author: HENDRY, Judge.

text:
    William Bruce THOMAS, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.
    No. 81-2727.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 14, 1983.

      Joe N. Unger, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and A.H. Toothman and John W. Wylie, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   HENDRY, Judge.

Appellant William Thomas, plaintiff below, appeals from a final judgment upon a jury verdict for Lumbermens in an action seeking excess coverage for Lumbermens’ bad faith in negotiating settlement of Thomas’ accident claim.

Viewed in the light most favorable to the verdict, the evidence shows that Thomas was severely injured on April 2, 1978 while a passenger in an automobile owned by Lumbermens’ insured, Teodora J. Torres, and driven by Torres’ son, Victor. Following the accident Lumbermens’ claim representative twice sent no fault benefit applications and medical authorization forms to Thomas along with requests to contact the insurer. Thomas failed to ever contact Lumbermens or to return the forms, and subsequently filed suit alleging negligence. Pending trial, negotiations for settlement proceeded. Interrogatories mailed to Thomas through counsel were never answered. Around this same time, Lumber-mens received a report from the Southeast Index Bureau indicating the possible extent of Thomas’ injuries. Following receipt of this report, Lumbermens unsuccessfully sought medical confirmation of the injuries from Thomas and his attorney. Thomas’ attorney did offer, however, to allow Lum-bermens to review the files at his office. An independent adjuster for Lumbermens contacted the attorney’s office on twenty-three occasions to set up an appointment to review the files, but never received a response.

In the meantime, discovery pleadings were served on Thomas’ attorney seeking production of bills and medical reports. Thomas’ deposition, scheduled for October 23,1978, was cancelled by his attorney, and on October 24, 1978, Thomas offered to settle the claim for the policy limits. Unable to verify Thomas’ injuries or expenses, Lumbermens refused the offer, which was later withdrawn. After moving for discovery sanctions, Thomas served responses to discovery including production of medical data. Upon review of this data, Lumber-mens offered judgment of the policy limits. Thomas refused this offer and the cause proceeded to trial, resulting in an $810,000 verdict for Thomas.

Following judgment, the Torres assigned their rights against Lumbermens for excess to Thomas who sued the insurer alleging bad faith due to Lumbermens’ failure to settle the claim for policy limits when it had the opportunity. Lumbermens defended, alleging Thomas’ attorney failed to provide medical information or produce Thomas for examination in an attempt to set up the bad faith action. Following an extensive trial, the jury returned a verdict for Lumber-mens. Thomas’ post-trial motion for judgment notwithstanding the verdict was denied, and the final judgment appealed herein was entered.

On this appeal, Thomas raises three issues. He contends the trial court erred in (1) denying his motion to set aside the jury verdict when there was no evidence upon which the verdict could be sustained; (2) refusing to permit testimony of an intended rebuttal witness; and (3) denying his requested jury instruction on Lumbermens’ duty to investigate.

A “bad faith” insurance suit, which may be maintained by either the insured or by the injured party standing in his place, is based on the insurer’s breach of its duty to its insured to make a good faith offer of settlement within the policy limits, so as to avoid exposing the insured to an excess judgment. Kelly v. Williams, 411 So.2d 902 (Fla. 5th DCA 1982).

In response to Thomas’ first point, we hold that the record in this case contains sufficient evidence to support the verdict. The standard for determining liability of an insurance carrier in excess judgment cases is bad faith, rather than negligence, although consideration may be given to the negligence of the insurer in determining whether it has breached its duty to negotiate in good faith. DeLaune v. Liberty Mutual Insurance Co., 314 So.2d 601 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 16 (Fla.1976). To hold the insurer liable for breach of its duty to compromise, the insured (or his assignee) must establish that the insurer’s conduct amounted to either bad faith or fraud. Central National Insurance Co. v. Gonzalez, 295 So.2d 694 (Fla. 3d DCA 1974); Welborn v. American Liberty Insurance Co., 260 So.2d 229 (Fla. 1st DCA), cert. denied, 265 So.2d 372 (Fla.1972). Each case is to be determined on its own facts, and the question of the insurer’s failure to act in good faith with due regard for the interests of the insured is for the jury. Liberty Mutual Insurance Co. v. Davis, 412 F.2d 475 (5th Cir.1969); Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783 (Fla.1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1372, 67 L.Ed.2d 350 (1981).

Applying these principles to the present case, we think that the jury properly weighed the evidence and concluded that Lumbermens’ conduct, while possibly somewhat less than diligent, did not rise to the level of bad faith or fraud. Although Thomas contends that Lumbermens should have taken steps to obtain the medical records necessary to confirm his condition following his offer to settle, the evidence shows that this was due, at least in part, to the failure of Thomas and his attorney to respond to requests or make these records available for review. We fail to see what else could have been required of Lumber-mens in this particular case beyond the efforts it did make in requesting medical files, mailing no fault applications to Thomas, serving interrogatories, and noticing Thomas for deposition. See DeLaune v. Liberty Mutual Insurance Co., supra (party to lawsuit does not have to accept at face value medical information furnished by the other party); cf. Government Employees Insurance Co. v. Grounds, 311 So.2d 164 (Fla. 1st DCA 1975), cert. discharged, 332 So.2d 13 (Fla.1976). Inasmuch as bad faith is a jury question and the evidence in this case is sufficient to support the jury’s verdict, we will not substitute our judgment for theirs. Government Employees Insurance Co. v. Grounds, supra.

Thomas’ second contention centers on the trial judge’s refusal to permit testimony of a rebuttal witness to impeach Lumbermens’ chief witness. Our review of the record discloses no error with respect to exclusion of this testimony. Unlike the impeachment testimony held admissible in Mathis v. O’Reilly, 400 So.2d 795 (Fla. 5th DCA 1981), the proffered rebuttal testimony in this case would merely have expressed an opinion as to the validity of the opinion expressed by Lumbermens’ witness, was cumulative to testimony preceding it, and would not have served in any fashion to impeach Lumbermens’ witness. See Reeder v. Edward M. Chadbourne, Inc., 338 So.2d 271 (Fla. 1st DCA 1976); cf. Fogel v. Mirmelli, 413 So.2d 1204 (Fla. 3d DCA 1982) (exclusion of proffered impeachment testimony relating to defendant’s prior statement under oath was error where testimony was not merely cumulative). Where no real or substantial harm results from exclusion of a witness, we will not intrude upon the province of the trial judge. H.I. Holding Co. v. Dade County, 129 So.2d 693 (Fla. 3d DCA), cert. denied, 133 So.2d 646 (Fla.1961).

Thomas’ third and final point on appeal is that the trial court erred in denying his requested jury instruction on Lumber-mens’ duty to investigate and ascertain his injuries. We find no merit in this argument. The court’s charge, as given, properly covered the issues raised at trial including the substance of Thomas’ requested instruction, and was not “reasonably calculated to confuse or mislead” the jury. Reeder v. Edward M. Chadbourne, Inc., supra, and cases cited.

For the reasons expressed herein, the judgment under review is affirmed.

Affirmed.

      . For this reason, we do not decide whether, as Lumbermens contends, appellate review of the sufficiency of the evidence is precluded by Thomas’ failure to move for a new trial or directed verdict and receive a ruling thereon. See Winnemore v. Morton, 214 So.2d 509 (Fla. 4th DCA 1968) and cases cited. The trial transcript reveals that after the verdict was read, Thomas’ attorney “renewed” his motion for judgment notwithstanding the verdict, an impossibility since no such motion had earlier been made, nor could it have been since by definition, a motion for judgment notwithstanding the verdict must follow rather than precede a judgment. A motion for judgment notwithstanding the verdict can not test the sufficiency of the evidence, so we surmise that Thomas’ counsel apparently intended to move for judgment in accordance with motion for directed verdict, also an improper motion in this case since counsel had not moved for a directed verdict at the close of all the evidence, thus precluding the trial court from considering a post-trial motion challenging the sufficiency of the evidence. See Fla.R.Civ.P. 1.480(b); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA), cert. denied, 378 So.2d 347 (Fla.1979); 6651 Collins Avenue Corp. v. Millen, 97 So.2d 490 (Fla. 3d DCA 1957), affirmed, 104 So.2d 337 (Fla.1958).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    METROPOLITAN DADE COUNTY, Appellant, v. B.B. GOLDSTEIN and Grace Goldstein, his wife, individually and on behalf of all others similarly situated, Appellees.
    No. 82-680.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1982.
    Rehearing Denied Jan. 20, 1983.
    Robert A. Ginsburg, County Atty., and Stephen J. Keating, Asst. County Atty., for appellant.
    Mitchell M. Goldman and Shalle Stephen Fine, Miami, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. West Yellow Pine Co. v. Sinclair, 83 Fla. 118, 90 So. 828 (1922); Florida East Coast Ry. v. Worley, 49 Fla. 297, 38 So. 618, 622 (1905).


author: COWART, Judge.

text:
    David L. DODGE, et ux, Appellants, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, etc., et al., Appellees.
    No. 81-1397.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 5, 1983.

      Anthony I. Provitola, DeLand, for appellants.
    Darrell F. Carpenter of Wells, Gattis, Hallowes & Holbrook, Orlando, for appellee Fidelity & Cas. Co. of New York.
    Lora A. Dunlap of Akerman, Senterfitt & Eidson, Orlando, for appellee Continental Cas. Co.
   COWART, Judge.

