author: SUNDBERG, Justice. ALDERMAN, Justice,

text:
    Luis ALDANA, M. D., Petitioner, v. Patricia Ann HOLUB, Respondent. Dr. Marshall ABEL et al., Petitioners, v. Robert KIRSCHGESSNER et al., Respondents.
    Nos. 53612, 53227.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Rehearing Denied April 9, 1980.

      David L. Holbrook, of Wells, Gattis & Hallowes, Orlando, for Luis Aldana.
    Richard A. Sherman, of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for Dr. Marshall Abel, Dr. Norman Bor ken, Dr. Morton S. Corin and Dr. Francisco Suarez.
    Bradford Swing, James E. Tribble and James C. Blecke, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Dr. Marcos A. Zequeria, Jr.
    Gary M. Carman and Robert L. Koeppel, of Koeppel, Stark & Newmark, Miami, for Miami Intern. Hospital, Inc., petitioners.
    Larry Sands and Sarah E. Hague of the Law Offices of Larry Sands, Daytona Beach, for Patricia Ann Holub.
    Law Offices of Simons & Schlesinger, and Carol M. Anderson, of Anderson & Anderson, Fort Lauderdale, for Robert Kir-schgessner.
    Michael J. Parenti, III, of Preddy, Kutner & Hardy, Miami, for Dr. Harvey A. Grable, respondents.
    Larry Klein, Chairman and Janet W. Freeman, West Palm Beach, for The'Academy of Florida Trial Lawyers.
    David A. Barrett, Armando Garcia and C. Howard Hunter, of Barrett & Bajoczky, and Robert W. Perkins, Tallahassee, for Florida Medical Malpractice Joint Underwriting Ass’n and The Florida Patient’s Compensation Fund.
    John R. Lawson, Jr., of Dixon, Lawson & Brown, Tampa, for Florida Medical Assn.
    Linda Koenigsberg, of Cohen & Kokus, Miami, on behalf of respondents.
    Tony Cunningham, of Wagner, Cunningham, Vaughan, McLaughlin & Genders, Tampa, for Bay Area Trial Lawyers.
    Wilton L. Strickland, of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for Broward County Trial Lawyers Ass’n, amici curiae.
   SUNDBERG, Justice.

These consolidated cases are before us by way of petitions for writ of certiorari from decisions of the First and Fourth District Courts of Appeal, reported at 354 So.2d 1272 and 356 So.2d 11, respectively. Conflict is asserted with, among others, State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977), and the District Court of Appeal, Fourth District, has certified the question as one of great public interest. Jurisdiction vests in this Court pursuant to article V, section 3(b)(3), Florida Constitution. We must ascertain whether the time limitation periods in section 768.44(3), Florida Statutes (1979), of the medical mediation act may be extended or tolled in any way, and if not, whether strict application of the statutory periods passes constitutional muster.

ALDANA v. HOLUB, No. 53,612

On August 11, 1976, respondent filed a statement of claim under the medical mediation act against petitioner, who timely filed his answer to the claim. During the course of the mediation hearing on May 27, 1977, the judicial referee felt it necessary to declare a mistrial due to repeated inflammatory statements by the physician member of the panel indicating prejudice against the claimant. On June 1, 1977, petitioner moved to reset the hearing within the ten-month jurisdictional time limit which was to expire June 11, 1977. This, of course, would have required respondent to waive her statutory ten-day period to challenge panel members, which she expressly declined to do. Petitioner requested alternatively that the referee enter an order tolling the time period until a new panel could be composed. Hamstrung by his perceived lack of authority either to extend the jurisdictional period or .to shorten the time in which respondent could challenge for cause, the referee denied petitioner’s motions, and the mediation proceedings terminated.

Without reaching the question whether a judicial referee possesses the authority to declare a mistrial of a medical mediation hearing, the District Court of Appeal, First District, denied petitioner’s petition for writ of certiorari and held that the referee had no authority' to extend the hearing beyond ten months from the date the claim was filed.

ABEL v. KIRSCHGESSNER, No. 53,227

On June 28, 1976, respondent Kirschgess-ner filed a claim for mediation. On December 2, 1976, pursuant to petitioners’ motion for an extension of time, the judicial referee set the final hearing for April 6, 1977, within the ten-month jurisdictional period. One-half hour was allotted for the April 6 hearing. Respondent objected at that hearing to the meagre time allotment, arguing that thirty minutes was insufficient to constitute a good faith commencement of the proceedings. The referee nevertheless instructed counsel to make their opening statements. After hearing respondent’s statement, the referee continued the cause until April 15, 1977. Thereafter, the referee on his own motion reset the hearing for May 5, 1977, seven days beyond the ten-month period.

After the trial court denied his motion to terminate the mediation proceedings, the District Court of Appeal, Fourth District, granted respondent’s petition for writ of certiorari and quashed the trial court order, holding that jurisdiction of the medical mediation panel could not be extended beyond ten months.

We originally heard oral argument on the statutory issues involved in this cause on September 22, 1978. Because we perceived serious constitutional deficiencies in the practical application of the medical mediation procedure, on November 21, 1979, we called for supplemental briefs from all interested persons on the constitutional issues implicated in the operation of the mediation act. In addition to the original parties, a number of interested groups responded as amici curiae, including the law firm of Cohen and Kokus, The Bay Area Trial Lawyers, The Academy of Florida Trial Lawyers, Florida Medical Association, and Florida Medical Malpractice Joint Underwriting Association and Florida Patient’s Compensation Fund. Reargument was heard on the constitutional issues on January 9, 1980.

The parties present an array of issues to this Court. The petitioner in Aidana contends that: (1) a judicial referee has no right to declare a mistrial in a' medical mediation hearing; (2) if he does possess such power, the grant of a mistrial in this case should have tolled the ten-month time limit for a hearing; and (3) if a mistrial does not toll the time period, petitioner was deprived of a valuable legal right without due process. The petitioners in Abel similarly assert that a judicial referee’s unilateral action in resetting a hearing after expiration of the ten-month period constitutes a denial of due process. With respect to the constitutionality of the medical mediation act itself, respondents argue that the act denies equal protection, is arbitrary and capricious, and effectively insulates medical personnel from legal accountability for their negligence. Petitioners respond that these same arguments were rejected by the Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), and that nothing has occurred since that time to cause us to question the wisdom of the Carter decision. Having carefully considered the parties’ contentions individually and in conjunction, we are compelled to conclude that the medical mediation act is unconstitutional because the act in its operation has proven arbitrary and capricious.

We note at the outset that the First and Fourth District Courts of Appeal were correct in holding that medical mediation jurisdiction terminated in these cases ten months after the claims were filed. The time limitations set forth in section 768.44(3) are jurisdictional and unalterable; they brook neither tolling nor extensions of time for any reason. Had the legislature intended otherwise, it easily could have included a provision for time extensions in the medical mediation statute. The absence of such language in the act bolsters our conclusion that no extensions were contemplated. Moreover, the jurisdictional nature of the ten-month limitation of section 768.44(3) is dictated by the language of article I, section 21, Florida Constitution, which guarantees the right of every individual to speedy access to the courts of Florida. See the discussion at page 237, infra.

That the time periods in section 768.-44(3) are jurisdictional should come as no surprise, for the issue was essentially decided by this Court’s promulgation of the Florida Rules of Medical Mediation Procedure. Subsection (d) of rule 20.190 states that medical mediation jurisdiction terminates if “[t]he final hearing has not been concluded within 10 months from the date the claim is filed.” The rule further provides that “[s]uch termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties.” While we recognize that the mediation rules became effective subsequent to the filing of the claims in these cases and thus have no direct application here, the rules do represent this Court’s authoritative interpretation of the medical mediation statute.

Petitioners rely upon three cases, State ex rel. Lund v. Keough, 352 So.2d 572 (Fla. 2d DCA 1977), State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977), and State ex rel. Mercy Hospital, Inc. v. Vann, supra, to support their assertion that medical mediation jurisdiction may be extended under certain circumstances. In each case completion of mediation proceedings within the ten-month jurisdictional period was rendered impossible by a circuit court stay or other judicially caused delay pending this Court’s determination of the constitutionality of the medical mediation act. Disregarding for the moment the question of their continuing vitality in the face of our interpretation of the statute, they do not significantly advance petitioners’ cause, for they were expressly limited to the unique situation of a delay occasioned by a constitutional assault upon the mediation act itself. Since the resolution of that challenge in Carter v. Sparkman, supra, the district courts have consistently held that the time limitations in the statute are jurisdictional.

