author: PER CURIAM. GRIMES, Acting Chief Judge,

text:
    EASTRIDGE CORPORATION, Appellant, v. Kenneth K. NYMAN, d/b/a Southeast Insurors, Appellee.
    No. 81-673.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Richard J. Taylor of Hereford, Taylor & Steves, P. A., Sarasota, for appellant.

      Harry W. Haskins of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellee.
   PER CURIAM.

Affirmed.

RYDER and SCHOONOVER, JJ., concur.

GRIMES, A. C. J., dissents with opinion.

GRIMES, Acting Chief Judge,

dissenting.

I believe the trial court erred in granting appellee, Kenneth K. Nyman, a summary judgment on appellant, Eastridge Corporation’s amended third party complaint.

When viewed in the light most favorable to Eastridge, the pleadings and depositions on file at the time of the motion for summary judgment disclose the following facts. During a conversation with Mr. Nyman, an insurance agent doing business as Southeast Insurors, Robert Prine, president of East-ridge, expressed a desire to obtain a bonda-ble contractor to do work on a development which Eastridge was planning. Nyman suggested Witham & Sons Corporation and pointed out that he already had written some performance bonds on that company. As a result of this conversation, Nyman introduced Mr. Prine to Ralph Witham, president of Witham & Sons.

Subsequently, Eastridge decided to use Witham on its project, and Mr. Nyman contacted an insurance company in order to obtain a performance bond. The insurance company advised Nyman that he first had to submit a new audited financial statement and schedule for work in progress for Witham. When it came time for Eastridge to sign a contract with Witham, the bond had not yet been issued. Eastridge then asked Nyman for assurances that the bond would be forthcoming so that it could sign the contract with Witham and proceed with the project. On October 25, 1978, Nyman responded with a letter to Mr. Prine which read as follows:

We are the bonding agency for Witham & Sons Corporation. This letter is to assure you that we will provide a performance bond for the above named subdivision — principal: Witham & Sons Corporation; Obligee: Eastridge Corporation.
I hope this letter will alleviate your time problem while we are reviewing the necessary information to furnish the performance bond.

Relying on this letter, Eastridge entered into a contract with Witham which contemplated that the premium for the bond would be within the contract price.

Despite his letter to Mr. Prine, Mr. Ny-man continued to encounter delays in obtaining the bond, not only because he could not get proper financial data from Witham, but also because he found that a lien had been filed on another project involving Wit-ham. Eastridge made repeated inquiries concerning the status of the bond, but Ny-man did not inform the company of these problems. In fact, he continued to give Eastridge assurances that the bond would be forthcoming. However, he never did obtain a bond, and on February 12, 1979, Witham advised him that a bond was no longer needed. In the meantime, Witham did not meet the project deadlines and walked off the job on February 12. When Eastridge withheld some of Witham’s payments, Witham sued Eastridge for the balance of the contract price. Eastridge counterclaimed against Witham and filed a third party complaint seeking to hold Nyman responsible for the damages suffered by reason of Witham’s failure to perform the contract.

Many of the facts stated above are in dispute. However, assuming their veracity I am convinced that they provide a basis for a legally sufficient claim against Nyman. A performance bond, such as the one which Eastridge sought here, is in the nature of a contract of insurance. Tapping v. McIntosh, 104 Fla. 715, 140 So. 773 (1932); 13 R. Anderson, Cyclopedia of Insurance Law § 47:5 (2d ed. 1965). Thus, in deciding whether Eastridge, as the one who would have been insured by the bond, had a cause of action against Nyman, it is appropriate to look at insurance law to determine the duties owed by an insurance agent to an insured. In the case of deMarlor v. Foley Carter Insurance Co., 386 So.2d 22, 23 (Fla. 2d DCA 1980), this court held that:

An insurance agent or broker who agrees or undertakes to procure certain insurance coverage owes his principal a duty to do so within a reasonable time. If, through his own fault or neglect, he fails to do so, he may become liable for any resulting damages. Even when he is not to blame for the failure to obtain coverage the agent may nevertheless become liable for damages if he fails to inform his principal that the requested insurance has not been procured. Cat ’n Fiddle, Inc. v. Century Insurance Co., 200 So.2d 208 (Fla. 3d DCA 1967).

This appears to be the general rule throughout the country. Annot., 64 A.L. R.3d 398, 410-15 (1975); 3 R. Anderson, supra, § 25:47 (1960).

Applying these principles to the circumstances of this case, it may be that a jury would not find a breach of duty on the part of Mr. Nyman. On the other hand, the October 25 letter was so affirmatively written that in many respects it resembled a guarantee to furnish the bond. Thus, at the very least, Nyman had an obligation either to promptly obtain the bond or to notify Eastridge within a reasonable time that he could not do so, and a jury of reasonable persons could conclude that he failed to carry out this obligation. After all, Eastridge’s contract with Witham called for completion of the project within 140 days, and 110 days had already passed before it became evident, once and for all, that a bond would not be furnished. The fact that Nyman was the bonding agent for Witham would not change this result because Eastridge was to be the obligee under the bond and Nyman made direct assurances to Eastridge with the knowledge that Eastridge would rely on them.

In view of the foregoing, I would reverse the summary judgment in favor of Nyman and remand the claim for trial.


source: Caselaw Access Project

author: RYDER, Judge. PER CURIAM.

license: Public Domain

text:
    KINGS POINT WEST, INC., Appellant, v. NORTH RIVER INSURANCE COMPANY, Appellee.
    No. 81-807.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1982.
    Rehearing Denied April 2, 1982.
    John T. Blakely of Johnson, Blakely, Pope, Bokor & Ruppel, P. A., Clearwater, for appellant.
    Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Tampa, for appellee.
   RYDER, Judge.

Kings Point West, Inc. appeals from a judgment adverse to its claim that appellee, North River Insurance Company, wrongfully refused to defend a lawsuit. We reverse.

Appellant purchased insurance policies from appellee which provided coverage for claims of damage to interior furnishings in condominiums developed by appellant. In 1978, several condominium associations filed a joint class action against appellant (not the case at issue), alleging faulty roof construction, damage to the roofs, and water damage to the interiors and interior furnishings of the apartments. Appellant employed its own counsel and started to defend the suit. The plaintiffs in the class action suit filed a memorandum of law on December 2, 1978, which stated that all causes of action concern the common elements of the condominiums. The attorney for plaintiffs testified that he told the trial judge at a hearing in January 1975 that he was only prosecuting a claim for damages to the common elements.

On approximately February 2, 1979, counsel representing appellant learned of the existence of the insurance policies, and requested appellee to defend the suits. Other than to acknowledge the demand, appellee took no action. Prosecution of the suit continued with a filing of plaintiff’s inter-rogatqries on February 27, 1979, stating that the damages to each class member were to his proportionate share of the common elements. The depositions of unit owners filed also did not indicate any claim for damage other than to the common elements. But the class plaintiffs repled allegations of damages to interior furnishings in amended complaints filed June 5, 1979 and September 17, 1979. Appellant continued to defend the suit, and eventually settled all claims, including consequential damages by paying the sum of $170,575.00.

Appellant then began this action to recover costs of the defense. Appellee’s defenses included the ground that the policies excluded coverage for damages due to appellant’s own work or incurred in premises alienated by appellant. The court below found appellant had failed to prove that appellee wrongfully refused to defend, basing that ruling on the finding that at the time appellant demanded a defense, the lawsuit did not seek damages which were covered under the policy.

We hold that the lower court erred in looking beyond the allegations of the complaint to determine that a duty to defend did not arise below. The allegations of the complaint governed the duty of the insurer to defend. National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977); West American Insurance Co. v. Silverman, 378 So.2d 28 (Fla. 4th DCA 1979), cert. denied, 389 So.2d 1117 (Fla.1980); Accredited Bond Agencies, Inc. v. Gulf Insurance Co., 352 So.2d 1252 (Fla. 1st DCA 1977).

The Florida Supreme Court in National Union Fire Insurance Co. v. Lenox Liquors, Inc., supra, held that if coverage was not indicated by the allegations of the complaint, later stipulations filed in the action which indicate that insurance coverage would apply do not create a duty to defend. We hold that the reverse is also true. The later filings below, which tended to indicate that the damage claims pursued against appellant/insured were not covered by the insurance policy issued by appellee, do not defeat the duty to defend. Were this not the case, the indefiniteness as to whether the insurer should begin or should continue to defend a suit would create another major issue in many insurance lawsuits, placing insurer and insured on opposing sides. We think that result would not well serve either. With a duty to defend set by the initial pleading, each party knows his standing and need not examine every new document filed to determine if the claims may be focusing on noncovered damages.

The final judgment is REVERSED, and the case REMANDED for entry of judgment for appellant.

OTT, A. C. J., and DANAHY, J., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Although we deny appellee’s motion for rehearing, certain allegations contained therein point out appellee’s misinterpretation of our opinion previously entered herein. We add the following paragraph to cure that ill:

This decision does not conflict with anything we said in Employers Commercial Union Insurance Company of America v. Kottmeier, 323 So.2d 605 (Fla. 2d DCA 1975), C. A. Fielland, Inc. v. Fidelity and Casualty Company of New York, 297 So.2d 122 (Fla. 2d DCA 1974), and The Garden Sanctuary, Inc. v. Insurance Company of North America, 292 So.2d 75 (Fla. 2d DCA 1974), because at the time appel-lee was requested to defend the suit, the claims for damage which would have been covered by the policy had not been clearly eliminated from the suit.

Motion for rehearing DENIED.

