to the court below, it acted well within its discretion in refusing to inject its opinion into the controversy between the parties. The salient feature of the evidence is that when appellants notified appellee on January 18, 1979, that they were dissenting from the proposed sale as to all except six of their shares, they then had twenty days, under the statute, to present their dissenting shares to appellee for notation of their dissident status. Appellants undeniably breached that obligation when February 8 came and went without any such presentation.

On February 14 appellee gave appellants written notice that their failure to comply with the statute had triggered the consequences specified in the statute, namely the termination of their rights as dissenting shareholders. Appellants still did nothing whatsoever to so much as suggest even mild concern or interest. Not until February 23 did they finally bestir themselves and attempt to present their share certificates to appellee for notation. At no time have appellants ever disputed those facts. Their only defense of that breach is the questionable hypothesis that it really wasn’t necessary for them to comply with the statute because their certificates already bore a notation that transfer thereof was restricted under a common closed corporation stockholders’ agreement. There is nothing in the statute justifying noncompliance under such circumstances, even if true, and I can find no other authorization for it. At best, appellants were simply presuming upon appellee’s good nature and forebearance. Under the circumstances, when everyone knew that appellants were relying solely on their technical statutory rights, that was a foolish thing to do. It does not surprise me that the trial court chose to leave appellants where their highhandedness got them.

However, whether I agree with the trial court is irrelevant. Appellants’ defense of their admitted violation of the statute was a matter addressed to the discretion of the trial court. As I understand the term “discretion,” it means that there is no duty to decide an issue either way. To say that a court “abuses its discretion” whenever it fails to reach a conclusion permitted by the evidence is to completely ignore the traditional definition of discretion.

The instant case is a good example of what I am talking about. The issue before the trial court was not whether appellants had defaulted, nor whether the corporation had the right to treat that default as a termination of appellants’ status as dissenting shareholders. The terms of the statute clearly required appellants to present their certificates for notation within twenty days, and specifically gave the corporation the option which was exercised in this case. The sole duty of the trial court was to determine whether the showing made by appellants was sufficient to justify a contrary order, and then decide whether to make such an order. The statute does not say that a court must or even should “direct otherwise” if good cause is shown, nor does it so much as hint that if good cause is shown a dissenting shareholder is entitled to an order countermanding the corporate action. The court is given the power to overrule the corporation if good cause is shown, or conversely, the court has no power to overrule the corporation if good cause is not shown.

It would be quite different if the statute did not specify the consequences of default in presenting the certificates, and a court was called upon to decide whether (1) a default had in fact occurred, and (2) what to do about it. In such case, the court might well say, “Well, yes, they defaulted, but it wasn’t a serious breach, so there should be no penalty or consequences suffered because of it.” It seems to me that the majority opinion overlooks the fact that we are faced here with an entirely different situation. Appellants did not comply with the statute. The consequences expressly directed by the statute then followed, i.e., the corporation elected to treat the default as a termination of appellants’ rights as dissenting shareholders. A court of competent jurisdiction, in the exercise of the discretion vested in it, declined to direct otherwise. Whether or not we agree with that decision, or whether we would have reached the same decision, is of no moment. The only question is whether the trial court acted within the proper exercise of its discretion. I am unable to say that it did not, and thus I would not tamper with its decision.

      . Section 607.247(10), Florida Statutes (1979):
      Within 20 days after demanding payment for his shares, each shareholder demanding payment shall submit the certificate or certificates representing his shares to the corporation for notation thereon that such demand has been made. His failure to do so shall, at the option of the corporation, terminate his rights under this section unless a court of competent jurisdiction, for good and sufficient cause shown, shall otherwise direct. (Emphasis added)

