author: JOANOS, Judge.

text:
    Donald I. HAGA, Appellant, v. CLAY HYDER TRUCKING LINES, Appellee.
    No. WW-448.
    District Court of Appeal of Florida, First District.
    April 28, 1981.

      Harry G. Goodheart, III of Goodheart & Logan, Bradenton, for appellant.
    Robert C. Barrett and Bernard J. Zimmerman of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   JOANOS, Judge.

This workers’ compensation appeal presents a set of extremely unique circumstances combined with a request for highly extraordinary relief. Despite the admonition that “hard cases make bad law,” we find that the record in this case requires a reversal of the deputy commissioner’s order denying the claimant’s request for the installation of a swimming pool. We do not reach this result without considerable concern that an opinion in this case may be misconstrued as an acceptance of the medical necessity of swimming pool installation in cases involving circumstances less extreme than those specifically presented here. Nonetheless, our duty is to judge the case on the particular facts before us and the fear that our decision may riot be applied as we intended should not prevent a correct decision in the case .at hand. Our intent, however, is that the decision in this case apply solely to the unusual facts presented.

On November 12, 1977 the claimant’s tractor-trailer overturned and caught on fire. The claimant was trapped under the wreckage for three hours resulting in third and fourth degree burns to most of the lower half of his body. Dr. Bingham, Chief of Plastic and Reconstructive Surgery and Director of the Burn Unit at the University of Florida Medical Center, treated the claimant’s severe burn injuries which required, among other things, below-the-knee amputation of the right leg, above-the-knee-amputation of the left leg, a colostomy, and extensive skin and muscle grafts. After his release from the Medical Center, the claimant continued under Dr. Bing-ham’s care but was also treated by Dr. Moreau, a rehabilitation and physical medicine specialist who fitted claimant with prostheses (artificial limbs). Due to the delicate nature of the grafted and scarred skin tissue, however, claimant experienced numerous complications with the skin on his leg stumps which made use of prostheses difficult. These problems were compounded by the fact that claimant gained a great deal of weight after the accident despite attempts to control his weight through various diets. Dr. Bingham explained the weight gain was caused by the massive caloric intake (about 5,000 per day) that claimant was required to consume to give him sufficient energy for healing.

To control claimant’s weight and to provide claimant with cardiovascular exercise and exercises to increase strength and range of motion in his lower extremities without damaging the scarred and grafted skin, Mr. Moreau recommended that a swimming pool be installed in claimant’s home. Dr. Bingham concurred with this recommendation and prescribed that claimant swim twice daily. The employer refused to install a pool for claimant, but gave him a life membership to a health spa instead. Although the spa was located 25 miles from claimant’s home and available for use only 3 days a week, claimant did try several times to use the spa’s pool. Unfortunately, the pool lacked facilities for safe ingress and egress by an amputee. Claimant fell twice while trying to enter the pool, once breaking the skin on a leg stump which meant weeks of healing before prostheses could be used again. Claimant’s physicians found the spa alternative to be unacceptable for several reasons: the limited availability of the spa pool and its'lack of facilities for the handicapped, as well as a public pool’s greater risks of contamination and embarrassment to claimant. In addition, the doctors did not feel that it was advisable for claimant to travel the distance to and from the spa pool.

A hearing was held on June 2, 1980 dealing solely with the issue of whether the employer should be required to pay for the installation of a swimming pool as a medical necessity. The claimant’s testimony and depositions of Dr. Bingham and Dr. Moreau were entered into evidence, as were the depositions of Dr. Shea, an orthopedic surgeon with experience in amputation rehabilitation, and Dr. Kurth, Chief of Physical Medicine and Rehabilitation at Florida Hospital in Orlando. The latter two doctors testified on behalf of the employer. Neither doctor ever examined (or even saw) claimant, but they did state that they had reviewed the depositions of claimant, Dr. Bingham and Dr. Moreau. In addition, Dr. Kurth called Dr. Moreau the day before the hearing to discuss the case with him.

Both of claimant’s treating physicians testified that installation of a swimming pool with handicapped facilities was medically necessary. Dr. Moreau felt that swimming was the only non-traumatic way to exercise practically all the muscles of claimant’s body without endangering his skin. According to the doctor, walking on prostheses was not a viable alternative because prolonged walking caused too much friction on claimant’s scarred stumps. Physical therapy would not suffice because it was cost prohibitive (about $35 a day) and would not benefit claimant’s heart and lungs. Dr. Moreau also testified that he felt there was no other exercise that would “build up” claimant’s lower extremities without hurting his skin. This opinion was supported by the claimant’s testimony that he had tried to do sit-ups but the friction on the grafted area of his lower back caused a “pressure sore” which required eight to ten weeks to heal. Dr. Bingham agreed that swimming would be the most beneficial total body exercise, would have good effects on claimant’s skin, and would minimize chances of injury to the easily damaged scar tissue. When asked if use of a whirlpool plus upper body exercises would be sufficient, Dr. Bingham stated that such a routine would not provide adequate exercise for claimant’s lower extremities.

Both Dr. Shea and Dr. Kurth, who testified by deposition for the employer, stated that they felt a pool would be helpful to claimant but not medically necessary. As an alternative to swimming, Dr. Kurth felt that claimant’s rehabilitation and exercise program should include extended walking (contrary to Dr. Moreau’s recommendation), wheelchair exercises, weight-lifting with his stumps, and dieting. Dr. Kurth did not think that his opinion would change if he examined claimant, but he admitted that he would not prescribe exercises without an examination. Dr. Shea’s recommendation was similar. He also suggested diet control and wheelchair exercises as well as pushups, sit-ups, and use of barbells. When questioned concerning his knowledge of claimant’s condition, however, Dr. Shea stated that he did not know the extent of claimant’s burn injuries and was unaware of claimant’s present rehabilitation program. In addition, he “assumed” that claimant could not wear prostheses and opined that “the guy’s never going to walk again” even though the depositions of the treating physicians (which were used as a basis for Dr. Kurth’s and Dr. Shea’s testimony) described claimant as being able to use prostheses. Finally, Dr. Kurth and Dr. Shea admitted that they lacked expertise in Dr. Bingham’s field and would defer to his opinion on claimant’s skin condition and treatment.

In finding that installation of a pool was not medically necessary in this case, the deputy commissioner accepted the deposition testimony of Dr. Kurth and Dr. Shea and rejected the deposition testimony of claimant’s treating physicians. Since the credibility of the medical witness’ in-court testimony is eliminated as a fact finding function by use of depositions, this court is in as good a position to evaluate and weigh the medical testimony as the deputy. Mendivil v. Tampa Envelope Manufacturing Co., 233 So.2d 5 (Fla.1970); Morrison Merchandising Corp. v. Rambeau, 377 So.2d 234 (Fla. 1st DCA 1979); Swift & Co. v. Kesler, IRC Order 2-3102 (1977); cert. denied 354 So.2d 982 (Fla.1977).

Although a physician’s failure to examine the claimant and a physician’s lack of expertise in an area in which he testifies does not prevent admission of the testimony, those factors do go to the weight of the evidence. See Lombardo v. BBC Agency, Inc., IRC Order 2-3049 (1976). In this case, Dr. Kurth and Dr. Shea testified without the benefit of examining the claimant and without expertise in the field of burn treatment and reconstructive surgery. If this case had involved a more routine injury, we might agree with the deputy that an examination of the claimant would not have added much to the reliability of the testimony. The claimant’s injuries were, however, far from routine. The amputation of both legs is, by its nature, an injury which requires a rehabilitation program suited to the temperament, motivation, and physical condition of the injured person. That injury was made even more unique in this case by the third and fourth degree burns which resulted in skin grafts and scar tissue covering most of claimant’s body from the waist down.

The rehabilitation program prescribed by Dr. Bingham and Dr. Moreau was designed to give the claimant cardiovascular exercise, muscle tone for the lower extremities, skin conditioning treatment, and assistance in weight loss—all without endangering the sensitive grafted and scarred tissue. Neither of the programs suggested by Dr. Kurth or Dr. Shea provided the complete range of benefits which resulted from the swimming program, but more importantly, their recommendations did not focus on the condition and treatment of claimant’s skin. Experts in rehabilitative therapy, Doctors Kurth and Shea were primarily concerned with exercises compatible with a double amputee. It was the claimant’s delicate skin condition, however, which prompted claimant’s treating physician’s to reject the type of exercise alternatives suggested by Dr. Kurth and Dr. Shea. As the witness most directly familiar with claimant’s skin condition and the only witness qualified in that area, Dr. Bingham’s testimony concerning treatment of the grafted and scarred areas logically should carry more weight.

Dr. Kurth’s admitted reluctance to prescribe an exercise program without examining the claimant brings out another factor relative to the weight of the treating doctors’ testimony in this case. Dr. Bingham and Mr. Moreau, as the claimant’s treating physicians, were responsible for the success or failure of their prescribed medical treatment. The burden of that responsibility was apparently recognized by Dr. Kurth who would require at least an examination of the claimant before he actually attempted to prescribe treatment. It seems obvious that due to this added responsibility, a doctor would take more care to prescribe treatment than he would to recommend it in the abstract.

The ultimate responsibility of the treating physician to his patient also leads to another problem regarding the conflicts between the treating and non-treating doctors. By resolving the conflict in favor of the non-treating physicians, the deputy has, in effect, sanctioned an exercise program which the treating doctors deemed inadvisable in one or more aspects. Without sufficient evidence that claimant was actually capable of engaging in those exercises, the claimant has been given the empty remedy of an “alternative” exercise program which his own doctors do not want him to use.