OTT, A. C. J., and RYDER and DAN-AHY, JJ., concur.


author: PER CURIAM.

text:
    In re The ESTATE OF Sam LIPTZEN. Goldie TOPPER, as Personal Representative of Estate of Sarah Liptzen, Appellant, v. Joyce STEWART, Phyllis Stone, Shirley Zion, as Personal Representatives of the Estate of Sam Liptzen, Appellees.
    No. 81-1096.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Rehearing Denied April 26, 1982.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellant.
    Markus, Winter & Feldman, P. A. and Sheldon I. Pivnik, Miami, for appellees.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The appellant has perfected her appeal from a final order dismissing her complaint filed against the estate of Sam Liptzen, in which she sought an accounting. Matters relating to this estate have previously been reviewed by this court. See: Topper v. Stewart, 388 So.2d 1270 (Fla. 3d DCA 1980).

The question of whether the appellant is entitled to an accounting has not been decided by the General Jurisdiction Division of the Circuit Court of Dade County, and was not reached by this court in the case referred to. We hold that the trial court probate division was in error in dismissing the complaint. The cause is remanded with directions to vacate the order of dismissal and to enter an order requiring the appel-lees to file a proper accounting in the probate division within the time to be set by the probate judge.

Reversed and remanded with directions to proceed in harmony with the views herein expressed.


author: SCHWARTZ, Judge.

text:
    Richard Allen JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2302.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Rehearing Denied April 27, 1982.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   SCHWARTZ, Judge.

Jackson was found guilty of false imprisonment and robbery. While we reject his only point which goes to both convictions, Peterson v. State, 382 So.2d 701 (Fla.1980); Wilson v. State, 304 So.2d 119 (Fla.1974), and therefore affirm as to false imprisonment, the robbery conviction must be reversed for a new trial.

The defendant’s primary defense to the robbery charge, supported by substantial evidence to that effect, was that he had no criminal intent to commit the offense, and acted through fear of a coperpetrator who was the dominant figure in the incident. Since the intent question was thus a real issue at the trial, and even though the omission was not objected to, the trial court committed fundamental error in failing to instruct the jury that intent to deprive is, as held in Bell v. State, 394 So.2d 979 (Fla.1981), indeed an element of the crime of robbery. Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981) (failure to instruct on intent fundamental error when issue material because of claim of voluntary intoxication); compare Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981) (no fundamental error when intent not in question); McMurtroy v. State, 400 So.2d 547 (Fla. 3d DCA 1981) (same, following Williams); Gibson v. State, 403 So.2d 1019 (Fla. 3d DCA 1981) (same, following Williams); Lee v. State, 407 So.2d 388 (Fla. 3d DCA 1981) (per curiam) (same, following Williams). State v. Carter, 4 Wash.App. 103, 480 P.2d 794 (1971) is squarely on point. In citing and approving that decision in Williams at 400 So.2d 546, we described it as a case

in which four codefendants were convicted of robbery of a liquor store in a trial where the judge failed to advise the jury that proof of intent is an element of the crime. Three of the defendants won reversals of their convictions on appeal, since the gist of each of their defenses was that the holdup was an unplanned, spontaneous occurrence; each alleged in effect that they merely responded to the commands of one another. The court found that the element of intent was material to those defendants, and that the omission was therefore a ‘fatal defect.’[]

Affirmed in part, reversed in part.

      . We went on to note that
      the fourth codefendant’s conviction was affirmed, since
      there was no evidence presented in [his] case which placed the element of intent in issue. There has been no showing that [he] was prejudiced by the failure to properly define the necessary element of intent. . . 480 P.2d at 800.


author: ORFINGER, Judge.

text:
    Harry Francis HOWLAND, Appellant, v. STATE of Florida, Appellee.
    No. 81-876.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.
    Rehearing Denied April 15, 1982.
    H. Vernon Davids, Winter Garden, and Tanya M. Plaut, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant seeks reversal of his conviction for first degree murder and his sentence of life imprisonment. Finding no reversible error, we affirm.

Appellant contends that the trial court erred in failing to grant his motion for a free transcript of the preliminary hearing. He correctly asserts that a transcript of such hearing may not be denied him merely because he is indigent. Roberts v. La Vallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Griffen v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The record, however, does not reflect that the trial court ever denied his request for such transcript. Appellant’s motion requested a transcript of the grand jury proceedings, as well as the preliminary hearing. In the written order, the trial court specifically withheld ruling on both requests, requesting additional citation of authority from both appellant and the state. The record does not reflect that appellant complied with the court’s request or that he took the steps necessary to secure a ruling on the motion. Thus, no issue has been preserved for appeal. See Hernandez v. State, 323 So.2d 318 (Fla. 3d DCA 1975).

Thus appellant’s contention that he was denied a free copy of the transcript of the preliminary hearing solely because he was indigent is not supported by the record. The record does show that appellant had been declared indigent for cost purposes, and the court authorized the expenditure of $1,000.00 for expert witnesses and investigative purposes. It would thus appear that a method of procuring the transcript was clearly available. See Britt v. North Carolina, 404 U.S. 226, 91 S.Ct. 431, 30 L.Ed.2d 400 (1971).

Appellant’s remaining points are without merit. The judgment of conviction and sentence are therefore

AFFIRMED.

SHARP and COWART, JJ., concur.

      . Florida Rule of Criminal Procedure 3.131(b)(4) provides that:
      At the request of either party, the entire preliminary hearing, including all testimony, shall be recorded verbatim stenographically or by mechanical means, and at the request of either party shall be transcribed. If the record of the proceedings, or any part thereof, is transcribed at the request of the prosecuting attorney, a copy of this transcript shall be furnished free of cost to defendant or his counsel.


text:
    George Ralph JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-904.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.
    Rehearing Denied April 15, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, and Michael B. Jones, Asst. Public Defenders, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Villery v. Parole and Probation Commission, 396 So.2d 1107 (Fla.1981); Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981); Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).

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


text:
    Harry R. STEINHARDT, Appellant, v. Diana D. SEALS, Appellee.
    No. 81-910.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1982.
    Rehearing Denied April 12, 1982.
    Harry R. Steinhardt, pro se.
    Harry W. Carls, III of Curry, Taylor & Carls, Orlando, for appellee.
   PER CURIAM.

The order dismissing appellant’s complaint with prejudice is affirmed. In this order, the court reserved jurisdiction to award attorney’s fees, if any. While non-final orders entered after a final order are reviewable as prescribed by Florida Rule of Appellate Procedure 9.130(a)(4), the order reserving jurisdiction to award fees, in this instance, is not ripe for review. Section 57.105, Florida Statutes, (1981) provides for an award of attorney’s fees to the prevailing party in any civil action in which the court finds a complete absence of a justicia-ble issue of either law or fact raised by the losing party. Here the trial court has not considered this issue and therefore it is not ripe for appellate review.

AFFIRMED.

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


author: DANAHY, Judge.

text:
    Judy WERNDLI, Appellant, v. GREYHOUND LINES, INC., a Delaware corporation, Samuel W. Banks and American Home Assurance Company, a foreign corporation, Appellees.
    No. 81-874.
    District Court of Appeal of Florida, Second District.
    March 10, 1982.
    Rehearing Denied April 14, 1982.

      John B. Cechman and Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellee Greyhound Lines, Inc.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees Samuel W. Banks and American Home Assurance Co.
   DANAHY, Judge.

This case is before us for the second time. On the first appeal, we reversed an order of the trial court dismissing appellant’s amended complaint against appellee The Greyhound Corporation (Greyhound). In our earlier opinion, we said:

Appellant filed suit against Greyhound seeking damages for injuries sustained as the result of an attack by a third party near the Greyhound bus terminal in Fort Myers. Her amended complaint set forth the following facts which we must accept as true:
Appellant purchased a ticket for herself and her young son at the Greyhound bus terminal in St. Petersburg for a trip which would terminate at the Greyhound bus terminal in Fort Myers. The bus departed on schedule at approximately 11:30 p. m. and, after scheduled intermediate stops, arrived at the Fort Myers terminal at approximately 4:15 a. m. When she alighted from the bus after her long ride, appellant observed that the station and restrooms were darkened, closed, and locked. Because she needed to use bathroom facilities and also wished to obtain a cold drink for her thirsty son, appellant left the terminal facilities to cross to a lighted service station. As she walked away from the terminal, she was attacked by an unknown person who caused her severe injuries. The terminal was located in a high crime area of Fort Myers.
... Inasmuch as Greyhound knew or should have known that its Fort Myers terminal was located in a high crime area and would be darkened, closed, and locked at the time appellant was due to arrive there in the middle of the night, we believe that Greyhound should have warned or informed appellant of such a potentially dangerous condition in order that she might take that fact into consideration before purchasing her ticket and leaving St. Petersburg.

365 So.2d 177, 178.

Subsequent to our remand for further proceedings, appellant joined appellees Samuel W. Banks and his insurer (Banks) as additional defendants. Banks is the subles-see of the Fort Myers Greyhound terminal and operates it for Greyhound.

After substantial pretrial discovery, the trial judge entered a final summary judgment for Greyhound and Banks, reciting the following ground:

The court finds, as a matter of law, that the undisputed facts show that the Fort Myers Greyhound bus terminal is not located in a “high-crime area” and therefore these defendants did not breach any duty owed to this plaintiff.

In Drake v. Sun Bank & Trust Co., 377 So.2d 1013 (Fla.2d DCA 1979), we discussed the circumstances under which one party will be liable for the consequences of a criminal attack on another. As we pointed out in that case, liability does not exist unless the criminal event was foreseeable. In our earlier opinion in this case we accepted as true appellant’s allegation that the Fort Myers Greyhound terminal was located in a high crime area and tacitly held that the occurrence of a criminal event in a high crime area is reasonably foreseeable.