Appellant, a subcontractor’s employee allegedly injured on a construction job by the negligence of Chester Park, an employee of the general contractor, sued Park and the general contractor’s general liability insurers, the appellee insurance companies. From a summary judgment in favor of the insurers, the injured employee appeals. We affirm.

Under Florida’s workers’ compensation law, appellant was not only an actual employee of the subcontractor but also a “statutory employee” of the general contractor. See Lingold v. Trans-America Insurance Company, 416 So.2d 1271 (Fla. 5th DCA 1982).

The general contractor carried general liability insurance for protection from potential liability to third parties injured by the general contractor’s employees. The general question here is whether the appel-lee insurers are liable on those policies for the subcontractor’s employee’s injuries. Such policies generally, and in this case, contain two common provisions to exclude coverage as to matters covered by workers’ compensation. The first, an employee exclusion clause, would exclude the general contractor’s own actual employee (such as Chester Park) from recovering from the general contractor by virtue of such employee being an insured under the policy. However, this exclusion relates only to injuries caused by the insured to his own employees and does not exclude injuries caused by an insured employee to a fellow employee. Therefore, this latter situation is covered by a “cross-employee exception clause” which excludes from the definition of insured any person who, while engaged in the business of his employer, injures a fellow employee. The final question in this case is whether the cross-employee exception clause applies only to “actual” fellow employees or whether it also applies to “statutory” employees, such as appellant.

The purpose of the exception clause is to eliminate the double coverage that would otherwise result when workers’ compensation also applies and, under the circumstances in this case, the general contractor is required to provide workers’ compensation to appellant as a “statutory employee.” Therefore, the term employee in the policy should be construed to include “statutory employees,” as that term is used in the workers’ compensation law. This is a reasonable, logical construction of the policy in this situation, is the construction given in other jurisdictions, and was the one made by the trial court, whose conclusion we

AFFIRM.

ORFINGER, C.J., and SHARP, J., concur.

      . See, e.g., McRae v. Snelling, 303 So.2d 670 (Fla. 4th DCA 1974).

      . See, e.g., Shelby Mut. Ins. Co. v. Schuitema, 183 So.2d 571 (Fla. 4th DCA 1966), cert. discharged, 193 So.2d 435 (Fla.1967) (referring to and adopting opinion of district court).

      . See, e.g., Ward v. Curry, 341 S.W.2d 830 (Mo.1960). See generally, annot., 45 A.L.R.3d 288 (1972) (construction and application of provision of automobile liability policy expressly excluding from coverage liability arising from actions between fellow employees).


text:
    Terrence Kenneth HILL, Appellant, v. STATE of Florida, Appellee.
    No. 81-1596.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 5, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

The judgment and sentence are affirmed. The appellant may apply to the trial court to correct the scrivener’s error regarding the omission from the judgment of the finding that the appellant is a youthful offender. The appellant should have made that application to the trial court before bringing it up on appeal.

AFFIRMED.

DAUKSCH, COBB and SHARP, JJ., concur.


author: GRIMES, Acting Chief Judge. SCHOONOVER, Judge,

text:
    APGAR & MARKHAM CONSTRUCTION OF FLORIDA, INC., a Florida corporation, Appellant, v. MACASPHALT, INC., and Gary’s Glass and Mirror, Inc., Appellees.
    Nos. 82-361, 82-362.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1982.
    Rehearing Denied Jan. 4, 1983.
    Karl L. Johnson of Nuckolls, Johnson & Fernandez, Fort Myers, James E. Glass and R. Hugh Lumpkin of Rosenberg, Reisman & Glass, Miami, for appellant.
    Robert F. Henshaw, Jr., Law Offices of Robert F. Henshaw, Jr., Sarasota, for appel-lee Macasphalt, Inc.
    John S. Vento of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, P.A., Tampa, for appellee Gary’s Glass and Mirror, Inc.
   GRIMES, Acting Chief Judge.

While we affirm the judgments in their entirety, there is a technical problem with respect to the award of attorney’s fees pursuant to section 57.105, Florida Statutes (1981). In entering the award, the court did not make a finding that there was a complete absence of a justiciable issue raised by the losing party. Were we at liberty to reach our own conclusion, we would find the order entered in this case sufficient because it recites the award as being made pursuant to the statute. However, in the recent case of Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982), in referring to section 57.105 the supreme court said:

The statute provides that a party is entitled to an award of attorney’s fees only when the court determines that there was a complete absence of a justiciable issue raised by the losing party. Without such a finding, an order assessing attorney’s fees is technically deficient and must be reversed. Allen v. Estate of Dutton, 394 So.2d 132, 135 (Fla. 5th DCA 1980); City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112, 1113 (Fla. 3d DCA 1980); but see Autorico, Inc. v. Government Employees Insurance Co., 398 So.2d 485, 488 (Fla. 3d DCA 1981).

410 So.2d at 506.

Admittedly, the foregoing quotation was dictum because the court held in Whitten, as the substantive basis for reversal, that the losing party’s claims were not frivolous or devoid of arguable substance. Nevertheless, the court’s use of the word “technically” and its reference to the Autorico case makes it clear that an explicit finding must be made before an order awarding attorney’s fees under the statute will be upheld. In Autorico, Judge Hubbart, writing for the Third District Court of Appeal, had distinguished his prior opinion in City of Miami Beach v. Town of Bay Harbor Islands by holding that the finding of a complete absence of a justiciable issue of either law or fact is implicit in an order which grants a motion for attorney’s fees based entirely upon section 57.105. According to the “blue book,” A Uniform System of Citation (13th ed. 1981), the signal “But see” denotes that the “cited authority directly contradicts the proposition.” Obviously, the supreme court in Whitten has rejected Autorico as an acceptable refinement of the stated proposition that an explicit finding is required.

Accordingly, we reverse the award of attorney’s fees and remand to the trial court with directions to make an appropriate finding based on the record as to whether there was any justiciable issue of either law or fact stated by appellant in this case. Should the court expressly find that no such issue existed, it may reassess the same attorney’s fees without the need of taking further evidence. In all other respects, the judgments are affirmed.

CAMPBELL, J., concurs.

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

SCHOONOVER, Judge,

concurring in part, dissenting in part.

While I agree that the judgments entered by the trial court should be affirmed, I do not agree that the trial court’s order awarding attorney’s fees pursuant to section 57.-105, Florida Statutes (1981), was technically deficient. Therefore, I would affirm the trial court in all respects.

The supreme court in Whitten held that an order assessing attorney’s fees is technically deficient if the court does not make a finding that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

I agree that the court in Whitten rejected the holding of the Third District Court of Appeal in Autorico that an order granting attorney’s fees entered in response to a motion based entirely on the statute implicitly made such a finding.

However, the order entered in the case sub judice is clearly distinguishable from that entered in Autorico, and accordingly, it is not technically deficient.

In Autorico, the court granted (e.g., motion granted) a motion that was based entirely upon the statute. In the case sub judice, the court not only granted similar motions but its order specifically referred to the statute and granted attorney’s fees pursuant thereto. “Pursuant” means conformable to, agreeable to, or in accordance with. Potter v. Realty Securities Corp., 77 Fla. 768, 82 So. 298 (1919). By referring to the statute and granting fees pursuant thereto, the statute became, in effect, a part of the order. See generally Potter v. Realty Securities Corp. I accordingly would hold that the court properly made the finding required by Whitten.

I would affirm the trial court in all respects.

      . “[Tjhe Court, after having examined the pleadings, Affidavits and being otherwise duly advised in the premises, finds that pursuant to Chapter 57.105, Florida Statutes (1981), that attorney fees should be awarded to the Defendants ... . ”


author: GRIMES, Acting Chief Judge.

text:
    Augustin CORUJO, Appellant, v. STATE of Florida, Appellee.
    No. 81-2579.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1982.
    Rehearing Denied Jan. 10, 1983.
    Carl L. Masztal, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was arrested on board a boat in the Gulf of Mexico just off the coast of Florida. A large quantity of marijuana was seized from the boat at the time of the arrest. Appellant was convicted of trafficking in cannabis in excess of ten thousand pounds. On appeal, he argues that the court erred in refusing to give his requested instruction on the defense of coercion.

There was evidence that the appellant was in charge of the boat though not necessarily its owner. Isabele Peleze, a woman with whom appellant lived, testified that a man gave the boat to appellant in order for him to repair it. She said he also gave appellant $10,000 with which to make the repairs. She testified that one day late in 1979 or early in 1980 appellant came home in a nervous state. When she asked why he was so upset, he told her that the man who had given him the boat to repair was making him go on a “marijuana trip.” She said that appellant had to go because this was the only way that he could repay the $10,-000.

Felix Corujo, appellant’s father, testified that ten days prior to appellant’s arrest he saw his son crying. In response to his father’s inquiry, appellant told him that despite his own wishes he had to go on a marijuana trip. Appellant said he was going because he feared for his life and the lives of Ms. Peleze and their child.

