text:
    Sadie LOVE and Clyde Love, her husband, Appellants, v. Ira S. JACOBSON, M.D., and North Dade Hospital, Inc., Appellees.
    No. 80-515.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Cohen & Kokus and Linda Koenigsberg, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Striekroot and Michael J. Murphy, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   BASKIN, Judge.

We are asked by appellants Sadie Love and Clyde Love to consider the propriety of an order taxing attorney’s fees against them following dismissal of their medical malpractice action. The court found there was no justiciable issue of either law or fact. We reverse because Section 57.105, Florida Statutes (Supp.1978) did not become effective until approximately a year and a half after the commencement of the action and is not retroactive.

On January 18, 1977, the Loves sued North Dade Hospital and their doctor, Dr. Jacobson, for negligent treatment of a fractured arm. Because medical mediation proceedings had not yet terminated, the complaint was dismissed and later reinstated. The hospital filed a motion for summary judgment which was denied. On the date of trial, the Loves voluntarily dismissed their action. The hospital then sought attorney’s fees, and costs, and the trial court awarded $6,000 attorney’s fees. In response to a motion, the court entered a corrected order taxing attorney’s fees which included a finding that no justiciable issue of law or fact existed. This order was entered after the notice of appeal had been filed.

Section 57.105, Florida Statutes (Supp. 1978) provides:

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

Prior to the effective date of that statute, June 15,1978, no right to attorney’s fees existed for the complete absence of a justiciable issue of law or fact. Unless legislative intent to the contrary is disclosed, statutes operate prospectively. Walker & LaBerge v. Halligan, 344 So.2d 239 (Fla.1977); Fleeman v. Case, 342 So.2d 815 (Fla.1976); Foley v. Morris, 339 So.2d 215 (Fla.1976). No clear legislative intent mandating retroactive application appears in the language of the statute. Even without a legislative mandate, however, procedural rights granted by a statute may be applied retroactively because no vested rights in any mode of procedure exist. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949); Walker & LaBerge v. Halligan, supra. If the statute does not affect vested rights or create new obligations, it may be applied retroactively. Conversely, parties are entitled to rely on substantive rights which vested before the passage of a new statute. Walker & LaBerge v. Halligan, supra.

Appellee contends that the rights afforded by the statute are procedural rather than substantive and are therefore retroactive. We disagree. The right afforded by the statute is not, as appellee suggests, the right to file a frivolous suit; it is, instead, a right to recover attorney’s fees when a justiciable issue as described in the statute is absent. That right did not exist prior to the enactment of Section 57.105, Florida Statutes (Supp.1978). We disagree with appellee’s argument that because the statute appears under the heading of court costs, it presents only a new procedural device for obtaining recovery. See generally, Allen v. Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). In our view, a new right has been created and the award of attorney’s fees is not retroactive under the statute. Tuggle v. Government Employees Insurance Co., 220 So.2d 355 (Fla.1969); Stone v. Town of Mexico Beach, 348 So.2d 40 (Fla. 1st DCA 1977).

In light of our disposition of this cause, we need not consider the other issues presented on appeal.

Reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronald PONZOLI and Richard Wassenberg, Appellants, v. J. Arthur HAWKESWORTH, Jr., and E. James Schmick, Appellees.
    No. 80-775.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellants.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin and Larry S. Stewart, Miami, for appellees.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This appeal involves the correctness of an order apportioning costs during the penden-cy of an appeal. The original appeal involved the rights of the parties incident to the dissolution of their law firm. In this connection, see opinion of this court rendered in Hawkesworth v. Ponzoli, 388 So.2d 299 (Fla. 3d DCA 1980). We find that the order under review in this cause had the impact of modifying the original final judgment, while the appeal in the cited cause was pending.

Therefore, we reverse the order under review and return the matter to the trial court to assess costs as provided in the original final judgment.

Reversed and remanded with directions.


author: NESBITT, Judge.

text:
    F & R BUILDERS, INC., Petitioner, v. The Honorable N. Joseph DURANT, Jr., Circuit Judge 11th Judicial Circuit in and for Dade County, Respondent.
    No. 80-1588.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.

      Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Anthony J. O’Donnell, Jr., Miami, for petitioner.
    John H. Lipinski, Miami, for respondent.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

In this original proceeding, petitioner, F & R Builders, Inc. (F & R) seeks a writ of prohibition to prevent the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit from entertaining further jurisdiction in a proceeding for common law certiorari (Case No. 80-073-AP) in which Cheryl Brown is the petitioner and Metropolitan Dade County and F & R are respondents.

F & R requested the Zoning Appeals Board to grant a special exception to permit residential property to be served by private drives. The Zoning Appeals Board sent Ms. Brown as well as other property owners in the area a courtesy notice informing them of the application and hearing date. Ms. Brown did not appear before the Zoning Appeals Board which ultimately approved the request. She then timely appealed that order to the Board of County Commissioners pursuant to Section 33-313, Metropolitan Dade County Code. After review of Ms. Brown’s appeal, the Board of County Commissioners unanimously adopted the action taken by the Zoning Appeals Board. Ms. Brown then timely commenced the pending petition for a writ of certiorari (Case No. 80-073-AP) in the Circuit Court. F & R in turn filed a motion to dismiss the petition on the grounds that the Circuit Court had no jurisdiction because Ms. Brown: (1) did not have standing to bring the suit; and (2) had not exhausted her administrative remedies as evidenced by her failure to object to the original application at the time it was pending before the Zoning Appeals Board.

We first consider the preemptive question of whether Ms. Brown had standing in the lower tribunal and in the underlying proceedings before the Board of County Commissioners and the Zoning Appeals Board.

The Appellate Division of the Eleventh Judicial Circuit denied the motion to dismiss, evidently relying upon our decision in Dade County v. Jim’s Northwest, Inc., 171 So.2d 612 (Fla.3d DCA 1965). That decision is readily distinguishable because there the record from the Zoning Appeals Board involved the request to enlarge the use of a permittee’s premises from that of a bar to a nightclub and mandatorily required that churches and schools within a certain distance of the permittee’s business be included on a required sketch which was an exhibit placed in the record. It was for that reason that the church’s name was part of the record which this court held gave it sufficient standing to pursue the appeal.

The courtesy notice given to Ms. Brown did not afford her standing. We consider the decision in Dade County v. Jim’s Northwest, Inc., supra, inapplicable because, under the facts of this case, the definition of “record” is established by the Board of County Commissioners pursuant to Section 33-302(k) of the Metropolitan Dade County Code and that section did not make a courtesy notice to Ms. Brown part of the record. The fact that her name may have appeared on papers transmitted by the Zoning Appeals Board to the Board of County Commissioners did not enlarge upon her rights as defined by Section 33-302(k), supra.

The notice to Ms. Brown was, at most, a courtesy extended to her but as it was not properly part of the record she had no standing as an “aggrieved party” as that term is defined under our decision of Chabau v. Dade County, 385 So.2d 129 (Fla.3d DCA 1980). The Board of County Commissioners may extend appellate remedies by enlarging upon the definition of the term “an aggrieved party.” Likewise, the Board of County Commissioners may grant standing by enlarging upon the present definition of “record on appeal.” However, until it does so, the courts cannot extend rights to parties such as Ms. Brown to the detriment of other litigants such as the petitioner.

It is settled that the Board of County Commissioners is confined to the record of the proceedings before the Zoning Appeals Board. Dade County v. Marca, S. A., 326 So.2d 183 (Fla.1976); Sun Ray Homes, Inc. v. County of Dade, 166 So.2d 827 (Fla.3d DCA 1964). Consequently, it is plain that Ms. Brown had no standing to perfect the instant petition for certiorari.

This disposition of the question of standing makes it unnecessary for us to pass upon the petitioner’s alternative contention that Ms. Brown failed to exhaust her administrative remedies before the Zoning Appeals Board as it is clear that her attempt to have done so would have been irrelevant absent standing.

For the foregoing reasons, petitioner is awarded a writ of prohibition. We assume it will not be necessary for us to issue a formal writ.

      . § 33-302(k):

        Record The word “record” when pertaining to the record of any board shall mean and include any application, exhibits, appeal papers, written objections, waivers or consents, considered by such board, transcript or stenographic notes taken for the department at a public hearing held before such board, if any, the board’s minutes and resolution showing its decision or action, and if the record of a lower board is transmitted to a higher board, the record of the higher board shall include that of the lower board. The word “record” shall also include any and all applicable portions of Chapter 33 of the Code of Metropolitan Dade County, Florida, the report and recommendations of the planning director, building and zoning director and the developmental impact committee; the comprehensive development master plan for Metropolitan Dade County, Florida; and Ordinance No. 75-22, or as amended, or applicable neighborhood or area studies or plans approved by action of the board of county commissioners, as well as applicable district boundary maps, aerial photographs and final zoning resolutions. It shall also include the record made as a result of any previous zoning application on the same property. The clerk of the county commission shall identify an exhibits used or referred to at the zoning hearing. All exhibits so identified or introduced shall be a part of the record. The record shall not include economic reports or studies, real estate appraisals or reports, and/or written reports of zoning consultants not filed in accordance with the provisions of section 33-315 of the Code.


text:
    J. Davis WOOD and Diane C. Wood, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. VV-326.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1980.
    Larry Levy of Dickinson, Levy & Taylor, Tallahassee, for appellants.
    Silvia Morell Alderman, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Appellants have moved for rehearing of a September 9, 1980 order of this court dismissing their appeal for failure to exhaust administrative remedies by first seeking review, by the Environmental Regulation Commission, of an order of the Department of Environmental Regulation. The motion for rehearing alleges this court failed to consider appellants’ argument, contained in their response to the motion to dismiss, that the portion of Section 403.804(1), Florida Statutes, which makes the Commission the “adjudicatory body for final actions taken by the Department” contained no standards to guide the administration of the statute by the agency, and is therefore unconstitutional under Article II, Section 3, Florida Constitution. We adhere to our conclusion sustaining the statute.