Equally clear, however, is that in the cases before us the absolute jurisdictional periods in section 768.44(3) served to deprive petitioners of due process. It is basic to our scheme of justice that a person aggrieved by fundamental unfairness in the judicial process have the right and opportunity to remedy that unfairness. Petitioners in both Aldana and Abel were innocent victims of insidious defects which occasionally intrude upon the judicial system — prejudice and unavoidable delay caused by a congested court docket. Normally these defects are easily remedied by the declaration of a mistrial or the grant of a continuance. But the medical mediation act with its inflexible time-limitations afforded these petitioners no possible remedy. By the time it became necessary to grant a mistrial in Aldana, there was not enough time to empanel a new mediation panel before expiration of the ten-month period. Through no fault of his own, Dr. Aldana could do nothing but watch as his right to mediation slipped from his grasp. No less frustrated were the petitioners in Abel. Their right to mediation was dashed by the fortuitous circumstance of a hopelessly crowded docket. Section 768.44(3) arbitrarily deprived these petitioners of the opportunity to correct fundamental unfairness in the mediation process solely because that unfairness appeared at a late stage in the proceedings. It simply offends due process to countenance a law which confers a valuable legal right, but then permits that right to be capriciously swept away on the wings of luck and happenstance.

Unfortunately, the infirmities in the medical mediation act extend beyond the set of facts now before us. A painstaking examination of over seventy cases cited to us by the parties and those of which we take judicial notice leads us to the inexorable conclusion that the jurisdictional periods in section 768.44(3) have proven intrinsically unfair and arbitrary and capricious in their application. Indeed, of some twenty-six district court decisions finding medical mediation jurisdiction to have terminated under section 768.44(3), in fifteen the jurisdictional period expired through no fault of either party, and in some instances, jurisdiction terminated as a result of administrative or judicial error. For example, in Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977), the parties were unable to conclude mediation within ten months solely because the clerk failed to select a mediation panel and set a hearing date in time. The district court nevertheless concluded that mediation jurisdiction terminated as a matter of law at the expiration of the ten-month period. The parties’ right to mediation was also thwarted in Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977), where jurisdiction terminated as a result of the judicial referee’s abatement of the proceedings pending determination of the constitutionality of the medical mediation act. The following rationale of the district court no doubt provided little solace to the hapless doctor:

The mere fact that the claimant was able to obtain an unauthorized order .from the judicial referee in no way mitigates the clear dictates of the statute. Administrative tribunals and trial court frequently issue improper orders which contribute, in part, to the great increase in the caseload which plague appellate courts today.

Id. at 887. In Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978), the judicial referee approved the parties’ stipulation extending the time to commence a mediation hearing beyond six months. The district court was unimpressed by the judicial referee’s acquiescence in the unauthorized agreement and held that jurisdiction terminated when a hearing was not commenced within six months.

The parade goes on. In Cole v. Burrows, 364 So.2d 502 (Fla. 4th DCA 1978), the mediation hearing could not be commenced within ten months due to the untimely demise of the attorney member of the panel. In spite of this personal tragedy, the district court found mediation jurisdiction to have terminated. Similarly, in Cohen v. Johnson, 373 So.2d 389 (Fla. 4th DCA 1979), the physician defendant was deprived of mediation because no hearing was conducted within the six-month limitation due to the unexplained unavailability of one of the panel members. The unavailability of the judicial referee cost petitioner his right to mediate in Febles v. Abercrombie, 358 So.2d 568 (Fla. 2d DCA 1978), and an equally arbitrary result occurred in Stanton v. Community Hospital of South Broward, 359 So.2d 37 (Fla. 4th DCA 1978). From the cases surveyed we find a procedure in which, over fifty percent of the time, a valuable legal right has arbitrarily evaporated through no fault of either party. Such a capricious statute cannot be permitted to stand.

While we originally upheld the facial validity of the medical mediation act in Carter v. Sparkman, supra, we have authority, to determine that the practical operation and effect of the statute has rendered it unconstitutional. Jacksonville Port Authority v. State, 161 So.2d 825 (Fla.1964); Sparkman v. State, 58 So.2d 431 (Fla.1952); Ex parte White, 131 Fla. 83, 178 So. 876 (1938); Gray v. Central Florida Lumber Co., 104 Fla. 446, 140 So. 320 (1932). It should be emphasized that today’s decision is not premised on a reevaluation of the wisdom of the Carter decision. Rather, it is based on the unfortunate fact that the medical mediation statute has proven unworkable and inequitable in practical operation.

Were it possible, we would not hesitate to read section 768.44(3) to permit extensions of time, for we are obliged to construe a statute in such a way as to render it constitutional if there is any reasonable basis for doing so. Lightfoot v. State, 64 So.2d 261 (Fla.1952); Florida Sugar Distributors v. Wood, 135 Fla. 126, 184 So. 641 (1938); Spencer v. Hunt, 109 Fla. 248, 147 So. 282 (1933). No such saving construction is available, however, to the medical mediation act. In Carter v. Sparkman, respondent argued with some force that because of the expense and delay attendant to mediation proceedings, she was denied access to the courts of Florida in violation of article I, section 21 of the Florida Constitution. Although the Court, rejected respondent’s argument, we explicitly recognized that “the pre-litigation burden cast upon the claimant reaches the outer limits of constitutional tolerance.” 335 So.2d at 806. To now increase the prelitigation burden cast upon the claimant by permitting continuances and extensions of time under section 768.44(3) would transcend those outer limits of constitutional tolerance. What was originally contemplated as an inexpensive, summary procedure would now extend to twelve, fourteen, or possibly even sixteen months or more, thereby effectively denying one’s access to the courts.

The result we reach here is indeed ironic. The medical mediation act is unconstitutional because application of its rigid jurisdictional periods has proven arbitrary and capricious in operation, yet the act cannot be remedied by enlarging the jurisdictional periods or permitting continuances or extensions of time, for to do so would constitute a denial of access to the courts. We are left, then, with a statute which is intractably, and incurably, defective. We therefore hold that section 768.44, Florida Statutes (1979), the medical mediation act, is unconstitutional in its entirety as viola-tive of the due process clauses of the United States and Florida Constitutions.

As noted in footnote seven, this opinion will have prospective application only. In any case where the written decision of the medical mediation panel has been filed with the clerk of the court on or before the date this decision is filed (Feb. 28, 1980), a party may introduce that decision in evidence. In all other cases, medical mediation proceedings are hereby terminated and declared void as of the above filing date.

In keeping with the tolling provisions of section 768.44(4), Florida Statutes (1979), a party shall have sixty days from the date this decision is filed in which to file a complaint for medical malpractice in circuit court if the portion of the applicable statute of limitations not tolled be less than sixty days. If the portion of the applicable statute of limitations remaining after termination of medical mediation jurisdiction is more than sixty days, the action may be filed any time before the statute of limitations expires. Jones v. North Dade Hospital, Inc., 359 So.2d 56 (Fla. 3d DCA 1978).

Accordingly, the petitions for writ of cer-tiorari are granted, and the decisions of the District Courts of Appeal, First and Fourth Districts, are approved.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I concur with the majority holding that the ten months’ limitation of section 768.-44(3) is jurisdictional. I also agree that the application of this limitation in these cases has resulted in a denial of the doctors’ due process rights. I do not agree, however, that the application of the Medical Mediation Act, since its enactment and since our decision in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), has rendered the entire act unconstitutional.

In Carter v. Sparkman, we were confronted with several constitutional challenges to the Medical Malpractice Reform Act. Consistent with our duty to resolve all doubts in favor of a statute’s validity when reasonably possible and consistent with constitutional rights, we construed this act and held it constitutional, although announcing that the pre-litigation burden imposed by the act upon the claimant reached the outer limits of constitutional tolerance. We recognized that this act was promulgated because the legislature perceived an imminent danger that a drastic curtailment in the availability of health care services in this state would occur.

I would not recede from our holding in Carter, and I would not strike the entire statute as unconstitutional merely because, as the majority states, in twenty-six district court decisions involving the Medical Mediation Act the jurisdictional time period had expired before mediation could be concluded, thereby possibly denying the doctors’ rights to due process of the law. Balanced against the few cases where the mechanism of medical mediation has broken down, there probably have been thousands of mediation cases throughout this state where the jurisdictional time period has not run and neither the claimants nor the doctors have been deprived of any constitutional rights. In many of these cases, this act has had the beneficial effects of eliminating frivolous claims and encouraging settlements of meritorious claims.