In conclusion, we feel that the deputy did not properly consider the inconsistencies in the depositional testimony of the non-treating, non-examining physicians and did not give enough emphasis to the treating physicians’ familiarity with claimant’s extensive and unusual injuries. The myriad of problems with which the claimant must cope lead to the conclusion that the rehabilitation program prescribed by Doctors Bing-ham and Moreau is medically necessary. We reverse the order appealed and remand for the entry of an order requiring payment by the employer of reasonable costs for installation and maintenance of a in-ground pool with handicap facilities or requiring the employer to provide claimant with daily access to such a pool within a reasonable distance from claimant’s home along with reimbursement for transportation expenses.

BOOTH, J., concurs.

PEARSON, TILLMAN (Retired), Associate Judge, dissents without opinion.

      . Dr. Shea did not suggest an alternative for lower extremity exercise, and Dr. Kurth’s recommendations did not offer cardiovascular solutions. Neither suggested skin conditioning treatment, which they recognized more properly in Dr. Bingham’s field of expertise.

      . With regard to Dr. Kurth’s suggestion that claimant walk on his protheses regularly and do weightlifting exercises with his stumps, both of these activities would entail friction to a grafted or scarred area which the treating doctors thought to be inadvisable. Dr. Shea’s exercise alternatives also included such friction-producing exercises. In addition, Dr. Shea’s recommendations should generally be regarded as suspect considering his apparent lack of knowledge of claimant’s skin condition and of the progress claimant had made in his current rehabilitation program.

      . See, e. g. Swift & Company v. Kesler, IRC Order 2-3102 (1977), cert. denied 354 So.2d 982 (Fla.1977); Wackenhut Corp. v. Ellis, IRC Order 2-3402 (1978), cert. denied 376 So.2d 71 (Fla.1979).


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    Tommy C. SIMPKINS, Appellant, v. Tally WATSON and Florida Farm Bureau, Appellee.
    No. XX-206.
    District Court of Appeal of Florida, First District.
    April 28, 1981.

      Thomas W. Davis of Barton & Cox, Gainesville, for appellant.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellee.
   ERVIN, Judge.

Simpkins, the claimant below, contends that the deputy commissioner incorrectly computed his average weekly wage, averaging his weekly wages earned from his employer from a period spanning the 25th week through the 12th week prior to his industrial injury. Simpkins further contends that this error resulted in an inaccurate compensation rate. We agree and reverse with instructions.

The claimant regularly worked for his uncle during the active portion of the year — January through October — and obtained higher paying outside employment during the farm’s “slow time.” The claimant followed this work pattern in 1979 by working until October 28 for his uncle. He then accepted a higher paying construction job at which he worked for about three months. The claimant then returned to work for his uncle to plow his fields. He had only been back on the job for about 15 minutes when on January 19, 1980, he suffered a compensable accident.

The uncle submitted a notice of injury form which stated that the claimant was to work on a 60-hour week at $2.50 per hour, and to receive $20.00 per week in meals and $35.00 in lodging from his uncle. The record is somewhat unclear as to whether the 60-hour work-week was an average figure. The uncle testified at the hearing below that because of rain delays, machine failures, etc., that the claimant, if he had not been injured, would have actually worked a lesser number of hours per week. However, in one portion of the record the uncle noted that the claimant had sometimes worked more than 10 hours a day in the past.

The uncle, the claimant, and a part-time employee were the only laborers on the farm.

The claimant took the position at the hearing that based on the information in the notice of injury form that his average weekly wage was $205.00. The deputy commissioner, however, arrived at an average weekly wage of $139.65, and a corresponding compensation rate of $66.77, by averaging the claimant’s weekly wage statements from July 30, 1979 to October 28, 1979, which was the basis from which the employer/carrier had been paying temporary total benefits since the inception of the claim.

The deputy commissioner’s method of computing the claimant’s average weekly wage is not sanctioned by Section 440.14, Florida Statutes (1979), because the period of time used to arrive at the average weekly wage figure, 13 weeks, began on the 25th week before the claimant’s injury and ended on the 12th week before the injury. The correct averaging period is “substantially the whole of 13 weeks immediately preceding the injury.” Fla.Stat. 440.14(l)(a) (e. s.). Subparagraph (a) of that section defines “substantially the whole of 13 weeks” as meaning “not less than 90% of the customary full-time hours of employment” within the 13-week period. Therefore, because the claimant only worked one week during the statutorily provided 13-week period, Section 440.14(l)(a) is inapplicable. Additionally, Section 440.14(l)(b)— permitting the average weekly wage to be determined (if the employee did not work for 13 weeks before the injury) by comparing the wages of a similar employee who has worked the requisite period of time — is inapplicable because the record established that a “similar employee” did not exist. Nor did the claimant opt to be characterized as a “seasonal employee” pursuant to 440.-14(l)(c), authorizing another means of calculating the average wage for such employee. Therefore, the deputy commissioner was required to determine the claimant’s average weekly wage on the basis of wages, whether “full-time” under subsection (d), or “part-time” under subsection (f). See Desfosses v. Carrillon Hotel, supra, note 1 and Penuel v. Central Crane Service, 232 So.2d 739 (Fla.1970).

In its interpretation of subsection (d), Penuel observed that an employee’s “full-time wage” may be determined “by the ‘contract of employment’ ” or by “ ‘actual earnings,’ according to circumstances of each case.” 232 So.2d at 742. There, the claimant’s average weekly wage was ascertained by referring to his anticipated earnings from his contemplated contract of employment, which yielded a higher average than the composite of the claimant’s actual earnings the week prior to his injury, citing Rainey v. Lafayette Grill, Inc., 2 FCR 208 (1956), with approval. In Rainey, the IRC, after noting that the claimant “had not earned a dime” on the job before his accident, used the claimant’s contemplated full-time weekly wage.

In summary, it appears that the average weekly wage must be computed on a prospective basis when the legislatively prescribed retrospective methods, the “13-week” and “similar employee” methods, provided in Sections 440.14(l)(a) and (b) respectively, are not applicable. Averaging past earnings not coinciding with the consecutive 13-week period established in Section 440.14(l)(a) has been forbidden by the IRC. See Imperial Frame Corp. v. Santos, IRC Order 2-3043 (1976).

Since the claimant was injured almost immediately after he resumed working for his uncle, there were no actual earnings in evidence before the deputy commissioner. Thus, his prospective earnings represented the only applicable test to measure his average weekly wage.

The order of the deputy commissioner is reversed and the cause is remanded with directions that claimant’s average weekly wage be recomputed in accordance with the procedure prescribed by Section 440.-14(l)(d).

McCORD and ROBERT P. SMITH, Jr., JJ., concur.

      . Subsection (c) on its face appears to give the employee alone the option of being treated as a seasonal employee. This interpretation appears consistent with that given 440.14(l)(c) by Desfosses v. Carrillon, 389 So.2d 228 (Fla. 1st DCA 1980), and Kerce v. Coca-Cola Company—Foods Division, 389 So.2d 1177 (Fla.1980).


author: PER CURIAM.

text:
    KELLER KITCHEN CABINETS and U. S. Fire Insurance Company, Appellants, v. John V. HOLDER, Appellee.
    No. XX-475.
    District Court of Appeal of Florida, First District.
    April 28, 1981.
    Robert C. Barrett, David P. Hopstetter and Wendell J. Kiser of Akerman, Senter-fitt & Eidson, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

We direct that the fourth sentence in finding number two be stricken from the deputy commissioner’s compensation order which reads:

It is further my finding that in the event the claimant shall require a total knee replacement at some date in the future, the same would be solely for relief of the symptoms caused by the aggravation of his pre-existing condition, which symptoms are the direct result of the subject accident.

The order is otherwise affirmed.

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


text:
    Valentin HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-529.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., James H. Greason and Calvin L. Fox, Asst. Attys. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Hernandez appeals from an adjudication and sentence for: (1) murder in the first degree for which he was sentenced to a term of life imprisonment with the requirement that the defendant serve a minimum of twenty-five years in prison without eligibility for parole; and (2) conspiracy to commit a felony for which he was adjudicated and sentenced to fifteen years imprisonment to run concurrently with the murder conviction. We affirm.

The defendant presents five points on appeal, three of which are deserving of consideration. Those three are as follows:

(1) that the grand jury which returned the indictment against the defendant was constitutionally defective because it was underrepresented by an identifiable group to which the defendant belonged;
(2) that the trial court violated the similar fact evidence rule as articulated in Williams v. State; and
(3) that the defendant was entitled to discharge because of the state’s failure to accord him his right to a speedy trial pursuant to Florida Rule ' of Criminal Procedure 3.191.

As to the first point, the defendant claims he demonstrated prima facie discrimination in the makeup of the grand jury which returned the indictment against him because there was an underrepresentation of “Latin Americans,” a group with which the defendant identified. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) sets forth the test to establish discrimination in the makeup of the grand jury. It was succinctly stated in United States v. Lopez, 588 F.2d 450 (5th Cir.), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 319 (1979) that:

In order to establish a prima facie case of discrimination in the selection of jurors, a defendant must show (1) that the group allegedly discriminated against “is one that is a recognizable, distinct class singled out for different treatment under the laws, as written or as applied,” (2) that the group is underrepresented on jury panels over a significant period of time, and (3) that the selection procedure is not racially neutral or is susceptible to being used as a tool of discrimination.

588 F.2d at 451.

A prima facie case of discrimination in the selection of jurors cannot be established by estimates or rest merely upon statistics. United States v. Lopez, supra. We need not decide whether “Latin Americans” are a recognizable group under Castaneda v. Partida, supra, because the defendant: (a) has not made a showing that there has been a “singling out” under the first requirement; and (b) has completely failed to establish the latter two criteria. See also, Porter v. State, 160 So.2d 104 (Fla.), cert. denied, 379 U.S. 849, 85 S.Ct. 90, 13 L.Ed.2d 52 (1964). Moreover, defendant’s reliance on estimates to “establish” the scientific underpinning necessary to support a showing, made the analysis of the grand jury list nothing more than sheer speculation. Having failed to carry his burden to establish a prima facie case of discrimination, United States v. Turcotte, 558 F.2d 893 (8th Cir. 1977), the defendant’s first point on appeal must fail.