The guidelines for promulgation by the Secretary of the Department of rules relating to appeals to the Commission are those provided by Chapter 120, Florida Statutes, to which the Department is subject. The statutory language in question is properly construed together with Rule 17-1.72, Florida Administrative Code. In Peterson v. Department of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA 1977), Section 403.804(1) and Chapter 17-1, Florida Administrative Code, were before the court, and the opinion stated there would be “judicial review of final agency action after review of the action by the Commission.” After the adoption and publication of the rule and the decision in Peterson, Section 403.804(1) was re-enacted. Section 403.-804(1), Florida Statutes (1979).

In addition, the 1980 amendment of Section 403.804(1) by Chapter 80-66, Laws of Florida, repealed the adjudicatory function of the Commission and simultaneously provided that the amendment “shall not affect any appeals pending before the Commission .” (emphasis ours). That language may be regarded as legislative reaffirmance of the appellate nature of the Commission’s adjudicatory function.

We conclude that appellants’ challenge to the constitutionality of Section 403.804(1) is without merit, and find no necessity for express treatment of other arguments in appellants’ motion. The motion for rehearing is accordingly denied.

WENTWORTH and JOANOS, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: SHIVERS, Judge.

text:
    Norman C. JACKSON, Appellant, v. Evelyn M. JACKSON, Appellee.
    Nos. PP-96, TT-309.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.

      George E. Day, Fort Walton Beach, for appellant.
    Michael Wm. Mead, of Middleton & Mead, Fort Walton Beach, for appellee.
   SHIVERS, Judge.

Appellant husband appeals part of a final judgment of dissolution holding that under Florida’s version of the Uniform Child Custody Jurisdiction Act, Florida has no jurisdiction over the parties’ child. Appellee wife cross-appeals the trial court’s order denying her motion for attorney fees.

The husband, in his appeal, contends that the trial court erred in finding Florida was not the home state of the child since the residence of a wife and child follows that of the husband; that the trial court erred by denying husband due process and equal protection under the Fourteenth Amendment to the Constitution of the United States; and that the trial court erred in failing to order a home study of both parents. The wife in her cross-appeal contends the trial court erred in holding it had no jurisdiction to make an attorney’s fee award.

We affirm.

Appellant, a member of the Air Force and a Florida resident, married appellee in South Dakota in 1974. Since the parties’ marriage, the husband has been in the military service. His permanent record shows Fort Walton Beach, Florida, is his home and he is registered to vote in Florida. In 1976, the wife registered to vote in Florida.

In February 1978, while the appellee and the child remained in Minnesota with the wife’s mother, appellant was transferred to Korea, returning in February 1979 to appel-lee and the child in Minnesota and then traveling by himself to his new assignment at Patrick Air Force base in Florida. In May 1979, appellee refused to move to Florida. During that month, husband went to Minnesota and while he, the wife and the child were at a shopping mall, the husband, without notice to wife, took the child with him back to Florida. The same month, husband petitioned in Florida for dissolution of the marriage and custody of the child. The child had not lived in Florida until the husband brought the child to Florida a few days before filing his petition for dissolution and custody.

The trial court granted dissolution after appellee’s default, but held that Florida lacked jurisdiction of the child. The trial court found that the State of Minnesota has a closer connection than Florida with the child since significant evidence concerning the child’s care, protection and personal relationships is more readily available in Minnesota. The wife moved for dismissal of the husband’s petition for rehearing on grounds the court lacked jurisdiction and asked for attorney fees in dealing with that motion as well as appellee’s travel expenses in defending against the motion for rehearing. The trial court granted the wife’s motion to dismiss. Subsequently, the trial court denied the wife’s motion for attorney fees, holding it had lost jurisdiction of the case by not reserving the question because the final order was already pending on appeal.

In 1977, Florida enacted the Uniform Child Custody Jurisdiction Act (§§ 61.1302-61.1348). One of the purposes of the Uniform Child Custody Jurisdiction Act, as stated in § 61.1304(3), is to;

(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.

The pertinent parts of § 61.1308 concerning jurisdiction provide that Florida courts have jurisdiction if;

(a) 1. Florida is the home state when the proceedings commence; or

2. Florida has been the home state within 6 months before the action.

(b) It is in the best interest of the child because:

a. The child and at least one parent has significant connection with this state;
b. There is available in Florida substantial evidence concerning the child’s present and future care, protection, training and personal relationships.
c. The child is physically present in this state and has been abandoned or the child requires protection; or
d. No other state has jurisdiction under (a), (b) or (c) above or another state has declined to exercise jurisdiction because Florida is the more appropriate forum; and it is in the child’s best interest that Florida assume jurisdiction.

Home state is defined in § 61.1306(5), Fla.Stat. (1977), as the state in which the child, immediately before the time involved, lived for at least 6 months.

§ 61.132, Fla.Stat. (1977) mandates that the first pleading in a custody proceeding inform the court where the child has lived within the last 5 years. Appellant father’s declaration showed that the child: lived in Biloxi, Mississippi, with appellant and ap-pellee from its birth on March 20, 1975, until January 1978; lived in Minnesota with appellee mother or with appellee and the child’s grandmother or with appellee and mother’s friend from February 1978 to May 1979; and in Florida with appellant father from May 1979 until June 1979. The child was residing in Florida with the father at the time of the final hearing on June 25, 1979. .

The trial court did not err in finding Florida was not the home state of the child. The child had not lived in Florida for six months before commencement of the proceedings.

Appellant contends that § 61.1306, Fla.Stat. (1977) discriminates against appellant, a military service member, by denying a father the right to establish domicile for his wife and children in violation of the due process and equal protection provisions of the United States Constitution. We disagree. The statute does not prevent a father from establishing the legal residence or legal domicile of his child.

The fact that Florida might be the child’s legal residence or legal domicile does not necessarily mean that the child has “lived in” the State of Florida for six months as the statute defines “home state” for custody jurisdiction.

Since the child lived in Minnesota for over 14 months before being brought to Florida, the trial court did not err in finding that Minnesota has a closer connection than Florida with the child.

Since the husband testified as to the wife’s misconduct and neglect of the child, the trial court could have assumed jurisdiction under the statute if it concluded that the child was neglected or that it was to the best interests of the child or that it was necessary in an emergency to protect the child. The trial court, although it had the discretion under § 61.1304(3), supra, declined the exercise of jurisdiction when it found the child and its family had a closer connection with another state. We do not find the trial court abused its discretion and affirm its judgment denying jurisdiction over the child. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Prior to final judgment, the wife filed motion for attorney fees. Since the trial court failed to reserve jurisdiction on the question of fees, the chancellor lacked jurisdiction to enter an order awarding attorney fees after the judgment became final. See Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976).

We remand to the trial court to determine whether to award an attorney’s fee to the wife’s attorney for his appellate services, after consideration of the parties’ relative financial needs and abilities. Fla.R. App.P. 9.400(b).

ERVIN and LARRY G. SMITH, JJ., concur.

      . Section 61.1308, Florida Statutes (1977):
      (1)A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (a) This state:
      1. Is the home state of the child at the time of commencement of the proceeding, or
      2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
      (b) It is in the best interest of the child that a court of this state assume jurisdiction because:
      1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
      2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
      (c) The child is physically present in this state and:
      1. The child has been abandoned, or
      2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
      (d)1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c),,or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
      2. It is in the best interest of the child that a court of this state assume jurisdiction.
      (2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
      (3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

      . Section 61.1306(5), Florida Statutes (1977): As used in this act:
      (5) “Home state” means the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as parent for at least 6 consecutive months [or], in the case of a child less than 6 months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.


text:
    CITY OF BONIFAY and Nationwide Insurance Company, Appellants, v. Jake FAULK, Appellee.
    Nos. TT-91, TT-384.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.
    Russell R. Stewart, Panama City, for appellants.
    C. Wesley Pittman and Michael L. Stone, Panama City, for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

The employer/carrier appeals from a worker’s compensation ruling that claimant suffered a compensable injury and is entitled to a seventy percent (70%) permanent partial disability of the body as a whole. We affirm. Since we agree with the Deputy Commissioner’s findings of fact, we adopt and include them in the opinion of this Court as follows:

The Claimant is 65 years old with a fifth grade education. In the past, he has been a farmer, a worker in a sawmill, a bread truck driver, and he managed a furniture store for 13 years. He has worked for the City of Bonifay for the past 14 years. At the time of his alleged accident, he managed a sewage treatment plant. The Claimant is a diabetic. Except for brief periods, he has been able to control this condition for the past 24 years.
On January 30, 1978, the Claimant and his fellow employee, Tommy Pate, were working on a newly installed sump pump at the treatment plant. They were using a PVC pipe cleaner marketed under the brand name of Plum-O, PVC-ABS Cleaner. According to the label on the can, the cleaner contained methyl-ethyl-ketone. While using this cleaner, the Claimant felt a burning sensation in his throat and eyes. He removed himself from this environment. He experienced a weakening sensation. He continued to work that day but went home early because he did not feel well. At home that night, he spit up blood and his nose began to bleed. Initially he ignored the nose bleed but, because of his sensation of weakness, did not return to work the next day. His nose bleed persisted and he finally went to the hospital for treatment. After several episodes of bleeding, he saw Dr. Grace who is his regular family physician. Dr. Grace hospitalized Claimant with a diagnosis of an acute allergic reaction. After some inquiry by Dr. Grace, the Claimant recalled the episode with the Plum-0 and showed the label from the can to the doctor.
Upon noting that the Plum-0 contained ketones, Dr. Grace became convinced that exposure to this substance was the cause of his bleeding episode. As explained by Dr. Grace, a diabetic is unable to metabolize carbohydrates. As a result, the body accommodates this failing with an alternate chemical reaction which results in a production of ketone bodies which accumulate. This accumulation produces an acidotic condition in the blood stream. Thus, the diabetic having an abnormal ketone level in his blood stream is particularly allergic to ketones. Not only did the exposure to Plum-0 cause the Claimant’s nose to bleed, but it also caused his diabetic condition to become uncontrollable. Dr. Grace states that the Claimant cannot return to work in an industrial environment. His exposure has left him in a weakened condition which restricts his activities. .. .
The Claimant testifies to a general weakness which did not exist prior to his exposure to Plum-O. Before the episode, he states he could do anything he wanted to do. Now he states that he has difficulty walking more than two city blocks. He is unable to tend his garden. The Claimant returned to work on March 20, 1978, and he worked until July 15, 1979, when he was hospitalized for eye surgery which was not related to his exposure to the Plum-O. He has not worked since although he feels he might be able to do part-time work with the Green Thumb program which hires handicapped people apparently to help beautify the City. He could work 20 hours per week at $2.95 per hour.

Considering the nature of the methyl-ethyl-ketone and its toxic effect on one with a pre-existing diabetic condition, we hold that the record contains competent, substantial evidence to support a finding of causal relationship between claimant’s exposure at work and the claimant’s nose bleeds and general physical deterioration. The toxic effect of this exposure to the methyl-ethyl-ketone occurred suddenly and was related to an identifiable incident, thus satisfying the statutory requirements of an accident. Section 440.02(18), Florida Statutes; Smith v. Florida Department of Agriculture & Consumer Services, IRC Order 2-3425 (May 3,1978), cert. denied 364 So.2d 884 (Fla.1978). Further, while the evidence reveals that the claimant’s eye surgery was the immediate precipitating cause of his ceasing to work, it also clearly indicates a man in substantial physical decline well before the eye surgery. Thus, we agree with the Deputy Commissioner and would not conclude, as Appellants urge, that his inability to continue working at the sewage treatment plant is due to his eye surgery.

Appellants also urge that the claimant has not made an adequate job search so as to justify an award of permanent partial disability benefits in excess of Dr. Grace’s anatomical impairment rating. Although the evidence regarding the claimant’s employment search discloses a minimal effort, we think that this effort, coupled with his present condition, his advanced age, educational and work background, is sufficient to shift the burden to Appellants to prove the availability of other job opportunities. See, Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla.1978); Simmons v. Criswell, IRC Order 2-3054 (October 26, 1976). Since they have not done so, the order must be affirmed on this point.

Accordingly, the order appealed from is

AFFIRMED.

WENTWORTH and JOANOS, JJ., concur.


text:
    Howard Drew ARCHER, Appellant, v. STATE of Florida, Appellee.
    No. WW-35.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.
    Mark M. Green, of Funk & Green, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See, Robinson v. State, 373 So.2d 898 (Fla.1979); Brown v. State, 376 So.2d 382 (Fla.1979).

ROBERT P. SMITH, Jr. and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


author: DANIEL S. PEARSON, Judge.

text:
    Daryl Lawrence HENSHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1547.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.

      Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Henshaw asks us to reverse judgments of convictions entered in Dade County in five separate cases upon nolo contendere pleas which specifically preserved his right to appeal from the trial court’s denial of his motions for discharge. His motions were grounded upon the State’s failure to bring him to trial within 180 days of his arrests, the time limit fixed in Florida Rule of Criminal Procedure 3.191(a)(1).

These cases commenced with sequential arrests of Henshaw in August and September 1976. It is undisputed that Henshaw was not brought to trial within 180 days of any of the arrests and undisputed that Hen-shaw did nothing within the speedy trial periods which would constitute a waiver of his right to be tried within the time prescribed by the rule. The State claims, however, that the controlling speedy trial period is the one-year period set forth in Florida Rule of Criminal Procedure 3.191(b)(1), which had not expired when Henshaw moved for discharge and entered his pleas, and that, assuming the applicability of the shorter period in Rule 3.191(a)(1), motions to compel discovery filed by Henshaw in two of these cases after 180 days had elapsed demonstrated Henshaw’s unavailability for trial and disentitled him to the benefits of the rule.

The State’s first argument arises from the fact that in early 1977, during the running of the 180-day periods, Henshaw was incarcerated in Broward County and in Monroe County. The State claims that these incarcerations converted Henshaw into a “prisoner” within the meaning of Rule 3.191(b)(1), thus making that rule applicable. It is clear that since Lewis v. State, 357 So.2d 725 (Fla.1978), a person’s status as a prisoner is to be determined as of the time of the arrest which triggers the commencement of the speedy trial period. Thus, under Lewis, Henshaw was not a prisoner in August and September 1976, and his later incarcerations in Broward and Monroe did not bring Rule 3.191(b)(1) into play. The State says, however, that in 1977 when Henshaw moved for discharge, the trial court could have properly relied on pre-Lewis law, see, e. g., State v. Lott, 286 So.2d 565 (Fla.1973), in concluding that the one-year rule was applicable even where the prisoner status arises after the commencement of the speedy trial period. The State urges that Lewis should not be retroactively applied to cases, as the present one, which arose before that decision.

We need not concern ourselves with the retroactivity vel non of Lewis. The only change in the law which can be said to have been effected by Lewis relates to the time at which a person is deemed to be a prisoner so as to activate Rule 3.191(b)(1). Lewis effected no change in the requirement of Rule 3.191(b)(1) that in order to be a prisoner, one must be incarcerated pursuant to a judgment of guilt. See State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976). It being clear that Henshaw’s incarceration in Broward and Monroe Counties was not pursuant to any judgment of guilt, and was merely detention awaiting trial, when Henshaw was jailed in those counties as well as the question of Lewis’ retroactivity are both irrelevant. We conclude, therefore, that Henshaw is correct in his contentions that Rule 3.191(b)(1) is inapplicable and that the State was required to bring him to trial within 180 days of his arrests.

We turn now to the State’s contention that Henshaw’s motion to compel discovery, filed in two of the cases well after the speedy trial time had expired, but before he moved for discharge, disentitles him to relief. Since Henshaw’s discovery efforts were not being engaged in or pending at the expiration of the speedy trial period so as to evidence Henshaw’s unavailability for trial at that moment, see Rutledge v. State, 374 So.2d 975 (Fla.1979); Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974), the motion to compel did not divest him from his right to discharge. White v. State, 338 So.2d 256 (Fla. 4th DCA 1976). See also Muller v. State, 387 So.2d 1037 (Fla. 3d DCA 1980); Llanusa v. Glickstein, 376 So.2d 45 (Fla. 4th DCA 1979); Hammock v. State, 330 So.2d 522 (Fla. 1st DCA 1976). Accordingly, the judgments appealed are

Reversed.

      . While motions were filed in only two of the cases, our disposition of this appeal makes it unnecessary for us to consider these cases separately from the other three.