Coercion is a recognized defense to a criminal charge except where an innocent life is taken. 21 Am.Jur.2d Criminal Law § 148 (1981). In Hall v. State, 136 Fla. 644, 187 So. 392 (1939), our supreme court held that one may be excused from the commission of a crime if his acts were done under the compulsion or coercion of a real, imminent and impending danger or of what he had reasonable grounds to believe was a real, imminent and impending danger. If there is evidence to support a theory of coercion, the jury must be properly instructed on the defense. Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967).

The testimony of Ms. Peleze was clearly insufficient to call for a charge on coercion because economic coercion has never been considered a defense. See Annot., 40 A.L.R.2d 908 (1955). The testimony of Felix Corujo comes somewhat closer. However, we conclude that here too the evidence fell short of presenting a coercion defense.

One of the requirements of the defense is that the coercion must be continuous and that the defendant must have no reasonable opportunity to escape the compulsion without committing the crime. Koontz v. State. The threat of future harm does not suffice. Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980). In Stephens v. State, 397 So.2d 324 (Fla. 5th DCA 1981), the defendant, who was convicted of extortion, testified that he was abducted and beaten by some people to whom he owed $20,000 for a supply of marijuana. After escaping, he received telephone calls threatening his mother and girlfriend with torture and death if he did not proceed with an extortion scheme which would provide him with the funds to repay the debt. In rejecting the contention that the coercion instruction should have been given, our sister court said:

It is clear from the brief summary of the testimony that the evidence did not show either real or apparent imminent or impending harm to appellant or any of his loved ones. Appellant had not been in personal contact with his abductors since the time in February when he escaped from their custody. The telephone threats about which he testified all related to future harm, and, as noted in Cawthon, appellant had ample time to warn his loved ones of the threat and to contact the authorities. The fact or the apprehension of immediate and impending harm was not shown.

397 So.2d at 326 (footnote omitted).

In the final analysis, Felix Corujo’s testimony amounted to little more than a statement that appellant felt that he had to make a marijuana trip at an unspecified time in the future because of unspecified fears for the safety of himself and his family at the hands of unspecified persons. Appellant, himself, did not testify that he was coerced to go on the trip in question. There is no suggestion that he sought to contact the police. When appellant was apprehended, he admitted that he had been on the boat for two days. In short, there was no evidence whatsoever that at the time of his arrest a real, imminent and impending danger compelled him to smuggle marijuana into the State of Florida.

The court correctly refused the requested instruction on coercion. The rest of appellant’s points on appeal are without merit.

AFFIRMED.

RYDER and DANAHY, JJ., concur.


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

text:
    HARDEE LIVESTOCK MARKET, INC. and Florida Farm Bureau Casualty Insurance Co., Appellants/Cross-Appellees, v. JOE L. DAVIS GROVES, INC. and South Carolina Insurance Co., Appellees, and Herman Manley, Appellee/Cross-Appellant.
    No. AJ-379.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1982.
    Arthur C. Fulmer of Lane, Trohn, Bertrand & Williams, P.A., Lakeland, for appellants/cross-appellees.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellee/cross/appellant.
   ON MOTION FOR REHEARING

ROBERT P. SMITH, Jr., Chief Judge.

We did not overlook claimant’s cross-appeal when affirming, without opinion, the deputy commissioner’s order. Instead we declined to take notice of an asserted error in computing the average weekly wage which if shown would increase claimant’s compensation rate by $1.28 per week. De minimus non curat lex. Eureka Corp. v. Guardian Trust Co., 104 Fla. 117, 139 So. 198 (1932). And we refused to reverse the deputy’s view on the catastrophic benefits claim, section 440.15(2)(b), Florida Statutes (1980 Supp.), because a permissible view of the evidence sustains the deputy’s order. Our view of the matter was not changed by partial or qualified confessions of error in the brief of appel-lees, parties other than the other putative employer/carrier who urged to the deputy the points of which claimant complains on cross-appeal.

Chapter 440 is yet self-executing independently of this Court’s role and function. The parties might before now have stipulated to dismiss the cross-appeal, upon settling issues previously disputed upon the record. Even now, nothing prevents the carrier from paying what it considers in good faith is claimant’s due. But as for us, we will not make light of the deputy’s function, nor treat his order as a trivial thing, by reversing that order, without a clear showing of error, on mere agreement of the parties. Under chapter 440 the parties have their function, which is to self-enforce the Act insofar as they conscientiously can do so, even during an appeal, Holiday Care Center v. Scriven, 418 So.2d 322, 327-28 (Fla. 1st DCA 1982); and this Court has another function, which is to correct plain and substantial errors of law, of which there were none here, and to affirm orders not so flawed. No reversible error having been shown, we adhere to our decision previously announced, Fla.App., 422 So.2d 844, and claimant’s motion for rehearing is

DENIED.

SHIVERS and THOMPSON, JJ., concur.


author: BASKIN, Judge.

text:
    Ramona HEIDER and George Heider, her husband, Appellants, v. COOPER BROWN OLDSMOBILE, INC., a Florida corporation, and General Motors Corporation, a foreign corporation, Appellees.
    Nos. 80-2503, 81-1044.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Rehearing Denied Jan. 19, 1983.
    Stephens, Lynn, Chemay & Klein and Robert Klein and Michael C. Mattson, Miami, for appellants.

      Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

We affirm the summary judgment as to appellants’ claim for breach of an implied warranty of merchantability. With regard to the question of fraud, however, we find that the record contains depositions upon which a jury might conceivably conclude that General Motors’ conduct, in partially repairing the automobile purchased by appellant without revealing that it had been damaged, constitutes fraudulent concealment. A genuine issue of material fact remains. Nessim v. DeLoache, 384 So.2d 1341 (Fla. 3d DCA 1980). The summary judgment on the claim alleging fraud is reversed and the cause remanded for trial.

Affirmed in part and reversed in part.


author: FERGUSON, Judge. JORGENSON, Judge,

text:
    The STATE of Florida, Appellant, v. David Andrew FAVALORO, Appellee.
    No. 82-141.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Rehearing Denied Jan. 21, 1983.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck and Richard A. Sharp-stein, Miami, for appellee.
    Before HENDRY, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

After an assessment of the totality of the circumstances, Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978), The trial court determined that appellee’s consent to a search was not voluntary, but instead was induced by an implied promise that he would not be prosecuted. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed.2d 568 (1897) [A confession must be free and voluntary; not obtained by any direct or implied promises, however slight]; Frazier v. State, 107 So.2d 16 (Fla.1958) [confessions must be excluded if obtained by declarations calculated to delude defendant as to his true position]; Foreman v. State, 400 So.2d 1047 (Fla. 1st DCA 1981) [officer’s statement that the victim was inclined not to prosecute if property were returned clearly constitutes an implied promise calculated to induce a confession]; Hawthorne v. State, 377 So.2d 780 (Fla. 1st DCA 1979) [confession invalid where officer told defendant her giving a statement would eliminate need for further harsh questioning of separately held children]; Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977) [confession induced by promises of leniency was invalid]; cf. Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357, reh. denied, 372 U.S. 950, 83 S.Ct. 931, 9 L.Ed.2d 975 (1963) [admission of fraudulent disclosures made as a product of an unlawful inducement do not offend the self-incrimination clause of the Fifth Amendment]. Findings made by a trial judge on a motion to suppress must be accepted, where as here the record reveals evidence to support the findings. State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979).

Affirmed.

JORGENSON, Judge,

dissenting.

I respectfully dissent. I see no difference between the facts presented here and those presented in United States v. Setzer, 654 F.2d 354 (5th Cir.1981). While it is true that we are bound by the factual findings made by the trial judge during the course of the motion to suppress, we are not bound by the legal conclusions drawn from those facts. State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA), dismissed, 378 So.2d 348 (Fla.1979).

In my view the inculpatory statement, i.e., the admission by the defendant that he possessed a quantity of contraband, furnished probable cause for his arrest, subsequent search and the lawful seizure of one-half pound of cocaine.

I would, therefore, reverse the trial court’s order granting the motion to suppress and remand this case for trial. See State v. Beck, 390 So.2d 748 (Fla. 3d DCA 1980), petition for review denied, 399 So.2d 1140 (Fla.1981).


author: NESBITT, Judge.

text:
    THE FLORIDA COMPANIES, a corporation, Appellant, v. BFA CORPORATION, a Florida corporation, and Ponce Building Associates, a partnership, Appellees.
    No. 82-1432.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Rehearing Denied Jan. 20, 1983.

      Smith & Hulsey and Stephen D. Busey and E. Lanny Russell, Jacksonville, for appellant.
    Phillip Schiff, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

This is an interlocutory appeal from an order of the trial court denying the defendant’s motion for change of venue. We reverse.

The plaintiff, BFA Corporation, instituted a declaratory judgment action against its lessor, The Florida Companies, seeking to: (1) resolve a dispute over the interpretation of a rent escalation clause; and (2) in anticipation of a ruling favorable to plaintiff, to require the lessor to return to lessee over-payments of rent. Since the defendant is a domestic corporation, the controversy is essentially governed by Section 47.051, Florida Statutes (1981). That statute provides, in pertinent part:

Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.

Thus, the action may be brought only in those three locations. None of these alternatives for venue allow this action to be brought in Dade County.

The record clearly established that the defendant’s principal place of business is in Duval County; it does not even maintain an office in Dade County. Clearly, then, the first facet of the statute has not been activated.