In the present cases, petitioners correctly contend that they were denied a valuable legal right without due process of law. Through no fault of the doctors, the jurisdictional time periods expired, and they lost their statutory right of medical mediation. For that reason, I agree that the Medical Mediation Act was unconstitutionally applied to these doctors under the facts of these cases. This does not mean, however, that we should “throw the baby out with the bath water” and strike down the entire Medical Mediation Act. The act, as applied in most cases, does not violate the constitutional rights of either the doctors or the claimants. Serious allegations have been made against the wisdom of the act, but these are matters that should be considered by the legislature.

Accordingly, I would limit our decision to the two cases before us, and I would not strike down the Medical Mediation Act at this time.

      . The cases were consolidated for the first time in this Court due to the similarity of issues involved.

      . § 768.44(3), Fla.Stat. (1979):
      The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held with 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.

      .§ 768.44, Fla.Stat. (1979).

      . Section 768.44(2)(g) provides that the parties shall have ten days in which to challenge panel members for cause.

       Apparently respondent’s counsel had theretofore moved to terminate jurisdiction for failure to commence the final hearing within six months of the filing of the claim. The record before us, however, does not reflect any ruling on the motion by the judicial referee, nor has that been an issue raised on appeal.

      . Thus we do not decide whether the judicial referee in Aldana had authority to declare a mistrial; we decide only that the granting of a mistrial did not toll the jurisdictional period.

      . The rule provides in its entirety:
      Rule 20.190. Termination
      The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:
      (a) A defendant has not filed an answer within 20 days of the date of service;
      (b) A hearing has not been held within 120 days from the date of the filing of the claim and no extension order has been entered by the judicial referee;
      (c) An extension order has been entered by the judicial referee but the hearing has not been commenced within six months from the date of the filing of the claim; or
      (d)The final hearing has not been concluded within 10 months from the date the claim is filed.
      Termination for any of the foregoing reasons terminates the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties. A termination for one of the foregoing reasons is automatic, and the clerk’s act or failure to act is ministerial only.

      .Because our decision today will have prospective application only, we decline to consider the validity of the Vann, Cowart and Keough opinions.

        .See, e. g., Feinstein v. Brown, 370 So.2d 1172 (Fla. 4th DCA 1979) (on rehearing); Burchett v. Clontz, 363 So.2d 15 (Fla. 4th DCA 1978); Pyle v. Taylor, 361 So.2d 790 (Fla. 1st DCA 1978); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978); Mellor v. Arakgui, 359 So.2d 36 (Fla. 4th DCA 1978); Stanton v. Community Hospital of South Broward, 359 So.2d 37 (Fla. 4th DCA 1978); Febles v. Abercrombie, 358 So.2d 568 (Fla. 2d DCA 1978); Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978); Letts v. Davis, 356 So.2d 910 (Fla. 1st DCA 1978); Love v. Jacobson, 358 So.2d 1179 (Fla. 3d DCA 1978); Kirschgessner v. Miami International Hospital, 356 So.2d 11 (Fla. 4th DCA 1977); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977); Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977); Mercy Hospital, Inc. v. Badia, 348 So.2d 631 (Fla. 3d DCA 1977). But see Morales v. Moore, 356 So.2d 829 (Fla. 4th DCA 1978).

      . Vital to the concept of procedural due process is the notion that valuable property interests, such as those conferred by state law, must not be “arbitrarily undermined.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). See Mathews v. Eidridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974).

      . This Court may take judicial notice of cases construing a statute under review. State ex rel. Landis v. Prevatt, 110 Fla. 29, 148 So. 578 (1933).

      . Cohen v. Johnson, 373 So.2d 389 (Fla. 4th DCA 1979); Thames v. Melvin, 370 So.2d 439 (Fla. 1st DCA 1979); Grossman v. Duncan, 371 So.2d 142 (Fla. 1st DCA 1979); Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979); Feinstein v. Brown, 370 So.2d 1172 (Fla. 4th DCA 1979) (on rehearing); Ballard v. Curatolo, 363 So.2d 864 (Fla. 4th DCA 1978); Cole v. Burrows, 364 So.2d 502 (Fla. 4th DCA 1978); Stanton v. Community Hospital of South Broward, 359 So.2d 37 (Fla. 4th DCA 1978); Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978); Love v. Jacobson, 358 So.2d 1179 (Fla. 3d DCA 1978); Febles v. Abercrombie, 358 So.2d 568 (Fla. 2d DCA 1978); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977); Kirschgessner v. Miami International Hospital, 356 So.2d 11 (Fla. 4th DCA 1977); Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977).

      . We do not mean to disparage the reasoning employed by the district courts in the above decisions. On the contrary, the district courts have consistently construed the medical mediation act properly in view of the dictates of article I, section 21, Florida Constitution. It is the statute itself, not the decisions construing it, which has proven arbitrary and inequitable.

      . Our rejection of Ms. Sparkman’s contention was based at least in part on the legislature’s finding of “an imminent danger that a drastic curtailment in the availability of health care services would occur in this state.” Carter v. Sparkman, 335 So.2d at 805.

      . In his concurring opinion, Mr. Justice England noted that “[i]t troubles me that persons who seek to bring malpractice lawsuits must be put to the expense of two full trials on their claim . . . ."Id. at 807 (England, J., concurring).


source: Caselaw Access Project

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

license: Public Domain

text:
    KRESTVIEW NURSING HOME, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. NN-315.
    District Court of Appeal of Florida, First District.
    July 12, 1979.
    W. Kirk Brown, Tallahassee, for appellant.
    Chester G. Senf, Jr., Asst. Gen. Counsel, Florida Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   ON MOTION TO DISMISS APPEAL

ROBERT P. SMITH, Jr., Judge.

Krestview Nursing Home appeals a reduction in per diem reimbursement rates ordered by the Department of Health and Rehabilitative Services. Two letters informed Krestview of the Department’s determination that reimbursement rates would be reduced; Krestview styled these letters “final agency action”, and filed this appeal pursuant to Section 120.68, Florida Statutes (1977). Prior to filing the appeal, Krestview invoked its rights to formal administrative proceedings under the APA. Krestview’s formal hearing on the HRS rate reduction is now pending before the Division of Administrative Hearings as DOAH case number 79-720. We are now faced with an appeal from HRS letters purporting to affect the substantial rights of Krestview, and parallel administrative proceedings which will, in due course, produce an order satisfying the requirements of Section 120.59, Florida Statutes.

The Department argues that the appeal must be dismissed on the grounds that the letters at issue are not “final agency action”; that the pendency of formal administrative proceedings marks the letters as nonfinal, nonappealable administrative action.

Krestview counters with the argument that the effect of the Department’s letters was immediate and adverse, notwithstanding the pendency of an administrative hearing. Krestview’s reimbursement rate has been, and continues to be, reduced at the rate of $20,462 per month, such that judicial review is the only relief available to Krest-view.

For the purpose of remedying agency denial of APA remedies, this court has asserted its jurisdiction to review agency action effected in freeform proceedings, usually characterized by the letters announcing decisions in tenor final but not satisfying Chapter 120 requirements. See, e. g., Capeletti Bros., Inc. v. Dept. of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978); Harris v. Florida Real Estate Commission, 358 So.2d 1123 (Fla. 1st DCA 1978); Graham Contracting, Inc. v. Department of General Services, 363 So.2d 809 (Fla. 1st DCA 1978). Summary letters, telephone calls, and other conventional communications of government, though not meeting the requirements for orders imposed by Section 120.59, are for practical purposes final if the affected party does not timely take advantage of a clear point of entry to APA proceedings. See Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978), and cases cited therein. Because in this case APA proceedings have been requested and are in process by the agency, there is no cause to entertain further this appeal from the agency action represented by the Department’s letters to Krestview.

We therefore do not now reach the merits of the Department’s decision to reduce Krestview’s per diem reimbursement rate. Review of that issue will come, if at all, upon the agency’s rendition of a Section 120.59 order at the conclusion of Section 120.57 proceedings. We do, however, reconsider Krestview’s objection to the conditional stay granted by the Department. On Krestview’s motion, the Department stayed its decision to reduce Krestview’s allotments pending formal administrative proceedings, conditioned on Krestview’s posting of a surety bond in an amount sufficient to cover the net alleged overpayments from September 1, 1978 to November 1, 1979, the estimated date of rendition of the Section 120.59 order. In the circumstances of this case, the Department’s requirement of a surety bond, assuring repayment of its disbursements now tentatively determined to be excessive, is a reasonable condition to a stay which operates to continue payments during the APA proceedings. The Department has a legitimate interest in protecting the public treasury from alleged overpay-ments to a service provider. While a surety bond is a reasonable condition of the stay, the amount of the bond, as set by the Department, is too high. The Department letter of February 16, 1979 was the first notice Krestview had of the tentative decision to reduce its per diem rates; accordingly, Krestview’s exposure under the bond for alleged overpayments should be limited to funds advanced on or after February 16, 1979, rather than September 1, 1978, as ordered by the Department. The Department is directed to modify its conditional stay order by recalculating the surety bond requirement based on a beginning calculation date of February 16, 1979.