      . Henshaw was ultimately found guilty and adjudicated in Broward and Monroe Counties. That occurred, however, after the 180-day speedy trial periods in Dade County had run. The State says that since he was given credit for time served when sentenced in Broward, he was in effect a prisoner under a judgment of guilt earlier and within the 180-day period. We reject this argument. It is enough to say that to accept it could preclude a defendant from the benefits of the 180-day period in any case where credit for time served before the period began is later given.


text:
    Steven Lee CIMINO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1254.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Lawrence S. Katz, Miami Beach, John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Reversed. Reid v. Georgia, - U.S. -, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); Royer v. State, 389 So.2d 1007 (Fla.3d DCA 1980); Talavera v. State, 186 So.2d 811 (Fla.2d DCA 1966).


text:
    Dereck N. CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2157.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Bennett H. Brummer, Public Defender, and Elliot Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Ecker, 311 So.2d 104 (Fla.1975); State v. Ramos, 378 So.2d 1294 (Fla.3d DCA 1979); Smith v. State, 363 So.2d 21 (Fla.3d DCA 1978).


text:
    Paul William LEACH, Charles J. Schmalzried, and C. J. Real Estate, Inc., a Florida Corporation, Appellants, v. Hazel E. LEWIS and Truman L. Drake, Inc., Appellees.
    Nos. 79-2309, 79-2310.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Hilton R. Carr, Jr. and L. J. Cushman, Miami, Hugh F. Quinn, for appellants.
    John H. Lewis, A. J. Barranco, Jr., Stuart and Steven Kellough, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972); Gendzier v. Bielecki, 97 So.2d 604 (Fla.1957); Dade Roofing and Insulation Corp. v. Torres, 369 So.2d 98 (Fla.3d DCA 1979); Murray v. Hidden Lake Development Corp., 281 So.2d 537 (Fla.3d DCA 1973); Sonnenblick-Goldman of Miami Corp. v. Feldman, 266 So.2d 48 (Fla.3d DCA 1972).


text:
    P. Q. BEEF PROCESSORS, INCORPORATED, a Florida Corporation, Appellant, v. PUERTO RICO MARINE MANAGEMENT, INC., a foreign Corporation, and Fireman’s Fund American Insurance Company, a foreign Corporation, Appellees.
    No. 80-272.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Ress, Gomez, Rosenberg & Howland and Miguel A. Orta, North Miami, for appellant.
    Smathers & Thompson and Morris E. Shelkofsky, Jr., Miami, for appellees.

      Before BARKDULL, SCHWARTZ and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. York-Shipley, Inc. v. Atlantic Mutual Ins. Co., 474 F.2d 8 (5th Cir. 1973); § 672.320, Fla.Stat. (1979); see, Sig M. Glukstad, Inc. v. Lineas Aereas Paraguayas, 619 F.2d 457, 459 (5th Cir. 1980); Farbwerke Hoeschst A.G. v. M/V “Don Nicky,”, 589 F.2d 795 (5th Cir. 1979).


text:
    Steven BURKE, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida and Arthur Joseph Tauriac, individually, Appellees.
    No. 80-338.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Colson & Hicks and Bill. Hoppe, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Robert L. Blake, Asst. County Atty., for appellees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   PER CURIAM.

We affirm the trial court’s refusal to instruct the jury regarding a statute not brought into issue by the evidence: Testimony established that the vehicle in question was stopped for traffic, rather than for the pedestrian (plaintiff). But see § 316.-130, Fla.Stat. (1977).

We similarly affirm the court’s denial of plaintiff’s motion for directed verdict. See Stresscon International, Inc. v. Helms, 390 So.2d 139 (Fla. 3d DCA 1980).

Affirmed.


text:
    Barbara Sieveking VERA, Appellant, v. Pablo GARCIA, Appellee.
    No. 80-416.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.

      Jerry A. Burns, Miami, for appellant.
    Michael A. Reichman, Miami, for appel-lee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The appellant, defendant below, appeals from an order denying her motion to vacate a final judgment which foreclosed a chattel mortgage on a boat.

The appellant contends the trial court erred in denying her motion to vacate because the record demonstrates that the plaintiff waived the benefit of the final judgment in his favor by: (1) filing an amended complaint; (2) filing a reply to the affirmative defenses raised in an answer filed by the defendant; and (3) taking the defendant’s deposition. We disagree and affirm.

The appellee, plaintiff below, originally commenced his action on a three-count complaint which sought to: (1) collect on a promissory note; (2) foreclose a chattel mortgage upon the boat; and (3) foreclose an equitable lien on the boat. Admittedly, the defendant did not initially file an answer or any other responsive pleading to the complaint. Consequently, the plaintiff procured a final judgment of foreclosure on May 19, 1979.

On June 21, 1979, an alleged subsequent purchaser filed a motion to intervene as authorized by Florida Rule of Civil Procedure 1.230. In the order granting the motion to intervene, the trial court authorized the plaintiff to amend his complaint “to name the Intervenor as an additional Party Defendant.” The plaintiff then filed an “Amendment to Counts II and III of the Complaint,” copies of which were served upon the original defendant who ultimately filed an answer to the supplemental complaint. The answer contained affirmative defenses to which the plaintiff filed a reply. Additionally, the defendant’s discovery deposition was taken.

On May 9, 1979, the original defendant, appellant, filed a motion to vacate the final judgment of foreclosure contending that the record established the foregoing facts and that therefore the plaintiff had waived the benefit of the final judgment previously entered. The same contention is raised by the defendant in this appeal. The trial judge ruled against the defendant on her motion and we agree.

The effect of the final judgment which had been entered between the original parties was to merge all causes of action which were or could have been alleged and thereby rendering all such issues res judica-ta. Cabinet Craft, Inc. v. A. G. Spanos Enterprises, Inc., 348 So.2d 920, 922 (Fla.2d DCA 1977). Crucial to our decision is our view that, as between the original parties, the supplemental complaint created virtually no new issues nor enlarged upon the original issues (raised in the initial complaint) or the relief granted to the plaintiff. Unless and until the final judgment between the original parties is vacated, there is nothing further to be litigated between these parties. The service of supplemental pleadings upon the original defendant were a nullity. At most, it was a courtesy. The filing of an answer by the original defendant was unwarranted as long as the issues between them were res judicata. The erroneous exchange of pleadings by both attorneys was not sufficient to vacate or waive the default. Had the defendant desired to litigate the matter, it was incumbent upon her to file a legally sufficient motion to vacate the default pursuant to Florida Rule of Civil Procedure 1.540(b) as expressly authorized by Florida Rule of Civil Procedure 1.500(d). While we consider the motion to have been made pursuant to the cited rule, it is apparent that the pleader misapprehended the res judicata effect of the final judgment as between the original parties and failed to allege a sufficient basis to warrant setting aside the default judgment.

For the foregoing reasons, the order appealed from denying the motion to vacate the final judgment is affirmed.

      . The proper motion for the “intervenor” to have filed would have been a motion to substitute the parties pursuant to Florida Rule of Civil Procedure 1.260(c) which states:
      Rule 1.260. Survivor; Substitution of Parties
      (c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party....

      . The erroneously styled “amended complaint” would have been more appropriately titled a supplemental complaint pursuant to Florida Rule of Civil Procedure 1.190(d).


text:
    SUAVE SHOE CORPORATION, Appellant, v. Luis FERNANDEZ, Appellee.
    No. 80-503.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.

      Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and David L. Ross, Miami, for appellant.
    Fine, Jacobson, Block, Klein, Colan & Simon, and Joseph H. Serota, Miami, for ap-pellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Suave Shoe Corporation, plaintiff below, appeals a final judgment entered after the trial court granted the defendant’s motion for an involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b). The dismissal, which was entered at the close of the plaintiff’s case in chief, denied an injunction for the enforcement of a non-competition agreement against the defendant, Luis Fernandez, its former employee. The agreement was to prevent the defendant from working for a competitor of the plaintiff in the manufacture and processing of shoe molds.

We reverse on a holding that:

(1) the plaintiff made out a prima facie case for enforcement of the non-competition agreement pursuant to Section 542.12(2), Florida Statutes (1977), Maimone v. Wackenhut Corporation, 329 So.2d 332 (Fla.3d DCA 1976), cert. denied, 342 So.2d 1102 (Fla.1977); Hunter v. North American Biologicals, Inc., 287 So.2d 726 (Fla. 4th DCA 1974);

(2) the agreement that the plaintiff would provide the defendant with knowledge and training was not a dependent covenant which permeated the contract so that the failure to perform it would have constituted a breach of a principal part of the bargain, 11 Fla.Jur.2d Contracts § 169;

(3) the fact that defendant may not have learned such significant trade secrets which might be used against the former employer was no basis on which to deny the plaintiff’s relief, Answer All Telephone Secretarial Service, Inc. v. Call 24, Inc., 381 So.2d 281 (Fla. 5th DCA 1980); Foster and Company, Inc. v. Snodgrass, 333 So.2d 521 (Fla.2d DCA 1976);

(4) Florida courts are committed to the enforcement of non-competition agreements in violation of Section 542.12(2), supra, because of the uniqueness and difficulty in proving money damages, Capelouto v. Orkin Exterminating Company of Florida, 183 So.2d 532 (Fla.), appeal dismissed 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10 (1966);

(5) ordinary equity principles against the issuance of prohibitory injunctions generally do not apply in non-competition agreements, Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (FIa.1974), because the discretion residing in the trial court for the enforcement of a non-competition agreement is ordinarily in fashioning an appropriate remedy as to the time and place of enforcement, Twenty-Four Collection, Inc. v. Keller, 389 So.2d 1062 (Fla.3d DCA 1980); Foster and Company, Inc. v. Snodgrass, supra; and

(6) the failure of the plaintiff to seek an injunction for more than a year after the defendant terminated his employment is not a basis for the denial of the injunction, rather it is the basis for the trial court’s fashioning of the reasonableness of the period of time an injunction will be in force, Horowitz v. United National Corporation, 324 So.2d 189 (Fla.3d DCA 1975), cert. denied, 336 So.2d 1182 (Fla.1976); Peacock v. Firman, 177 So.2d 560 (Fla.3d DCA), cert. denied, 183 So.2d 215 (Fla.1965).