The trial judge considered all of the evidence adduced by appellant and concluded as a matter of law that it was insufficient to establish that the Fort Myers terminal was located in a high crime area. We believe that determination should be submitted to a jury. There is no magic meaning to the words “high crime area.” The issue remains one of foreseeability and we believe that appellant’s evidence was sufficient to create an issue for a jury to decide; that is, whether a criminal attack on appellant was reasonably foreseeable by Greyhound under the circumstances. Accordingly, we reverse the final summary judgment insofar as Greyhound is concerned.

However, we affirm as to Banks. In our earlier opinion, we held that Greyhound could have met its duty to appellant by warning her at the inception of her trip that its Fort Myers terminal would be darkened, closed, and locked at the time appellant was due to arrive there in the middle of the night. We specifically did not hold that Greyhound was obliged to have the terminal open and its facilities available to appellant upon her arrival. Extensive research has revealed no authority for the proposition that Banks, as an independent operator of the terminal, owed a duty to appellant as an arriving Greyhound passenger to have the terminal open at the time of her arrival. We believe that Banks owed no higher duty than did Greyhound; if Greyhound had no duty to assure that the terminal would be open at the time of appellant’s arrival, neither did Banks. Unlike Greyhound, Banks had no opportunity to warn appellant prior to her trip that the terminal would be closed upon her arrival.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

SCHEB, C. J., and RYDER, J., concur.

      . Werndli v. Greyhound Corp., 365 So.2d 177 (Fla.2d DCA 1978).

      . The subject of foreseeability of criminal acts is discussed at length in Reichenbach v. Days Inn of America, Inc., 401 So.2d 1366, 1369 n. 13 (Fla. 5th DCA 1981) (Cowart, J., concurring specially).

      . It has been held that the high degree of care owed its passengers by a carrier applies only to actual transportation and not to terminal or station premises provided by the carrier. Neer-ing v. Illinois Cent. Ry., 383 Ill. 366, 50 N.E.2d 497 (1943). Contra, Fort Worth & DC Ry. v. Brown, 205 S.W. 378 (Tex.Civ.App.1918); Tate v. Illinois Cent. Ry., 26 Ky. 309, 81 S.W. 256 (1904) (criminal assault of passenger in train depot); Eastern Airlines v. Dixon, 310 So.2d 336, 338 (Fla.3d DCA 1975) (Hendry, J., concurring specially).


author: SCHEB, Chief Judge.

text:
    Tommy Allen JONES, Appellant, v. Ellen J. JONES, as Personal Representative of the Estate of Floyd Jones, Deceased, Appellee.
    No. 81-991.
    District Court of Appeal of Florida, Second District.
    March 10, 1982.
    Rehearing Denied April 14, 1982.
    Charles R. Mayer, Highland City, for appellant.
    James P. Hahn of Hahn, Breathitt, Roberts & Watson, Lakeland, for appellee.
   SCHEB, Chief Judge.

The question we must decide in this case is whether a devise of a homestead is controlled by Article X, section 4, of the Florida Constitution as written when the testator executed his will, or as written at the time of the testator’s death.

Floyd Jones executed his will on February 10, 1972, devising all of his estate to his wife, Ellen J. Jones. Mr. Jones died on October 27, 1980. At the time of his death, he owned homestead real property on which he resided with his wife, who survived him. He was also survived by five children, the youngest of whom was 22.

Tommy Jones, one of the decedent’s children, filed suit seeking to declare the property on which his father resided to be homestead property, not subject to devise. Ellen Jones, as personal representative of her husband’s estate, contested the claim. The trial court found the decedent’s will validly disposed of the property and awarded Mrs. Jones fee simple title to it.

At the time Mr. Jones executed his will in February 1972, Article X, section 4, of the Florida Constitution provided that, “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.” On November 7, 1972, that provision was amended to provide that, “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” (Emphasis supplied.)

We think the determination of this issue is controlled by Estate of Murphy, 340 So.2d 107 (Fla.1976). There, the supreme court noted that executing a will does not vest any title or create any interest or right. The court stated:

A will speaks as of the time of the death of the testator. “In construing a will, it is the intention which the testator expresses in the will that controls and not that which he might have had in mind when the will was executed. Howe v. Sands, 141 Fla. 813, 194 So. 798.” Iles v. Iles, 158 Fla. 493, 29 So.2d 21, 22 (1947).

Id. at 109.

Appellant’s contention that the constitutional provision in effect at the time of the will’s execution controls is unavailing. The former constitutional provision conferred no vested right upon appellant as his interest as a child of the testator could not vest until the will became effective — at the testator’s death. We agree with the trial court that Mr. Jones’ will clearly evidenced his intent that all his property was to go to his wife at his death. Upon his death the constitution permitted him to devise the homestead property to his wife. Since a will must be construed consistently with the testator’s intent unless the law prohibits the devise, we hold Mrs. Jones was entitled to the homestead property.

AFFIRMED.

GRIMES and SCHOONOVER, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Deloris Ernestine BUZZARD, Appellant, v. Marion Edward BUZZARD and State of Florida, Department of Administration, Division of Retirement, Appellees.
    No. 81-672.
    District Court of Appeal of Florida, Second District.
    March 12, 1982.
    Rehearing Denied April 14, 1982.
    Larry K. Coleman of Knowles, Blalock, Coleman, Landers &. Walters, Bradenton, for appellant.
    James Birkhold and Edwin T. Muloek, Bradenton, for appellee Marion Edward Buzzard.

      Stanley M. Danek, Asst. Division Atty., Tallahassee, for appellee Division of Retirement.
   BOARDMAN, Acting Chief Judge.

Petitioner Deloris Ernestine Buzzard (the wife) appeals an order dismissing appel-lee/codefendant the State Department of Administration, Division of Retirement (the Department) from her action for enforcement of the alimony provision of the final judgment of dissolution of her marriage to appellee/codefendant Marion Edward Buzzard (the husband). We affirm.

The final judgment of dissolution of the Buzzards’ marriage, rendered in 1975, awarded the wife permanent alimony of $200 per month. In 1980, the wife filed a petition for enforcement of the alimony provision, alleging that the husband had ceased making alimony payments in August 1978, when he became a resident of Indiana, and had accrued an arrearage of $4600, and that he was currently eligible to receive retirement benefits in excess of $38,000 from the Department, which he could obtain in a lump sum payment upon request. The relief sought was addition of the Department as a party defendant, entry of a temporary injunction prohibiting the removal of the husband’s retirement benefits from the jurisdiction, enforcement of the alimony provision of the judgment of dissolution by means of a continuing writ of garnishment on the husband’s retirement funds, and costs and attorney’s fees.

The trial court added the Department as a party defendant and granted the temporary injunction. The husband and the Department then moved to dissolve the injunction on the ground, inter alia, that Section 121.131, Florida Statutes (1979) exempted the husband’s retirement benefits from legal process, and the Department filed an answer and affirmative defenses. The wife subsequently filed a motion, together with supporting documents, requesting the trial court to take judicial notice of the dismissal by an Indiana court of the URESA proceeding she had brought there.

After hearing, the trial court found “that the legislature has made the retirement benefits herein exempt from any legal process whatsoever” and therefore dissolved the temporary injunction and dismissed the Department as a party defendant. The wife’s motion for rehearing was denied, and this appeal followed timely.

Section 121.131, Florida Statutes (1979), the Florida Retirement System Act, provides:

The benefits accrued to any person under the provisions of this chapter and the accumulated contributions, securities, or other investments in the trust funds hereby created are exempt from any state, county, or municipal tax of the state and shall not be subject to assignment, execution, or attachment or to any legal process whatsoever.

(Emphasis added.)

The wife argues, however, that Section 61.11, Florida Statutes (1979), provides an exception to the exemption of Section 121.-131 that would otherwise apply. Section 61.11 provides in pertinent part: “When either party is about to remove himself or his property out of the state, ... the court may award a ne exeat or injunction against him or his property and make such orders as will secure alimony to the party who should receive it.”

The wife relies on City of Miami v. Spurrier, 320 So.2d 397 (Fla. 3d DCA 1975), cert. denied, 334 So.2d 604 (Fla.1976), which held that city pension benefits payable to a divorced spouse could be reached by garnishment to satisfy an award of alimony despite a municipal ordinance exempting pension rights from garnishment. However, Spur-rier involved an ordinance rather than a statute, and to the extent that the Spurrier holding purported in dicta to apply to state statutes, we are constrained to disagree.

The principle we must apply here was succinctly stated in Anderson v. Anderson, 44 So.2d 652, 655 (Fla.1950) (which involved the homestead exemption):

“The Courts have taken the view that inasmuch as the purpose of the exemption statute is to protect not only the husband but also his family from destitution and becoming a public charge, the exemption statutes will not, unless the contrary intention is clearly shown, be construed to enable the husband to claim its benefit against the very persons to whom he owes the obligation of support and maintenance, and that to construe the statute otherwise would, at least in part, defeat its avowed object”.

(Emphasis added.)

Since the husband here unquestionably has a duty to support, in the form of alimony payments, his former wife, we must examine the applicable statutes to determine whether an intention to allow him to claim the benefit of section 121.131 against her is clearly demonstrated. Having done so, we reluctantly conclude that the section 121.131 exemption does apply here.

In the first place, the exemption of the husband’s pension funds from legal process is absolute and unequivocal. Moreover, section 61.11 is not applicable here, since the husband has already removed himself from the state of Florida, and there has been no showing that he is about to remove his pension funds, although he has the right to claim a lump sum benefit at any time.