      . For example, New York Business Corporation Law section 623(f) (McKinney 1963) and New Jersey Statute 14A:ll-4(l)(a) provide that a shareholder who fails to submit his shares for annotation within the prescribed time limit shall lose his dissenting shareholder’s rights unless a court, for good cause shown, shall otherwise direct. See In re Davis, 59 Misc.2d 1098, 301 N.Y.S.2d 340 (1969), aff’d, 33 A.D.2d 1100, 308 N.Y.S.2d 107 (1970), 25-day delay did not prejudice corporation where it had no reason to believe stockholder intended to withdraw demand for payment; In re Camden Trust
        Co., 121 N.J.L. 222, 1 A.2d 475 (1938), provision to be liberally construed; Bache & Co. v. General Instrument Corp., 42 N.J. 44, 198 A.2d 759 (1964), statutes to be liberally construed.
      On the other hand, the comparable provisions on rights of dissenting shareholders in Delaware and North Carolina statutes do not contain the above-mentioned phrase which would give the courts discretion regarding the time limitations. Del.Code Ann. tit. 8, § 262, and N.C.Gen.Stat. § 55-113. See Schneyer v. Shenandoah Oil Corp. (Del.Ch.1974), 316 A.2d 570, no discretion to extend deadline as in New York statutes; Jackson v. Stanwood Corp., 38 N.C.App. 479, 248 S.E.2d 576 (1978), lack of strict compliance held fatal to petition for determination of value of shares.

      . The facts do not reveal whether the stockholders communicated with the corporation in the interim or whether the corporation was a closely held one. It is likely that, in view of the six-month delay, these factors would not have saved the stockholder’s case.


author: PER CURIAM. LETTS, Chief Judge,

text:
    Leroy Junior REAVES, Appellant, v. STATE of Florida, Appellee.
    No. 81-1342.
    District Court of Appeal of Florida, Fourth District.
    May 19, 1982.
    Rehearing Denied Sept. 3, 1982.
    Richard L. Jorandby, Public Defender, Anthony Calvello, Asst. ■ Public Defender, and Ronald K. McRae, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with burglary and initially pleaded not guilty. After negotiations with the State, appellant pleaded nolo contendere in exchange for an agreed sentence of probation. The amount of probation time was to be left to the court’s determination after receipt of a presentence investigation report. At the change of plea hearing the court interrogated appellant to determine that the plea was voluntary and that there was a factual basis therefor, etc. The trial judge concluded by advising appellant that “[i]f you mess up, you are gone, do you understand that?”

Appellant failed to show up twice for scheduled sentencing hearings. When he finally became available for sentencing, a probation supervisor who had made the original probation recommendation and prepared the PSI declined to support that recommendation in view of appellant’s failure to appear for the scheduled sentencings. Defense counsel advised the court that, if it was not disposed to honor the plea bargain, appellant wished to withdraw the negotiated plea of nolo contendere. The trial court refused to allow withdrawal of the plea; it adjudicated appellant guilty and sentenced him to five years in prison. From that judgment and sentence he has perfected this appeal.

All of the cases involving the acceptance of a bargained plea hold the trial court should allow a defendant to withdraw the plea in the event the trial judge finds he cannot adhere to the sentencing part of the bargain. See, e.g., Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974); Pringle v. State, 341 So.2d 535 (Fla. 2d DCA 1977). The only exception to that rule should be that a defendant who through his own fault has made it inappropriate for the court to comply with the bargain will not be allowed to withdraw his plea if some prejudice has accrued to the State in the interim.

As we read this record no showing of prejudice to the State has been made. Therefore, before the trial court refused to allow withdrawal of appellant’s plea it should determine that the state has been prejudiced by the delay. If no such prejudice is shown, appellant should be allowed to withdraw his nolo contendere plea and enter such plea as he may be advised.

Accordingly, we reverse the judgment and sentence appealed from and remand the cause with directions to hold an eviden-tiary hearing to determine the question of prejudice. If it is determined that the State has been prejudiced by the delay in appellant’s not appearing for his scheduled sentencing, the court may proceed to resen-tence appellant without regard to the bargain. However, if no prejudice is shown, the court shall allow appellant to withdraw his plea and enter such plea as he may desire.