Reversed and remanded for proceedings not inconsistent herewith.


author: PER CURIAM. DANIEL S. PEARSON, Judge,

text:
    Wynelle L. SEBREE, Appellant, v. Alfonso SALCEDO, Appellee.
    No. 80-643.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Lawrence & Daniels and Adam Lawrence, Miami, for appellant.
    No appearance, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant’s pro se appeal to the circuit court, appellate division, was dismissed on February 20, 1980, in response to appellee’s motion filed only two days prior thereto.

Here, where appellant was served with the motion through the mails, she was entitled to a fifteen day period in which to file a response. Fla.R.App.P. 9.300, 9.420(d).

We vacate the dismissal order of the court below, with leave to appellant to file a response to appellee’s motion not later than ten days following issuance of this court’s mandate.

DANIEL S. PEARSON, Judge,

specially concurring.

The Circuit Court, sitting in its appellate capacity, dismissed Wynelle Sebree’s pro se appeal in response to a motion which said that Sebree’s brief (a) was “nothing more than a reiteration of factual issues” decided at trial, (b) did not contain specific citations of authorities relied upon, and (c) was spurious. The majority now vacates this order of dismissal on the technical ground that Sebree did not receive sufficient time to respond to the motion to dismiss and should now be given the opportunity to do so. While I agree that the order of dismissal must be vacated, I would vacate it on additional grounds.

Dismissal for failure to comply with appellate rules is, admittedly, a sanction available to the court. See Winstead v. Adams, 363 So.2d 807 (Fla. 1st DCA 19,78). The severity of the sanction employed should, however, be commensurate with the violation. Turner v. Anderson, 376 So.2d 899 (Fla. 3d DCA 1979).

Florida Rule of Appellate Procedure 9.040(d) provides:

“At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.”

It is apparent that the intent of the rule is that appeals be decided on their merits. Cf. Gregory v. Gregory, 289 So.2d 468 (Fla. 2d DCA 1974) (holding that in order for the case to be decided on other than procedural grounds, the court would sua sponte order the appendix supplemented). A fortiori, when a party is proceeding without the aid of counsel, procedural niceties are to be relaxed. Cf. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding that in determining whether to dismiss a pro se complaint, the court should apply a less stringent standard than that applied to pleadings filed by lawyers). The extreme sanction of dismissing a pro se appeal for failure of the brief to comply with technical requirements should be reserved for cases of flagrant noncompliance. See Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978); Goldstein v. Goldstein, 284 So.2d 225 (Fla. 3d DCA 1973). This is not such a case. I would vacate the dismissal with directions that the Circuit Court afford Sebree an opportunity to file another brief in accordance with the applicable rules.


text:
    GENTSCH, LARSEN, TRAAD, M. D., et al., Appellant, v. FLORIDA DEPARTMENT OF LABOR AND UNEMPLOYMENT SECURITY, Unemployment Appeals Commission and Mariley G. Nein, Appellees.
    No. 80-812.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.

      Charles I. Poole, Miami, for appellant.
    Geralyn Atkinson, Tallahassee, for appel-lees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The issue before us is whether a terminated employee is entitled to unemployment compensation benefits. Finding that the record supports the conclusion of the Unemployment Appeals Commission that the employee is so entitled, we affirm.

Ms. Nein was discharged by Drs. Gentsch, Larsen, and Traad on August 3, 1979. She applied for unemployment compensation on August 26, 1979, which claim was allowed by an examiner on September 27, 1979. The employer filed an appeal of that award which was affirmed by an appeals referee. Pursuant to Section 443.07(4)(c), Florida Statutes (1979), the findings of the referee were then appealed to the Commission which also affirmed the allowance of the benefits. The employer now brings this appeal to this court as authorized by Florida Rule of Appellate Procedure 9.110(a)(2).

The sequence of events leading to Ms. Nein’s discharge was as follows:

On March 19, 1979, Ms. Nein composed a letter for a patient of the professional association stating that the patient had undergone surgical removal of a defective pacemaker because of its premature failure. Ms. Nein was not authorized to write such a letter and the act of doing so ultimately placed the professional association in an embarrassing legal dispute between the pacemaker company and the patient. The professional association first became aware of Ms. Nein’s alleged misconduct on May 23, 1979. Her annual performance evaluation was then pending. The employer decided not to discharge Ms. Nein at that time because of the length of her employment and because “she should be given the opportunity to never do it again.” The decision on her performance evaluation was postponed.

On June 28, 1979, Ms. Nein insisted upon a determination of her pending performance evaluation as a favorable report would increase her salary. She also requested that any raise be made retroactive to May when raises for other employees went into effect. Her performance evaluation culminated in a determination that she did not meet the required performance levels for which reason her employment was terminated on August 3, 1979. Ms. Nein then filed for unemployment benefits and a series of appeals leading to the instant one commenced.

We need not and do not determine whether the previous alleged act of misconduct on the part of Ms. Nein would have warranted her termination without entitlement to unemployment compensation benefits pursuant to Sections 443.06(l)(b) and 443.06(9)(a), Florida Statutes (1979). Her employer chose not to utilize this act as a basis for termination but waited until August 3, 1979 to discharge her for a poor performance level, which is obviously different from misconduct pursuant to the cited statute.

We are not authorized to substitute our judgment for that of the agency on disputed questions of fact. § 120.68(10), Fla.Stat. (1979); Andrus v. Florida Department of Labor and Employment Security, 379 So.2d 468 (Fla. 4th DCA 1980); Perez v. Department of Labor and Employment Security, 377 So.2d 806 (Fla. 3d DCA 1979). Here, the employers admitted and the agency found that Ms. Nein was discharged not because of the alleged act of misconduct but because of her inability to meet their performance level requirement.

Affirmed.

      . 443.06 Disqualification for benefits.-An individual shall be disqualified for benefits:
      (1) ...
      (b) Disqualification for being discharged for misconduct connected with his work shall continue for the full period of unemployment next ensuing after having been discharged and until such individual has become reemployed
      (9) For purposes of this section, misconduct includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
      (a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or


text:
    Joyce GREEN, Appellant, v. Maier GREEN, Appellee.
    No. 80-1706.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Bartel & Shuford and Stanley Jay Bartel, Miami, for appellant.
    Ferrell & Ferrell and Milton. M. Ferrell, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976).


text:
    James A. FLENNER, Appellant, v. Millicent T. FLENNER, Appellee.
    No. 80-1832.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Taylor, Brion, Buker & Greene and Robert J. Paterno, Miami, for appellant.
    Gelb & Spatz and Monroe Gelb, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Carroll v. Carroll, 341 So.2d 771 (Fla.1977).


text:
    Raymond L. RHOME, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2189.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.

      Raymond Rhome, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, 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, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


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

text:
    O. James KRAUSE, Eilene L. Krause, his wife, and David W. Beane, Appellants, v. TITLE & TRUST COMPANY OF FLORIDA, a Florida Corporation, Appellee.
    No. 79-593/T2-19.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    Sally Dee Kest of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellants.
    C. John Coniglio of John Coniglio, P. A., Wildwood, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants, O. James Krause, Eilene L. Krause, his wife, and David W. Beane, appeal from a judgment which denied their recovery of fees and costs incurred in an earlier suit to establish an access easement (way of necessity). Appellee Title & Trust Company of Florida had insured the title to the lands involved, but refused to participate in the suit to establish the easement. Appellants then sued to recover their expenses.

The controlling question is whether appellants had access to their property under the terms of the title insurance policy. We hold that they did and affirm.

A title insurance policy contemplates a search of the chain of title, an opinion by an expert of what the search reveals and a guaranty that the search was accurate and that it expresses the quality of the title shown by the record. 1 Fla.Jur.2d Abstracts § 38 (1977). Absent a specific undertaking to that effect, it does not presume to insure against infirmities not of record. See McDaniel v. Lawyers’ Title Guaranty Fund, 327 So.2d 852 (Fla. 2d DCA 1976). See also § 624.608, Fla.Stat. (1979).

In the present case, the same judge had tried the earlier access suit. He states that all parties had agreed that there was “legal” access and that the only question was whether such access was “reasonable and practicable” for purposes of establishing an implied grant of necessity. The quality of a particular access (the subject matter of the original suit) would have been discoverable only upon a physical examination of the property or a detailed survey. The policy here specifically excepted any facts revealed by an accurate survey. The physical condition of the existing access was easily ascertainable by a simple inspection of the site by the purchasers. As the title company insured the quality of the title as shown by the record and there was access of record, it was not required to aid in the suit by appellants Krause and Beane to establish a grant of necessity.

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . § 704.01(1), Fla.Stat. (1979).