The court having now provided the only remedy appropriately required at this time, the appeal is DISMISSED.

MILLS, C. J., and ERVIN, J., concur.


author: LETTS, Judge.

text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant,v. Max E. GURTLER and Lucia Gurtler, his wife, Appellees.
    No. 79-18.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1979.
    Jim Smith, Atty. Gen., and Maxie Broome, Jr., Asst. Atty. Gen., Tallahassee, for appellant.
    Peter A. Portley of Portley & Sullivan, Pompano Beach, for appellees.
   LETTS, Judge.

This cause is reversed and remanded with directions that the trial court enter a final judgment in favor of the appellant in accordance with “Defendants Exhibit # 2 received in evidence on 11/27/1978.”

In so directing, we would express our vexation that the trial judge, through no fault of his, was so misled, a happening which we have discovered through our persistent demands to supplement and correct the record pursuant to Fla.R.App.P. 9.200(f).

In the Appellees’ reply to our latest order of August 15th, 1979, it is in effect conceded that their stated position on appeal was baseless. Thus, notwithstanding their success in the lower court, we find there to be a complete absence of a justiciable issue of either law or fact. .This b.eing so, pursuant to Section 57.105, Florida Statutes (1978), we hereby assess One thousand ($1,000) dollars in attorneys fees in favor of the appellant.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

ANSTEAD, J., and CROSS, SPENCER, C., Associate Judge, concur.


author: PER CURIAM.

text:
    Paul WAFFENFELD and Blanche Waffenfeld, his wife, Petitioners,v. Raymond R. TROMBLY and Effie Trombly, his wife, d/b/a K & R Plaza, Respondents.
    No. 79-1028.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1979.
    Gary I. Zwickel of Renick, Zwickel & Gross, Lake Worth, for petitioners.
    Richard E. Bosse of Honchell, Rappaport & Bosse, P.A., Boca Raton, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

LETTS and BERANEK, JJ., and CROSS, SPENCER C., Associate Judge, concur.


text:
    William H. KIRKLEY, M.D., and Kirkley, Gilbert & McDaniel, P.A., jointly and severally, Petitioners, v. Diane BEHE, Respondent.
    No. 79-1236.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1979.

      Leonard M. Bernard, Jr. of Carey, Dwyer, Cole, Selwood & Bernard, P.A., and Donald G. Korman of Korman & Schorr, Fort Lauderdale, for petitioners.
    James A. McCauley of Law Offices of James A. McCauley, Fort Lauderdale, for respondent.
   LETTS, Judge.

Certiorari is denied.

This is yet another attack on the jurisdiction of a medical mediation panel, the petitioners claiming that jurisdiction was lost because the panel’s written decision was not rendered within the required 30 day period set forth in Section 768.44(7), Florida Statutes (Supp.1978) and Rule 20.200 of the Rules of Medical Mediation Procedure set forth in 348 So.2d 547 (Fla.1977).

The written decision rendered some 11 days beyond the time limitation stated:

THIS CAUSE coming on in accordance with Florida Statute 768.133, and the panel, consisting of Dr. H. J. KAO, Mr. EMIL JACZYNSKI, and Judge ARTHUR FRANZA, having heard the testimony and argument of counsel, makes the following finding:
We find the Defendant, WILLIAM H. KIRKLEY, M.D. with actionable negligence in his care or treatment of the patient, DIANE BEHE, and we, therefore, find for the Plaintiff, DIANE BEHE.
DONE AND ORDERED, in Fort Lauder-dale, Broward County, Florida, this 1st day of June, 1978.
/s/ DR. H. J. KAO
/s/ EMIL JACZYNSKI
/s/ ARTHUR FRANZA
CIRCUIT COURT JUDGE

It is conceded that at the conclusion of the final hearing the panel orally “announced to counsel for the parties their unanimous decision and announced that they had found liability against the defendant.”

We are of the opinion that the trial judge was correct in deeming the overdue reduction of the decision to writing to be no more than a ministerial act over which he retained jurisdiction.

As was said in Davidson v. Stringer, 109 Fla. 238, 147 So. 228 (1933):

“A court having obtained jurisdiction retains it until final disposition of the cause, but after a final judgment . has been once duly rendered the jurisdiction of the court is exhausted.”

We know of no reason why this quoted concept should not apply equally to the deliberations of a medical mediation panel unless the termination of jurisdiction is specifically governed by some other statute or rule of court.

We are well aware that in four separate instances we are required by the mandate of our Supreme Court in Rule 20.190 Fla.R. Med.P. to strictly enforce the termination of jurisdiction of such panels. See Diggett v. Conkling, 368 So.2d 74 (Fla. 4th DCA 1979). However this is not one of those four instances. In fact this involves a subsequent rule, not included under the heading “Termination,” that addresses itself to the procedural requirement that the panel’s decision be reduced to writing. This latter rule contains no time limitation declaring the requirement of a written decision within 30 days to be jurisdictional.

We have also asked ourselves the question of what effect a delay of nearly two years would have if the written decision was not rendered until just before the statute of limitations ran? The answer was given in Chambers v. Gual, 365 So.2d 213 (Fla. 4th DCA 1978) wherein Judge Moore, speaking for the court said:

“The effect of the 60 day provision is to extend the applicable statute of limitations up to 60 days after termination of the mediation proceeding in those cases where less than 60 days remain on the statute of limitations.”

Certiorari denied. •

DOWNEY, C. J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.


author: DOWNEY, Chief Judge.

text:
    Delories CASTLE, and Tommy Castle, Petitioners, v. Lenora Swett COPLAND and the Travelers Insurance Company, and Jose Madera and Lumbermens Mutual Casualty Company, Respondents.
    No. 79-1770.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1979.
    Jerold Hart, North Miami Beach, for petitioners.
    James F. Johnson, Jr. and Bernhard & Gaus, Fort Lauderdale, for respondents Madera and Lumbermens.
    Law Offices of James M. Henderson, Miami, for respondents Copland and Travelers.
   DOWNEY, Chief Judge.

Petitioners seek review by certiorari of an order of the trial court refusing to strike a notice of lien filed in petitioners’ personal injury case by their erstwhile attorney.

It is alleged in the petition that James Johnson, Esquire, represented petitioner Delories Castle in a personal injury claim. Johnson did not measure up to Delories’ expectations so she discharged him and obtained new counsel.

Claiming he had a fee contract with Delo-ries, Johnson filed a notice of lien in this suit, which was instituted by Delories’ new counsel. The trial court refused to strike the lien and petitioners seek review of that order by common law certiorari.

Common law certiorari is not an appropriate method of review under these circumstances because petitioners can obtain full review of the court’s action if and when the proposed lien is enforced. There is no irreparable injury which will adversely affect petitioners’ rights throughout the remainder of this litigation unless immediate review is afforded. See: Chalfonte Development Corporation v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Johnson v. Henningson, 370 So.2d 60 (Fla. 4th DCA 1979); Esler v. Gabinet, 369 So.2d 93 (Fla. 4th DCA 1979).

Accordingly the petition for certiorari is denied.

LETTS, J., and CROSS, SPENCER C., Associate Judge, concur.


text:
    STATE of Florida, Petitioner, v. LoCHIATTO, Michael R., et al., Respondents.
    No. 78-493.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1979.
    On Motion For Review March 19, 1980.

      Petition for Common Law Certiorari to Circuit Court, Broward County; Miette K. Burnstein, Judge.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Thomas F. Luken, Fort Lauderdale, for respondents.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for petitioner on motion for review.
   PER CURIAM.

Petition for certiorari is denied.

DOWNEY, C. J., and MOORE, J., concur.

SPENCER C. CROSS, Associate Judge, dissents without opinion..

ON MOTION FOR REVIEW

PER CURIAM.

This cause is before this court upon the State’s December 14, 1979, motion (filed pursuant to Florida Rule of Appellate Procedure 9.400(c)) for review of a November 14, 1979, order of the trial court assessing costs and an attorney’s fee in favor of respondent, Michael R. LoChiatto.