Turning to defendant’s second point, there are several arguable violations of the so-called Williams rule. However, there is only one such violation which was preserved for appellate review. It appears that the defendant was at large for some two years after the indictment had been returned against him. In the ensuing time, the defendant had been arrested by United States customs agents in Puerto Rico, for using a false name and making false statements, and had subsequently attempted to escape. Evidence of his attempted escape was presented at the trial and is the only alleged violation of the Williams rule which is preserved for review.

In Williams v. State, supra, Justice Thor-nal carefully stated that the “similar fact evidence rule,” definitively analyzed therein, was a positive test of admissibility based on relevance rather than a negative approach of non-admissibility, stating:

[E]vidence which has a reasonable tendency to establish the crime laid in the indictment is not inadmissible merely because it points to another crime. The question to be decided is not whether the evidence tends to point to another crime but rather whether it is relevant to the crime charged.
[E]vidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion.

110 So.2d at 663. In that regard, we find that the evidence of the defendant’s flight had some relevant bearing upon his guilt in the crime charged. In United States v. Ballard, 423 F.2d 127 (5th Cir. 1970) evidence of escape was also permitted to be introduced to show a consciousness of guilt on the part of the defendants. There, the court stated that there was:

no reason for departing from the universally accepted rule that evidence of flight is admissible to prove a consciousness of guilt. As stated in Wigmore, Evidence, § 276 (3d ed. 1940), “it is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.”

428 F.2d at 133. Florida has long recognized that:

when a suspected person in any manner endeavors to escape, or evade a threatened prosecution by flight, concealment, resistance to a lawful arrest or other ex post facto indications of a desire to evade prosecution, such fact may be shown in evidence as one of a series of circumstances from which guilt may be inferred.

Carr v. State, 45 Fla. 11, 34 So. 892, 893 (1903); accord, Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920).

Defendant’s reliance on Hooper v. State, 115 So.2d 769 (Fla.3d DCA 1959) and on Clark v. State, 378 So.2d 1315 (Fla.3d DCA 1980) is misplaced. In Hooper, “evidence concerning fifteen other crimes of arson committed over a five year period was not shown to be relevant to the crime charged.” In Clark, evidence of sixteen occasions on which defendant eluded the police was determined to be introduced solely for the purpose of showing the defendant was engaged in criminal conduct. Clark’s conviction was nonetheless affirmed under the harmless error doctrine. Again, we reiterate the test of the Williams rule is relevant. Consequently, the fact that evidence might tend to suggest the commission of other crimes or the propensity to commit other crimes does not alone require the exclusion of evidence if that evidence is relevant to support the conviction of the defendant for the crime charged. Therefore, introduction of the evidence concerning the defendant’s attempted escape from United States customs agents was proper and not in violation of the Williams rule.

Finally, concerning the defendant’s third point on appeal, the trial court was entirely correct in denying the defendant’s motion for discharge under the speedy trial rule because at the time the motion was presented the defendant was then still actively engaged in discovery. Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).

For the foregoing reasons, the defendant’s adjudication and sentence are affirmed.

      . 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).


text:
    Norvell WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-749.
    District Court of Appeal of Florida, Third District.
    April 28, 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, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Gagnon v. State, 212 So.2d 337 (Fla. 3d DCA 1968); State v. Ruggles, 245 So.2d 692 (Fla. 3d DCA 1971); Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975); Chuze v. State, 330 So.2d 166 (Fla. 4th DCA 1976); Gordon v. State, 368 So.2d 59 (Fla. 3d DCA 1979); State v. Dearden, 347 So.2d 462 (Fla. 2d DCA 1977).


text:
    Sheldon WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1136.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Bennett H. Brummer, Public Defender and Charlene Carres, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The defendant Sheldon Williams appeals a judgment of conviction and concurrent prison sentences followed by probation, entered upon a jury verdict after trial, for the crimes of: (1) attempted robbery with a firearm [§§ 812.13(1), (2)(a), 777.04(1), (4)(b), Fla.Stat. (1979)]; and (2) unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm [§ 790.07(2), Fla.Stat. (1979)] in the Circuit Court for the Eleventh Judicial Circuit of Florida.

In our view, the crimes for which the defendant stands convicted and sentenced are precisely identical in essential elements; each count, in effect, states the same crime. Although the convictions for both crimes must be affirmed because the defendant failed to attack the information below through a motion to dismiss and/or elect, see e. g., Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980), and cases collected, the sentence imposed upon the firearm conviction — the less serious of the two crimes herein — must fall on double jeopardy grounds as a fundamental error which may be raised for the first time on appeal. See e. g., Davis v. State, 392 So.2d 947 (Fla.3d DCA 1981), and cases collected. We find no merit, however, in the defendant’s remaining point on appeal. See Spencer v. State, 133 So.2d 729, 731 (Fla.1961), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962).

The judgment of conviction and sentence for the crime of attempted robbery with a firearm is affirmed. The judgment of conviction for the crime of unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm, is affirmed; the sentence imposed for the crime of unlawful possession of a firearm during the commission of a felony, to wit: attempted robbery with a firearm, is reversed.

Affirmed in part; reversed in part.


text:
    George BURKE, Appellant, v. CHARLES B. ESHER, INC., Appellee.
    No. 79-1560.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Arthur Newman, Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the summary judgment below upon a holding that where a subcontractor of one of two joint venturer general contractors has secured a workers’ compensation insurance policy under which the subcontractor’s employee has been compensated for work related injuries, the employee cannot maintain an independent action to recover for these injuries against either of the joint venturer general contractors. § 440.11, Fla.Stat. (1975). Cf. Wilson v. Sirkin Building Corporation, 336 So.2d 462 (Fla. 3d DCA 1976) (injured employee of joint venture covered under workers’ compensation insurance policy secured by one joint venturer cannot maintain independent tort action to recover for such injuries against the other joint venturer).

Affirmed.


author: BARKDULL, Judge.

text:
    D. L. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1886.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.

      Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   BARKDULL, Judge.

This appeal challenges the propriety of the trial court’s order denying the appellant’s motion for discharge for failure to grant the appellant a speedy trial.

On May 2, 1979, D.L.M. (a 9-year old child) was seen emerging from a house that was burglarized. The police were called and they caught D.L.M. and took him back •to the house, where he was identified by a witness. He was then returned to his parents. On May 31, D.L.M. was formally arrested. The complaint was filed June 8, and the petition was filed July 11. On July 26, the case was set for sounding, but the child did not appear because his parents had not been served. At that time, the trial judge tolled the speedy trial rule until August 6. On August 6, trial was set for August 21. On August 21, the appellant’s counsel moved for discharge for failure to grant a speedy trial under Juvenile Rule 8.180(a)(2), alleging he was taken into custody on May 2, when he was initially stopped by the police. The motion was denied and trial was held on August 28, 1979.

The sole question to be determined is whether the act of the police officers on May 2, 1979 constituted taking the appellant into custody. The phrase “taken into custody”, found in Florida Rule of Juvenile Procedure 8.180, pertaining to speedy trial, does not appear to have been determined. The committee note to this rule tracing the history, states that Rule 8.120, Fla.Trans. Rule 11 merely adopted the adult rule with a more restrictive time limitation. The 1977 amendment maintained the 90-day limitation of Section 8.120, Fla.Trans. Rule 11, but eliminated reference to the criminal rules. Thus, the present rule evolved from the criminal speedy trial Rule 3.191, and looking to interpretations under that rule guides us in determining the meaning of the words “taken into custody” in the instant case. In so doing, we find that the actions of the police officers on May 2,1979 would not constitute “taking into custody”, within the meaning of the rule, and that the appellant was not “taken into custody” until May 31, 1979. See: State v. Booth, 349 So.2d 806 (Fla.2d DCA 1977); Williams v. State, 382 So.2d 847 (Fla.3d DCA 1980). Thus, the trial court was correct in denying the motion for discharge and should be affirmed.

Affirmed.


author: FERGUSON, Judge.

text:
    Arturo BARRIOS and Orlando Rios, Appellants, v. The STATE of Florida, Appellee.
    No. 80-178.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.

      Brian R. McComb, Miami, for appellants.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The defendant pled nolo contendere below reserving the right to appeal the denial of his motion to suppress the contraband which formed the basis of the charge against him. The single issue raised by appellants is whether the evidence supports the trial court’s finding that there was a “plain view” of contraband by a police officer justifying a warrantless entry into the premises. We affirm.

In the early morning hours of August 22, 1979, Officer Raudenbusch was called as a backup unit to Officer Bruckner who had stopped an automobile for a traffic offense, searched the car and arrested the driver on drugs and weapons charges. The driver told the officers he was there to visit “Arturo” at 1201 S.W. 43rd Avenue. Officer Raudenbusch went to the front door and knocked. Arturo Barrios opened the door. While at the door, the officer smelled burning marijuana and saw a manila envelope, a pipe and marijuana. He then stepped into the living room of the house. Barrios told the officer that he was alone in the house. While talking to Barrios, the officer heard a toilet flush and “since toilets don’t flush themselves,” the officer went to investigate. He saw Orlando Rios flushing what appeared to be cocaine down the toilet and placing empty plastic bags in the paper basket. Rios was placed under arrest. On the way out of the bathroom the officer observed a bag of white pills “in plain view.” Defendants were charged with possession of marijuana under 20 grams, possession of cocaine, and possession of metha-qualone. On November 27, 1979, the trial court denied their motions to suppress the evidence.

There was an issue of fact as to whether the marijuana was seen before or after Officer Raudenbusch entered defendant’s house. On the arrest form the officer wrote that he smelled burning marijuana while standing at the front door then stepped into the living room where he observed loose marijuana. At the hearing on the motion to suppress the officer testified that he could see the marijuana from outside the house — that he was fifteen to twenty feet away and could see an envelope, pipe, and marijuana on a coffee table.