      . The court in this earlier suit found that appellants had “legal” access to their land, but it was not passable by ordinary passenger vehicles without a substantial amount of clay or rock fill. § 704.03, Fla.Stat. (1979).


author: COWART, Judge.

text:
    Michael D. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 79-800/T4-490.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant began serving a sentence in the State of Washington on March 22, 1978. By letter dated April 27,1978, he wrote the State Attorney of Orange County, Florida, to institute proceedings under the Interstate Agreement on Detainers, Section 941.-45 et seq., Florida Statutes. By letter dated May 27, 1978, Orange County authorities first wrote Washington State authorities causing a detainer to be placed on appellant. On October 2,1978, appellant made a second request for disposition of Orange County charges against him. He was returned to Orange County and tried on March 29, 1979. The trial court denied appellant’s motion to dismiss for failure of the state to bring appellant to trial within 180 days of his written notice and request for disposition of charges. We affirm.

The purpose of the statute is to prevent detainers on untried charges from obstructing rehabilitation programs of the facility in which an accused is serving another sentence. This cannot occur, and the statute does not apply, until a detainer has been lodged. The statute clearly indicates it relates to untried charges “on the basis of which a detainer has been lodged . ... ” Therefore, as the detainer had not been lodged on the date of appellant’s first letter, it was ineffective to activate the statute. Appellant was tried within 180 days of his second letter.

Appellant’s conviction and sentence are

AFFIRMED.

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


text:
    Harold B. SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1436/T4-627.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court of Seminole County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 17, 1980, the Fifth District Court of Appeal gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the judgment and sentence are hereby

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: FRANK D. UPCHURCH, Judge.

text:
    Arthur SINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 79-356.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Judge.

This is an appeal from a judgment and sentence entered by the Circuit Court for Orange County. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 1, 1980, the Fifth District Court of Appeal gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

COBB and COWART, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Daniel Peyton WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 80-60.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmett, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

The Public Defender has filed an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), motion and brief representing to this court that no reversible error appears and requesting leave to withdraw as counsel for appellant. This court gave appellant thirty days within which to file a brief in his own behalf. None was filed. We have reviewed counsel’s brief and examined the record and find the appeal is without merit. Appellant entered a negotiated plea of nolo contendere with no reservation of any right of appeal; then, without any effort to withdraw his plea, he promptly filed this appeal. He cannot appeal under these circumstances. § 924.06(3), Fla. Stat. (1979); Fla.R.App.P. 9.140(b); Robinson v. State, 373 So.2d 898 (Fla.1979); Cassiani v. State, 384 So.2d 47 (Fla. 1st DCA 1980); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

The Public Defender’s motion to withdraw is granted and the appeal is DISMISSED.

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


text:
    Barry Ola PENNINGTON, Appellant, v. Betty Jean PENNINGTON, Appellee.
    No. 80-74.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    Charles Holcomb of Holcomb, Theriac & Steinberg, Merritt Island, for appellant.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Barry Ola Pennington appeals an order denying his motion for contempt and enforcement of certain provisions of the final judgment of dissolution.

The dissolution judgment entered in 1971 incorporated a property settlement, custody and support agreement. Custody of the children was given to the wife. She was also awarded the furniture and exclusive possession of the marital home for as long as she and the children resided in it. The husband was to make the mortgage payments and child support. The agreement provided that when the wife vacated the home, she would convey her interest to the husband and the child support would be increased.

In June of 1976, Mrs. Pennington and the children vacated the home and the husband increased the support payments but she has refused to convey her interest.

On November 9, 1979, appellant filed a motion requesting the court to find the wife in contempt and to compel her to convey. Mrs. Pennington was served by mail in West Virginia with the motion and the notice but failed to appear. The court denied the motion for contempt and enforcement, justifying the refusal on the ground that Mrs. Pennington was not present and that appellant did not come into equity with “clean hands” because he had not paid the child support through the clerk of the court as required by the judgment. The court stated that the requirement that the wife convey her interest was “tied” to child support and maintenance.

It is well established that “one who comes into equity must come with clean hands.” Roberts v. Roberts, 84 So.2d 717 (Fla.1956). However, the doctrine of clean hands is not a “judicial straight jacket” and it is not essential that those who invoke equity lead blameless lives. Equity also regards substance over form and seeks justice rather 'than technicality. Coleman v. Coleman, 191 So.2d 460 (Fla. 1st DCA 1966).

Although technically appellant failed to comply with the judgment, there is no evidence of nonsupport. The payments were made directly to the wife and she was not harmed or prejudiced in any way by this omission. Appellant even paid the increased child support despite her refusal to convey. Generally, the conduct constituting the “unclean hands” must be connected with the matter in litigation and must affect the adverse party. Faber v. Landman, 123 So.2d 405 (Fla. 2d DCA 1960). Here, the matter in litigation was the requirement of the agreement that the wife convey her interest and not the improper payment of child support. While the husband’s failure to pay the child support through the court may have adversely affected the record keeping of the clerk’s office, it in no way justified the wife’s refusal to convey her interest.

If the trial court thought it were being asked to hold the wife in “indirect criminal contempt,” it may have been right in its refusal to grant relief because the husband did not comply with Rule 3.840, Florida Rules of Criminal Procedure. Bukszar v. Bukszar, 368 So.2d 430 (Fla. 2d DCA 1979). No show cause order was entered by the court nor applied for. However, a civil contempt proceeding does not require a show cause order and service by mail is sufficient. Spencer v. Spencer, 311 So.2d 822 (Fla. 3d DCA 1975). While there is unquestionably a practical problem with enforcement of the order or contempt against a party who is in another state, the court has jurisidiction to enter the order.

Here, the court could have granted an effective remedy by appointing a commissioner to execute a deed for the wife, or the like, and should have done so. Trawick, Fla.Prac. & Proc. § 27-7 (1979).

Mrs. Pennington did not secure counsel or contact the court in any way. The court’s requirement that she be physically present before Mr. Pennington could prevail was unreasonable and penalized him for the actions of a person over whom he had no control.

REVERSED and REMANDED.

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


author: SHARP, Judge.

text:
    Albert ZARRO, Appellant, v. STATE of Florida, Appellee.
    No. 80-111.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    Richard L. Jorandby, Public Defender, and Martin Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Zarro appeals his judgment and sentence after being convicted of robbery with a deadly weapon. He was sentenced to 15 years with a requirement that he serve a mandatory minimum sentence of 3 years pursuant to section 775.087, Florida Statutes (1979).

We reject Zarro’s contention that the evidence at trial was insufficient to sustain his conviction. The evidence showed that Zarro and an accomplice robbed one store employee while another accomplice robbed the pharmacist. The three men joined each other in the middle of the store and ran out together. This evidence was sufficient to uphold the jury verdict and the judgment of guilty is affirmed.

However the requirement that Zarro serve a 3 year mandatory minimum sentence must be reversed. Section 775.-087, Florida Statutes (1979) requires the imposition of the mandatory minimum sentence for possession of a firearm during the commission of certain enumerated crimes including robbery. For section 775.087 to apply, the defendant must have a firearm in his actual, not vicarious possession. Earnest v. State, 351 So.2d 957 (Fla.1977); Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977). Zarro’s accomplice was carrying a firearm, but Zarro was not. Because the firearm was not in Zarro’s possession section 775.087 is not applicable. This cause is remanded to the trial court for resentencing in accordance with this opinion.

AFFIRMED in part and REVERSED in part and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Section 775.087 states, in pertinent part:
      (2) Any person who is convicted of: (a) Any ... robbery ... Who had in his possession a “firearm,” ... shall be sentenced to a minimum term of imprisonment of 3 calendar years.


author: COBB, Judge.

text:
    Maldonado IVEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-133.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant seeks to appeal from a judgment and sentence entered upon his plea of guilty of grand theft. Appellant did not file any post-conviction motions with the trial court. Appellant’s appointed counsel has filed a brief and moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Since the appellant has not filed a motion to withdraw her guilty plea with the trial court, we dismiss this appeal without prejudice to the appellant to file a proper post-conviction motion with the trial court. Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

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


text:
    Billy Don FEAGINS, Appellant, v. STATE of Florida, Appellee.
    No. 80-169.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Judge.

This is an appeal from a judgment and sentence for burglary of a structure and petit theft. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 17, 1980, the Fifth District Court of Appeal gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

COBB and COWART, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Bennett Andre SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-175.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 1980.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

On September 20, 1979, appellant suffered an adverse jury verdict and a written judgment and order imposing sentence was entered. The trial court extended the time for filing a motion for new trial “to the maximum period allowed by law.” Under Florida Rules of Criminal Procedure 3.590(a) this was fifteen days after the rendition of the verdict, or until October 5, 1979. The motion for new trial was filed October 8, 1979, and denied on December 17, 1979. Notice of appeal was filed on January 16, 1980.

Notice of appeal from a final judgment of conviction must be filed between rendition and thirty days following the entry of the written order imposing sentence. Fla. R.App.P. 9.140(b)(2). Rendition of a written order is delayed by an authorized and timely motion for new trial. Fla.R.App.P. 9.020(g).

Since appellant’s motion for new trial was not timely it did not serve to delay the rendition of the signed written final judgment imposing sentence and did not toll the running of the time for filing his notice of appeal which expired on October 20, 1979.

We have no jurisdiction. The appeal is

DISMISSED.

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


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Twila HILLMAN, Appellee.
    No. 79-2286.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Pat Whitaker, Tampa, for appellee.
   DANAHY, Judge.