The jurisdiction of this court was initially invoked by a notice of appeal filed on March 7, 1978, by the State to seek review of a February 15, 1978, order of the trial court imposing sanctions upon the State for wrongfully interfering with the taking of a witness’s deposition. On July 12, 1978, this court ordered that the matter should be treated as a common law certiorari proceeding. On February 7,1979, LoChiatto filed a motion asking this court to award him an attorney’s fee against the State. The motion cited Section 57.105, Florida Statutes (1977), as authority for such an award. On October 10, 1979, this court entered an order denying the State’s petition for certio-rari and an order granting respondent’s motion for an attorney’s fee. The latter order remanded the cause to the trial court for assessment of the amount of the fee “upon due notice and hearing subject to review by this court under Rule 3.16(c, d), F.A.R.” (We note here that the reference to Rule 3.16(c, d), F.A.R. was improvident since that rule had been replaced by Florida Appellate Rule 9.400(c).)

Upon remand the trial court, pursuant to our October 10, 1979, order held a hearing on November 14, 1979, to assess the amount of the attorney’s fee for respondent and on the same day entered an order awarding respondent a fee of $3,000, together with $250 in costs and $107.85 as interest on a sum awarded respondent in the trial court’s order of February 15,1978. It is that order of November 14, 1979, which we now review, pursuant to Florida Rule of Appellate Procedure 9.400(c).

Both at the November 14th hearing and in its December 14th motion the State contended that Section 57.105 did not constitute authority for allowing an attorney’s fee against the State in a criminal case. The State points out that on remand in the trial court LoChiatto changed his position and claimed Florida Appellate Rule 3.16 as authority for the allowance of attorney’s fees. Since the Florida Rules of Appellate Procedure replaced the Florida Appellate Rules as of March 1, 1978, we assume respondent proposed to proceed under Florida Rule of Appellate Procedure 9.400(b).

LoChiatto’s December 17, 1979, response to the State’s motion for review suggests that the allowance of interest and costs cannot be reviewed pursuant to Rule 9.400(c). We disagree. Furthermore, the response asserts that the State’s motion for review cannot .question the award of an attorney’s fee because this court authorized such an award in its order of October 10, 1979, and that order became the law of the case. Ordinarily, respondent’s position relative to the law of the case would be sound and that would end the matter. However, we are persuaded that this court’s order of October 10, 1979, awarding an attorney’s fee and remanding the cause to the trial court for determination of the amount was erroneous. Section 57.105, which provides:

57.105 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.

does not authorize this court to assess an attorney’s fee against the State for appellate proceedings in a criminal case for the reason that the statute pertains to appellate proceedings in civil cases. Nor does Florida Rule of Appellate Procedure 9.400 contain any authorization for the assessment of an attorney’s fee in a criminal case.

Under the foregoing circumstances, even though our prior order has become the law of the case, this court retains the authority to correct its erroneous prior ruling. In Strazzula v. Hendrick, 177 So.2d 1, 3 (Fla.1975), the Supreme Court of Florida quoted with approval the following pronouncement from Beverley Beach Properties v. Nelson, 68 So.2d 604:

We may change ‘the law of the case’ at any time before we lose jurisdiction of a cause and will never hesitate to do so if we become convinced, as we are in this instance, that our original pronouncement of the law was erroneous and such ruling resulted in manifest injustice. In such a situation a court of justice should never adopt a pertinacious attitude.

With regard to the allowance of $250 as costs for an expert witness, that portion of the November 14, 1979, order should follow our disposition of the determination of the attorney’s fee. The allowance of interest on the trial court’s earliest award of a sum constituting sanctions is also unauthorized. See Dade County v. O.K. Auto Parts of Miami, Inc., 360 So.2d 441 (Fla. 3rd DCA 1978).

In view of the foregoing, with some degree of embarassment we recede from our order of October 10, 1979, which awarded respondent an attorney’s fee against the State, grant the motion for review, and quash the trial court’s order of November 14,1979, which was entered pursuant to our direction in our order of October 10, 1979.

DOWNEY, C. J., and MOORE and HURLEY, JJ., concur.


text:
    Marie H. STARK, as Personal Representative of the Estate of Stanley Stark, Deceased, and Estate of Stanley Stark, Appellants, v. Sheila H. STARK, Appellee.
    No. 79-532.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1979.
    Lloyd Herold, West Palm Beach, for appellants.
    Alexander Myers of Christiansen, Jacknin & Myers, Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Pan American Bank of Orlando v. O’Malley, 353 So.2d 856 (Fla. 4th. DCA 1978).

ANSTEAD, LETTS and MOORE, JJ., concur.


text:
    In re the ESTATE of Rubin PERLMAN, Deceased.
    No. 78-1791.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1979.
    Mark Perlman, Miami, for appellant Belle Perlman.
    Jerry Green, South Miami, for appellee Valley Bank and Trust Co.
   PER CURIAM.

At issue is whether the trial court erred in denying a motion to strike a claim filed beyond the statutory time provided for the filing of claims against an estate. There is no dispute that the claim was untimely filed. Section 733.702, Florida Statutes (1977). Generally, absent the existence of certain recognized exceptions, a claim is barred unless timely filed. North v. Culmer, 193 So.2d 701 (Fla. 4th DCA 1967). No exception is demonstrated in the record here. Accordingly, the order of the trial court is reversed and this cause is remanded with directions for further proceedings consistent herewith.

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Curtis ADAMS, Jr., Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. SS-254.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1979.
    Rehearing Denied March 5, 1980.
    Petition for Writ of Habeas Corpus.
    Curtis Adams, Jr., petitioner, pro se.
   PER CURIAM.

This cause is before us upon a petition for a writ of habeas corpus. Petitioner alleges ineffective assistance of counsel and that he was not allowed to withdraw a coerced guilty plea.

Fla.R.Crim.P. 3.850 provides a means of relief whereby such issues may be addressed. Petitioner’s failure to assert exhaustion of this remedy precludes habeas relief. Henderson v. State, 184 So.2d 646 (Fla.1966); Zuniga v. State, 184 So.2d 659 (Fla. 1st DCA 1966), cert. denied, 189 So.2d 635 (Fla.1966), cert denied, 385 U.S. 962, 87 S.Ct. 404, 17 L.Ed.2d 307 (1966); Fla.R.Crim.P. 3.850.

Accordingly, said petition is denied.

MILLS, C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

This cause is before us upon petition for a writ of habeas corpus. Petitioner raises issues which were previously addressed by means of a Fla.R.Crim.P. 1.850 (now 3.850) motion for post-conviction relief. The trial court denied the motion and petitioner has failed to show a timely pursuit of appellate remedies under the Rule on those grounds; relief by habeas corpus is thus precluded. Stewart v. Wainwright, 206 So.2d 211 (Fla.1968); Hillhouse v. State, 159 So.2d 228 (Fla.1963); Fla.R.Crim.P. 3.850.

Accordingly, the petition is denied.

■ MILLS, C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


author: LETTS, Judge. BERANEK, Judge,

text:
    FORD MOTOR COMPANY, a foreign corporation, doing business in the State of Florida, Appellant, v. Willie Lee HILL and Eloise Hill, his wife, Appellees. FORD MOTOR COMPANY, a foreign corporation, doing business in the State of Florida, Appellant, v. BARKETT OIL COMPANY, Appellee.
    Nos. 77-514, 77-1364.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1979.
    James A. Dixon, Jr. and Aubrey V. Kendall of Dixon, Dixon, Hurst, Nicklaus & Webb; Timothy J. Norris of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for appellant.
    Walter H. Beckham, Jr. and Robert Or-seck of Podhurst, Orseck & Parks, P. A., Miami, and Simons & Schlesinger, Fort Lauderdale, for appellees Hill.
    K. P. Jones of Law Offices of K. P. Jones, Fort Lauderdale, for appellee Barkett Oil Co.
   LETTS, Judge.

This appeal stems from a products liability claim against Ford Motor Company following a single vehicle truck accident and injuries incurred as a result of an alleged “second collision” defect in truck design. The jury was instructed only on strict liability and no negligence instruction was given. We affirm.

The truckdriver was horribly injured, permanently paralyzed from the waist down suffering total loss of control over his bladder and bowels. The accident occurred when his tanker truck, overloaded and possessed of bald tires went out of control on a wet highway and spun around sliding backwards onto the median strip. The single unit truck carried over 4,000 pounds of gasoline and oil and when the rear wheels dug into the soft median, the tank tore loose gouging deeply into the soft median, then ground to a halt while the still moving cab slammed into it. This happenstance released two latch hooks securing the hinged cab and it snapped, whip-like, open and then shut again, causing the injuries.