At the conclusion of the hearing on the motion to suppress the court made its ruling finding that the officer “saw the pipe and the envelope and the marijuana” from outside* the house where he had a right to be, and that the seizure of the items was not in violation of the defendants’ constitutional rights.

The trial court’s findings of fact come to us clothed with a presumption of correctness and a ruling on a motion to suppress evidence will not be disturbed where there is competent support in the record. As a reviewing court, we must interpret the evidence and the reasonable inferences derived therefrom in a manner most favorable to the trial court. Smith v. State, 378 So.2d 281 (Fla.1979); McNamara v. State, 357 So.2d 410 (Fla.1978); Machado v. State, 363 So.2d 1132 (Fla.3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979); Segal v. State, 353 So.2d 938 (Fla.3d DCA 1978); Lovely v. State, 351 So.2d 1114 (Fla. 4th DCA 1977); Churney v. State, 348 So.2d 395 (Fla.3d DCA 1977); Jester v. State, 339 So.2d 242 (Fla.3d DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977); Wigfall v. State, 323 So.2d 587 (Fla.3d DCA 1975); Rodriquez v. State, 189 So.2d 656 (Fla.3d DCA 1966), cert. denied, sub nona., Suarez v. Florida, 389 U.S. 848, 88 S.Ct. 66, 19 L.Ed.2d 116 (1967).

To those facts as found by the court, the law was properly applied. In Pomerantz v. State, 372 So.2d 104, 110 (Fla.3d DCA 1979) this court stated:

In a long line of cases, the Florida and federal courts have held that it is not a search for the police to discover evidence in plain sight. The warrantless seizure of such evidence is constitutionally permissible providing three requirements are met: (1) the police must observe the evidence in plain sight without the benefit of a search [i. e., without invading one’s reasonable expectation of privacy], (2) the police must have a legal right to be where they are when they make the plain sight observation, and (3) the police must have probable cause to believe that the evidence seen constitutes contraband or fruits, instrumentalities or evidence of crime... . Such plain sight seizures have been treated either as an exception to the search warrant, requirement rule, Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037-42, 29 L.Ed.2d 564 (1971), or as being entirely beyond the scope of Fourth Amendment protection. Hornblower v. State, 351 So.2d 716, 718 (Fla.1977).

See also Winchell v. State, 362 So. 992 (Fla.3d DCA 1978), cert. denied, 370 So.2d 462 (Fla.1979). The judgment under review is

Affirmed.


text:
    Salem DANDASHI and Mansham Dandashi, his wife, Appellants, v. Jay B. FINE, M. D., and Mark Gordon, M. D., Appellees.
    No. 80-340.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.

      Brumer, Cohen, Logan, Kandell & Redlus, Daniels & Hicks and Sam Daniels, Miami, for appellants.
    Lanza, Sevier & Womack, Coral Gables, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant Salem Dandashi, a fifty-seven year old carpenter suffered skull fractures on February 4,1977 when struck in the face with a hammer wielded by a co-employee. On February 9,1977, appellee, Dr. Jay Fine, assisted by appellee, Dr. Mark Gordon, performed surgery on Dandashi to repair a fracture of the orbital floor of his left eye. Shortly after he awoke from surgery on the night of February 9, 1977, Dandashi discovered that he had no vision in the left eye. He brought this malpractice action against the doctors. After hearing all the evidence, the trial court directed a verdict for Dr. Gordon on all issues and directed a verdict for Dr. Fine on the claim under the Florida Medical Consent law. A jury found Dr. Fine not negligent on the remaining issue.

Dandashi raises four issues by this appeal, (1) exclusion of the testimony of Dr. Tenzel, an expert witness, was reversible error, (2) the exclusion of the deposition testimony of Dr. Ballantyne, an expert witness, was reversible error, (3) directing of a verdict on the issue of informed consent to the surgery was reversible error, (4) directing of a verdict for Dr. Gordon was reversible error.

Dr. Tenzel was listed as an expert witness for the appellants. He called the appellee, Dr. Fine, went to lunch with him, and discussed the case. There is no dispute that this was done without the knowledge of appellants’ counsel. The trial court ruled that Dr. Tenzel would not be permitted to testify. When appellants’ counsel moved to make a proffer of the excluded testimony the court ruled the “motion to proffer is denied.” Appellees have directed us to other discussions in the record where the court allows appellants to place “anything else” or “something else” into the trial record, however, there is no showing that the court intended to reverse its emphatic prior ruling denying the motion to proffer. The exclusion of Dr. Tenzel’s testimony is not justified by anything of record and we are unaware of any authority in this state for exclusion of the testimony of an expert witness because that witness, without the knowledge of counsel, has discussed the case with the opposing party, who is also an expert.

The-same issue was presented to the New Jersey appellate court in Reilley v. Keswani, 137 N.J.Super. 533, 350 A.2d 74 (1975). The court there held:

Fundamental to, if not the sole purpose of, the administration of our system of justice is the search for truth.. .
True, DR 7-104(A)(l) proscribes an attorney for one party from communicating or causing another to communicate concerning the matters in controversy with another party he knows to be represented by counsel, without the prior consent of counsel for the other party.. .
Absent a violation of DR 7-104(A)(l), it was improper to bar Dr. Diamond as a witness and to preclude him from any further participation in the case . .. and to suppress his report. . .
Dr. Diamond is entitled to participate in this cause to the fullest extent ... on all aspects of the case within his knowledge and expertise, including all matters founded directly or indirectly upon his discussion with Dr. Keswani.

The attempt by appellees to distinguish Reilley, supra, fails to persuade. Emphasis in that case was on the quest for truth and whether the plaintiffs or their counsel had engaged in any impropriety. The admissibility of the testimony didn’t turn on the relationship of the doctor to the plaintiff. We think Reilley, supra, was correctly decided.

That the record was supplemented with a discovery deposition of Dr. Tenzel does not cure the error of exclusion. It was a discovery deposition taken by defense counsel with no cross-examination by plaintiff. From such a deposition we cannot conclude what evidence Dandashi would have presented through the witness. What is quite apparent, however, is that Dr. Ten-zel’s testimony was important to appellants’ case.

The entire deposition testimony of Dr. Ballantyne was excluded by the trial court on the grounds, as asserted by defendants, that the hypothetical questions presented consisted of “res ipsa opinion,” “without a proper predicate,” and called for “speculative” answers. We have examined the record and conclude that most of the objections raised were vague and without merit.

Dr. Ballantyne is a plastic surgeon who has performed approximately thirty-six procedures to repair orbital floor fractures and has been responsible for well over six hundred such operations at Roosevelt Hospital in New York City. The following colloquy appears early in the deposition:

Q. Doctor, I have requested that you review certain records, depositions, x-rays, including hospital records, x-rays and depositions of Dr. Fine and Dr. Gordon in relation to their care and treatment of one Salem Dandashi.
Have you done so?
A. Yes.
Q. Doctor, let me give you a hypothetical situation and then I will ask you some questions concerning that hypothetical.
Assume that Salem Dandashi is 57 years old and he suffered facial injuries of the left malar and orb. Prior to a surgical repair he had 20/20 vision in the left eye, he had full motility, no double vision, no enopthalmos, no muscle entrapment. But after surgery, following surgery that involved an open internal fixation of the left malar orbital floor fracture and silastic implant in the orbital floor, and further assume that upon recovery, Salem Dandashi had lost all vision in his left eye, but the eyeball itself retained normal internal pressure.
Based on this hypothetical, do you have an opinion based on reasonable medical probability as to why Salem Dandashi lost vision in his left eye?
MR. LARKIN [attorney for defendant Mark Gordon]: Let me object to the form of the question in that it leaves out essential facts and appears to be simply asking the witness to give a medical opinion in the form of a res ipsa.
Q. You may answer.
MR. WOMACK [attorney for defendant Jay B. Fine]: Same objection on behalf of Dr. Fine.
A. Following that script, the reason that you lost sight in your eye is due to physical interruption of the optical nerve and/or compromise of the blood supply to the optic nerve or to the globe itself.
MR. WOMACK: On behalf of Dr. Fine, let me also object to this doctor giving opinions which I think fall within the scope of an ophthalmologist as opposed to a plastic surgeon.
MR. LARKIN: I join in that objection and move to strike the answer on the same ground.
BY DR. REDLUS [attorney for plaintiffs]:
Q. Doctor, do you have an opinion based on the reasonable medical probability of what was the cause of the physical interruption of the optic nerve?
MR. LARKIN: Same objection. Just calls for a speculation, no facts set forth upon which this witness could give an opinion with any certainty.
MR. WOMACK: Same objection.

The appellees might have conducted a voir dire examination of the expert as to the facts or data he would rely upon for his opinion before the opinion was rendered. Alternatively, they might have cross-examined the witness to require him to specify the facts upon which he relied in support of his opinion. Neither was done here so as to aid the trial court in determining the admissibility of the testimony. However, we need not belabor this point. The record here shows that the hypothetical question which would have formed the basis of appellants’ expert witness’s opinion comported with the evidence and tracked the criteria for the basis of such an opinion. Santos Wrestling Enterprises, Inc. v. Perez, 367 So.2d 685 (Fla.3d DCA 1979), cert. dismissed, 372 So.2d 470 (Fla.1979). All of the cases cited by appellees are distinguishable. The trial court erred in excluding all the testimony of Dr. Ballantyne. Because the testimony of the expert was critical, the error was prejudicial.