REVERSED AND REMANDED, with directions.

DOWNEY and BERANEK, JJ., concur.

LETTS, C. J., dissents, with opinion.

LETTS, Chief Judge,

dissenting:

The judge initially agreed to probation without incarceration, but changed his mind and instead gave the defendant five years in jail when he failed to show up for two successively scheduled sentencing hearings.

There can be no doubt that under ordinary circumstances, where a defendant has entered into a negotiated plea agreement and is surprised by a sentence contrary to his expectations, the court should permit a withdrawal of a nolo plea. As the Supreme Court said in Brown v. State, 245 So.2d 41, 44 (Fla.1971):

[A] judge should be liberal in the exercise of his discretion and allow withdrawal of a plea of guilty where it is shown ... that the plea was based on a failure of communication or misunderstanding of the facts.

Further as this Court noted in Enos v. State, 272 So.2d 847, 850 (Fla. 4th DCA 1973) quoting from Barker v. State, 259 So.2d 200 (Fla. 2d DCA 1972):

We hold .. . that if a trial judge concurs in a plea bargain . . . which contemplates sentence or charge concessions ... but he later decides that final disposition should not include such concessions ..., it is his affirmative duty ... to call upon the defendant to either affirm or withdraw his plea .. . under the assumption of course that there was no trickery or fraud perpetrated by the defendant ....

As I apply these two quoted pronouncements to the instant case, I do not think there was any failure of communication or misunderstanding of the facts. To the contrary, there appears to have been outright trickery and fraud perpetrated on the judge after he agreed to the negotiated plea. Here the judge acquiesced to the plea in open court, subject only to a satisfactory pre-sentence investigation, and in front of the defendant set the exact time and place for a sentencing date. He then released the defendant on his own recognizance accompanying that release with the stern warning that “If you mess up, you are gone, do you understand that?”

The judge’s reward for his compassion and kindness was to have the defendant take off and not appear for the sentencing. The Court, showing further compassion, contacted the defendant personally and commanded him a second time to appear for sentencing on an alternative date. However, he chose once again to ignore his appointment and only appeared on a third occasion, months later, after he was apprehended when allegedly committing other crimes. Thus without any mistake, misunderstanding, or reasonable explanation in the record, he twice openly disobeyed the trial judge. This being so I do not think it is proper to compel the judge to let the defendant withdraw his plea at the eventual sentencing hearing, especially where the trial judge apparently does have some discretion in the matter. See Brown, supra. To me it would appear that any defendant should be estopped to take advantage of his own wrongful, criminal act.

      . His sole argument was that he did not receive notice of the sentencing. The record is replete with evidence to the contrary and the trial judge was unimpressed with the excuse. So am I.


author: PER CURIAM.

text:
    A. H. BLAKE, Property Appraiser of Dade County, Florida; and Harry L. Coe, Director of Department of Revenue, Appellants, v. OCEANCOAST CORPORATION; Stephen Muss and the Estate of Alexander Muss, d/b/a Seacoast Towers South; Alexander Muss and Sons, Inc., a New York corporation, Appellees.
    No. 81-131.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied Aug. 25, 1982.
    Robert A. Ginsburg, County Atty., and Vicki J. Jay, Asst. County Atty., for appellants.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellees.
    Before HUBBART, C. J., and DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

We reverse the final judgment which denied relief to the Dade County Property Appraiser, who, pursuant to Section 194.-032(6)(a) 2, Florida Statutes (1977), initiated a de novo proceeding in the Circuit Court to challenge the Property Appraisal Adjustment Board’s reduction of the appraiser’s assessment for the 1978 tax year on Seacoast Towers South, an apartment building owned by the appellee-taxpayers.