We must next look at Section 61.12, Florida Statutes (1979). That statute provides:

(1) So much as the court orders of the money or other things due to any person or public officer, state or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support; when the money or other thing sought to be attached or garnisheed is the salary of a public officer, state or county, the writ of attachment or garnishment shall be serviced on the public officer whose duty it is to pay the salary, who shall obey the writ as provided by law in other cases. It is the duty of the officer to notify the public officer whose duty it is to audit or issue a warrant for the salary sought to be attached immediately upon service of the writ. A warrant for as much of the salary as is ordered held under said writ shall not issue except pursuant to court order unless the writ is dissolved. No more of the salary shall be retained by virtue of the writ than is provided for in the order.
(2) The provisions of chapter 77 or any other provision of law to the contrary notwithstanding, the court may issue a continuing writ of garnishment to an employer to enforce the order of the court for periodic payment of alimony or child support or both. The writ may provide that the salary of any person having a duty of support pursuant to said order be garnisheed on a periodic and continuing basis for so long as the court may determine or until otherwise ordered by the court or a court of competent jurisdiction in a further proceeding.

(Emphasis added.) Since subsection 2 of this statute by its terms overrides exemption statutes solely with regard to the salary of a public employee and specifically provides for issuance of the writ of garnishment only to his employer, we find the conclusion that pensions are not covered by this statute inescapable. While it is true that the Florida legislature may not have been cognizant of the precise problem we are faced with here and in the public interest may wish to consider amending chapter 61 to afford ex-spouses more protection in situations such as this, we must now construe the statute as drawn.

We are aware that some of the other jurisdictions which have considered this issue reached the contrary result, see McDonald v. McDonald, 351 Mich. 568, 88 N.W.2d 398 (1958); Zwingman v. Zwingman, 150 A.D. 358, 134 N.Y.Supp. 1077 (1912). However, we, like the Supreme Court of California in Ogle v. Heim, 69 Cal.Rptr. 579, 442 P.2d 659 (1968), do not find these cases impressive. As stated in Ogle at 660: “ ‘The general rule is that a court is not authorized in the construction of a statute, to create exceptions not specifically made. If the statute announces a general rule and makes no exception thereto; the courts can make none.’ ” See also Fowler v. Fowler, 362 A.2d 204 (N.H.1976).

We have considered the other arguments raised by the wife and find them to be without merit.

Accordingly, we AFFIRM the trial court’s order dissolving the temporary injunction and dismissing the Department as a party defendant and REMAND the case for further proceedings.

GRIMES and CAMPBELL, JJ., concur.


text:
    Billy JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1653.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied April 27, 1982.
    Bennett H. Brummer, Public Defender and John Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

The defendant Billy Johnson appeals a judgment of conviction and sentence for carrying a concealed firearm [§ 790.01(2), Fla.Stat. (1979)], entered below and contends that the state’s evidence adduced at trial was insufficient to establish that the firearm which he possessed, was, in fact, concealed. We entirely agree as our review of the record demonstrates a total lack of evidence as to where the firearm was situated with reference to the defendant’s body at the time it was seized from the defendant by the police. Indeed, the police officer who seized the firearm from the defendant did not testify below; the state’s only evidence as to the seizure of said firearm came from another police officer present at the scene of the arrest and he could give no testimony on whether the subject firearm was concealed prior to its seizure from the defendant. It is plain, then, that no evidence was adduced below as to whether the firearm in question was concealed on the defendant’s person as charged in the information. Moreover, the defendant’s testimony at trial tends to indicate that the subject firearm was, in fact, not concealed. We, accordingly, have no alternative but to reverse the judgment and sentence under review for failure of the state to establish an essential element of the crime charged, to wit: the concealment of the firearm herein. Quiroga v. State, 364 So.2d 47 (Fla.3d DCA 1978), dismissed, 370 So.2d 462 (Fla.1979); Donald v. State, 344 So.2d 633 (Fla.2d DCA), cert. denied, 353 So.2d 679 (Fla.1977).

The judgment of conviction and sentence under review is reversed and the cause is remanded to the trial court with directions to discharge the defendant from the cause.


text:
    AMERICAN FOAM INDUSTRIES, INC., Appellant, v. MASTERCRAFT CARPET INDUSTRIES, INC., Appellee.
    No. 81-1818.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied April 23, 1982.
    Ainslee R. Ferdie, Coral Gables and Marc Birnbaum, Miami Beach, for appellant.
    Edward S. Kaplan, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The order dismissing plaintiff’s complaint and quashing service of process over the defendant for want of in personam jurisdiction is reversed and the action reinstated. Lacy v. Force v. Corporation, 403 So.2d 1050 (Fla. 1st DCA 1981); Professional Patient Transportation, Inc. v. Fink, 365 So.2d 209 (Fla. 3d DCA 1978); Madax International Corporation v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977).


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

text:
    A. M. MOORE, Appellant, v. LEISURE POOL SERVICE, INC., Appellee.
    No. 81-809.
    District Court of Appeal of Florida, Fifth District.
    March 17, 1982.
    Rehearing Denied April 15, 1982.

      Robert L. Thomas, Apopka, for appellant.
    Albert R. Cook of Jones, Morrison & Stal-naker, P. A., Altamonte Springs, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Moore appeals from a final judgment of foreclosure granting appellee Leisure Pool Service, Inc. a mechanic’s lien and damages in the amount of $704.80 for breach of a contract to build a swimming pool on the Moores’ property. The trial court also awarded Leisure Pool attorney’s fees and costs.

Moore and Leisure Pool disagreed on whether an automatic pool sweep was included in the contract price. Moore withheld $704.50, the balance unpaid at the time Leisure Pool refused to deliver the pool sweep. Leisure Pool filed a claim of lien and later sued to foreclose the lien. In the alternative, Leisure Pool sought damages in the amount of $704.80 for breach of contract.

The record supports the court’s finding that the pool sweep was not a part of the contract. The trial court’s decision comes to us clothed with a presumption of correctness. Zinger v. Gattis, 382 So.2d 379 (Fla. 5th DCA 1980). We therefore affirm the award of $704.80 as damages for breach of contract.

The claim of lien and the suit to foreclose the lien were in the name of A. M. Moore individually. On the day of the trial, Moore filed a motion for judgment on the pleadings or, in the alternative, to dismiss the action for lack of an indispensable party. Moore alleged that he and his wife were owners as tenants by the entirety of the property involved and therefore she was an indispensable party. The court denied the motion on the basis that it was untimely. This was error. Florida Rule of Civil Procedure 1.140(h)(2) provides that the failure to join an indispensable party may be raised by motion for judgment on the pleadings or at trial on the merits.

As the motion was timely, the trial court should have considered it on its merits. We note that in Marson v. Comisky, 341 So.2d 1040 (Fla. 4th DCA 1977), the court held that where a mechanic’s lien was alleged against real property owned by a defendant and his wife, the wife was an indispensable party and failure to join her as a co-defendant rendered the complaint defective. We also reject Leisure Pool’s argument that the court could proceed without making the wife a party on the basis that she was actually or constructively before the court. The wife was not served. She made no appearance by filing a pleading. The court did not acquire jurisdiction over her simply because she testified as a witness and was in the company of her husband during the trial. We therefore reverse the imposition and foreclosure of the mechanic’s lien and remand for a hearing on the motion to dismiss.

Under the contract with Leisure Pool, Moore was obligated to pay a reasonable attorney’s fee for any action deemed necessary by Leisure Pool to enforce its rights under the agreement. Leisure Pool also claimed entitlement to recover a reasonable attorney’s fee as the prevailing party in an action to enforce a mechanic’s lien. § 713.-29, Fla.Stat. (1981). In light of our decision to reverse the lien foreclosure and to remand for a hearing on the motion to dismiss this count, we also reverse the award of attorney’s fees and remand for reconsideration of this matter.

AFFIRMED in part, REVERSED and REMANDED in part.

DAUKSCH, C. J., and SHARP, J., concur.


text:
    Iberia LOPEZ, Appellant, v. FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 81-737.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Rehearing Denied April 27, 1982.
    Fernando F. Freire, Miami, for appellant.
    James F. Dougherty, II, Miami, for appel-lee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   SCHWARTZ, Judge.

The plaintiff-appellant settled an automobile accident claim for $3,600 with an alleged joint tortfeasor who had $10,000 of liability coverage with Allstate. This was accomplished without the permission of her uninsured motorist carrier, the appellee Fidelity and Casualty Company, in admitted and unexcused violation of the terms of the UM policy. See Arrieta v. Volkswagen Ins. Co., 343 So.2d 918 (Fla. 3d DCA 1977); Sena v. State Farm Mutual Automobile Ins. Co., 305 So.2d 243 (Fla. 3d DCA 1974); McInnis v. State Farm Mutual Automobile Ins. Co., 208 So.2d 481 (Fla. 4th DCA 1968). Since the release given to Allstate and its insured destroyed the subrogated right to contribution arising under the recently enacted Uniform Contribution Among Tortfeasors Act, Sec. 768.31(5) Fla.Stat. (1979), which the UM carrier would have secured had it been assessed more than 13,60o based on the liability of a phantom vehicle which was also allegedly involved in the accident, prejudice from the breach of the “no-settlement-without-consent” clause was established as a matter of law. See Travelers Ins. Co. v. Gray, 360 So.2d 16 (Fla. 3d DCA 1978); compare and contrast, Southeastern Fidelity Ins. Co. v. Earnest, 395 So.2d 230 (Fla. 3d DCA 1981), and cases cited. The summary judgment entered below in Fidelity and Casualty’s favor is consequently

Affirmed.