We also reject the appellee’s contention that because the property, upon which the subject lease was held, is located in Dade County, that venue is properly in Dade County. The location of the property is not material because the suit is in person-am and the property is not drawn into the litigation. See Gates v. Stucco Corp., 112 So.2d 36 (Fla. 3d DCA 1959); Coon v. Abner, 246 So.2d 143 (Fla. 3d DCA 1971).

As to the third alternative for determination of venue, we find that the cause of action accrued in Duval County. A suit for declaratory relief does not of itself constitute a cause of action for the purpose of activating the venue statute. Rather, it is the underlying relief sought which determines venue. Windsor v. Migliaccio, 399 So.2d 65 (Fla. 4th DCA 1981). The nature of the underlying action is to avoid the payments of disputed sums which would otherwise be payable in Duval County. Consequently, we adhere to the traditional view that the cause of action accrued where payment was to be received. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Windsor v. Migliaccio, supra; Davis v. Dempsey, 343 So.2d 950 (Fla. 3d DCA 1977).

For the foregoing reasons, the trial court erred in denying the defendant’s motion to transfer the action to Duval County.

Reversed with directions.

      . We reject the appellee’s contention that venue was properly in Dade County because the lease was executed there. If there had been a breach of contract in Dade County, then, the appellee’s interpretation would be correct. See Windsor v. Migliaccio, supra.


text:
    Edward Charles GENTER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2077.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Rehearing Denied Jan. 21, 1983.
    Edward Charles Genter, III, for appellant.
    Jim Smith, Atty. Gen. and Diane Z. Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, this court having required response by the State and having considered the record presented and the State’s response and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    Barbara Hartley FENNER p/k/a Barbara Hartley, Appellant, v. Kathy L. McLOWHORN p/k/a Kathy Daniels, and State Farm Mutual Automobile Insurance Company, a foreign corporation, Appellees.
    No. 82-788.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 6, 1983.
    Barry M. Salzman of Chambers & Salzman, P.A., St. Petersburg, for appellant.
    H. Shelton Philips of Kaleel & Kaleel, P.A., St. Petersburg, for appellees.
   GRIMES, Acting Chief Judge.

This appeal involves the question of whether an insurance company may set off from its limits of liability the amount of uninsured motorist benefits paid to the injured party where the insured automobile tort-feasor is alleged to be jointly liable with the uninsured automobile tort-feasor. We hold that such a setoff may not be made.

Barbara Hartley Fenner, a passenger in an automobile operated by Kathy L. McLowhorn, was injured in a collision with an automobile driven by Martin T. Shoemaker which occurred on October 28, 1978. At the time of the accident, McLowhorn was insured for liability with State Farm Mutual Automobile Insurance Company with limits of $25,000 per person, but Shoemaker was uninsured. McLowhorn had no uninsured motorist coverage. Fenner was insured under an automobile liability insurance policy issued to her father also by State Farm. State Farm paid Fenner $25,-000 under the uninsured motorist provisions of her father’s policy, the total coverage available for injury by accident to one person.

After Fenner received the benefits under her father’s policy, she filed suit against McLowhorn and State Farm, as McLow-horn’s liability insurer, alleging damages as a result of McLowhorn’s negligent operation of her automobile. The court granted summary judgment to State Farm on the premise that Fenner’s receipt of uninsured motorist benefits equal to McLowhorn’s liability limits barred Fenner from suing State Farm.

Fenner admits that if one joint tort-fea-sor has liability insurance coverage in the same amount as the claimant’s uninsured motorist coverage, the claimant is not entitled to collect uninsured motorist benefits even though the other tortfeasor is uninsured. § 627.727, Fla.Stat. (1977); United States Fidelity & Guaranty Co. v. Timon, 379 So.2d 113 (Fla. 1st DCA 1979). Fenner, however, argues that there is no authority for the converse of this proposition, to wit: that uninsured motorist benefits paid to an injured party may be set off against the tort-feasor’s liability insurance. We agree.

In International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla.1972), our supreme court held that a negligent defendant was not entitled to offset from the judgment rendered against him the amount of uninsured motorist benefits previously paid to the plaintiff. Admittedly, the uninsured motorist statute then in effect (section 627.0851, Florida Statutes (1969)), contained no language directed toward eliminating a duplication of benefits. While section 627.727, Florida Statutes (1977), does seek to avoid certain duplications, it is written in the context of payments which are required to be made under uninsured motorist coverage. There is nothing in this statute which suggests that a liability insurance carrier can offset uninsured motorist benefits previously paid to the plaintiff.

State Farm asserts that it had no alternative to paying the uninsured motorist benefits to Fenner because an uninsured motorist carrier may not require the insured to litigate his cause of action against a third party tort-feasor prior to making a claim under the uninsured motorist provisions of his own policy. Arrieta v. Volkswagen Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977). However, State Farm could have resisted the claim on the premise that McLowhorn was a jointly negligent tort-feasor with liability limits equal to the uninsured motorist coverage. See Travelers Insurance Co. v. Wilson, 371 So.2d 145 (Fla. 3d DCA 1979).

An example illustrates the fallacy of State Farm’s position. Suppose Fenner ultimately obtains a judgment against McLowhorn for $30,000. With State Farm dismissed from the case, it might then take the position that it had no responsibility for paying any portion of the judgment thus depriving McLowhorn of the benefit of her liability coverage. It may be that State Farm would have a claim for subrogation in the proceeds of Fenner’s recovery; but if so, by leaving State Farm in the case, any monies required to be paid by State Farm, as the liability carrier, to itself, as the uninsured motorist carrier, would have the effect of reducing the McLowhorn judgment.

Accordingly, we reverse the judgment for State Farm and remand the case for further proceedings.

RYDER, J., and NELSON, WILLIAM J., Associate Judge, concur.

      . The applicable uninsured motorist statute in this case is section 627.727, Florida Statutes (1977). Because this statute has been amended so many times, we caution our readers that any reliance upon the propositions of law stated herein must be weighed in light of the current version of the statute.

      . We wonder if this dispute would have even occurred if it were not for the fact that State Farm was both McLowhorn’s liability insurer and the carrier responsible for paying uninsured motorist benefits to Fenner. If separate carriers were involved and State Farm’s contention prevailed, Fenner’s damages would be paid by the uninsured motorist carrier in lieu of the liability insurer, a result which is contrary to the philosophy of the uninsured motorist statute.


author: SHIVERS, Judge.

text:
    Willie F. VAUSE, Appellant, v. STATE of Florida, Appellee.
    No. AB-460.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.
    Rehearing Denied Jan. 12, 1983.

      Philip J. Padovano and M. Howard Williams, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Defendant appeals from convictions and sentences for third degree murder, shooting into an occupied vehicle, and using a firearm in the commission of a felony.

His points on appeal are:

I.Did the trial court err in allowing a radiologist to render an opinion as to the manner in which the fatal bullet became fragmented?
II.Did the trial court err in refusing to allow defense counsel to cross-examine a State witness about the specific nature of his prior criminal convictions?
III.Was the evidence sufficient to sustain a conviction for any crime greater than manslaughter?
IV.Was the defendant properly convicted of both murder in the third degree and the underlying felony of shooting into an occupied vehicle?
V.Should the judgment and sentence for using a firearm in the commission of a felony be vacated because that offense is necessarily included in the offense of shooting into an occupied vehicle?
VI.Did the trial judge err in applying the three-year mandatory minimum sentencing provisions of section 775.087?

We affirm in part and reverse in part.

On June 27, 1979, defendant was indicted for the first-degree murder, by premeditated design, of Randall Mayo and also charged with shooting into the vehicle occupied by Mayo and using a firearm in the commission of Mayo’s murder. Defendant pled not guilty, contending Mayo died as the result of an accident, and his jury trial began on January 21, 1981.

On June 13, 1979, the defendant and about 20 other people were at Williams Landing drinking beer and listening to Mayo play the guitar. The defendant subsequently got into a fight with Buddy Rowan over defendant’s refusal to move his car which was blocking Rowan’s truck. Tommy Harrell broke up the fight and took defendant to his car. Horace Richardson asked the defendant to leave and the defendant said he was going to get his gun and come back and kill Rowan. Because he thought the defendant too drunk to drive, Richardson drove the defendant home in the defendant’s car. They were followed by Tommy Harrell, his son, and his wife in their truck, and Johnny Pittman and Mayo in Pittman’s car. On the way home, defendant told Richardson he was going to get a gun and kill all the people at Williams Landing.

While Richardson was helping the defendant into his house, Mayo got out of Pittman’s car and into Harrell’s truck. When Richardson came out, he got into Pittman’s car. As the truck and car were leaving the defendant’s driveway, the defendant came out of the house and yelled, “I’ll beat all of you back down there and I’ll blow everybody’s brains out that’s sitting on the porch down there.” The defendant then fired a rifle, the first shot striking the road between the two departing vehicles, the second shot striking Mayo who was in Harrell’s truck, and the third shot “singing through the trees.” Mayo subsequently died at the hospital of the gunshot wound.

At trial, over defendant’s objection, the trial court allowed Dr. Beeckler, a radiologist, to testify that it was his opinion, based upon the autopsy X-rays, that the bullet entered Mayo’s body intact. The defense was contending that the fatal bullet (as well as the other two shots) was not fired at the departing vehicles but was instead deflected from a dogwood tree, striking Mayo in an already fragmented state.