There is simply no record support for the trial court’s finding that the Property Appraiser did not consider all of the criteria set forth in Section 193.011, Florida Statutes (1977), although, most certainly, the record reflects that the Property Appraiser assigned far greater weight to certain of the criteria than others, as, of course, he was permitted to do without jeopardizing the legality of his assessment. The Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla.1981); Straughn v. Tuck, 354 So.2d 368 (Fla.1978); Atlantic International Investment Corp. v. Turner, 383 So.2d 919 (Fla. 5th DCA 1980); Lanier v. Walt Disney World Co., 316 So.2d 59 (Fla. 4th DCA 1975); Town of Bay Harbor Island v. Lancelot Associates, 243 So.2d 437 (Fla. 3d DCA 1971); Metropolitan Dade County v. Tropical Park, Inc., 231 So.2d 243 (Fla. 3d DCA 1970). Because the evidence indisputably showed that the Property Appraiser’s assessment was made in substantial compliance with Section 193.011, Florida Statutes (1977), the assessment was entitled to be presumed correct. Since the evidence presented by the taxpayers did not show that there was no reasonable hypothesis to support the Property Appraiser’s assessment, the judgment in their favor must fall. Bystrom v. Equitable Life Assurance Society of the United States, 416 So.2d 1133 (Fla. 3d DCA 1982).

Accordingly, the final judgment is reversed with directions to enter judgment for the plaintiffs and reinstate the Property Appraiser’s preliminary assessment as the correct and legal assessment.

Reversed and remanded with directions.

      . The trial judge did not have the benefit of our decision in Bystrom when the case under review was tried and judgment entered. It appears from the final judgment that he improperly placed the burden on the Property Appraiser to overcome the correctness of the assessment made by the Property Appraisal Adjustment Board. The judgment in pertinent part stated:
      “In Mikos v. Property Appraisal Adjustment Board, 365 So.2d 757 (Fla. 2d DCA 1978), in discussing the burden of proof in this type of proceeding the Court held:
      “ ‘The Property Appraiser is saddled with the burden of proving that the challenged assessment determined by the Property Appraisal Adjustment Board is in violation of applicable laws or rules... ’
      “After hearing testimony, much of it conflicting, this Court finds that the Plaintiffs failed to prove the assessment as set by the Board was in violation of applicable laws or rules. “The Assessor in these proceedings, rather than trying to prove the lowered assessment incorrect, tried to prove his original assessment was correct."
      We made clear in Bystrom that the appraiser has no such burden to overcome the assessment made by the Property Appraisal Adjustment Board. The case relied upon by the trial judge, Mikos v. Property Appraisal Adjustment Board, supra, involved a Property Appraiser’s action under Section 194.032(6)(a) 3, in which the issue is not the correctness of an assessment, but rather whether the Board in its decisions has been guilty of a consistent and continuous violation of the intent of the law or administrative rules. See Higgs v. Property Appraisal Adjustment Board of Monroe County, Florida, 411 So.2d 307 (Fla. 3d DCA 1982).


text:
    BECDEL INDUSTRIES and Mission Insurance Company, Appellants, v. Fredrick AMATURO, Appellee.
    No. AH-8.
    District Court of Appeal of Florida, First District.
    May 26, 1982.
    On Rehearing July 27, 1982.

      James H. Smith of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, Tampa, for appellants.
    Warren L. Harris and Carole A. Taylor of Albritton, Sessums & McCall, Tampa, for appellee.
   PER CURIAM.

Affirmed on the authority of Spring Air Mattress Company v. Cox, 413 So.2d 1265, 1st DCA, 1982.

ON PETITION FOR REHEARING

Appellee’s petition for rehearing requesting a conditional award of attorney’s fee is granted. The cause is remanded to the deputy commissioner to determine whether an attorney’s fee is awardable under Section 440.34(2)(a-c), Florida Statutes (1979). Acevedo v. Ampco Products Company, 407 So.2d 376 (Fla. 1st DCA 1981). Should the deputy rule in claimant’s favor, an attorney’s fee of $2,000 is granted on appeal.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


text:
    Mark L. OLIVERIA, Appellant, v. STATE of Florida, Appellee.
    No. 80-347.
    District Court of Appeal of Florida, Fourth District.
    June 9, 1982.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction and sentence on the charge of first degree burglary. The information charged that in the course of the burglary, defendant committed an assault. Prior to trial, defendant moved to dismiss the information because the elements of the assault were not stated. At trial, defendant moved for a directed judgment of acquittal as to the assault asserting there was insufficient proof of this crime which was alleged as an aggravating element.