      . If the arbitrators awarded the plaintiff less than $3,600, the settlement would have been set off, and Fidelity would have owed her nothing. Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978); Volkswagen Ins. Co. v. Taylor, 201 So.2d 624 (Fla. 1st DCA 1967).


author: FERGUSON, Judge.

text:
    YELLOW CAB COMPANY OF DADE COUNTY and Home of Yellow Cab Company, Inc., Appellants, v. DADE COUNTY, Florida, d/b/a Metropolitan Dade County, Florida Yellow Cab Operators Association, Inc. and Associated Diamond Cabs, Appellees.
    No. 82-216.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Rehearing Denied April 29, 1982.

      Sibley, Giblin, Levenson & Glaser and Allan M. Glaser, Miami Beach, for appellants.
    Robert A. Ginsburg, County Atty., and Allyson J. Ginsburg, Asst. County Atty., Miami, Avrach & Capps and Gerald N. Capps, Miami Beach, for appellees.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

This is an appeal from a final order of the trial court finding no unconstitutional impairment of contract.

The Yellow Cab Company of Dade County and Home of Yellow Cab Company, Inc. entered into certain contracts providing that Yellow Cab had the right to provide exclusive taxi-cab service at five hotels located in Dade County, Florida — the Omni, Doral Country Club, Doral Beach Hotel, Ramada Inn Airport East, and Plaza Vene-tia Hotel. Dade County subsequently enacted two emergency ordinances, Dade County Ordinance No. 81-129 and Dade County Ordinance No. 81-130 which prohibited exclusive taxi-cab service, i.e., the “buying of doors.” These ordinances were to become effective upon the implementation of Dade County Ordinance No. 81-85 which provided for county-wide regulation of taxi-cabs. Yellow cab sought injunctive and declaratory relief in the Dade County Circuit Court from enforcement of these ordinances. The validity of ordinance 81-85, supra, was upheld by this court in City of Miami v. Metropolitan Dade County, 407 So.2d 243 (Fla. 3d DCA 1981). We now affirm the final order of the trial court which dissolved the temporary injunction and adjudged that Dade County Ordinances Nos. 81-129 and 81-130 were not an unconstitutional impairment of the contracts between Yellow Cab and the five hotels.

The test of whether there has been an unconstitutional impairment of contract, in violation of the Florida Constitution, art. 1, § 10 or of the Constitution of the United States, art. 1, § 10, cl. 1, is essentially the same. As adopted by the Florida Supreme Court in Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1980), the test requires the court to balance the nature and extent of impairment with the importance of the state’s objective. The court cited Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978), reh. den., 439 U.S. 886, 99 S.Ct. 233, 58 L.Ed.2d 201 (1978) in identifying the following factors which a court might consider in applying the balancing test:

(a) Was the law enacted to deal with a broad generalized economic or social problem?
(b) Does the law operate in an area which was already subject to state regulation at the time the parties’ contractual obligations were originally undertaken, or does it invade an area never before subject to regulation by this state?
(c) Does the law effect a temporary alteration of the contractual relationship of those within its coverage, or does it work a severe, permanent, and immediate change in those relationships — irrevocably and retroactively?

Pomponio v. Claridge of Pompano Condominium, supra at 779.

One effect of the exclusive contract arrangement is to require competitor taxicabs to “dead-head” at very popular hotels — i.e., competitor cabs may bring passengers to those hotels, but are not permitted to pick-up passengers at those locations. In this case the competing interest of the County, as stated, is to encourage free competition, provide passenger choice, and promote flow of taxi-cab service in such a fashion as to conserve fuel and improve transportation efficiency on behalf of Dade County citizens.

Regulation of taxi-cabs has been held to be a proper subject for exercise of police power, State ex rel. Hosack v. Yocum, 136 Fla. 246, 186 So. 448 (1939), and taxi-cabs have for a long time been the subject of regulation by the state. See City of Miami v. Metropolitan Dade County, supra, and statutes and cases collected therein. Appellants were not deprived of a means of earning a livelihood or of providing service at the hotel, but only of the right to provide exclusive taxi-cab service at certain hotels. The burden placed on appellants is not palpably unjust or hostile, State ex rel. Hosack v. Yocum, supra. Further, there is no evidence, nor is it obvious to us, that the County Commission could have achieved its stated goal without abrogating the exclusive agreements.

The contract clause of neither the United States Constitution nor the Florida, Constitution prohibits a state from enacting legislation with retroactive effect. Laws which impair the obligations of private contracts may be constitutional if they are reasonable and necessary to serve an important public purpose. United States Trust Company of New York v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977).

Applying the test as pronounced by the United States Supreme Court and adopted by the Florida Supreme Court, we conclude that the interests of the County far outweigh the severity of impairment to appellants’ private contracts and hold, therefore, that Ordinances 81 — 129 and 81— 130, supra, were enacted as a reasonable and necessary exercise of the Commission’s police powers.

Affirmed.

      . Because this court finds no impairment of contract, the issue of whether three of the five contracts were void ab initio is moot, a point conceded by appellee Dade County.


author: PER CURIAM. JOANOS, Judge,

text:
    SQUARE G. CONSTRUCTION COMPANY and U. S. Fidelity & Guaranty Company, Appellants, v. Handsome GRACE, Appellee.
    No. ZZ-43.
    District Court of Appeal of Florida, First District.
    March 25, 1982.
    Rehearing Denied April 29, 1982.

      John R. Gierach, Orlando, for appellants.
    Curtis B. Goff, Orlando, for appellee.
   PER CURIAM.

The claimant in this workers’ compensation case, Handsome Grace, was awarded (1) evaluation of his back disability by a surgeon to be chosen by agreement; (2) temporary total disability compensation from August 7, 1980 to the date of hearing on September 23 and, in the pro forma language of Section 440.15(4)(c), during the continuance of such disability; and (3) payment for two prescriptions dated August 19 and September 2, 1980, described in a September 15 notice to controvert.

Carrier’s appeal challenges the payment for the prescriptions on the ground that only Dr. Shea was authorized, and contests the award of compensation on the ground of lack of competent substantial evidence of medical disability and claimant’s failure to return to work. We affirm the award on consideration of the deputy’s finding of emergency treatment and further finding of claimant’s physical inability to do his job during the period in question, based on the deputy’s observation of claimant and testimony as to the prescribed medications including “muscle relaxers and other pills that make him drowsy which would prevent him from operating the heavy equipment, which was his job at Square G at the time . ... ” We note that claimant’s testimony before the deputy was contemporaneous with the six-week period of temporary disability in question, and the only other evidence before the deputy (except documentary exhibits) was a deposition by Dr. Shea, who evaluated claimant on August 7 and noted continued complaints but concluded at that time he would not impose work restrictions or provide treatment or medication.

Following his accident on May 26, 1980, claimant was first treated by the hospital emergency room physician, Dr. Sanga-draca, and in the following month by a series of doctors named on the parties’ record stipulation as Drs. Brunson, Wright, and Kim, while he was hospitalized from June 6 to 21. A report by Dr. Shea submitted to carrier on August 11 shows two appointments, July 14 and August 7, for claimant who “comes to this office for or-thopaedic evaluation.” The report is largely negative but notes moderate to minimal lumbar spasm, movement in a very stiff painful manner, absence of any myelogram study, and concludes that MMI was reached and “there is nothing orthopaedically.”

Dr. Shea’s deposition confirms that claimant was provided no return appointment. Claimant testified he requested additional care by calling Dr. Shea’s office but was unable to get an appointment. His attempt to relate what the doctor’s secretary told him was excluded as hearsay. The date of the controverted prescription would indicate that he visited the hospital emergency room within a week or so after Dr. Shea’s discharge, because, in substance, he did not know he could see any other doctor when his continuing symptoms recurred in severe form. The hearing before the deputy followed shortly after the carrier controverted payment of the prescription. Under the circumstances presented we are unable to reverse the deputy’s conclusion that the treatment was of such emergency character as not to violate the provisions of Section 440.13 with respect to authorization.

Claimant testified in some detail as to physical requirements of his job in operating heavy equipment and as to past experience, having finished 3rd grade in school: “I’ve done farm work, picked cotton, plowed mules, plowed a tractor, and also when I went into construction work I be pressing manholes, operated all different kinds of heavy equipment.” We conclude against reversal of the deputy’s resolution of the clear credibility issues before him as to temporary disability for reasons detailed below.

Recent decisions have properly emphasized the necessity for efforts to test employability when there is no substantial evidence of medical inability to work during a period of claimed temporary disability. Those opinions, however, have expressly referenced the earlier decision in Mendivil v. Tampa Envelope Manufacturing Co., 233 So.2d 5 (Fla.1970), which clearly stated what Florida workers’ compensation law has always recognized: That, in proper circumstances, temporary medical or functional disability may be proved by lay testimony:

... lay testimony is often sufficient to sustain a compensation award, even though it conflicts with medical testimony -(e.s.)

See also Crowell v. Messana Contractors, 180 So.2d 329, at 330 (Fla.1965):

... we have held that opinions of medical experts are not conclusive and may even be disregarded by the deputy ‘in favor of lay testimony,’ ...; that the deputy may consider not only lay testimony but his personal view of the claimant as well, Hernandez v. DeCarlo, 116 So.2d 429 (Fla.1959); and that a conclusion may be based on the testimony of a claimant to the exclusion of a medical expert, Star Fruit Co. v. Canady, 159 Fla. 488, 32 So.2d 2 (1947). (e.g.)

We accordingly affirm the award in the present case because the medical evidence necessary to show compensable temporary disability (or inability to attempt a return to employment) may include claimant’s testimony as to his condition, including reaction to prescribed medication and physical limitations, even after discharge and release for work by his treating physician. Decisions rejecting a claimant’s bare complaints as insufficient to excuse lack of work effort, in certain contexts, are easily distinguished on their stated facts. We find no statutory change which reverses the above cited ordinary established rules of evidence or creates new conditions precedent for such awards.