During the State’s cross-examination of Harrell, he testified he had previously been convicted of two crimes. On cross-examination, the defendant attempted to inquire into the specific nature of those convictions but the trial court sustained the State’s objection to such inquiry.

At the close of the State’s evidence and again at the close of all evidence, defendant moved for judgments of acquittal which were denied by the trial court. The jury returned a verdict finding the defendant guilty of third degree murder, shooting into an occupied vehicle, and use of a firearm in the commission of a felony. The trial court sentenced defendant to twelve years in prison for third degree murder, twelve years for shooting into an occupied vehicle, and five years for use of a firearm in the commission of a felony, such sentences to run concurrently. The trial court also imposed a three-year firearm mandatory sentence under section 775.087.

We affirm Point I. The trial court did not abuse the broad discretion it has in determining the range of subjects on which expert witnesses may be allowed to testify. Johnson v. State, 393 So.2d 1069 (Fla.1980). Defendant must make a clear showing of error and has not done so. Dr. Beeckler’s opinion testimony is not outside his special knowledge and expertise. Radiology is a medical specialty in which the physician concentrates on the performance and interpretation of X-ray examination. He has previously been qualified as an expert in radiology in a court of law and has given expert testimony. Moreover, he has interpreted X-rays involving gunshot wounds “hundreds of times.” His opinion that the fatal bullet entered the victim’s body intact and then later fragmented upon impact with the ribs is within reasonable medical certainty and was based upon his interpretation of the autopsy X-rays which were admitted into evidence. Contrary to defendant’s argument, a ballistics expert is not qualified to interpret X-rays.

Point II is also affirmed. The trial court did not err in refusing to allow the defendant to cross-examine State witness about the specific nature of his two prior criminal convictions. Leonard v. State, 386 So.2d 51 (Fla. 2d DCA 1980); Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981).

It has long been the law of this State that an attack upon the credibility of a witness by means of “other crimes” evidence is limited to the question whether the witness has been convicted of a crime. If the conviction is admitted, the inquiry may not be pursued to the point of naming the crime of which he was convicted. Nelson v. State, 395 So.2d 176, 178 (Fla. 1st DCA 1981).

Defendant’s reliance upon McCrae v. State, 395 So.2d 1145 (Fla.1981) and Nelson, supra, in urging reversal is misplaced. Both McCrae, supra, and Nelson, supra, acknowledge the general rule that the specific nature of the prior conviction of a witness should not be brought out on cross-examination if the conviction was admitted. However, in these two cases, the courts found that it was proper to allow further inquiries into the specific nature of the prior conviction on cross-examination because the defense counsels, through their questions on direct examination, either tactfully attempted to mislead the jury into believing the prior convictions were inconsequential or elicited self-serving declarations regarding the prior convictions. In other words, the “door was opened” for further inquiry on cross-examination as to the type of prior convictions because the direct testimony went beyond the number of prior convictions. In the present case, the direct testimony was limited to the number of convictions which were admitted.

We also affirm Point III. There is sufficient evidence to sustain defendant’s conviction of third degree murder under section 782.04(4), Florida Statutes (1979):

The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, shall be murder in the third degree ....

Shooting into an occupied vehicle (of which the defendant was also convicted) is a felony. § 790.19, Florida Statutes (1979).

The facts could have justified a verdict of at least second degree murder under section 782.04(2), Florida Statutes (1979)— unlawful killing perpetrated by an act imminently dangerous to another and evidencing a depraved mind regardless of human life. Thus, the verdict of third degree murder is also warranted under the combination of mandatory-lesser-included-offense and jury pardon doctrines. Killen v. State, 92 So.2d 825 (Fla.1957); Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981).

Although we affirm Point IV as to defendant’s conviction of shooting into an occupied vehicle, we reverse the defendant’s twelve year sentence for this crime. Shooting into an occupied vehicle is an element of the third degree murder conviction under section 782.04(4), Florida Statutes (1979). In State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the supreme court held that section 775.021(4) (which provides:

(4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.)

only prohibits multiple sentences, not multiple convictions.

We affirm Point V as to defendant’s conviction for using a firearm in the commission of a felony. However, we reverse defendant’s five year sentence for using a firearm in the commission of a felony because that offense was necessarily included in the offense of shooting into an occupied vehicle (which was, in turn, necessarily included in the offense of third degree murder). Hegstrom, supra; section 775.021(4), supra.

We affirm Point VI. Appellant contends that the trial court erred in applying the three year mandatory minimum sentence for use of a firearm under section 775.087, Florida Statutes (1979). He maintains that the use of the weapon was necessary to prove the crime itself and cannot be considered as a separate facet of the offense sufficient to justify an aggravated penalty. Section 775.087, Florida Statutes (1979), provides:

(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.
(2) Any person who is convicted of:
(a) Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes; or
(b) Any battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties and who had in his possession a “firearm,” as defined in s. 790.001(6), or “destructive device,” as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.

In Blanton v. State, 388 So.2d 1271 (Fla. 4th DCA 1980), rev. denied, 399 So.2d 1140 (Fla.1981), that court pointed out that the two subsections of 775.087 serve two different functions. Subsection (1) provides for reclassification of a felony to a higher degree where a weapon or firearm is used and the use of the weapon had not already resulted in the offense being upgraded to a higher degree. Subsection (2) does not increase the punishment but provides for mandatory minimum imprisonment for a person who has been convicted of certain crimes while possessing a firearm.

Defendant Vause was given a mandatory minimum sentence under section 775.087(2), Fla.Stat. (1979). Defendant’s third degree murder conviction with use of a firearm authorized the three year mandatory minimum sentence. Blanton v. State, supra; See also Crook v. State, 385 So.2d 1136 (Fla. 1st DCA 1980), in which this court held that a conviction of attempted burglary with a firearm required the trial court to impose a three year mandatory minimum sentence notwithstanding that the firearm was an element of the committed offense. The distinction between subsections (1) and (2) of section 775.087 was not argued in the case of Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981), rev’d. on other grounds, 420 So.2d 877 (Fla.1982). To the extent that Skipper is inconsistent with Blanton and this opinion, we hereby recede from Skipper.

Appellant Vause has cited Webb v. State, 410 So.2d 944, 945 (Fla. 1st DCA, 1982), for support, but Webb relates to section 775.-087(1) rather than section 775.087(2) of the Florida Statutes.

AFFIRMED in part and REVERSED and REMANDED in part.

ERVIN and WENTWORTH, JJ., concur.


author: WIGGINTON, Judge.

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. In the Interest of M.W., Appellee.
    No. AN-108.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1982.

      Jon W. Searcy, Dist. I Legal Counsel, Dept, of Health & Rehabilitative Services, Pensacola, for appellant.
    No appearance for appellee.
   WIGGINTON, Judge.

In this appeal, the Department of Health and Rehabilitative Services raises two issues: (1) whether the Juvenile Court violated the Interstate Compact on the Placement of Children, Article III(d), Section 409.401, Florida Statutes (1981), when it granted physical custody of M.W. to her parents in Texas, without Texas’ consent; and (2) whether the Juvenile Court abused its discretion by returning legal custody of M.W. to her parents in Texas. Although we affirm the Juvenile Court, we do so on the basis of the second issue, which determination necessarily moots the first issue.

When the court granted legal custody to the parents, we cannot in good faith say it abused its discretion, as there was competent record evidence that M.W.’s parents were rehabilitated to the point that the child no longer required supervision and protection under Section 39.40, et seq., Florida Statutes (1981). However, by granting legal custody, the court in effect entered an order dissolving M.W.’s dependency status, as is its prerogative by virtue of Section 39.41(6)(a). It follows, therefore, that M.W.’s case was removed from the proscriptions of the Interstate Compact as the child was no longer one “requiring placement” for its protection. See Article 1(a) and (b). Thus, whether the court erred in placing M.W. in the physical custody of her parents without Texas’s consent, contra to Article 111(d), is no longer a viable issue. The final order of the Juvenile Court granting the parents of M.W. legal custody is hereby AFFIRMED.

SHAW and JOANOS, JJ., concur.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    WATERMAN MEMORIAL HOSPITAL ASSOCIATION, INC., a non-profit Florida corporation, Appellant, v. DIVISION OF RETIREMENT, DEPARTMENT OF ADMINISTRATION, State of Florida, et al., Appellees.
    No. AE-379.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.

      Thomas M. Ervin, Jr., Brian S. Duffy, and Lewis M. Killian, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, and Zebulon L. Osborne of Gaylord, Gaylord & Osborne, P.A., Eustis, for appellant.
    Stanley M. Danek, Atty. for the Div. of Retirement, Tallahassee, for appellees.
   OWEN, WILLIAM C., Jr., Associate Judge.

Fourteen years after appellant, a private non-profit corporation, elected to bring its employees into the state retirement system under the erroneous impression that it then qualified as a hospital district within the meaning of Section 122.061, Florida Statutes (1965), (during all of which time appellant and its employees contributed to the state retirement system), appellant discovered that it was not, in fact, eligible to participate in the state retirement system. It thereupon filed this action seeking a declaratory judgment authorizing it to withdraw from further participation and to have reimbursement from the retirement trust funds of the amounts contributed. The trial court’s final judgment (1) declared appellant’s employees to be members of the State and County Officers and Employees’ Retirement System (SCOERS), with entitlement to participate in and receive retirement benefits from that retirement system, and (2) required appellant to continue to make contributions thereto.