Plaintiff testified, mostly through an interpreter, that he repeatedly told his doctors he didn’t need an operation because his vision was good. His testimony that he had tom up the first consent form given to him is undisputed. He also claims he didn’t understand the second document executed by him to be another consent form. Section 768.46(4)(a), Florida Statutes (1979) creates a conclusive presumption that a signed consent is valid but that the presumption is conditioned on the consent meeting the requirements of subsection (3). That subsection provides:

(3) No recovery shall be allowed in any court in this state against any physician licensed under chapter 458, osteopath licensed under chapter 459, chiropractor licensed under chapter 460, podiatrist licensed under chapter 466 in an action brought for treating a patient without his informed consent when:
(a) 1. The action of the physician, osteopath, chiropractor, podiatrist, or dentist in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and
2. A reasonable individual, from the information provided by the physician, osteopath, chiropractor, podiatrist, or dentist, under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risk and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians, osteopaths, chiropractors, podiatrists, or dentists in the same or similar community who perform similar treatments or procedures; or
(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he been advised by the physician, osteopath, chiropractor, podiatrist, or dentist in accordance with the provisions of paragraph (a), (emphasis supplied).

In determining whether the presumption should apply the trier of fact is obligated to consider all the circumstances including the medical procedure proposed, the risks inherent in the procedure, and in that light, the adequacy and reliability of the means chosen to communicate the information to appellant, considering also the known language difficulty.

As to defendant Fine it was error to direct a verdict. A review of the entire record shows sufficient evidence to survive a motion for directed verdict on the issue of informed consent. The testimony of Dan-dashi, his family members, along with that of Dr. Tenzel and Dr. Ballantyne by deposition, presented sufficient evidence, though conflicting or susceptible of different inferences, tending to prove plaintiff’s case. It is only in the absence of any evidence that a court should direct a verdict for a defendant. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact, and not taken from them to be passed upon by the judge as question of law. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 347 (Fla.1979); Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977).

The directed verdict for defendant Gordon is also improper where the record shows conflicting evidence tending to prove negligence on the part of Dr. Gordon. The fact that Dr. Gordon was under the direction and control of Dr. Fine does not preclude a finding of negligence on the part of Dr. Gordon.

Reversed and remanded for a new trial.

      . Dr. Tenzel’s critical testimony is that he saw the justification for surgery in the doctor’s charts — diplopia or sinking in the eye, or double vision — and disagreed. As indications for surgery, Dr. Tenzel believed these factors were almost non-existent.

      . The hospital records include a summary of the operation technique.

      . See, e. g., Cirack v. State, 201 So.2d 706 (Fla.1967); Blocker v. State, 92 Fla. 878, 110 So. 547 (1926). We note that the Evidence Code, Sections 90.703, 90.704, 90.705, Florida Statutes (1979), changes Florida law in recognition of the difficulties presented by hypothetical questions. Section 90.705 now permits the expert to render his opinion without prior disclosure of the underlying facts or data. The Sponsors’ Note following § 90.705, (6C Fla. Stat.Ann. 229 1979), cites from 2 Wigmore, Evidence, § 686 (3d ed. 1940):
      The hypothetical question, misused by the clumsy, and abused by the clever, has in practice led to intolerable obstruction of truth. In the first place, it has artificially clamped the mouth of the expert witness, so that his answer to a complex question may not express his actual opinion of the actual case....

      . Kautzmann v. Fink, 156 Fla. 628, 24 So.2d 112 (1945) (speed of vehicle not determinable absent facts as to weight or quantity of load); Steiger v. Mass. Cas. Ins. Co., 273 So.2d 4 (Fla. 3d DCA 1973) (psychiatrist testifying as to whether subject accident caused psychiatric disorder without including in hypothetical question the fact of pre-existing psychiatric problem); Nat Harrison Assoc., Inc. v. Byrd, 256 So.2d 50 (Fla. 4th DCA 1971) (hypothetical question calling for opinion as to speed of vehicle at time of accident based on skid mark without essential fact of weight of vehicle); Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 469 (Fla. 4th DCA 1969), cert. denied, 225 So.2d 535 (Fla.1969) (hypothetical calling for speed of vehicle objectionable in the absence of measurements and other necessary factors); Young v. Pyle, 145 So.2d 503 (Fla. 1st DCA 1962) (propounding of hypothetical question which includes facts not supported by the evidence); LeFevre v. Bear, 113 So.2d 390 (Fla. 2d DCA 1959) (insufficient facts to support opinion as to speed of vehicle).

      . We note in the nurses’ charts, the duty-nurse’s comment that Dandashi is “cooperative” but has a “language barrier,” which lends additional credence to his claimed lack of informed consent.


author: HUBBART, Chief Judge.

text:
    Sheldon S. SACHS, Appellant, v. William S. HOGLUND, Appellee.
    No. 80-480.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rubinstein & Kornik and Jeffrey D. Rubinstein, Miami, for appellant.
    No appearance, for appellee.
    Before HUBBART, C. J., SCHWARTZ, J., and LILES, WOODIE A. (Ret.), Associate Judge.
   HUBBART, Chief Judge.

The central question presented for review by this appeal is whether a plaintiff who prevails in a civil action is entitled to an award of attorney’s fees under Section 57.105, Florida Statutes (1979), where the defendant fails to appear in the action and a final judgment is thereafter entered in the plaintiff’s favor upon a default. We hold that the plaintiff is never entitled to such an award of attorney’s fees in these circumstances under the above statute. We accordingly affirm the trial court’s denial of attorney’s fees in this cause.

The facts pertaining to the above issue are as follows. The plaintiff Sheldon Sachs sued the defendant William Hoglund on a promissory note before the Circuit Court of the Eleventh Judicial Circuit of Florida. The defendant Hoglund failed to appear or file any pleadings below. A proper clerk’s default was entered against the defendant Hoglund and, thereafter, the trial court, upon proper notice and trial, entered a final judgment for the plaintiff Sachs based upon the default. The trial court, however, denied the plaintiff Sach’s request for an award of attorney’s fees under Section 57.-105, Florida Statutes (1979), and also declined to amend the final judgment to so provide. The plaintiff Sachs appeals the trial court’s denial of such attorney’s fees.

The controlling statute here is Section 57.105, Florida Statutes (1979), which provides as follows:

“The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.”

By its plain terms, the statute requires as a prerequisite to an attorney’s fee award thereunder that the losing party in a civil litigation raise issues for determination which in their entirety completely lack jus-ticiability in law and fact, or, in other words, are frivolous. TIE Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1981); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). The purpose of the statute is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorney’s fee awards on losing parties who engage in same, as such frivolous litigation constitutes a reckless waste of sparse judicial resources and prevailing litigants’ time and money. Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980).

In the instant case, however, the plaintiff Sachs was clearly not entitled to an attorney’s fee award under the above statute. The defendant Hoglund as the losing party herein did not raise issues below which completely lacked justiciability; indeed, he raised no issues at all and defaulted on the case. Contrary to the plaintiff’s contention here, the above statute does not require a defendant to enter a civil litigation and contest it upon pain of having an attorney’s fee award entered against him. It merely penalizes a defendant who decides to contest a lawsuit and thereafter proceeds to waste the resources and time of the court and prevailing party by raising nothing but frivolous issues. The defendant Hoglund here did not do so, and, accordingly, the trial court was eminently correct in denying an attorney’s fee award for the plaintiff under the above statute.

In reaching the conclusion, we have not overlooked a portion of the May 5, 1978 floor debate on this statute in the Florida House of Representatives, a transcript of which the plaintiff herein has supplied us with, which tends to support the plaintiff’s position in this cause. The law is well settled, however, that “[w]here the legislative intent as evidenced by a statute is plain and unambiguous, then there is no necessity for any construction or interpretation of the statute, and the courts need only give effect to the plain meaning of its terms.” State v. Egan, 287 So.2d 1, 4 (Fla.1973). As we regard the statute herein as plain on its face, we are constrained by law to enforce the statute as written and not look to the above extrinsic, and admittedly fragmentary, evidence of legislative intent.

Affirmed.


text:
    Ronald Michael SNELLINGS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-537.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin- L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Login v. State, 394 So.2d 183 (Fla.3d DCA 1981); Husted v. State, 370 So.2d 853 (Fla.3d DCA 1979).


author: HENDRY, Judge. SCHWARTZ, Judge

text:
    Glimmert BECKHAM, a/k/a Robert Young, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1312.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   HENDRY, Judge.

Appellant Beckham seeks review of a circuit court order denying his motion for discharge under the speedy trial rule. We affirm.

In 1971, appellant entered a negotiated guilty plea to a five year sentence for robbery and sodomy. Without appellant’s knowledge or consent, his court appointed counsel moved to withdraw the plea, and in effect stipulated to appellant’s guilt by allowing trial only on the issue of sanity. The jury found appellant to be sane and the court sentenced him to fifty years. After exhausting his state remedies, Simmons v. Wainwright, 585 F.2d 95 (5th Cir. 1978), appellant filed a petition of habeas corpus in federal court.

On September 27,1979, the United States District Court for the Southern District of Florida found that appellant had been denied effective assistance of counsel, the right to a full jury trial, and the right to confront and cross examine witnesses against him. As modified on January 24, 1980, the southern district ordered:

Accordingly, it is the Order of this Court that Petitioner be allowed to reinstate his original guilty plea and thereupon be re-sentenced by the Court or alternatively that he be granted a new trial within a reasonable period of time hereafter, failure of which the Writ of Habeas Corpus will be granted and the Petitioner released from custody.

On June 10,1980, appellant filed a motion for discharge under the speedy trial rule. At a hearing on June 19, 1980, the circuit court denied the motion, and pursuant to agreement with the state appellant pled nolo contendere specifically reserving the right to appeal the denial of his motion. The court then adjudicated appellant guilty of robbery, and sentenced him to five years imprisonment with credit for time served of nine years. Notice of appeal was timely filed.