The order appealed is accordingly AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.

JOANOS, J., concurs in part and dissents in part with opinion.

JOANOS, Judge,

concurring in part and dissenting in part.

I concur in the majority’s affirmance as to the payment for the prescriptions. However, I dissent from their affirmance of the award of temporary total disability compensation and would reverse on that point. My review of the evidence has convinced me that the point is controlled by the opinion in Commercial Carrier Corp. v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981). In that case, this Court reversed an award of temporary total disability compensation where claimant’s physician said that claimant could return to work, but the claimant testified that he was unable to work and did not attempt to return to work because of the pain of the injuries. At page 848 of that opinion, the Court stated:

Since there was no medical evidence that claimant was unable to work during the period in question due to his injuries, the claimant is precluded from an award of TTD benefits without making a conscientious effort to return to work.... Also, in the absence of medical evidence showing that claimant is unable to work, he could not establish entitlement to TTD benefits merely by testifying that he did not make any effort to return to work because he did not feel able to... . [cited omitted]

      . The record indicates one prior back injury in 1977, known to employer, with full recovery and asymptomatic status for the year or so claimant worked for Square G.

      . See Commercial Carrier Corp. v. Bennett, 396 So.2d 847 (Fla. 1st DCA 1981), citing Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). Although the work search requirement in Exxon Co., U. S. A. v. Alexis, 370 So.2d 1128 (Fla.1978), originally relating to assessment of permanent disability, has been for good reason applied to temporary disability by requiring good faith in testing work capability after medical release, the principle is plainly subject to qualification with respect to short periods or particular circumstances including but not limited to a claimant’s testimony as to physical conditions and symptoms involving ordinary evidentiary credibility standards as opposed to indispensable medical expertise. Cf., Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla.1970). See also Scotty’s, Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981), and Deck’s Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980), at 1076: “reasonable medical probability may be established by medical or lay testimony ... as to conditions and symptoms which are within the actual knowledge and sensory experience of the claimant.” (e.s.)

      . With respect to a claimant who testified that back pain and immobility prevented work, in conflict with a physician’s opinion that he was physically able to work, the Court has found that the trier of fact “had a right, as a matter of law, to accept the opinion of the Tampa physician on this point or to reject it and base his conclusions on the testimony of the claimant .. . . ” Star Fruit Co. v. Canady, 32 So.2d 2, at p. 4 (Fla.1947). Later orders finding certain subjective complaints insufficient, absent work effort or medical evidence, do not limit medical evidence to expert testimony nor- do they expressly or implicitly remove from the deputy his function in determining credibility of a claimant’s testimony as to physical capability when the issue does not necessarily involve medical expertise. Action Pool Builders v. Grant, IRC Order 2-3743 (1979); Martin Marietta Corp. v. Johnson, 7 FCR 355 (1973).

      . See Commercial Carrier Corp. v. Bennett, note 2, supra, involving a six month period after claimant’s release for work, without evidence that he sought either further medical attention or return to employment; Cardinal Industries, Inc. v. Dawkins, 392 So.2d 368 (Fla. 1st DCA 1981), involving impropriety of continued temporary total disability compensation for simple complaints of pain when claimant failed to follow recommendations by three treating physicians that he should attempt to return to work; note 2, supra, Walter Glades Condominium v. Morris, involving an eighteen month period after discharge, without evidence of any effort at employment or medical attention for such period.

      . Provisions of the law as currently amended with respect to permanent impairment rating require use of administrative guidelines “based upon medically or scientifically demonstrable findings” with interim use of the 1977 AMA Guides, § 440.15(3)(a) 3, and further limit permanent impairment ratings to the degree found by any physician, § 440.25(3)(b). The specificity of such prescriptions suggests an intent that evidentiary burdens are not otherwise altered.


author: ERVIN, Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Jesse T. DONAHOO, et ux., Appellees.
    No. AF-24.
    District Court of Appeal of Florida, First District.
    March 25, 1982.

      John H. Beck, Acting Gen. Counsel, Margaret-Ray Kemper and Ella Jane P. Davis, Tallahassee, for appellant.
    R. Brownlee Eggart, Pensacola, for ap-pellees.
   ERVIN, Judge.

This is an appeal from an inverse condemnation action in which the trial court found that certain acts by the Department of Transportation (DOT), in connection with the construction of 1-10 in Pensacola, constituted a taking of appellees’ property. As a consequence, the court held that the ap-pellees were entitled to a jury trial to determine the just compensation for their property. The DOT urges that the trial court erred in finding that a taking had occurred. We agree and reverse.

At the hearing, the following facts were adduced: The appellees purchased in 1956 a parcel of land located in the city of Pensacola. The parcel contained a three-story masonry building, the second and third floors of which were then operated as a hotel, while the ground floor was used as a furniture store. An alley owned jointly by the appellees and the adjacent property owner runs along the east side of the property. To the east of the property are railroad tracks and to the west, beyond one intervening parcel, a railroad yard.

After their purchase, the Donahoos continued to operate the hotel located on the top two floors and to rent the ground floor, most recently for a pool hall. The adjacent alleyway was used to deliver various materials to the hotel.

In the early 1970’s, the Department began preparations for the construction of a spur to I — 10, running north and south through Pensacola, and connecting with 1-10 to the north. Early DOT plans showed the right-of-way line cutting through the northeast corner of the building. Those plans were later modified and the right-of-way was relocated so as to miss the building entirely and to take only a corner clip from the property. The final plans for the project completely eliminated the property from the required right-of-way.

Before the final modifications, the appel-lees testified that in June, 1973, they were contacted by DOT personnel regarding the proposed acquisition of their property. Mr. Donahoo was also present when DOT discussed with the adjacent property owner, the acquisition of his property. The adjacent property owner testified that the ap-pellee’s hotel and pool room operated on the ground floor were, at the time of the conference, in operation. He also stated DOT’s agents then represented that the appellees’ property would, in addition to his property, be acquired for the project.

In late 1973 or early 1974, the appellees’ attorney visited the DOT office in Pensacola and discussed with several DOT personnel the possible acquisition of the appellees’ property. At that time, certain repairs to the property were necessary to bring the property into conformity with regulations of local governmental entities. Upon being asked their opinion, the DOT personnel counseled the appellees against making the needed renovations because of the proposed taking and because the renovations probably would not result in an enhanced purchase price by the Department.

Although the property was shown as being within the required right-of-way on the initial DOT maps and plans, authorization to acquire the property was never given, a DOT appraisal was never made, and no offer to buy was ever tendered to the appel-lees or their representative. In January, 1974, the Donahoos closed the hotel operated on the second and third floors of the building. The pool hall, however, located on the first floor, continued operating for another year-and-a half until the latter part of 1975 when the ground floor lease was terminated.

On March 6, 1974, the appellees were advised by phone that the Department would not require any of the property for the construction of 1-10. The appellees’ occupational license did not expire until September 30,1974, and the Pensacola zoning ordinance allowed the reestablishment of a non-conforming use within 180 days after its discontinuance. Mr. Donahoo testified that he did not reopen the hotel because of his old age, poor health, and because of the high cost involved in making the repairs.

During the construction of the I — 10 spur, which began in the vicinity of the property about February 15, 1978, a portion of the free-standing brick wall running along the back of the property was knocked down. Boundary markers and right-of-way stakes were placed in the alley itself as a result of a mistake by the Department, and equipment was stacked in the alley and leaned against the building. Dirt was also piled next to the building and a drain and curb were placed across the alley’s entrance. All of these problems except for the repair of the brick wall were remedied during the construction. The markers were relocated, the contractor was advised not to stack equipment or dirt outside the right-of-way, and a curb cut was provided at the alley’s entrance.

The interstate spur, as constructed, runs very close to the property. The northern corner of the three-story building is some 26Vá feet from the spur. The distance between the roadway and the property then increases to a maximum of 60 feet. Additionally, flood lights placed over the spur shine onto the east side of the building. The construction of the roadway resulted also in extensive highway noise which, according to the owner of the property, rendered it unsuitable for use as a hotel. Finally, the acquisition of the right-of-way for the project cleared the entire area, with the exception of the appellee’s business, of business establishments and homes and completely changed the character of the neighborhood.

A series of offers to buy the property was made after January 31, 1974, when the hotel was closed. An appraiser testified that the property was worth about $80,000 before the taking. At the time of the trial, the appellees had entered into a contract to sell the property for $50,000.

We agree with the DOT that none of its acts resulted in a taking for which compensation must be paid. A taking cannot result unless there has been “ ‘a permanent invasion of the land amounting to an appropriation’ different in degree or character from ‘damaged property,’ and substantially depriving the owner of the land’s beneficial use as compared with ‘merely impairing] its use.’ ” Department of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980).

Neither the appellant’s failure to purchase or condemn the appellees’ property, nor the representations made to the appellees in connection therewith, constitute a taking. City of Miami v. Romer, 73 So.2d 285 (Fla.1954); Dade County v. Still, 377 So.2d 689 (Fla.1979). Nor can the ap-pellees assert any theory estopping DOT from denying that a taking occurred. Before an estoppel can be invoked against the state, there must be (1) a representation by the party estopped to the party claiming the estoppel as to some material fact, (2) a reliance upon the representation by the party claiming estoppel, and (3) a change in such party’s position caused by his reliance upon the representation to his detriment. Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979).

In the instant case, the record establishes that the appellees’ hotel was forced to close because of local regulations, not because of the DOT’s construction plans. Moreover, the landowners did not materially change their position as a result of the DOT’s representations. The record establishes that the landowners had time to reopen the hotel and comply with the local regulations once they were informed by the DOT that their property would not be taken and that only health and financial reasons prevented the hotel’s reopening. The elements of reasonable reliance and change in position are lacking, thereby precluding es-toppel.