The material facts are without dispute, having been made the subject of a stipulation by the parties. Appellant, chartered in 1960 as a private non-profit corporation (in which form it continues to the present time), operates Waterman Memorial Hospital. Appellant is not now nor has it ever been a hospital district or a county hospital corporation, nor the board of either. Notwithstanding appellant’s status as a private corporation, the 1963 legislature, by Chapter 63-1509, Laws of Florida, established the Northeast Lake County Hospital District (“District”) as a taxing authority to raise funds for the hospital, which funds were to be expended “for the support and maintenance or operation of said hospital, and capital improvements, repairs, alterations and maintenance of the hospital building.” Despite the scope of this legislative entitlement, none of the tax funds received by appellant ever have been used for operating costs. The funds were used for building maintenance until November 8, 1966, at which time the physical property in Eustis, Florida known as the Waterman Memorial Hospital was conveyed by appellant to a quasi-public corporation named Northeast Lake County Hospital Company, Inc. Subsequent to that conveyance appellant leased the building and used the tax funds to pay rent to the hospital company. In November, 1965, appellant, having made the erroneous determination that it was eligible to join SCOERS because the hospital was supported by a tax district, adopted an appropriate resolution electing to bring its employees within the provision of that retirement system effective January, 1966. In addition to appellant’s use of tax funds, and the close relationship between it and the county hospital corporation to which appellant conveyed the hospital building, appellant, (1) under the identity of Waterman Memorial Hospital, qualified to use state contracts for the purchase of commodities (until that practice was terminated by the Department of General Services in February, 1980, when it was determined that appellant was not a “political subdivision”), (2) changed its social security tax reporting status with the Internal Revenue Service by taking on an identifying prefix used by public employers, (3) stated on its application to the Department of Health and Rehabilitative Services for hospital license in 1977 that the hospital was owned by the county, and (4) stated in a similar application in 1978 that the hospital was owned by a tax district.

The foregoing facts quite understandably led the trial court to conclude that appellant, through various manipulations, had “created a legal Disney World in which for some purposes it is a government agency and for others it is not.” The court expressed a valid concern for the rights of appellant’s employees (not made parties to this action) in the following language:

However, after sixteen years, this court will not allow Waterman Memorial Hospital to change its form again when such action goes against the reasonable and justifiable expectations of those who have been and are employed by Waterman. The State of Florida also has a justifiable interest in the welfare of its citizens who depend on a retirement system which has covered Waterman employees all these years.

Section 122.061, Florida Statutes (1965), was initially enacted by Chapter 57-47, Laws of Florida, as a direct legislative response to a declaratory decree of March 9, 1957, in a case entitled South Broward Hospital District and North Broward Hospital District v. Ray E. Green, et al., (No. 14,739, Circuit Court of the Second Judicial Circuit, Leon County, Florida, March 9, 1957), which held that employees of a county hospital district were not within the definition of state and county officers and employees contained in Chapter 122, Florida Statutes, and were therefore ineligible for membership in the subject retirement system. The legislature responded by enacting the above statute which authorized boards of hospital districts and county hospital corporations to elect to bring their employees within the retirement system, with a proviso that such election was irrevocable once made.

Both parties agree (1) that under the clear wording of the statute it was the legislative intent in enacting Chapter 57-47, Laws of Florida, to afford hospital districts and county hospital corporations the right to bring their employees into SCOERS, and (2) that appellant is not now nor has it ever been either a hospital district or a county hospital corporation. That should be totally dispositive of the matter. But appellee argues here, and successfully convinced the trial court, that appellant (and its employees) should now remain a part of a retirement system for which appellant is not and never has been eligible because (a) appellant assumed public status from time to time as necessary to accrue benefits to itself and its employees, and particularly for the purpose of being admitted to SCOERS and (b) appellant’s voluntary election to join SCOERS and continue membership therein for over fourteen years before bringing suit has created a valid membership status which neither party may now terminate either retroactively or prospectively. As pertaining to the immediate parties to this appeal, we think those arguments are unavailing.

In a proceeding styled In Re Florida Board of Bar Examiners, 268 So.2d 371 (Fla.1972), the Supreme Court recognized, by way of dicta, that the state would possibly be collaterally estopped to deny certain employees the right to participate in the state retirement system even in the absence of statutory basis for their participation, where the employees had been contributing to the retirement system for a long period of time. But we are not here immediately concerned with the rights of appellant’s employees because they are not presently parties to nor represented in this action. We hold that absent some form of valid estop-pel, an entity which is not statutorily authorized to participate in a state retirement system can not create its own eligibility for participation, even though it may appear to be eligible, and even though it seeks admission and subsequently participates for an extended period of time. Our holding is consistent with the teaching of this court’s decision in Martin v. Williams, 364 So.2d 549 (Fla. 1st DCA 1978), although the facts in that case are distinguishable. Appellant may have believed in good faith that it was eligible to bring its employees within the provisions of the state retirement system, yet it was not and never has been eligible to do so despite its use of public funds and its close association with a hospital district and a county hospital corporation (neither of whose eligibility to participate is here involved).

Appellee contends that estoppel is, indeed, present in this case—not against appellant but against itself. In support of this argument appellee points out that certain employees of appellant whose rights have vested could, under the principle of estoppel, prevent appellee from denying such employees the right to participate in SCOERS (and/or the Florida Retirement System). That well may be the case (an issue we do not now decide, but see the dicta in In Re Florida Board of Bar Examiners, supra), but estoppel is properly used as a shield, not a sword, thus, appellee may not rely upon an estoppel against itself.

We share the trial court’s concern for the rights of appellant’s employees, some of whom may wish to continue to participate in SCOERS or FRS and be found to have the right to do so on the basis of estoppel, some of whom may wish to continue to participate and be found not to have the right to do so, and some of whom (like appellant) may wish to be relieved of further participation and seek entitlement to a refund of contributions. In the early stages of this proceeding the court entered an interim order contemplating joinder and protection of individual employee’s interest should the relief sought by plaintiff/appellant be granted and require such subsequent joinder, a procedure to which plaintiff/appellant agreed. In addition to a declaration of its right to discontinue participation in the state retirement system, appellant sought a money judgment for all contributions made by it to the retirement trust fund, the granting of which in whole or substantial part could and probably would impact on the rights of some of appellant’s employees. Upon remand the court is directed to enter an appropriate order providing for joinder and protection of the interest of appellant’s employees.

Reversed and remanded for further proceedings not inconsistent herewith.

JOANOS and WIGGINTON, JJ., concur.

      . 122.061 Hospital districts and county hospital corporations; officers and employees included.—
      (1) Boards of hospital districts and county hospital corporations may elect to bring employees of such districts or corporations under the provisions of the retirement law. Once this election is made it may not be revoked and all present and future employees shall be compulsory members of the state and county officers and employees’ retirement system. [Emphasis supplied.]

      . The judgment makes no reference to the Florida Retirement System (“FRS”), but we assume the judgment was intended to apply equally to those employees participating in that system.


author: McCORD, Justice.

text:
    William FRANCIS, individually and on behalf of all others similarly situated, Appellant, v. CITY OF TALLAHASSEE, Appellee.
    No. AJ-104.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    James 0. Shelfer, of Gardner, Shelfer, Mendelson & Duggar, Tallahassee, for appellant.
    Bryan W. Henry, City Atty. and James R. English and Lewis E. Shelley, Asst. City Attys., of Henry, Buchanan, Mick & English, P.A., Tallahassee, for appellee.
   McCORD, Justice.

William Francis, individually and on behalf of all others similarly situated, appeals from the trial court’s final summary judgment determining that bus drivers employed by the City of Tallahassee mass transit bus system (Taltran) are not covered by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (FLSA). We reverse.

The relevant facts to this appeal are essentially undisputed. The plaintiffs seek damages from the City of Tallahassee and a ruling from the trial court to the effect that Taltran is subject to the minimum wage and maximum hour provisions of the FLSA. Specifically, they seek overtime pay for hours worked in excess of 40 hours per week.

Prior to December 3, 1973, the local Tallahassee bus service was owned and operated by a private company, City Transit, Inc. At that time, its drivers had a right to overtime pay under the FLSA, as the City concedes. On that date, however, with the assistance of federal monies provided under the Urban Mass Transit Act (UMTA), 49 U.S.C. § 1601 et seq., Tallahassee purchased the bus service. After purchasing the system Tallahassee retained the same drivers, and the function and duties of the system’s personnel remained about the same. The federal government continues to subsidize Taltran to the extent of paying approximately 50% of the system’s operating losses. The actual fare charged returns less than one-half of the actual cost of the operation. Further, for budgetary, personnel, and employee relations purposes, Taltran is treated much the same as other municipal departments, and its employees are subject to the same rules and regulations as other city employees. The trial court granted its final summary judgment in reliance upon Na tional League of Cities v. Usery (NLC), 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) and Amersbach v. City of Cleveland, 598 F.2d 1033 (6th Cir.1979).