We first address the contention that the federal court lacked the power to enter the January 24th order. The remedies to be granted in habeas corpus proceedings rest largely within the discretion of the court. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Wainwright v. Temple, 360 F.2d 598 (5th Cir. 1966). It is well settled that a court is not restricted to simply discharging the petitioner or remanding him to custody; the prerogative to withhold release pending compliance with certain requisites (i. e. conditional orders) is not uncommon. See e. g., Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Miller v. North Carolina, 583 F.2d 701 (4th Cir. 1978); Berriel v. Wainwright, 290 F.Supp. 669 (S.D.Fla.1968).

We also find unpersuasive the theory that the federal court’s order allowed appellant, not the state, the option of reinstating the original guilty plea or receiving a new trial. The federal court’s order (as are essentially all habeas corpus orders) was directed to the party (here the state) who has custody of the petitioner. Braden v. Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Porter v. Porter, 60 Fla. 407, 53 So. 546 (1910). See Section 79.01, Florida Statutes (1979). An analogous construction of similar orders is implicit in virtually all cases we have examined, see, e. g., Pressley v. Wainwright, 367 So.2d 222 (Fla.1979); Hall v. Wainwright, 441 F.2d 391 (5th Cir. 1971); Berriel v. Wainwright, supra, whereas the interpretation urged upon us by appellant appears to be unprecedented.

Appellant’s main argument alleges that the trial court erred in denying his motion for discharge where the state failed to retry him within sixty days of demand, or within ninety days of the trial court’s receipt of the federal court’s order, as provided by Florida Rules of Criminal Procedure 3.191, sections (a)(2) and (g), respectively.

While at first blush Rule 3.191(g) would appear to govern the instant situation, that section is in fact only applicable where either a trial court or an appellate court orders a new trial. The present situation is not encompassed within that phraseology:

[Habeas corpus] is ... an original civil proceeding, independent of the normal channels of review of criminal judgments. . .

Townsend v. Sain, 372 U.S. 293, 311, 83 S.Ct. 745, 756, 9 L.Ed.2d 770, 785 (1963). Crownover v. Shannon, 170 So.2d 299 (Fla.1964). The function of habeas corpus is not that of appellate review of state court convictions, procedures, or decisions, Watkins v. Morris, 179 So.2d 348 (Fla.1965); Sing v. Wainwright, 148 So.2d 19 (Fla.1962). We find, therefore, that the present case does not fall within the parameters of Rule 3.191(g).

Nor can we say this situation falls within any of the other proscribed time periods of Rule 3.191 which applies to original criminal proceedings. A habeas corpus proceeding removes a case from the operation of the speedy trial rule.

Although the speedy trial rule is inapplicable and no specific time for action is stated, appellant is protected by the reasonable time period prescribed by the federal court which coincides with the constitutional “reasonableness” test applicable in the absence of a speedy trial rule. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Since less than 120 days had elapsed from the circuit court’s receipt of the federal court order and appellant’s motion for discharge, we find no unreasonable delay, and thus no deprivation of appellant’s constitutional rights. Barker v. Wingo, supra.

In summary, we hold that where a habeas corpus proceeding grants a retrial, the time for such retrial is not governed by the speedy trial rule; instead, the time stated in the court’s order controls, and in the absence of a stated time, the constitutional reasonableness standard applies.

There being no showing of a violation of the constitutional right to a speedy trial, the order denying the motion for discharge is affirmed.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

I concur specially in the court’s judgment for the purpose of explaining the reasons for my conclusion that Fla.R.Crim.P. 3.191(g) does not require reversal. That section provides:

(g) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the State or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time. [e. s.]

Beckham argues that the 90 day period began to run on February 26, 1980, when the trial court received the order of the federal district court. In my judgment, this contention is incorrect. While the federal court may well have been a “reviewing court,” its order conditionally granting ha-beas corpus was not the one “which ma[de] possible a new trial for the defendant.” Although the district court could, as it did, order that Beckham be released if he were not granted a new trial, see Pressley v. Wainwright, 367 So.2d 222 (Fla.1979) (England, C. J., dissenting), it had no authority or power to order that the new trial actually be conducted or, indeed, directly to require any action whatever by the lower court. See Pierre v. United States, 525 F.2d 933 (5th Cir. 1976); Wallace v. Havener, 552 F.2d 721 (6th Cir. 1977), cert. denied, 434 U.S. 940, 98 S.Ct. 433, 54 L.Ed.2d 300 (S.Ct.1977); Dixon v. Beto, 472 F.2d 598 (5th Cir. 1973); Anderson v. Beto, 469 F.2d 1076 (5th Cir. 1972). It is therefore clear that the Florida case was not itself reopened, a new trial was not “ma[de] possible,” and the terms of our speedy trial rule did not become activated until May 28, 1980, when the 'circuit court set aside the prior judgment and sentence. See also, State v. Andrews, 376. So.2d 9 (Fla.1979), which holds “that rule 3.191 requires that a defendant be taken into state custody in order to start the speedy trial times expressed in the rule.” Since the motion for discharge was filed less than 90 days thereafter on June 10, 1980, it was properly denied under Fla.R.Crim.P. 3.191(g).

      . Fla.R.Crim.P. 3.191.

      . See Beckham v. State, 264 So.2d 30 (Fla. 3d DCA 1972); Beckham v. State, 339 So.2d 221 (Fla. 3d DCA 1976); Beckham v. State, 353 So.2d 941 (Fla. 3d DCA 1978).

      . At that time the court also determined that the federal court’s order had given appellant the option of electing between the alternative remedies.

      . In 1974 the Florida Legislature repealed the criminal sodomy statute, Sec. 800.01, Fla.Stat. (1973). See Ch. 74-121, Laws of Florida.

      . A speedy trial demand was filed with the state attorney’s office on February 22, 1980.

      . The federal court’s order was received on February 26, 1980.

      . Since, for the same reasons, the 60 day period provided under rule 3.191(a)(2) could not have commenced until May 28, the written speedy trial demand filed on February 22, 1980 was ineffectively premature.


text:
    The STATE of Florida, Appellant, v. Federico DE LA PAZ, Appellee.
    No. 80-1503.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellant.
    S. David Jaffe, Miami, for appellee.
    Before SCHWARTZ and FERGUSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The order of the' circuit court granting appellee’s motion to dismiss the information filed against him is reversed. State v. Mesa, et al., 395 So.2d 242 (Fla.3d DCA 1981).

Reversed.


text:
    Norman COHEN, Individually, and as Trustee, under Trust Agreement dated April 30, 1971, known as Trust No. 71-LT-100; and Murray Blattman, Individually, and as Trustee under Trust Agreement dated December 18,1975, known as Trust No. 75-LT-21, Appellants, v. AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, f/k/a First Federal Savings and Loan Association of Miami, a United States Corporation, Appellees.
    No. 80-1572.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Floyd, Pearson, Stewart, Riehman, Greer & Weil and Bertha Claire Lee, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellees.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Bodner v. Blackwelder, 181 So.2d 373 (Fla.3d DCA 1965); Lesperance v. Lesperance, 257 So.2d 66 (Fla.3d DCA 1971); Curr v. Helene Transportation Corp., 287 So.2d 695 (Fla.3d DCA 1973).


author: BASKIN, Judge.

text:
    Felton RILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1846.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Penzell & Diamond and Robert C. Gross, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We affirm the trial court’s summary denial of defendant Riley’s Motion to Vacate his convictions and sentences entered pursuant to guilty pleas. We agree that defendant’s Motion to Vacate filed under Florida Rule of Criminal Procedure 3.850, challenging the effectiveness of his counsel, was insufficient as a matter of law. Morrison v. State, 283 So.2d 137 (Fla. 2d DCA 1973). In light of our ruling, we need not address the other questions presented.


author: KAPNER, LEWIS, Associate Judge.

text:
    Carmen MANISCALCO and Daneen Maniscalco, Appellants, v. HOLLYWOOD FEDERAL SAVINGS AND LOAN ASSOCIATION, etc., and John Stepp, Inc., etc., Appellees.
    No. 79-2467.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.

      Martin H. Cohen, Fort Lauderdale, for appellants.
    Robert B. Butler, Hollywood, for appellee Hollywood Federal Sav. and Loan Ass’n.
    Robert L. Wunker, Pompano Beach, for appellee John Stepp, Inc.
   KAPNER, LEWIS, Associate Judge.

This is an appeal from an order denying a motion to vacate a default and final judgment.

On May 2, 1978, Hollywood Federal Savings and Loan Association filed a complaint to foreclose on a promissory note and mortgage, alleging Mr. and Mrs. Maniscalco to be in default on 7 monthly payments. The note and deed gave the holder the option to accelerate the payments, and it exercised this option.

As a result of this complaint, plaintiff and defendants reached an agreement whereby defendants would come up with $2,500.00 immediately and would make payments of IV2 times the regular payments until the account was fully reinstated. Plaintiff’s attorney wrote defendants a confirmation letter which included the following statement:

If such payments are not regularly received, it is understood that the account will again be placed into foreclosure.

The payments were not regularly received, and, on December 30,1978, plaintiff’s attorney wrote defendants advising them that the “foreclosure suit will have to proceed.”

On January 22, 1979, plaintiff’s attorney again wrote defendants, acknowledging receipt of $4,000.00 and observing as follows:

If you will make payments of $750.00 per month as you indicated you would, it should not take too long to bring the account completely current for your escrow.

Defendants continued to fall in arrears and, finally, on May 7, 1979, plaintiff’s attorney wrote to defendants informing them of the arrearage and saying:

We have no alternative but to proceed with the foreclosure suit.