Nor can the landowner prevail in inverse condemnation on the basis of the effects of the construction as it did not deny the landowner all reasonable existing uses of the building. Travis v. Department of Transportation, 333 So.2d 86 (Fla. 1st DCA 1976). Cf. City of Jacksonville v. Schumann, 199 So.2d 727 (Fla. 1st DCA 1967), cert. denied, 204 So.2d 327 (Fla.), cert. denied, 390 U.S. 981, 88 S.Ct. 1101, 19 L.Ed.2d 1278; Dean v. State Road Department, 165 So.2d 257 (Fla. 3d DCA 1964), cert. denied, 169 So.2d 389 (Fla.). Most of the remaining acts complained of by the appellees were only temporary invasions that were remedied by DOT and hence do not constitute a taking. See State Road Department v. Darby, 109 So.2d 591 (Fla. 1st DCA 1959).

The destruction of the free-standing brick wall located at the rear of appellees’ property, however, can arguably, under Darby, be considered a taking. We think Darby to be inapplicable to the facts before us since it was decided long before the legislature conditionally waived the state’s immunity to tort actions by enacting Section 768.28, Florida Statutes (1975). We consider that appellees’ claim for the destruction of their wall sounds in tort—not in inverse condemnation. See Division of Administration, State Department of Transportation v. Hillsboro Association, Inc., 286 So.2d 578 (Fla. 4th DCA 1973).

REVERSED.

McCORD and SHAW, JJ., concur.


text:
    Armadio RUIZ, a/k/a Roberto Puig, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1077.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied April 28, 1982.
    Bennett H. Brummer, Public Defender and Mitchell Bloomberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

The final judgment of conviction and sentence under review is affirmed. We reject the defendant’s central argument on appeal that the trial court erred in denying the motion to suppress the evidence which formed the basis for the criminal charges in this cause as clearly the search herein was made incident to a valid arrest of the defendant. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Chapas v. State, 404 So.2d 1102 (Fla. 2d DCA 1981); Patterson v. State, 402 So.2d 1190, 1192 (Fla. 5th DCA 1981). We have carefully examined the other contentions raised by the defendant and find that they present no reversible error. See e.g., Mackiewicz v. State, 114 So.2d 684, 689 (Fla.1959); Stanley v. State, 357 So.2d 1031 (Fla. 3d DCA), cert. denied, 364 So.2d 891 (Fla.1978); Dowling v. State, 210 So.2d 280 (Fla. 2d DCA 1980); § 924.33, Fla.Stat. (1981).

Affirmed.


text:
    Anthony SCHICCHI and Geraldine Grasso a/k/a Geri Grasso, Appellants, v. STATE of Florida, Appellee.
    No. 81-749.
    District Court of Appeal of Florida, Fourth District.
    March 31, 1982.
    Rehearing Denied April 28, 1982.
    Douglas R. Bell and Susan Minor, of Law Offices of Bell & Bell, Fort Lauderdale, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the convictions but remand for resentencing in light of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

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


text:
    Wanda S. PITTS, Appellant, v. Carl E. PITTS, Appellee.
    Nos. 80-2141, 81-1100.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied April 27, 1982.

      Joseph C. Segor, Miami, for appellant.
    George A. Buchmann, South Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The ex-wife appeals from the financial aspects of a judgment which dissolved the ten-year, childless marriage of the parties. When they married in 1970, each for the second time, the husband was a widower of fifty. Ms. Pitts was a thirty-year-old divorcee, with substantial earning experience and abilities, but with four young children of her previous marriage. There was evidence both that she told Pitts beforehand that if he married her and helped care for her children — as he in fact did — she would make no further financial demands upon him, and that the marriage broke up because of her unwillingness any longer to be married to a man so much older than she.

The trial court awarded Ms. Pitts half of the marital home which had been purchased in his name alone by the husband before the marriage and $1,200 a month in rehabilitative alimony for three years. In the light of the numerous factors pertinent to the trial court’s decision of these issues — including, inter alia, the age and actions of the parties, the length of the marriage, and the capacities of the wife — we find no abuse of discretion in these determinations and reject the appellant’s claims that she was entitled, as a matter of law, to permanent periodic alimony or to a larger lump sum share of the substantial assets accumulated by the husband during the marriage. Section 61.08, Florida Statutes (1979); Canakaris v. Canakaris, 382 So.2d 1197, 1200 (Fla.1980); Quick v. Quick, 400 So.2d 1297 (Fla. 1st DCA 1981); Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980), review denied, 397 So.2d 778 (Fla.1981); Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 324, 354 So.2d 981 (Fla.1977); Gordon v. Gordon, 192 So.2d 514 (Fla. 1st DCA 1966); see also, Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980); compare Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980).

Affirmed.

      . In Smith, this court said at 378 So.2d 15, that
      [e]ven when there is no financial problem, it might well be thought improper to permit an errant spouse to destroy a marriage and then to claim benefits equal to those which would have been provided had it remained intact. While Ms. Pitts can certainly not be deemed “errant” in the sense of being guilty of “fault” or misconduct, we suggest that this observation may well apply to one who, like her, is responsible for the fact that the parties no longer live together happily and thus that the marriage becomes irretrievably broken — who, in a word, wants the marriage to end — and then seeks the same financial rewards which would have accrued if the marriage had continued. See Sec. 61.08(2), Fla.Stat. (1979) (“In determining a proper award of alimony ... [t]he court may consider any other factor necessary to do equity and justice between the parties.”)


text:
    CITY OF ORLANDO, Appellant, v. ORLANDO PROFESSIONAL FIRE FIGHTERS, LOCAL 1365, IAFF, and Florida Public Employees Relations Commission, Appellees. CITY OF ORLANDO, Appellant, v. ORLANDO PROFESSIONAL FIRE FIGHTERS, LOCAL 1366, IAFF, and Florida Public Employees Relations Commission, Appellees.
    Nos. 81-1229, 81-1247.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.

      Christopher A. Detzel of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellant.
    Edward S. Stafman, Staff Counsel, Public Emp. Relations Commission, Tallahassee, for appellee.
    No appearance for appellee Orlando Professional Fire Fighters, Local 1365, IAFF.
   ON MOTIONS TO DISMISS

FRANK D. UPCHURCH, Jr., Judge.

These cases arose from the same circumstances and for convenience will be discussed in a single opinion.

In Case 81-1247, the City appealed from an order of the Public Employees Relations Commission which denied in part its petition to designate certain employees as managerial or confidential employees under section 447.203, Florida Statutes (1979). PERC’s order also defined the applicable bargaining unit and ordered a representation election pursuant to a petition previously filed by the Orlando Professional Fire Fighters, Local 1365, IAFF. Case 81-1229 involves an appeal from an order of PERC finding that the City committed an unfair labor practice in terminating dues deductions for captains and assistant chiefs in response to Local 1365’s representation petition which sought to represent these employees.

After the notices of appeal had been filed, an election was held and the employees voted in favor of “no organization.” PERC subsequently verified the results and dismissed the representation petition, informing the parties that no future petition for an election in the unit could be filed until twelve months from October 29, 1981. See § 447.307(3)(d), Fla.Stat. (1979).

PERC then filed a motion to dismiss the appeal in Case 81-1247, contending that the appeal is interlocutory in nature and does not constitute “final agency action” under section 120.68(1), Florida Statutes (1979). The City, while essentially agreeing that this appeal should not continue, contends that the proper resolution is for this court to determine that the appeal is moot and to vacate PERC’s order and remand the matter to PERC with directions to dismiss the case.

As to Case 81-1247, we agree with PERC that an order designating certain employees as managerial or confidential employees is not “final agency action” for which an appeal will lie and grant the motion to dismiss.

Section 120.68(1), Florida Statutes, allows for judicial review where a party “is adversely affected by final agency action.” This section further provides that intermediate agency action or rulings are immediately reviewable “if review of the final agency decision would not provide an adequate remedy.”

In Panama City v. PERC, 333 So.2d 470 (Fla. 1st DCA 1976) and School Board of Sarasota County v. PERC, 333 So.2d 95 (Fla. 2d DCA 1976), the courts held that PERC orders which determine the appropriateness of a bargaining unit and direct that an election be held are not final agency action subject to judicial review. Rather, these decisions indicate that the proper procedure to challenge such interlocutory orders is by appeal from a PERC order certifying the employee organization as the exclusive bargaining representative of the employees within the unit, since such an order constitutes final agency action. Panama City at 471; School Board of Sarasota County at 96.

The City points out that here it seeks to appeal only the portion of PERC’s order relating to the determination of managerial or confidential employees. However, for purposes of “finality,” such a determination is similar to that of designation of an appropriate bargaining unit. See Sarasota Classroom Teachers Ass’n v. School Board of Sarasota County, 5 FPER ¶ 10184 (1979). Therefore, since the order is non-final in nature, it may only be reviewed if this court determines that review of a final agency decision would not provide an adequate remedy. Panama City.

Here there is no such showing. First of all, appellant has suffered no injury as a result of PERC’s order since the unit employees defeated the representation bid. Whether a future organizing action is attempted or will be successful is uncertain. In the event a bargaining representative is ultimately chosen and certified, the City may appeal from the order of certification and obtain judicial review of all interlocutory orders entered pursuant thereto. Therefore, if PERC chooses to rely on the instant order in a future representation matter, review could still be had.