In NLC, the U.S. Supreme Court held that the 10th Amendment prevented the application of the overtime pay provisions of the FLSA to employees of states or their political subdivisions who are engaged in traditional government functions. Id. at 855, 96 S.Ct. at 2475, 49 L.Ed.2d at 259-60. A nonexclusive list of such traditional functions included police protection, sanitation, public health, parks and recreation, hospitals, and schools. NLC, however, afforded little guidance as to the identification of such traditional governmental functions. Later, in Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), the court announced a three-pronged test for evaluating whether a commerce clause regulation, such as the FLSA, contravenes the 10th Amendment:

[I]n order to succeed, a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities must satisfy each of three requirements. First, there must be a showing that the challenged regulation regulates the “State as States.” Second, the federal regulations must address matters that are indisputably “attribute[s] of state sovereignty.” And third, it must be apparent that the State’s compliance with the federal law would directly impair their ability “to structure integral operations in areas of traditional governmental functions.” (Citations omitted).

Id. at 287-8, 101 S.Ct. 2365-6, 69 L.Ed.2d at 23. The key prong to this test is the third one. United Transportation Union v. Long Island Railroad Company (LIRR), 455 U.S. 678, 687, 102 S.Ct. 1349, 1354, 71 L.Ed.2d 547, 553 (1982). While noting that the determination of whether a federal law impairs a state’s authority with respect to “areas of traditional functions” is difficult, the U.S. Supreme Court has observed:

In essence, National League of Cities held that under most circumstances federal power to regulate commerce could not be exercised in such a manner as to determine the role of the States in our federal system. This Court’s emphasis on traditional governmental functions and traditional aspects of state sovereignty was not meant to impose a static historical view of state functions generally immune from federal regulation. Rather, it was meant to require an inquiry into whether the federal regulation affects basic State prerogatives in such a way as would be likely to hamper the state government’s ability to fulfill its role in the Union and endanger its “separate and independent existence. ”
Just as the federal government cannot usurp traditional state functions, there is no justification for a rule which would allow the State, by acquiring functions previously performed by the private sector, to erode federal authority in areas traditionally subject to federal statutory regulations. (Citations omitted; emphasis supplied).

LIRR, 455 U.S. at 686-87, 102 S.Ct. at 1354-55, 71 L.Ed.2d at 554-5. Applying these tests, the Third Circuit Court of Appeals has concluded, and we agree, that the local mass transit systems are within the purview of the FLSA. Kramer v. Newcastle Area Transit Authority, 677 F.2d 308 (3d Cir.1982). That court noted that local mass transit systems have been historically owned and operated by private companies; that the federal government, through the UMTA, has demonstrated an active involvement in local mass transportation; and, that the move away from private transit systems into public transit systems was started and effected by federal government which provided the financial support, through the UMTA, to allow the changeover. Further, it retains through its matching funds program an intimate involvement in such public systems. Id. at 309-10. Considering the pervasive influence of the federal government in this area, as well as Tallahassee’s relatively recent entry into the field, one could hardly conclude that local mass transit is a “traditional function.” Additionally, we find it difficult to understand how the imposition of overtime wages on the City of Tallahassee for these particular employees will impair or endanger the separate and independent existence of a state or its political subdivisions. LIRR, 455 U.S. at -, 102 S.Ct. at 1354-55, 71 L.Ed.2d at 554-5; Kramer, at 311 (Garth, concurring).

We find nothing in Amersbach v. City of Cleveland, 598 F.2d 1033 (6th Cir.1979), which dictates a different conclusion. In Amersbach, the Sixth Circuit Court of Appeals determined that the operation of a municipal airport was an integral function of city government and thus immune from the minimum wage and maximum hour provisions of the FLSA. As that court observed, however, privately owned airports serving municipalities are virtually unknown, unlike mass transit systems which, for the most part, were until recently private entities. Id., at 1038. Further, the City’s reliance on Jackson Transit Authority v. Amalgamated Transit Union, Local 1285, - U.S. -, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982) is misplaced, for there the issue was whether section 13(c) of the UMTA by itself permits a union to sue in federal court for violation of collective bargaining agreements. It contains no mention at all of the FLSA, and we decline to extend its rationale to this case.

The trial court relied upon the decision and opinion of the United States Circuit Court of Appeals, Second Circuit, in United Transportation Union v. Long Island Railroad Co., 634 F.2d 19 (2d Cir.1980), which was reversed by the United States Supreme Court subsequent to the trial court’s disposition of this case [United Transportation Union v. Long Island Railroad Company, 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982)]. It should also be noted that the trial court had no opportunity to consider the Third Circuit’s opinion in Kramer v. Newcastle Area Transit Authority, supra, as it was released after the trial court’s disposition of this case.

Accordingly, for the reasons set forth above, this cause is reversed and remanded to the trial court for further proceedings consistent with this opinion.

BOOTH and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    CITY OF JACKSONVILLE, a municipal corporation, Appellant, v. REYNOLDS, SMITH & HILLS, ARCHITECTS, ENGINEERS & PLANNERS, INC., a corporation; Gee & Jenson Engineers, Architects & Planners, Inc., a corporation; C. Vargas & Associates, Ltd.; Harland Bartholomew & Associates, Inc., a corporation; and Waitz & Frye Consulting Engineers, Inc., a corporation, Appellees.
    No. AL-17.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Rehearing Denied Jan. 7, 1983.

      Dawson A. McQuaig, Roger J. Way-bright, and William Lee Allen, Jacksonville, for appellant.
    William S. Burns, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   MILLS, Judge.

The City of Jacksonville appeals a judgment declaring portions of its Ordinance 130.301 et seq., Professional Services Contracts (ordinance), invalid as inconsistent with Section 287.055, Florida Statutes (1981), the Consultants’ Competitive Negotiations Act (Act). We do not see any inconsistency and reverse.

The appellees, all engineering firms, wished to negotiate for services in connection with a street construction project. The City, as required by its ordinance, requested a quotation of fees before beginning negotiations. The engineers declined, citing the Act. All were downgraded in the selection process because of this. The engineers then sought relief in the circuit court, leading to the order on appeal.

The Act creates a two-step process for agencies or political subdivisions to use when hiring architects and engineers. The first is competitive selection, the second is competitive negotiation with those firms selected in the first step. The ordinance largely tracks the Act with one difference which caused this litigation. The ordinance requires firms to submit a quotation of fees, unless prohibited by law, and requires that this be taken into consideration in determining the three most qualified firms before entering into competitive negotiations. The Act makes no mention of fee quotation.

Without an express prohibition, or express preemption of the subject by the legislature, we must determine whether such use of fee quotations damages the process established by the Act. We conclude that it does not. The Act contemplates the City considering factors other than those listed in subsection 287.055(3)(c). Section 287.055(3)(d). The Act makes budget considerations a factor in selection, Section 287.055(4)(b).

We see no harm done if a City legislatively finds that early consideration of fees is in its best interests. Like other professionals, architects and engineers are going to have to live with price competition.

Our disposition of this issue makes discussion of the City’s other issue unnecessary.

REVERSED.

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


author: JOANOS, Judge.

text:
    Steven Henry ROBERTS, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-209.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.

      Steven Henry Roberts, pro se, appellant.
    John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellee.
   JOANOS, Judge.

Roberts contends that Fla.Admin.Code Rule 23-19.01(6) is an invalid delegation of legislative authority which caused the Florida Parole and Probation Commission to improperly rate h;s offense for purposes of determining his presumptive parole release date. We disagree and affirm the order dismissing Roberts’ petition.

Fla.Admin.Code Rule 23-19.01(6) sets forth an objective method for the Commission to rate attempted crimes. It is reasonably related to the purposes of the enabling legislation. See Chapter 947, Florida Statutes (1981). Roberts has failed to meet his burden of proving the invalidity of Fla.Admin.Code Rule 23-19.01(6) in that he has not shown that it is arbitrary and capricious. Therefore, the validity of the rule is upheld. See Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978).

SHAW and WIGGINTON, JJ., concur.


author: WENTWORTH, Judge.

text:
    Russell M. FULMER, Jr., Patricia C. Fulmer, Vayne R. Davis, Margaret L. Davis, William P. Cousins and Rina Mae Palmer, Appellants, v. STATE of Florida, Appellee.
    No. AL—234.
    District Court of Appeal of Florida, First District.
    Dec. 10, 1982.
    Rehearing Denied Jan. 11, 1983.
    Leonard E. Ireland, Jr., of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellants.

      David LaCroix, of Sieg, Comfort, Hawk, LaCroix & Reid, Gainesville, for appellee.
   WENTWORTH, Judge.

This is an appeal from a final summary judgment enjoining appellants’ use of their property as an airport or takeoff and landing strip for aircraft. Because there are material factual issues in dispute, we reverse.

On August 7,1980, the state filed a complaint seeking a permanent injunction prohibiting the defendants from using their property “other than approved by the Ala-chua County Commission as stated in the attached Exhibit A.” The referenced exhibit consists of a memorandum from the secretary of the Alachua County Zoning Commission to the Board of County Commissioners suggesting that the following restrictions be placed on the subject property:

1. There shall be no extension, expansion or addition made to the existing physical facilities associated with aviation use. This would prohibit the establishment or construction of additional hangar facilities, runway extensions, runway lighting, a repair garage, gasoline pumps, etc.
2. Neither the aircraft, in its present location, nor the airport facilities shall be used directly or indirectly for commercial purposes.
3. Aside from the owner’s aircraft, no more than one additional plane shall be permitted on the ground at or adjacent to or otherwise utilize the airport facility at any given time.
4. Aside from the owner’s aircraft, no more than one additional plane shall be permitted to remain on the ground overnight at or adjacent to the airport facility more than once in any thirty day period, and only then if such plane is registered to an owner residing outside Alachua County, Florida.