There are more facts involving the history of how this Ford truck, sold as an “incomplete vehicle,” came to have a secondhand tank on the frame, mounted by the driver’s own employer, allegedly in a most negligent fashion; however those already stated are sufficient for our purpose here except as same may be augmented hereafter.

The original complaint, filed before the decision in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla. 1976), contained no strict liability count. The West case was published in July of 1976 and the trial of this cause followed five (5) months later without any attempt to include such a count until the charge conference, when the defense counsel so noted and plaintiff’s counsel responded:

There is no count required for strict liability. Read West . . . . Strict liability is a rule of law. It is not a rule of pleading. If it is necessary counsel, if you want to put it to the task I would move to amend the complaint . if you think that’s necessary, but no way is that necessary.

To this, defense counsel made no applicable rejoinder and the trial judge no ruling.

We first decide that the above described colloquy was not sufficient to constitute a motion to amend or result in an actual amendment. However this conclusion is of little consequence inasmuch as labored study of the voluminous transcript convinces us that the issue of strict liability was tried at least by implied consent of all parties. In consequence we think there resulted an amendment to conform with the evidence by operation of Fla.R.Civ.P. 1.190(b).

Ford contends that an instruction to the jury on strict liability only was in error under the law of Ford Motor Company v. Evancho, 327 So.2d 201 (Fla. 1976). Apart from those of a peripheral nature, the only “gut” instruction given was the standard P.L. 4 on strict liability and such would be serious error if Evancho, supra, is still the law of second collision cases. However we do not think it can be, because it appears to us that the later case of West v. Caterpillar Tractor, supra, must apply to second collision cases because of its overpowering language. Yet we are troubled by the failure of the West court to even mention Evancho, decided but a few months earlier. Evancho quite clearly holds that in second collision cases the manufacturer’s liability is not predicated on the doctrine of strict liability “. . . rather, it recognizes a duty of reasonable care on automobile manufacturers based on common law negligence,” Evancho, supra, at 203. It may be that this Evancho language was employed only because at that time Florida had not officially adopted the doctrine of strict liability. (But see Nicolodi v. Harley-Davidson Motor Company, Inc., 370 So.2d 68 (Fla.2d DCA 1979)). However we must entertain the possibility that we are in error and do hereby certify the following question to the Supreme Court deeming it to be of great public interest:

IS THE COMMON LAW NEGLIGENCE THEORY IN SECOND COLLISION CASES SET FORTH IN EVANCHO STILL VIABLE DESPITE THE ADOPTION OF STRICT LIABILITY IN WEST v. CATERPILLAR TRACTOR COMPANY, INC.?

Finally, the dismissal with prejudice of Ford Motor Company’s third party claim against the driver’s employer is affirmed upon the authority of Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla. 1979); Stuart v. Hertz, 351 So.2d 703 (Fla. 1977) and Maybarduk v. Bustamente, 294 So.2d 374 (Fla.4th 1974).

The law on this question was not, and is not, a model of clarity. Formerly a third party complaint would lie if the third party plaintiff alleged mere passive negligence but would not lie if active negligence was involved. Thus it was that the courts had begun to see third party complaints containing the magic words “passive negligence” whether or not the negligence was of that variety.

Yet the understandable posture of Ford in the case at bar was that it was not negligent at all and that the sole proximate cause of the injuries was the negligence of the driver and his employer. It would appear that this posture would here preclude a third party complaint under the former passive/active negligence theory before the Houdaille, supra, decision. However Houd-aille has cast aside this active/passive differentiation, holding instead that a third party complaint will lie where the liability if any is “solely vicarious, constructive, derivative or technical.” We are not without difficulty in understanding the full extent of these quoted adjectives but we do not think a manufacturer’s strict liability would be encompassed by them. The West case perceives a manufacturer’s strict liability to be predicated upon a defect which is the proximate cause of the injuries. To us, while there may be no negligence involved, a defendant manufacturer’s defective product, which proximately causes an injury, presupposes much more than mere vicarious liability.

We therefore hold that a third party complaint is not available to Ford Motor Company in this case. However, although not necessary to our conclusion, and even if a third party complaint were appropriate in strict liability situations, the second amended third party complaint now before us avers that the original judgment against Ford Motor Company was obtained “pursuant to [the] complaint.” That simply is not so. As we have already observed, this original complaint did not contain a strict liability count and though the issue may have been tried by implied consent, it certainly is not contained within the four corners of the original complaint attached as an exhibit to the third party complaint.

AFFIRMED.

DAUKSCH, JAMES C., Jr., Associate Judge, concurs.

BERANEK, J., concurs specially.

BERANEK, Judge,

concurring specially, dissenting as to certification.

I concur in the result reached by the majority, but do not agree to the reasoning or the certification of the question.

The complaint against Ford was based on negligence and breach of implied warranty but these theories were abandoned at the time of the charge conference. It somehow developed that the entire theory of the case became that of strict liability under West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla. 1976). Although there were absolutely no pleadings setting up the elements of a cause of action under strict liability, the court, with the acquiescence of counsel, instructed the jury on this sole theory. It is also noteworthy that much of the evidence introduced in the trial was totally irrelevant to strict liability — which according to West is liability without negligence.

By failing to object to and acquiescing in the drastically significant change in the basic theory of this lawsuit, the defendant has waived its ability to meaningfully complain to this Court. Since this is a case of waiver, I do not believe it is a proper vehicle for the certification of a question of great public interest on the substantive law of strict liability. I do not believe this Court need go further than finding that both counsel tardily agreed to submit the case to the jury on the theory of strict liability. As such the trial court was never presented with a question of whether the West case overruled the Evancho case in second collision situations.

On appeal defendant contends the trial court erred in failing to instruct the jury on negligence in general and further on plaintiff’s alleged contributory negligence. West v. Caterpillar Tractor Company, supra, specifically holds that a plaintiff’s contributory negligence in the actual use of a defective product is a partial defense of an action based on strict liability. At the charge conference, the defendant specifically withdrew its request for a charge on plaintiff’s own contributory negligence. Despite this withdrawal, defendant proceeded in closing before the jury to argue extensively that the accident was really the result of the negligent mounting of the tank on the truck body and the driving of this overloaded and negligently modified truck with bald tires on a wet road. In short, plaintiff’s contributory negligence was argued to the jury but the jury was not instructed on it because the court was not asked to so instruct. No error is preserved in this regard and the case does not, in my opinion, present a question as to whether common law negligence remains viable under the West ruling.

As to the third party complaint by Ford against the driver’s employer, I agree with the majority that it was properly dismissed, but not because of reliance on the Houdaille Industries v. Edwards, supra, decision. The third party complaint sought indemnity and asserted that Ford had been held liable to Hill on the theories asserted in the complaint filed by Hill against Ford. This was totally inaccurate as a matter of law. The complaint by Hill against Ford was based on negligence and breach of warranty. These two theories of liability were abandoned with Ford’s acquiescence and Ford was held liable solely on strict liability as enunciated in West. Since the third party complaint failed to recognize the change in the basic theory of the case between Hill and Ford, it could not possibly state a cause of action for indemnity. I therefore conclude that the third party complaint was properly dismissed with prejudice but not for this stated reason.

      . In view of our conclusion we need not address the question of whether defense counsel waived objection to the strict liability instruction.

      . Ford also claims in the- alternative that this standard instruction is inadequate in any event. We concede it is not as expansive as in the Restatement (Second) of Torts § 402A, but we do not find the standard instruction to be reversible error.

      . The defense did request such an instruction.


text:
    Joseph G. DUBOWITZ and Ida Dubowitz, his wife, Appellants, v. CENTURY VILLAGE EAST, INC., etc., et al., Appellees.
    No. 79-239.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1979.

      Michael J. McNerney and Keith A. Gasman of Brinkley, McNerney & Morgan, Fort Lauderdale, for appellants.
    Gerald Mager and Linda K. Raspolich of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
    Jim Smith, Atty. Gen. and Thomas M. Pflaum, Asst. Atty. Gen., Tallahassee, as amicus curiae.
   ORDER

LETTS, Judge.

The supplemental response to the Appellees’ Motion to Strike is hereby stricken and the sua sponte striking thereof used as a springboard for this order.

This Court is being deluged nowadays with a plethora of pleadings which have no place in any appellate court and which are causing a distressing waste of time. We are in truth suffering from acute motion sickness.

The introductory note to the 1978 version of the Florida Appellate Rules concludes with the following paragraph:

It was the intent of the many persons involved in the drafting of these revised rules to implement the public policy of Florida that appellate procedures operate to protect rather than thwart the substantive legal rights of the people by alleviating existing burdens on the judicial system, by reducing the cost of appeals, by standardizing and expediting the appellate procedures which have at times frustrated the cause of justice.