A defect appears in an indictment charging appellee with first degree murder. Because of that defect, the trial judge granted appellee’s motion to dismiss the indictment and the state appeals. We hold that ,the defect is within the category of formal and nonprejudicial defects which, under rule 3.140(o), Florida Rules of Criminal Procedure, do not constitute grounds for dismissal. We reverse.

The defect is in the statement on the indictment required by rule 3.140(f), which provides that the state attorney or an assistant state attorney shall make and sign a statement on the indictment to the effect that he has advised the grand jury returning the indictment as authorized and required by law. Rule 3.140(f) further provides that no objection to an indictment on the ground that the statement has not been made shall be entertained after the defendant pleads to the merits. The author’s comment to the rule points out that Florida statutes no longer require that an indictment be signed by a state attorney or assistant state attorney, so that there is no statutory basis for the express explanatory statement and signature required by rule 3.140(f).

The statement on the indictment in this case recites that the state attorney, E. J. Salcines, advised the grand jury. The statement, however, is signed “Norman S. Cannella [Chief Assistant State Attorney] for E. J. Salcines, State Attorney.” The state represented to the trial judge and to this court that Mr. Cannella did in fact advise the grand jury, not Mr. Salcines. Appellee disputes whether the record reflects Mr. Cannella’s presence before the grand jury in an advisory capacity regarding her indictment. Further, she asserts that she has the right to be assured by the signing of the required statement that the state attorney or an assistant state attorney advised the grand jury regarding its duties and the various degrees of offenses for which the grand jury could have indicted appellee. These arguments do not convince us that appellee has been genuinely prejudiced by the defective statement.

As might be expected, we have found no case in Florida or elsewhere dealing with a defect in an indictment exactly like that presented here. However, two decisions of our supreme court provide guidelines which dictate the result we reach in this case.

In Burnes v. State, 89 Fla. 494, 104 So. 783 (1925), the supreme court considered the sufficiency of an indictment which was endorsed “indictment for breaking and entering. H. B. Knapp. A true bill. Foreman of the grand jury.” A statute required that indictments be endorsed on the back by the foreman of the grand jury, when so found a true bill, and signed by him. The defendant claimed that the indictment was defective because improperly endorsed. The supreme court disposed of the question as follows:

The contention in effect is that, since the words “A True Bill” are interposed between the name of the foreman and the words “Foreman of the Grand Jury,” the indorsement is defective. While not in the precise order usually occurring, this is not such a defect as to vitiate the indictment. The record discloses that H. B. Knapp was the foreman of the grand jury which returned the indictment. Considering the indorsement in connection with the record, it contains all that the statute requires. (Citations omitted; emphasis added.)

Id. at 783.

More recently, the Supreme Court of Arizona used similar reasoning in upholding a trial judge’s refusal to quash an indictment because it failed to contain the words “a true bill” as required by an Arizona statute. The Arizona court looked to the transcript of the proceedings, which clearly reflected the returning of a true bill, and held the defect to be one of form and nonprejudicial. Quintana v. Myers, 108 Ariz. 95, 492 P.2d 1202 (1972).

In Arnold v. State, 83 So.2d 105 (Fla.1955), our supreme court considered defects in informations somewhat similar to the defect in the indictment before us in this case. In Arnold, each information referred to Robert R. Taylor, County Solicitor for Dade County, as the person making the information under oath. The jurat on each information described Robert R. Taylor, County Solicitor for Dade County, as the person making the oath. Mr. Taylor had ceased to be county solicitor for Dade County. John D. Marsh, who was in fact then county solicitor for Dade County, signed each information and made and signed the oath. The supreme court felt that, since the informations were each under the oath of the county solicitor in office at the time, they fulfilled the requirements of the law that an information be under the oath of the prosecuting attorney.' The court concluded that the defects in the case were more nearly of form than of substance and that the situation was controlled by the provisions of section 906.25, Florida Statutes (1955), which are now contained in Florida Rule of Criminal Procedure 3.140(o):

No indictment or information, or any count thereof, shall be dismissed ... on account of any defect in the form of the indictment or information . . . unless the court shall be of the opinion that the indictment or information is so vague, indistinct or indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

We cannot condone the carelessness which has consumed the time of the trial judge and this court in .dealing with appel-lee’s objection to her indictment. In extreme cases, such carelessness may vitiate a conviction. E. g., State v. Black, 385 So.2d 1372 (Fla.1980). The defect in this case, however, does not render the indictment so vague, indistinct and indefinite as to mislead appellee and embarrass her in the preparation of her defense or expose her after conviction or acquittal to substantial danger of a new prosecution for the same offense. If the record of the grand jury proceedings does not reflect that Mr. Can-nella did in fact attend the session of the grand jury and advise it as authorized and required by law, and if there is a real question whether he did so, the trial judge may resolve that issue in an appropriate fact finding proceeding.

REVERSED AND REMANDED for further proceedings not inconsistent with this opinion.

OTT, Acting C. J., and CAMPBELL, J., concur.

      . The state attorney has the duty of attending sessions of the grand jury to examine witnesses and give legal advice about any matter cognizable by the grand jury. § 905.19, Fla.Stat. (1979).

      . The state attorney is expressly authorized to designate an assistant state attorney to attend sessions, examine witnesses, and give legal advice to a grand jury. § 905.19, Fla.Stat. (1979).


author: GRIMES, Judge.

text:
    Mary TREMBLAY, Appellant, v. James L. CARTER, d/b/a Carter Contracting, and Royal Globe Insurance Company et al., Appellees.
    No. 80-643.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1980.
    Steven Carta of Smith, Carta & Ring-smuth, Fort Myers, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees James L. Carter and Royal Globe Ins. Co.
   GRIMES, Judge.

This appeal involves the question of whether there can be circumstances which would permit a person to recover for loss of consortium when the accident which caused the injuries of the person’s spouse predated their marriage.

Daniel Tremblay was injured in an accident which occurred on November 21, 1977. On April 8, 1978, he married Mary Trem-blay. Nine days later he filed suit against James Carter and his liability insurer alleging that Carter’s negligence had been the cause of the November accident. With the court’s permission, Mr. and Mrs. Tremblay filed an amended complaint on February 13, 1980, which included a count by Mrs. Trem-blay for loss of consortium predicated upon her husband’s injuries. She alleged that she and Mr. Tremblay had been dating each other for approximately seven months prior to the accident and exclusively for approximately four months prior to the accident. She also said that they had been discussing marriage at the time of the accident and that they continued to see each other exclusively after the accident. However, they delayed their marriage because of the injuries which Mr. Tremblay sustained. On motion, the court dismissed Mrs. Tremblay’s consortium count with prejudice. Because this order represented a final judgment against her claims, she filed this appeal.

At common law a party must have been legally married to the injured person at the time of the injury in order to assert a claim for loss of consortium. W. Prosser, Law of Torts § 124 (4th ed. 1971). Though there are no reported decisions in this state squarely on point, there are at least two cases in which the Florida courts have assumed the existence of the common law rule. Barrow v. Curtis, 209 So.2d 699 (Fla.3d DCA 1968); Parham v. Kohler, 134 So.2d 274 (Fla.3d DCA 1961).

Mrs. Tremblay acknowledges the novelty of her legal position, but she points to two recent federal decisions which support her view. Bulloch v. United States, 487 F.Supp. 1078 (D.N.J.1980); Sutherland v. Auch Inter-Borough Transit Co., 366 F.Supp. 127 (E.D.Pa.1973). Purporting to predict how the state courts within their respective jurisdictions would rule if presented with the question, the federal district judges in both these cases held that marriage at the time of the accident was not a prerequisite to a suit for consortium if the relationship between the man and the woman was such that the loss suffered by the claimant was similar to that suffered by a married person whose spouse is injured in an accident.

One of the appellees’ arguments is that even if we accept the proposition that there can be exceptions to the rule that the parties must be married when the accident occurs, the facts of this case fall short of demonstrating that the Tremblays occupied a relationship at the time of the accident which approached the equivalent of husband and wife. Because we believe the subject matter deserves the legal stability which flows from a fixed rule, we reject the temptation to simply distinguish this case on its factual allegations. We hold for the reasons set forth below that unless the parties are married when the accident occurs, there can be no recovery for loss of consortium.

Until the advent of the two federal decisions cited above, the courts of our nation have consistently held that the relationship of husband and wife had to be based upon a form of marriage recognized by law. Domany v. Otis Elevator Co., 369 F.2d 604 (6th Cir. 1966), cert. denied, 387 U.S. 942, 87 S.Ct. 2073, 18 L.Ed.2d 1327 (1967); Rademacher v. Torbensen, 257 App.Div. 91, 13 N.Y.S.2d 124 (1939). The fact that the parties were engaged to marry at the time the accident occurred was deemed insufficient to permit the assertion of a claim. Tong v. Jocson, 76 Cal.App.3d 603, 142 Cal.Rptr. 726 (1977). Since a cause of action for personal injury and the derivative rights flowing therefrom ordinarily accrue when the tort is committed, the courts concluded that to permit an unmarried person to claim loss of consortium upon his marriage to an injured spouse would have the effect of allowing him to marry into the cause of action. Sartori v. Gradison Auto Bus Co., 42 Pa.D. & C.2d 781 (1967); Booth v. Baltimore & O. R. Co., 77 W.Va. 100, 87 S.E, 84 (1915).