On July 7, 1981, the state filed an amended complaint alleging that the defendants were using their land as an airport in violation of the Alachua County’s zoning regulations, and that no special use permit had ever been applied for or granted. The complaint further alleged that the use of the land as an airport or landing strip was a non-conforming use without a principal building. The amended complaint requested the court to permanently enjoin the defendants from “further violation of the Ala-chua County zoning regulations through the use of [the land] as and for an airport or landing strip.”

Defendants answered the amended complaint admitting that they were using the land as an airport or landing strip. However, they denied that their use was in violation of the Alachua County zoning ordinance. They admitted that their use of the land was non-conforming, but denied that it was “without a principal building.”

The Alachua County Zoning Ordinance contains the two following pertinent provisions:

Section 23. Non-Conforming Use of Land. All non-conforming use of land without principal buildings, including open storage, building supplies, vehicle, implement and machinery storage, either on the same lot or on another lot with a plant, factory, or sales facility, signs, billboards, junk yards, and commercial animal yards, and similar uses shall comply with these regulations pertaining to uses permitted within three (3) years from the effective date of this Resolution.
PRINCIPAL BUILDING. A building in which is conducted the principal use of the lot on whieh it is situated. In a residence district any dwelling shall be deemed to be the principal building on the lot which [sic] the same is situated

On November 17, 1981, the state filed a motion for summary judgment and two affidavits. One affidavit was signed by the Director of Codes Enforcement for Alachua County and stated that defendants’ use of their land was not permitted under the Alachua County agricultural zoning classification. The other affidavit was signed by an owner of land adjacent to defendants. In addition to complaining about the defendants’ use of their land as an airstrip, the adjacent landowner stated that there was no principal building on the property. In opposition to the motion for summary judgment, defendants filed an affidavit signed by defendant Russell Fulmer stating that there is a hangar in the residence “which is the principal building on said parcel and the airport.” The affidavit also stated that the building had existed in that condition since 1965.

Based on the pleadings and the affidavits the trial court found no dispute as to any material fact and entered summary judgment in favor of the state. The final judgment found that defendants’ use of their land was unlawful and restrained them from using the property described in the amended complaint as an airport or takeoff and landing strip.

Based on the facts as summarized above, we find that final judgment in this case was premature.

The affidavits filed by the parties raise a question as to the existence of a principal building. It is the state’s position that, as a matter of law, the structure referred to in Mr. Fulmer’s affidavit is not a principal building. The defendants, however, contend otherwise. Since that part of the Ala-chua County zoning ordinance defining principal buildings does not appear to have been definitively construed, we conclude that the determination of whether or not the Fulmer’s residence and airplane hangar is a principal building is, at least in part, a factual issue. The affidavits also contain conflicting statements about the existence or location of the structure, the state’s affi-ant having sworn that there was “not one building or structure of any kind” on the property described in the amended complaint. Thus, we find that there are issues still in dispute, the materiality of which is patent.

In addition, the preliminary pleadings in the record, i.e., “Exhibit A,” supra, may indicate the existence of an unresolved factual question, raised by the answer, as to whether the defendants’ use of their airport was in fact permitted. We recognize that the record pertinent to the appeal does not affirmatively disclose evidence that appellants’ use is permitted, but note that the burden on appellee in seeking summary judgment was to prove nonexistence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966). Due to the inferences which may be drawn from the record before us, we find that the state has not sufficiently met its burden and reverse. Because we so hold, we need not reach the issues raised in connection with the denial of defendants’ motion for rehearing.

REVERSED and REMANDED.

McCORD and BOOTH, JJ., concur.

      . The date of the memorandum is July 7, 1967. In 1965, the property in question had been zoned agricultural.


text:
    CONSOLIDATED CITY OF JACKSONVILLE, a municipal corporation, Appellant, v. Lewis A. TEAGE and Deleanor Teage, his wife, Appellees.
    No. AJ-93.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.

      Dawson A. McQuaig, Gen. Counsel, William Lee Allen and David C. Carter, Jacksonville, Asst. Counsel, for appellant.
    Steven A. Werber and E. Robert Meek of Commander, Legler, Werber, Dawes & Sa-dler, P.A., Jacksonville, for appellees.
   MILLS, Judge.

The Consolidated City of Jacksonville appeals a judgment entered upon a jury verdict. We affirm.

Teague was awarded $18,000 for injuries done during his arrest by the City’s police officers.

We do not find that one witness’s use of the term “aggravation” in describing an old fracture which became symptomatic upon the arrest requires a new trial. The case was not tried upon a theory of aggravation nor was the jury instructed on aggravation.

The description by Teage of his treatment by the officers supports the jury’s finding of excessive use of force.

The amount of the verdict is clearly within the jury’s discretion considering the past and continuing medical bills and lost wages.

AFFIRMED.

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


author: McCORD, Judge. WENTWORTH, Judge,

text:
    THATCHER GLASS COMPANY and Underwriters Adjusting Company, Appellants/Cross Appellees, v. Luvenia JOSEPH, Appellee/Cross Appellant.
    No. AJ-96.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1982.
    Rehearing Denied Jan. 11, 1983.

      Barbara J. Paulson, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellants/cross appellees.
    William M. Holt, of Chilldon & Chilldon, P.A., Tampa, for appellee/cross appellant.
   McCORD, Judge.

By this appeal the employer/earrier argue that the deputy commissioner erred in granting the claimant’s petition for modification on the basis of a change in condition. We agree and reverse.

In April of 1977 and February of 1978, claimant sustained two compensable injuries to her left shoulder and back, respectively. An order was entered on May 30, 1980, finding that she had a 6% permanent partial impairment of the body as a whole from the shoulder injury and a 7% permanent partial impairment of the body as a whole from the back injury. However, the deputy specifically found that she had no permanent impairment on a psychiatric basis as a result of these two injuries.

Claimant subsequently filed a petition for modification alleging a change in condition on a psychiatric basis and seeking additional temporary total disability payments. In agreeing with claimant’s contention, the deputy relied upon the testimony of a psychiatrist, Dr. Fesler, who felt that she was totally disabled on a psychiatric basis. Specifically, he opined that she was suffering from severe depression that was an outgrowth of her compensable injury. However, he admitted that his psychiatric analysis was based upon the same complaints given to another psychiatrist, Dr. Forman, whose opinion was the basis of the deputy’s prior conclusion that she had suffered no permanent impairment on a psychiatric basis.

Section 440.28, Florida Statutes, provides for a modification of a previous compensation order on the ground that the claimant’s condition has materially changed since the entry of the previous order.

The change of condition provision is designed to afford relief to a claimant whose condition either becomes progressively worse when not anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial claim proceeding.

General Elect. Co. v. Osborne, 394 So.2d 1089, 1090 (Fla. 1st DCA 1981). Thus, it must be shown by new and positive evidence that the claimant’s condition has changed so that the conditions which were the foundation of the prior order no longer operate. Here, Dr. Fesler’s testimony did not show that the underlying conditions for Dr. Forman’s evaluation had changed. On the contrary, Dr. Fesler agreed that her complaints were the same as previously given. Accordingly, Fesler’s testimony regarding claimant’s present psychiatric condition represents but a difference of opinion with the previous evaluation. Further, the organic evaluation of her treating orthopedic physician, Dr. Eckart, remains the same, i.e., that she may return to work without any physical restrictions and/or limitations. There being no competent, substantial evidence of a change in condition, the deputy’s order must be REVERSED.

BOOTH, J., concurs.

WENTWORTH, J., dissenting and concurring in part.

WENTWORTH, Judge,

dissenting and concurring in part.

I respectfully disagree and would find the modification order to be supported by competent evidence which is not merely cumulative in character. The current psychiatric testimony does not in my opinion establish or concede that claimant’s earlier symptoms were identical in scope, but permits instead the deputy’s apparent conclusion that conditions evidenced at the first hearing had changed significantly in the degree to which claimant's functioning was affected.

As to the cross appeal, I agree that the deputy could properly deny an order for continuing temporary total disability compensation, because such benefits are not ordinarily assessable in futuro. The order is obscure, however, in predicating denial on “anticipated improvement after the hearing.” I would note the speculative character of that reference, as well as the problems inherent in evaluation of medical opinion, such as in this case, that a claimant is “as good as she’s going to get until her case is settled.” Cf., Bryant v. Elberta Crate, 156 So.2d 844 (Fla.1963); Johnny’s Welding Shop v. Eagan, 143 So.2d 470 (Fla.1962); Maffitt v. Henderson’s Portion-Pak, Inc., 132 So.2d 410 (Fla.1961); Tampa Ship Repair & Dry Dock Co., Inc. v. Director, Office of Workers’ Compensation Programs, 535 F.2d 936 (5th Cir.1976).