In accordance with Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982), we conclude that the trial court erred in failing to dismiss the information. The elements of an assault must be stated when this crime is charged as an aggravating element in a burglary information. As held in Lindsey, supra, such an omission is not fundamental error but here the point was raised prior to trial and even on appeal it is not precisely certain what facts were relied on at trial as constituting the alleged but ill-defined assault. The proof does support the lesser crime of second degree burglary and the case is remanded to the trial court with directions to adjudicate defendant guilty of second degree burglary and to resentence him accordingly.

REVERSED AND REMANDED.

BERANEK, J., OWEN, WILLIAM C., Jr., Associate Judge (Retired), and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    Eugene FIERER and Diane Fierer, Appellants, v. 18TH AVENUE DEVELOPMENT CORP., Leonard Schreiber, Shirley Schreiber, Richard VandeGrift and Meris VandeGrift, Appellees.
    No. 81-451.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied Aug. 25, 1982.
    Samuel Sheres, Hollywood, for appellants.
    Pertnoy & Greenberg and Leonard D. Pertnoy, Miami, for appellees.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Eugene and Diane Fierer, plaintiffs below, appeal an award of attorney’s fees (made pursuant to Section 57.105, Florida Statutes (1979)) to Leonard Schreiber, et al., defendants below, following a voluntary dismissal.

The judgment contained the proper specific findings of a complete lack of justicia-ble issue. Autorico, Inc. v. Government Employees Insurance Company, 398 So.2d 485 (Fla. 3d DCA 1981); City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112 (Fla. 3d DCA 1980). The trial court’s findings are abundantly supported by the record. Kisling v. Woolridge, 397 So.2d 747 (Fla. 5th DCA 1981).

Voluntary dismissal is not a bar to an award of attorney’s fees. MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979); see also Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976).

Appellants’ reliance on Executive Centers of America v. Durability Seating Interiors, Incorporated, 402 So.2d 24 (Fla. 3d DCA 1981) is misplaced. Executive Centers, supra, holds that a dismissal by itself will not support an award under Section 57.105, Florida Statutes (1979), absent the required finding of a complete lack of justiciable issue which is supported by the record. Executive Centers, supra, at 26. Here, the trial court made the requisite finding on the basis of a proper record. Accordingly, the judgment under review is affirmed.

Affirmed.


text:
    Carole Ann MILLER, Appellant, v. Randall George MILLER, Appellee.
    No. AF-470.
    District Court of Appeal of Florida, First District.
    June 16, 1982.
    Robert B. Staats, Panama City, for appellant.
    Martha B. Blackmon, of Jones & Black-mon, Panama City, for appellee.
   ON PETITION FOR REHEARING

PER CURIAM.

Our per curiam decision, without opinion, affirmed the trial court’s order, 417 So.2d 335 (Fla.App.) which granted summary judgment in favor of appellee, and dismissed the partition suit brought by the appellant, the trial court finding that under the final judgment of dissolution between the parties, appellant has no present posses-sory right to the property that is the subject matter of the partition suit, and finding that appellee is entitled to the present exclusive use and possession of the property.

Appellant’s petition for rehearing urges, among other things, a clarification of our decision with respect to its effect, if any, upon the right of appellant to seek a modification of the final judgment of dissolution. The motion for rehearing and clarification is therefore granted, for the limited purpose of stating that our decision has no effect upon the right of appellant to file a petition for modification of the final judgment, since no issue pertaining to appellant’s right to seek such relief has been presented to this court.

MILLS, LARRY G. SMITH and SHAW, JJ., concur.