To permit an appeal directly from an order determining confidential or managerial employees would run afoul of the policy considerations discussed in Amalgamated Transit Union v. PERC, 344 So.2d 319 (Fla. 1st DCA 1976):

The Florida Public Employees Relations Act contemplates that the necessary steps to certification of a bargaining representative, whether by voluntary recognition or by election, shall be accomplished in an orderly and efficient way. Strong policies militate against judicial interruption of the administrative process as it moves toward certification of a bargaining representative for the designated unit. Aside from considerations of administrative and judicial efficiency, we must take care that judicial intervention not become a detrimental factor in the certification process, as by delaying the election until the constituency of the proposed unit or its concept of self-interest has changed. Furthermore, there is ordinarily no need for judicial review of certain determinations preliminary to certification — e.g., the appropriateness of a proposed unit— until the employees themselves have had an opportunity to defeat certification because they oppose the proffered representatives or oppose the proffered unit, or both.

344 So.2d at 321.

The fact that no bargaining representative has been chosen by the employees further supports this policy since in such a case the employer has not been aggrieved by PERC’s action and any appellate decision would be at best advisory (since circumstances may change between organizing attempts) and at worst, meaningless (since no future organizing attempts may be made).

The City relies on Great Western Sugar Co. v. Nelson, 442 U.S. 92, 99 S.Ct. 2149, 60 L.Ed.2d 735 (1975), for the proposition that this matter has been rendered moot by the results of the election and that this court should therefore vacate the order below and remand the matter to PERC with directions to dismiss the cause. However, such a course of action presupposes that this court has jurisdiction over the instant appeal. Because the order is not final agency action, this court lacks jurisdiction to review it.

In Case 81-1229, the City has filed a suggestion of mootness and moved to vacate PERC’s order (which found that the City had committed an unfair labor practice), and has moved to dismiss the appeal.

An order finding an employer guilty of an unfair labor practice is final and hence properly appealable. See, e.g., Duval County School Board v. PERC, 346 So.2d 1087 (Fla. 1st DCA 1977). Here, PERC found that the City committed an unfair labor practice in terminating dues deductions for captains and assistant chiefs in response to Local 1365’s representation petition which sought to represent these employees and imposed certain sanctions. The City argues that since no representation petition is pending now due to the results of the election, the matter has become moot and this court should vacate the order below even if the prior conduct was in fact an unfair labor practice at the time.

At the time the City took the action it did, representation proceedings were pending. PERC found the City’s conduct constituted an unfair labor practice and ordered the City to take various steps to remedy the violation. The fact that the City may now be legally entitled to terminate such deductions does not render PERC’s prior order invalid.

Whether the finding of PERC that the City committed an unfair labor practice is correct is the very essence of the City’s appeal. If we accept the City’s argument and vacate the order, we are in effect agreeing that the order was invalid and the City would achieve the purpose of the appeal. If the City determines that the appeal is indeed moot and it stands to accomplish nothing by continuing to prosecute the appeal, it may file a voluntary dismissal under Florida Rule of Appellate Procedure 9.350(b). The motion to vacate and to dismiss in Case 81-1229 is DENIED.

ORFINGER and COWART, JJ., concur.

      . Section 447.504, Florida Statutes (1979), provides that district courts of appeal are empowered to review final orders of PERC pursuant to § 120.68. (emphasis added)

      . It should be noted that neither of these cases involved situations where an election was held and no bargaining representative was chosen. The Panama City court specifically reserved for another day the question:
      [W]hether a unit definition by PERC will survive an election in which no bargaining representative is chosen and, if so, how judicial review of the original unit definition may be effective more than 12 months later, following another election and the certification of a successful employee organization.
      333 So.2d at 471.

      . Even if a separate managerial/confidential petition were not filed in the subsequent representation action, an appellate court could still determine the propriety of the bargaining unit on the basis that the unit contains managerial or confidential employees. See Leon County Police Benevolent Ass’n v. City of Tallahassee, PERC Order No. 81E-418 (Nov. 25, 1981).


text:
    FIRST PRUDENTIAL DEVELOPMENT CORP., etc., et al., Appellants, v. HOSPITAL MORTGAGE GROUP, a Trust, Appellee.
    No. 79-1978.
    District Court of Appeal of Florida, Third District.
    April 7, 1982.
    John H. Lewis, Mann, Dady, Corrigan, Baron & Zelman and Stanley J. Mann, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Malspeis, Lococo, Brown & Schwartz, North Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on November 18, 1980, (390 So.2d 767) reversed and remanded the judgment in the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed March 4, 1982, 411 So.2d 181, and mandate now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on January 7, 1981 is withdrawn, the judgment of this court filed November 18, 1980 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment of the trial court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


author: LARRY G. SMITH, Judge.

text:
    PIC N SAVE DRUG COMPANY, and Maryland Casualty Co., Appellants, v. Margaret MOORE, Appellee.
    No. AE-160.
    District Court of Appeal of Florida, First District.
    April 8, 1982.
    Bernard J. Zimmerman, Akerman, Sen-terfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt, Hurt & Parrish, Bill McCabe, Shepherd, McCabe & Cooley, Orlando, for appellee.
   LARRY G. SMITH, Judge.

We reverse the provisions of a worker’s compensation order providing for payment of wage loss benefits, and payment of claimant’s attorney’s fees by the employer/carrier.

While we agree that claimant proved an essential element showing her “entitlement” to wage loss benefits, in that she established a “permanent impairment,” the evidence she presented fell short of proving another essential element, that is, an actual wage loss during her periods of employment following the injury. She earned higher wages in her first post-accident employment, at Majic Market, from May 30,1980 to mid-October, 1980, than her pre-accident average weekly wages earned from her employment by the appellee-carrier. The wages she earned while employed by Zippy Mart, from mid-November, 1980 to February, 1981, did not fall below the level at which a wage loss payment would accrue under the statute.

In addition, although she was unemployed during October, 1980 to mid-November, 1980, so far as the record discloses she made no effort to obtain work during this time. Therefore, there is no basis in the evidence to support a claim of wage loss benefits during that period attributable to disabilities produced by her accident. Furthermore, in view of her admission that she discontinued her employment at Zippy Mart in February, 1981, because of a dispute with her employer, rather than inability to do the work, she cannot claim that her lack of employment immediately thereafter was related to her disabilities. Moreover, although it appears that she made several efforts to obtain work during February and March, 1981, she offered no proof that jobs within her capabilities were open at these places of business, nor that she was refused employment because of her disabilities.

In summary, we agree with the E/C’s contention that the deputy erred in ordering wage loss payments, because for each period covered by her wage loss claims she either suffered no compensable wage loss, or failed to demonstrate that she was unable to secure employment because of her disabilities.

As for the award of attorney’s fees, we note the provision of the order in which the deputy commissioner found that claimant’s attorney “has rendered a valuable service to the claimant herein, and is entitled to a reasonable attorney’s fee . ... ” We agree with that finding, but it does not constitute a basis for the order requiring payment of attorney’s fees by the E/C. As for the claimant’s contention that the award is justified under the “bad faith” provision, Section 440.34(2)(b), Florida Statutes, we determine that any such award would be premature, since there has been no determination of “bad faith” by the deputy commissioner “through a separate fact-finding proceeding ...,” as required by the statute.

REVERSED and REMANDED for further proceedings.

MILLS and SHAW, JJ., concur.

      . According to the formula set forth in Section 440.15(3)(b)l, Florida Statutes (1979), claimant’s wage loss benefits for the period in question would be calculated as follows:

      . The claimant testified that she quit her job at Majic Market at the end of October, 1980, because her back was bothering her (plus having a dispute with her employer). There is no affirmative proof, however, that her failure to seek or obtain other equally remunerative employment upon her termination at Majic Market was related to her disabilities.

      . Nash v. Holiday Inn at Calder, 395 So.2d 306 (Fla. 1st DCA 1981); Seminole Inn v. Ray, 408 So.2d 1061 (Fla. 1st DCA 1981).

      . The order contains a general provision requiring payment of wage loss benefits “from August 12, 1980 to date and continuing so long as wage loss forms are properly submitted.” Presumably “to date” refers to the hearing date, June 3, 1981. Claimant has supplemented the record on appeal by supplying wage loss forms filed through April, 1981. The record discloses that claimant went to work for Joe and Mary’s Grill in April, 1981, but there is no evidence to support a claim of wage loss suffered by virtue of that employment.


text:
    Jonathan Keith WORTHY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1029.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Bennett H. Brummer, Public Defender, and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The appellant attacks several sentences. He received seventeen years upon a conviction for attempted burglary and a ten-year sentence for a conviction of aggravated assault to run concurrently with the seventeen-year sentence. We find his attacks on these sentences to be without merit. Mathis v. State, 348 So.2d 1221 (Fla. 3d DCA 1977); Foxworth v. State, 267 So.2d 647 (Fla.1972).

He also received an enhanced sentence of two years upon a conviction of carrying a concealed weapon, as an habitual misde-meanant, pursuant to the provisions of Section 775.084, Florida Statutes (1979). The record does not show that he was convicted previously of carrying a concealed weapon and, therefore, there should not have been an enhanced sentence. King v. State, 398 So.2d 469 (Fla. 5th DCA 1981); Hysmith v. State, 374 So.2d 1103 (Fla. 1st DCA 1979).

The sentences for attempted burglary and aggravated assault are affirmed. We strike one year from the two-year sentence for carrying a concealed weapon and leave the defendant to serve a one year sentence on this conviction.

Affirmed as modified.


text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Eduardo J. CAMBLOR, Appellee.
    No. 80-1256.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Wicker, Smith, Blomqvist, Davant,- Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellee.

      Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Kwechin v. Industrial Fire & Casualty Co., 409 So.2d 28 (Fla. 3d DCA 1981). See Fidelity & Casualty Co. of New York v. Britt, 393 So.2d 41 (Fla. 3d DCA 1981).