Contemporaneously with this letter, plaintiff’s attorney prepared and filed, on May 9th, a motion for default. Thereafter, on June 5, 1979, plaintiff’s attorney filed a motion for final judgment, along with an affidavit of proof dated June 4, 1979. The affidavit sets forth the following:

Before me . . . personally appeared John G. Primeau, who ... says that he knows of his own knowledge that the following facts are true:
1. That he is Vice-President of Hollywood Federal Savings and Loan Association, and is duly authorized to make this affidavit.
2. That Plaintiff is the owner and holder of that certain original promissory note... .
4. ... since the institution of this suit an agreement was entered into with the Defendants to make certain additional payments in addition to the regular monthly payments in order to reinstate the mortgage account. However, . . . Defendants have breached this agreement, and the mortgage account is delinquent commencing with the payments due January 14, 1979, and no payments have been received .. . and said note and mortgage are more than thirty days now in default. Plaintiff has heretofore and does now exercise its option to accelerate.

A final judgment was entered and a foreclosure sale consummated. No notice of the motion for default, default, motion for final judgment, notice of sale, or the sale itself was ever served upon the appellants until August 13,1979. Upon learning of the sale defendants immediately filed a motion to vacate the default and final judgment. This motion was denied and defendants appeal.

Ordinarily a defendant who fails to properly respond to a complaint has no right to receive notice of a motion for default, or final judgment entered thereto. Zettler v. Ehrlich, 384 So.2d 928 (Fla. 3d DCA 1980); F.R.C.P. 1.500(b). In the instant case, however, the conduct of plaintiff was such as to mislead defendants, albeit unintentionally, into believing that it was initially unnecessary to file responsive pleadings. Plaintiff did not actively pursue its suit, but rather embarked upon a “wait and see” course of conduct. That is, plaintiff was willing to abide defendants’ continued delinquencies thereby misleading defendants into believing that late payments were still acceptable. Also, the alleged delinquency sued upon in the initial complaint had been cured by payments made pursuant to the subsequent agreements mentioned above. Under these circumstances, defendants were entitled to notice of their alleged defaults. Such notice was never given.

Furthermore, allowing plaintiff to foreclose upon the defendants’ property herein deprived defendants of their equity of redemption. We recognize the right of a mortgagor to redeem as an incident of every mortgage which cannot be extinguished except by due process of law. John Stepp, Inc. v. First Federal Savings and Loan Association of Miami, 379 So.2d 384 (Fla. 4th DCA 1980); Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690 (1930). Entering a default and final judgment, along with sale of the property after extensive misleading dealings between the parties, was a denial of due process and error. Rubenstein v. Richard Fidlin Corp., 346 So.2d 89 (Fla. 3d DCA 1977). If plaintiff wished to foreclose and accelerate the debt, an amendment to the pleadings was necessary under the circumstances of this case.

Accordingly, we reverse and remand to the trial court with directions to vacate the default and final judgment and set aside the sale.

REVERSED AND REMANDED WITH DIRECTIONS.

MOORE and BERANEK, JJ., concur.


author: HERSEY, Judge.

text:
    The LAWYERS’ TITLE GUARANTY FUND, a business trust, etc., et al., Appellants/Cross-Appellees, v. William F. KOCH, Jr., Mary Lou Koch, William F. Koch, Jr., Inc., a Florida Corporation, P. Jack Harrah and Margaret Harrah, Appellees/Cross-Appellants, v. James L. LEAVITT, as Trustee et al., Appellees. The LAWYERS’ TITLE GUARANTY FUND, a business trust, etc., et al., Appellants, v. James L. LEAVITT, as Trustee, et al., Appellees.
    Nos. 80-104, 80-389.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Carl L. Laks, Miami, for appellants/cross-appellees.
    MacMillan, "Newett, Adams, Strawn, Stanley & Botos, Delray Beach, and Larry Klein, West Palm Beach, for appel-lees/cross-appellants — Koch, Jr., Koch, Koch, Jr., Inc., Harrah and Harrah.
    Dean Andrews of Andrews & Lubbers, P.A., Fort Lauderdale, and Theodore P. Mavrick, Fort Lauderdale, for appellees— Knauer, Leavitt, Leavitt and Akins.
   HERSEY, Judge.

Appellant, as the owner and holder of a promissory note which was secured by a mortgage and on which a default had occurred, filed suit against James Leavitt as trustee under a purported Illinois land trust and against the individual beneficiaries of that land trust. After dismissal of several counts of a fourth amended complaint for failure to state a cause of action against the beneficiaries of the trust and for failure to sufficiently allege facts upon which jurisdiction over those beneficiaries could be sustained, this appeal was taken. That portion of the complaint stating a cause of action against the trustee for default remains viable in the trial court.

It is appellant’s position that the document which purportedly created the land trust in fact created a partnership or a joint venture thereby subjecting the individual investors to personal liability as partners or joint venturers.

We hold that the order dismissing various counts of the complaint with prejudice is sustainable on either of two grounds. First the complaint alleges legal conclusions rather than specific facts tending to show'that the land trust is defective. We do not suggest that evidence should be pled but more is required than to simply state that the document constitutes an agreement of partnership or joint venture. It was reasonable for the trial court to assume after four tries that such factual allegations could not be made.

• Additionally the terms of the trust agreement would not control unless that agreement were part of the transaction between the original mortgagor and mortgagee. This could have been accomplished specifically between the parties or by recording the trust agreement and referring to it appropriately in the mortgage documents. That was not done here. Section 689.071, Florida Statutes (1979), clearly sanctions the use of the so-called “Illinois Land Trust” in Florida.

It is too clearly ingrained into our jurisprudence to require citation that the beneficiary of a trust, validly established, is not rendered personally liable by the acts, omissions, contracts or other activities or undertakings of his trustee.

The document appended to the complaint established a land trust as contemplated by the statute. The prerequisites are examined in Taylor v. Richmond’s New Approach Association, Inc., 851 So.2d 1094, 1095 (Fla.2d DCA 1977), and are said to be:

The so-called Illinois land trust contemplates that title to real property be taken in the name of a trustee under a recorded deed of trust while a second unrecorded agreement between the trustee and the beneficiaries declares the trustee to be vested with full legal and equitable title subject to certain specified rights of the beneficiaries which are declared to be personal property of the beneficiaries. See Florida Real Property Practice II, § 11.32 (Fla.Bar Continuing Legal Educ. Practice Manual, 1975). Prior to 1963 it was believed that an Illinois land trust might fail in Florida because of the statute of uses. See McGriff v. McGill, 62 So.2d 28 (Fla.1952); Elvins v. Seestedt, 141 Fla. 266, 193 So. 54 (1940).
In 1963 our legislature insured the validity of the Illinois land trust by the enactment of Chapter 63-468, Laws of Florida, which has now become Section 689.071, Florida Statutes (1975). The preamble to Chapter 63-468 recites that the Illinois land trust was a method by which developers had successfully attracted the investment of new capital and it was deemed desirable to encourage the growth of Florida land development by sanctioning the use of this method of doing business. The statute permits the trustee to convey freely without the join-der of spouses or beneficiaries and allows third persons to deal with the trustee without having to inquire into his authority. Grammer v. Roman, 174 So.2d 443 (Fla.2d DCA 1965).

See also Ferraro v. Parker, 229 So.2d 621 (Fla.2d DCA 1969). In the absence of very special circumstances, and none are properly alleged in the fourth amended complaint, the beneficiaries have no personal liability on the promissory note.

We have also determined that the cross-appeal is without merit.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    BROWARD COUNTY, Appellant, v. Harvey MATTEL, Ray Sandstrom and Fred Haddad, Appellees.
    No. 80-265.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.

      Harry A. Stewart, Gen. Counsel for Bro-ward County, Fort Lauderdale, for appellant.
    Harvey K. Mattel of Harrington & Mattel, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

Appellees, Harvey Mattel, Ray Sand-strom, and Fred Haddad, filed a class action on behalf of themselves and all other lawyers in Broward County similarly situated to recover excess occupational license taxes paid to appellant since 1975 and to restrain the Broward County Revenue Collector from collecting such excess taxes in the future. Judgment was entered in favor of appellees, essentially finding that the appellant had been collecting an excessive amount from the lawyers of Broward County for occupational license taxes since 1975, and ordering an accounting of the monies due the members of the class.

In 1955 the Legislature passed Special Act 30639 authorizing Broward County to levy an occupational license tax of $25 on lawyers practicing law in Broward County, which tax was to be used exclusively for the purchase of books and legal periodicals for the Broward County. Law Library. Pursuant to this Special Act appellant charged $25 for occupational licenses for lawyers in Broward County. In 1972 Broward County passed Code Section 20-45 providing for an occupational license tax of $15 for persons practicing a profession who offer service to the public for consideration. Later, in November 1974 the citizens of Broward County, by referendum, adopted a Home Rule Charter effective January 1, 1975. Section 7.09 of the Charter had the effect of repealing all of the existing Special Acts. However, on December 17, 1974, the Broward County Commission passed Ordinance 74-21 to be effective January 1, 1975, which reenacted all of the Special Acts to be repealed as of January 1, 1975, that were not in conflict with the Charter.

At trial the parties presented the court with a written stipulation which, among other things, stated:

1. From January 1, 1975, to September 1, 1978, Broward County charged $25 for occupational licenses for lawyers in Broward County pursuant to Special Act Number 30639.
2. If a member of the class did not pay the license tax, penalties were assessed which could include civil suits and penalties, criminal charges, and injunctions against practicing law in Broward County.
3. January 1, 1975, the Broward County Charter went into effect and repealed Special Act 30639, effective January 1, 1975.
4. Commencing January 1, 1975, the occupational license tax to be charged for attorneys in Broward County was governed by Section 20-45, Broward County Code.

At trial no testimony was taken, but the parties offered certain documents in evidence, such as letters from the State Attorney threatening action if the full license tax was not paid, correspondence between one of the appellees and the Revenue Collector, copies of the various statutes, charter provisions and ordinances which the parties felt pertinent, a memorandum and affidavit of the Revenue Collector and a copy of an opinion of the Attorney General relative to tax refunds. Other than the foregoing the trial consisted of counsel engaged in argument over the purported effect of the stipulations and documents in evidence before the trial court.