Notwithstanding, there is an ever growing tendency for attorneys to ignore the spirit of the above and file unnecessary pleadings which we seek by this order to discourage.

The supplemental response which provides the springboard for this order is reproduced as follows:

SUPPLEMENTAL RESPONSE TO AP-PELLEES’ MOTION TO STRIKE

In further response to Appellees’ continuing effort to narrowly constrain the Attorney General’s conduct in this appeal, amicus submits the following illustration of the proper judicial approach to such objections:

The ridicule reproduced above, no doubt induced by a spate of motions from other counsel, was only one of fifty-one motions and responses etc. all filed in various cases before this Court on November 26th, 1979. We have examined all fifty-one and have determined that over thirty of them ranged from the unnecessary to the ludicrous.

Another irritating series involved a motion to dismiss because an opposing brief was served on the movant one day late (the movant had figured wrong, it was not late). This erroneous pleading spawned successively a:

Response

Motion for Sanctions

Reply to the Response

Motion for Attorneys’ Fees

Reply to the Motion for Attorneys’ Fees

Furthermore, there are no end of pleadings which unashamedly provide, as their only discernible purpose, a vehicle for the expression of venomous ill will towards opposing counsel. We also are not blind to the high incidence of frivolous motions which have as their obvious unstated purpose (by reason of the moment in time chosen to file them) a tolling of the time for filing briefs under Rule 9.300(b).

The reader may well be disposed to remark: “So what, everyone has problems — what else is new.” Well, what is new is that we intend to start imposing sanctions on those who file frivolous pleadings. The function of an appellate court is to review the record created at the trial level and reconcile it with the law, not provide a forum for a continuation of the nowadays vastly exaggerated trial motion practice. In the overwhelming majority of instances the extra pleadings filed do not assist our function and in fact impede it inasmuch as every judge on this Court is required to spend part of each working day giving attention to unnecessary pleadings as applicable case files are trundled among the judges’ offices in search of the necessary collegiate action.

We do not seek an end to a 11 motion practice for, in some instances, it plays a proper role under the Rules. We do, however, demand that counsel not turn what should be an extraordinary measure into a standard modus operandi. We know of few experienced appellate practitioners who engage in such excess. They know better.

In conclusion, we here stop short of issuing an order to show cause why sanctions should not be imposed under Rule 9.410, not only because we deem it unfair, without prior warning, to single out the Attorney General for punishment, but also because we interpret his supplemental response to be a form of protest with which we have some sympathy.

We ask the Bar to take note that fair warning has now been given and ask further that this order be not itself misused to provide inspiration for frivolous motions seeking sanctions against other allegedly frivolous motions. We wish to make that determination for ourselves.

MOORE and GLICKSTEIN, JJ., concur.


author: COBB, Judge.

text:
    Rhett Miles TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 78-354/T4-60.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 1980.
    Rehearing Denied Jan. 31, 1980.
    Richard L. Jorandby, Public Defender, and Peter Blanc, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   COBB, Judge.

This appeal is from a conviction for possession of marijuana based on a nolo con-tendere plea with reservation of right to appeal the trial court’s denial of appellant’s motion to suppress evidence. We reverse.

Two police officers went to Appellant’s residence seeking information concerning a stolen vehicle. Both officers smelled marijuana smoke as they approached the door. The officers knocked, Appellant opened the door, and the smell dissipated. One officer noticed four hand-rolled cigarettes sitting on a box inside the house. When another occupant picked up the cigarettes, the officer entered the residence and took the cigarettes from her. With the officer’s permission, the cigarettes were rinsed down a sink prior to an examination to determine their contents. The officers did not notice an odor of marijuana inside the house, nor did a brief survey of other rooms reveal any sign of contraband. The officers continued to question Appellant for 15 to 20 minutes concerning the vehicle investigation. Appellant was arrested after an officer observed a bag of suspected marijuana fall to the kitchen floor when Appellant took his hand out of his pocket.

The reasonableness of the seizure of the bag of marijuana depends upon the validity of the incursion into Appellant’s home. See State v. Hughes, 375 So.2d 615, 617 (Fla.3d DCA 1979). In Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235, 241 (1979), the United States Supreme Court recently restated that the Fourth Amendment has been interpreted

to include the requirement that normally searches of private property be performed pursuant to a search warrant issued in compliance with the warrant clause.

As our sister court stated in Britton v. State, 336 So.2d 663, 664 (Fla. 1st DCA 1976):

Absent a judicial warrant, exigency or other exceptional circumstances, the Fourth Amendment protects and makes effective a citizen’s “reasonable expectation of privacy.” A warrantless incursion into a citizen’s home is therefore subject to our most critical examination, (footnote omitted.)

The officers’ warrantless incursion into Taylor’s residence was predicated entirely on the sight of four hand-rolled cigarettes. The smell of marijuana had dissipated and could not support probable cause to believe marijuana was being consumed within. The sight of the cigarettes alone did not justify a warrantless entry. See Carr v. State, 353 So.2d 958 (Fla.2d DCA 1978). The lack of exigent or other exceptional circumstances rendered the warrant-less incursion unreasonable. The seizure was the fruit of an unlawful entry, and the evidence taken should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

REVERSED AND REMANDED FOR DISCHARGE OF THE APPELLANT.

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


author: ANSTEAD, Judge.

text:
    STATE of Florida, Appellant, v. Eligio E. VILLAVICENCIO, Jose Hernandez Herrera and Juan Manuel Paz, Appellees.
    Nos. 78-1954, 78-2768.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Oscar S. Rodriguez, Coral Gables, and Russell J. Ferraro, Jr., of McManus, Stewart & Ferraro, P.A., Stuart, for appellees.
   ANSTEAD, Judge.

This is an appeal by the state from an order of the trial court discharging the ap-pellees under the provisions of the speedy trial rule. At issue is whether the state was obligated to secure an order staying proceedings in the trial court during the pendency of the state’s appeal of an order granting a motion to suppress. We hold that the state was obligated to secure such an order under the express provisions of Rule 9.140(c)(2), Florida Rules of Appellate Procedure, effective March 1, 1978.

The state contends that it is entitled to rely on the automatic stay provisions of Section 924.071(2), Florida Statutes (1977). We have previously rejected such a contention, even before the adoption of Rule 9.140(c)(2), on the basis that Rule 3.191(d)(2)(iv), Florida Rules of Criminal Procedure, required an order from the trial court extending speedy trial time during the pendency of an interlocutory appeal filed by the state. State v. Cannon, 332 So.2d 127 (Fla.4th DCA 1976). With the adoption of Rule 9.140(c)(2), we now believe that the Supreme Court has resolved any doubts as to the necessity of such an order.

Accordingly, the order of discharge is affirmed.

DOWNEY, C. J., and LETTS, J., concur.


text:
    CITY OF FORT LAUDERDALE, Broward County, Florida, a municipal corporation, Respondent, Appellant, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellee, Broward County Local Union No. 532, AFSCME, AFL-CIO, Intervenor, Appellee, and Fort Lauderdale City Employees Benevolent Association, Inc., Petitioner, Appellee.
    No. 78-1703.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Rehearing Denied April 10, 1980.
    Gordon D. Rogers, of Muller, Mintz, Kornreich, Caldwell & Casey, P.A., Miami, for respondent, appellant.
    Thomas W. Brooks, Gen. Counsel, Tallahassee, for appellee, Public Employees Relations Commission.
    Jerry G. Traynham, of Patterson & Traynham, Tallahassee, for intervenor, ap-pellee, Broward County Local Union No. 532, AFSCME, AFL-CIO.
    Thomas F. Panza, of Panza, O’Donnell & Jacobson, Fort Lauderdale, for petitioner, appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD and HERSEY, JJ., concur.


author: PER CURIAM. BOOTH, Judge, MILLS, Chief Judge.

text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. John WAREHAM, Appellee/Claimant, v. TRANSMISSION WORLD AND AMERICAN HOME ASSURANCE COMPANY, Appellees/Employer/Carrier.
    No. QQ-184.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1980.
    On Rehearing March 12,1980.

      Dan F. Turnbull, Jr., Tallahassee, for appellant.
    Jay M. Levy, of Nachwalter, Christie & Falk, P. A., Miami, for appellee/claimant.
    Anthony J. Beisler, Fort Lauderdale, for appellees/employer/carrier.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.

ON MOTION FOR REHEARING GRANTED

MILLS, Chief Judge.