Consortium includes not only sexual relations, but also services, comfort and companionship. Gates v. Foley, 247 So.2d 40 (Fla.1971). While the law originally recognized only the husband’s claim, the wife now has an equal right to recovery. Gates v. Foley. Implicit in the concept of consortium is the notion that a party is entitled to expect these benefits upon entry into the marriage relationship. Tribble v. Gregory, 288 So.2d 13 (Miss.1974). Therefore, an injury to a person’s spouse interferes with his enjoyment of these benefits and redress may be obtained from the offending tort-feasor. Sawyer v. Bailey, 413 A.2d 165 (Me.1980). However, until marriage, neither party has a legal right to anything from the other, and so when the injury occurs before marriage there are no rights with which the injury can interfere. In Florida, as in most jurisdictions, one cannot sue upon a breach of promise to marry. § 771.04, Fla.Stat. (1979). It would be an anomaly to permit a person to recover for the loss of consortium from a third party tortfeasor and yet deny that same person recovery from his betrothed upon the failure to carry out the promise of marriage. Sawyer v. Bailey.

The suggestion is made that because many couples today live together without the benefit of marriage this court should recognize emerging social trends by looking at the actual relationship rather than clinging to the “antiquated common law rule” which requires that the parties be married. Antiquated it may be, but marriage has been the foundation of our nation’s family life. Theologians consider marriage to be ordained by God, and secular authority has recognized its importance by subjecting it to comprehensive regulation. While in some instances the obtaining of a marriage certificate may bring about no change in the way a couple lives, nevertheless, the legal effect is significant. Each party takes on new responsibilities and acquires new rights. If an accident occurs when the relationship of husband and wife does not exist, a person does not acquire the right to claim a loss of consortium when he subsequently marries the injured party.

We do not mean to imply that Mrs. Trem-blay has not been hurt by her husband’s injury. The question is whether the law offers redress. When an individual receives an injury, many persons may suffer. Brothers and sisters and even close friends are likely to be emotionally affected, but no one suggests that these persons have a cause of action. The children of an injured person may lose the companionship and assistance of their parent as they grow up, yet the law has consistently held that they are not entitled to recover for the loss. Annot., 59 A.L.R.2d 454 (1958). There has to be a line drawn somewhere, and absent legislation it would be improvident for this court to extend it.

AFFIRMED.

SCHEB, C. J., and CAMPBELL, J., concur.


text:
    Bill REDDOCK, d/b/a Arrowhead Campsites, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. OO-213.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Charles M. Wynn, Marianna, for appellant.
    H. Reynolds Sampson and Margaret-Ray Kemper, Tallahassee, for appellee.
   PER CURIAM.

The Department’s order directing the removal of appellant’s signboard near Interstate Highway 10 in Jackson County is AFFIRMED. Section 479.11, Florida Statutes (1979); Henderson Sign Service v. Dept. of Transportation, 390 So.2d 159 (Fla. 1st DCA 1980). As in Henderson we do not rule on the question of compensation; rather, we remand that issue to the Department to abide the Supreme Court’s decision in La-Pointe Outdoor Advertising v. Dept. of Transportation, 382 So.2d 1347 (Fla. 4th DCA 1980), cert. granted (Fla.1980).

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


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

text:
    COLLINS GLASS COMPANY and Old Republic Insurance Co., Appellants, v. Lester AXELROD, Appellee.
    No. SS-367.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    John F. McMath, P. A., Miami, for appellants.
    L. Barry Keyfetz of Keyfetz & Poses, P. A., Miami, for appellee.
   ROBERT P. SMITH, Jr., Judge.

We affirm this compensation order. As Judge Shaw’s dissenting opinion indicates, the principal issue is whether this claimant’s permanent disability should be rated at 20 percent of the hand, as ordered by the deputy commissioner, or at 30 percent of the middle or long finger. Substantial competent evidence, in the live testimony of the claimant before the deputy and in the deposition testimony of the attending surgeon, supports the deputy’s finding. It is true, as Judge Shaw points out, that the deputy’s order erroneously recites that surgery was performed not only on claimant’s middle finger but also on the fourth finger on the same hand. This obvious misstatement of claimant’s medical history was traceable to a transcribing error in the surgeon’s notes and to his momentary confusion in the deposition which counsel submitted to the deputy for his decision. Considering how readily counsel may have avoided or corrected what appears to be an inconsequential error in the historical recitals of the deputy’s order, and in light of the substantial evidence supporting the deputy’s ultimate finding, the order is

AFFIRMED.

BOOTH, J., concurs.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

The claimant suffered a compensable injury when a mirror broke resulting in injury to two fingers. He missed several weeks from work but was paid by the employer during this time, and there is no claim for temporary benefits. Claim was made for permanent partial benefits over and above the 30% of the right middle finger voluntarily accepted by the employer/carrier, future medical bills, transportation expenses, drug expenses, penalties, costs, interest and attorney’s fees.

The deputy commissioner found a 20% permanent partial disability of the hand and ordered the employer/carrier to furnish the claimant future medical care in the person of Dr. Philip George.

Dr. George performed corrective surgery on the middle finger (also referred to as the long or third finger). Due to a mistake in his office notes the doctor initially testified that surgery was performed on the fourth, or ring finger. This was later corrected under cross-examination, but the initial misstatement was picked up by the deputy and he erroneously found that the doctor had put a splint thickness skin graft on the fourth finger, repaired the tendon on the long finger, and inserted a metal pin in the ring finger to stabilize the end joint in the area where the extensor tendon was lost. It is clear to me that the deputy misunderstood Dr. George’s testimony and was laboring under the mistaken impression that the doctor performed surgery on two fingers. This is borne out by the deputy’s further finding that “Dr. George noted that the claimant still had numbness distally on the ring finger in the area which was grafted.” This misunderstanding of the medical evidence is critical to a determination of whether the claimant sustained a permanent scheduled injury to a finger as opposed to the hand. Little River Bank & Trust Co. v. Neal, 154 So.2d 809 (Fla.1963).

In light of such a critical misunderstanding by the deputy I would reverse Point 1 and remand the cause for a reconsideration of the medical evidence and the entry of an order granting permanent benefits consistent therewith. I would affirm the award of medical treatment under Dr. Philip George.


text:
    Keith Linwood JONES, Appellant, v. STATE of Florida, Appellee.
    No. TT-32.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Michael J. Minerva, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant appeals his conviction of burglary of a structure and sentence of ten years pursuant to the enhanced penalty provisions of Section 775.084, Florida Statutes (1979). We affirm.

We note that the trial judge’s order imposing the enhanced sentence incorrectly made reference to a prior conviction for the possession of a controlled substance on November 15, 1978. It is apparent from the record that the sentence was, in fact, predicated upon a prior conviction for burglary on March 2, 1977.

We remand to the trial court for correction of the clerical error and entry of an appropriate order reflecting the correct information concerning appellant’s prior conviction. The defendant need not be present.

ERVIN, SHAW and WENTWORTH, JJ., concur.


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

text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Patricia SCOTT and Expeditions Unlimited, Inc., Appellees.
    No. TT-224.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.

      Ronald D. Poltorack of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
    Ronald Payne, Fort Lauderdale, for ap-pellees.
   ROBERT P. SMITH, Jr., Judge.

The deputy commissioner, exercising jurisdiction as approved in Fireman's Fund Ins. Co. v. Rich, 220 So.2d 369 (Fla.1969), and Int’l Piling, Inc. v. American Nat’l Fire Ins. Co., 345 So.2d 761 (Fla. 4th DCA 1977), determined that the worker’s compensation insurance policy issued by appellant to appellee Expeditions Unlimited was in effect on the date of appellee Scott’s accident. That decision is necessarily predicated on the view that a premium check received by the insurer after sending notice of cancellation for nonpayment of premium was accepted when deposited by the insurer, thereby reinstating the policy. Because the check is considered as accepted conditionally, the condition being its payment upon presentment, reinstatement of the policy was prevented when the insured stopped payment on the check. See Pike v. Nat’l Fidelity Life Ins. Co., 377 So.2d 973 (Fla. 3d DCA 1979); Annot., “Receipt of check for insurance premium as preventing forfeiture for nonpayment,” 50 A.L.R.2d 630 (1956). Evidence of prior dealings between insurer and insured in the case of late payments received and credited gave no basis for declaring renewed a lapsed policy for which the insured pointedly stopped payment.

REVERSED.

THOMPSON, J., and WOODIE A. LILES (Retired), Associate Judge, concur.


text:
    RIDGEWAY TRANSFER & STORAGE COMPANY and North River Insurance Company, Appellants, v. William FLETCHER, Appellee.
    No. TT-338.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Rehearing Denied Jan. 16,1981.
    Donna C. Wyatt, Stephen A. Rissman, of Cooper & Rissman, P. A., Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, P. A., Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

AFFIRMED. Gunite Works, Inc. and Underwriters Adjusting Co. v. James Lovett, Case No. UU-176 (Fla. 1st DCA, September 30, 1980).

McCORD, SHIVERS and JOANOS, JJ., concur.