As we view the record, it fully supports the trial court’s decision. It justifies the finding that the controlling law in effect from January 1, 1975, to September 1, 1978, was Broward County Code Section 20-45, which authorized the levy of an occupational license tax on lawyers of $15. A memorandum from the County’s Acting General Counsel to the Revenue Collector, dated August 28,1978, advised the collector that the occupational license tax should be assessed according to the provisions of Code Section 20-45. Furthermore, as we indicated previously, the stipulation signed by counsel states that, commencing January 1, 1975, the occupational license tax to be charged attorneys in Broward County was governed by Section 20-45, Broward County Code.

Next, the county argues that, assuming the taxes were improperly collected, two factors operate to preclude appellees recovering a refund. First, the county contends that the payments were made without protest and thus were voluntary in nature. Second, the county asserts that, regardless of the validity of the tax or the nature of the payments, a refund is legally impermissible since the subject funds are no longer in the county treasury but have been disbursed to various municipalities throughout the county and, finally, there is no statutory authority authorizing such a refund.

The trial court found that the extra $10 the county was assessing lawyers in Bro-ward County after January 1, 1975, was unlawful. As this court stated in Coe v. Broward County, 358 So.2d 214 (Fla. 4th DCA 1978), “.. . a taxpayer is normally entitled to a refund of taxes paid pursuant to an unlawful assessment.” at 216. That does not mean that every time a taxpayer pays an illegal tax he will be successful in his efforts to obtain a refund. If the taxpayer pays the tax voluntarily and there is no provision in the law authorizing a refund, the taxpayer will' be unsuccessful. The voluntary payment of an illegal tax precludes a refund absent statutory authority. Contrary to appellant’s contention, no statutory provision authorizing a refund is necessary for the taxpayer to obtain a refund where payment of an illegal tax is involuntary. 31A Fla.Jur.2d, Taxation § 887. Thus, the key to appellees’ entitlement to a refund here is whether the excessive tax was paid voluntarily or involuntarily. We hold that under the circumstances of this case the tax was paid involuntarily and the class has standing to urge a refund.

The stipulation of the parties states that, if a lawyer did not pay the tax, penalties were assessed. (We assume this really means sanctions were imposed.) This stipulation lists the “penalties” as civil suits and penalties, the institution of criminal charges and imposition of an injunction to prevent practice of the profession. The impact of all of this, or the bottom line, as they say, is the authorities will unhang a lawyer’s shingle, prosecute him for practicing without a license, or otherwise involve him in litigation and penalties. This is no imaginary list of horribles because the State Attorney actually wrote Mattel and threatened action if he didn’t pay the additional $10. The general rule is that payment of an illegal tax, even without protest, in order to avoid forfeiture of the right to do business is not a voluntary payment. 31A Fla.Jur., Taxation § 900. In State ex rel. S. S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247 (1947), a foreign corporation sought a refund of an illegal tax collected by the state for the privilege of doing business in Missouri. The taxpayer paid the tax but did not do so under protest. However, in considering the propriety of a refund under those circumstances, the court said:

The refund of taxes illegally exacted is ordinarily a matter of governmental grace. On grounds of public policy, the law discourages suits for the refund of taxes illegally levied and collected, and has imposed many restrictions on their recovery. It is generally held that taxes voluntarily paid without compulsion, although levied under an unconstitutional statute, cannot be refunded without the aid of a statutory remedy. 51 Am.Jur. Taxation Sec. 1167.
But here we have no general statute authorizing the refund of a domestication tax illegally exacted. Nevertheless, under the common law if the payment of a tax is deemed involuntary, a tax which is unlawfully collected may be recovered back by appropriate action. 51 Am.Jur. Ibid. Here we have a tax which was unlawfully collected under the express ruling of the H. D. Lee case. So the only question as to the common law right of relator to a refund is whether the payment of the tax was voluntary or involuntary.
The tax was not paid under protest. Even so, that fact, does not determine whether it was paid voluntarily or involuntarily and has little or no weight on the question. See Annos. 64 A.L.R. 26, 84 A.L.R. 295; Robins v. Latham, 134 Mo. 466, 36 S.W. 33.
In Couch v. Kansas City, 127 Mo. 436, 30 S.W. 117, we followed the prevailing rule that a voluntary payment of a tax made under a mistake of law but with a full knowledge of all the facts cannot be recovered. However, courts are now taking a more liberal view as to whether certain types of taxes are ever in fact voluntarily paid since the urgent and immediate payment of them is compelled in order to avoid the harsh penalties imposed for non-payment. The compulsion brought about by such penalties creates what the writers have termed technical or implied duress sufficient to make the payment of such taxes involuntary. We adopted the modern view of greater liberality in recognizing such duress in tax payments in Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710, where we declined to follow the stricter view of some of our earlier decisions.
And even more to the point in this case this court has held that the payment of a tax in order to avoid the forfeiture of the payor’s right to continue in business ‘constituted such duress as would render the payment of the tax involuntary.’ 208 S.W.2d at. 250.

Although there is a split of authority among the jurisdictions, we follow the lead of those states that hold that a payment of a tax is deemed involuntary where the penalty exacted for nonpayment is so severe that it constitutes coercion and duress. Seaboard Air Line Ry. Co. v. Allen, 82 Fla. 191, 89 So. 555 (Fla.1921); Whyte v. State, 110 Cal.App. 314, 294 P. 417 (1st Calif. DCA 1930); Harbeck v. Sioux City, 199 Iowa 763, 202 N.W. 507 (1925); Paramount Film Distributing Corp. v. State, 27 A.D.2d 420, 279 N.Y.S.2d 781 (1967); Manufacturer’s Casualty Ins. Co. v. Kansas City, 330 S.W.2d 263 (Mo.App.1959); Crow v. City of Corpus Christi, 146 Tex. 558, 209 S.W.2d 922 (1948).

In view of the foregoing we find the appellant has failed to demonstrate reversible error. We therefore affirm the judgment appealed from.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

      . Some members of the class had paid $15 pursuant to Code Section 20-45, but refused to pay the other $10.


author: LETTS, Chief Judge.

text:
    Arlene Nielson BIEGALSKI and State Farm Mutual Automobile Company, Appellants, v. Paul J. O’BRIEN, Appellee.
    No. 80-701.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Edna L. Caruso, West Palm Beach, and Grimmett, Conrad, Scherer & James, P. A., Fort Lauderdale, for appellants.
    R. Fred Lewis of Kuvin, Klingensmith & Lewis, P. A., and Harry A. Gaines, P. A., Miami, for appellee.
   LETTS, Chief Judge.

Affirmed on the authority of Russell v. Guider, 362 So.2d 55 (Fla. 4th DCA 1978) cert. denied 368 So.2d 1373 (Fla.1979), and King Pest Control v. Binger, 379 So.2d 660 (Fla. 4th DCA 1980).

DOWNEY and ANSTEAD, JJ., concur.


text:
    Jeffrey Charles KEEFE, Appellant, v. STATE of Florida, Appellee.
    No. 80-717.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Melendez, 244 So.2d 137 (Fla.1977).

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    John Dorse STACY, Appellant, v. STATE of Florida, Appellee.
    No. 80-911.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    ' Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant’s conviction for delivery of methaqualone is affirmed. See, Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980); See also, State v. Schwartz, 398 So.2d 460 (Fla. 4th DCA 1981). The condition of probation that appellant “live honorably at all times” is stricken. Norris v. State, 383 So.2d 691 (Fla. 4th DCA 1980).

ANSTEAD, MOORE and HERSEY, JJ., concur.


text:
    Mary A. SPROUL and Rose C. Sproul, Appellants, v. McDONALD’S SYSTEMS, INC., a corporation doing business in Florida; Lehn, Inc., a dissolved corporation d/b/a McDonald’s Restaurant; the Home Insurance Company; and Jay Buchbinder Industries of California, Appellees.
    No. 80-1408.
    District Court of Appeal of Florida, Fourth District.
    April 29, 1981.
    Larry Klein, West Palm Beach and Pom-eroy, Betts, Pomeroy, Moses & Pomeroy, Fort Lauderdale, for appellants.
    Joseph S. Kashi and Gordon James, III of Grimmett, Conrad, Scherer & James, Fort Lauderdale, for appellee Buchbinder.
    Robert L. Spector, Fort Lauderdale and Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee McDonald’s Systems, Inc.
   PER CURIAM.

Appellants, Sproul, sued McDonald’s Systems, Inc., and others for various acts of negligence having to do with the design, installation, inspection, and maintenance of a table in the McDonald’s restaurant. McDonald’s filed a third party complaint against appellee Buchbinder, the manufacturer of the table, alleging like acts of negligence, and seeking contribution pursuant to Section 768.31, Florida Statutes (1979).

After McDonald’s and the other defendants obtained a partial summary judgment against the Sprouls on the aforementioned acts of negligence alleged in the complaint, Buchbinder moved for summary judgment on the third party complaint and prevailed. The Sprouls then filed an amended complaint against the original defendants and Buchbinder. The allegations of negligence against Buchbinder were similar to those contained in the third party complaint between McDonald’s and Buchbinder. A motion to dismiss the Amended Complaint on the grounds of collateral estoppel and estop-pel by judgment was filed by Buchbinder and granted with prejudice. The Sprouls seek reversal of that order.

Ordinarily collateral estoppel and estoppel by judgment cannot be raised on motion to dismiss but must be pleaded as affirmative defenses. Moskovits v. Moskovits, 112 So.2d 875 (Fla. 1st DCA 1959). The wisdom of that rule is clearly demonstrated in this case. In its present posture we are unable to determine the basis of the court’s rulings on either of the summary judgments heretofore entered and that might become vital in determining whether the defenses raised are valid.

Accordingly, we reverse the judgment appealed from and remand the cause for further proceedings.

REVERSED AND REMANDED, with directions.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.