Appellant’s motion for rehearing on the Court’s order of 23 January 1980, awarding appellee appellate attorney’s fees, is granted on authority of Section 440.-49(4)(f)2, Florida Statutes (1977), and the order is vacated and set aside.

The Court would like to point out that the appropriate time to object to the award of appellate attorney’s fees is by appropriate motion prior to the Court’s consideration of the motion for assessment of attorney’s fees, not after the award has been ordered. Not only is this the appropriate procedure but attorneys should always help the Court in its consideration of all issues presented to it by timely and fully presenting the Court all authorities pro and con on the issues.

McCORD, J., concurs.

BOOTH, J., dissents.


author: PER CURIAM. BOOTH, Judge,

text:
    Catherine LEIGHT, Appellant, v. ALADDIN MOVING COMPANY and Fireman’s Fund, Appellees.
    No. QQ-75.
    District Court of Appeal, of Florida, First District.
    Feb. 13, 1980.
    Rehearing Denied March 25, 1980.

      Peter S. Penrose of Bassett & Penrose, Fort Lauderdale, for appellant.
    Eugene N. Betts, Fort Lauderdale, for appellees.
   PER CURIAM.

Appellant contends that the judge of industrial claims erred in finding that she sustained only a 75% permanent partial disability due to a loss of wage earning capacity. After carefully considering the record and the briefs in this case, we agree with the appellant that the order is in error.

The basic controversy between the parties concerns the appellant’s ability to secure and hold employment in the open labor market in light of her physical disabilities. The order finds that the appellant is severely limited, but further states “I do feel that there is possibly some type of part-time work in which the claimant could become engaged.”

The appellant presented uncontroverted evidence that she is unable to work even part-time. Her treating physician testified that the appellant was, anatomically, totally disabled. His opinion was that she would be unable to work on either a full or part-time basis because any activity would likely activate some part of her body that had been affected by her injuries.

The 65 year old appellant testified that walking was painful, sitting for any length of time was painful, and that she could not perform her own housekeeping chores without assistance. She attempted, on two separate occasions, to return to work as a secretary/bookkeeper. On both occasions, she was unable to continue working because of increasing symptoms. The vocational rehabilitation nurse’s report indicated that the type of work the appellant attempted to return to without success would be as sedentary as she would be able to find on the open labor market.

Although the testimony in evidence as to the appellant’s testing of the labor market discloses a minimal effort, -we conclude that her job search sufficiently comports with her abilities and restrictions. Matera v. Gautier, 133 So.2d 732 (Fla.1961). The burden was therefore shifted to the employer to show that suitable work was in fact available. Mahler v. Lauderdale Lakes, 322 So.2d 507 (Fla.1975). However, the employer here failed to present any evidence of available employment suitable for the appellant in her disabled state. There is accordingly no competent, substantial evidence to support the speculative conclusions, supra, that the appellant was capable of some minimal part-time work.

Additionally, we note that neither the order nor the record indicates that any specific issue was raised or resolved as to merger or apportionment of disability, although the order refers to appellant’s preexisting congenital hip and leg condition. The employer claimed and the judge awarded an offset pursuant to § 440.15 5(c), Florida Statutes (1978), for compensation paid for appellant’s impairment due to a previous industrial accident, but our disposition of the appeal in favor of appellant’s claim for permanent total disability on this record will require rejection of that offset because the provision in terms applies only to successive awards for permanent partial disability. Galt Ocean Mile Hotel v. Burton, IRC Order 2 — 2955, cert. dismissed, 336 So.2d 600 (Fla.1976).

We conclude for reasons above stated that the denial of permanent total disability benefits in this case was erroneous. Kaplan v. Lowry Electric Company, 293 So.2d 348 (Fla.1974). The order dated May 22, 1979, is reversed and this cause is remanded for the entry of a further order on the merits consistent with this opinion.

SHAW and WENTWORTH, JJ., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, Case No. QQ-76, Opinion filed December 27, 1979 (Fla. 1st DCA).

On the merits, I would concur in the majority’s opinion.


author: SHARP, Judge.

text:
    Eddie James HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-731/T4-84.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 1980.
    Rehearing Denied March 25, 1980.

      Richard L. Jorandby, Public Defender and Jack Goldberger, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   SHARP, Judge.

Eddie James Harris was convicted of attempted burglary after a jury trial. The appellant urges that reversible error was committed by the trial court when it refused to declare a mistrial, after two prosecution witnesses made improper comments about the appellant remaining silent, following his arrest and being read his “Miranda ” warnings. Defense counsel made timely objection and moved for a mistrial, in each instance. We agree that reversible error occurred, and accordingly we reverse and remand for a new trial.

The Florida Supreme Court set forth in Clark v. State, 363 So.2d 331 (Fla.1978) the principles which control this case. If during a jury trial a timely objection and motion for mistrial are made, following improper comment on a defendant’s right to remain silent, the case must be reversed for new trial, without regard to the “harmless error” rule, and without regard to' any curative instructions by the court. It makes no difference whether the comment is made by the prosecutor, state witness, court witness, or a defense witness (unless invited or deliberately procured by the defense). Nor does it matter whether the comment is deliberate or spontaneous. What the jury hears or may understand or infer is the critical point.

In this case the comments were not deliberate. They occurred as a result of questioning by the prosecutor. Officer Parker, one of the arresting police officers, testified that he read the appellant the “Miranda ” warnings. The prosecutor asked, “What, if anything, did the defendant say at that time?” He replied, “At that time, he did not indicate anything.” Later in the trial, Lieutenant Scott, another police officer present at appellant’s arrest, was asked, “When you said, do you understand what I told you, what if anything did he say or do?” Lieutenant Scott said, “There was no, nothing.” From the bench-side conference, out of the presence of the jury, it is clear that the trial court and attorneys were trying to ascertain what the appellant said or did to indicate he understood the “Miranda ” warnings. But the testimony the jury heard was not so limited. Both instances could have been understood by the jury as improper comment on the appellant’s remaining silent at the time of his arrest and thus they constitute reversible error. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Jones v. State, 200 So.2d 574 (Fla.3d DCA 1967).

The appellant’s conviction is reversed, and this cause is remanded for a new trial.

REVERSED AND REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.1602, 16 L.Ed.2d 694 (1966).


text:
    WATKINS MOTOR LINES, INC., and Employers Insurance of Wausau, Appellant, v. Danny R. SAMS, Appellee.
    No. QQ-389.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1980.
    Rehearing Denied April 8, 1980.
    Richard H. Weisberg, of Cooper & Riss-man, Orlando, for appellant.
    W. James Kelly, of Philpot & Kelly, Lakeland, for appellee.
   PER CURIAM.

Danny Sams suffered compensable back injuries in June and October of 1978. The Judge of Industrial Claims entered an order finding that Sams had ■ sustained a 70 percent permanent partial disability of the body as a whole based upon loss of wage earning capacity. We reverse.

We. note, first of all, that the order fails to make an express finding that there was a good faith work search as required by Section 440.25(3)(c), Florida Statutes (1978). More importantly, however, we find that there is no competent substantial evidence in the record that would support such a finding. While we agree that the Judge of Industrial Claims was authorized to reject the purported offer of employment by Watkins Motor Lines, Inc., as insincere, we find that the evidence of the subsequent employment as a security guard and the reasons given by Sams for quitting that job militate against the finding of loss of wage earning capacity. A review of the testimony reveals that Sams’ own explanation was that the “guys hassle me.” They told him to get his hair cut and hold him he was not tough enough to be a security guard. In addition, he said he “messed up on a timeclock.” Although when he was asked why he worked there only two weeks, he did mention that his back was hurting, the testimony taken as a whole makes clear that he quit because of the “hassling.” Thus, the record does not support the finding that Sams suffered a loss of wage earning capacity.

Accordingly, we reverse the finding of 70 percent permanent partial disability based on loss of wage earning capacity and the attendant award of attorney’s fees and costs and remand for entry of an order consistent with the finding of 5 percent permanent partial anatomical disability.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with an opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    PIONEER OIL COMPANY, INC., Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 00-308.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    Rehearing Denied March 27, 1980.
    Patricia A. Petruff of Dye, Cleary, Scott & Deitrich, P. A., Bradenton, and Kenneth G. Oertel of Oertel & Laramore, P. A., Tallahassee, for appellant.
    Jim Smith, Atty. Gen., William D. Townsend, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Pioneer, a licensed dealer of fuels, appeals an administrative order requiring it to pay taxes with penalties and interest on certain of its sales of special fuel. Pioneer challenges the Department of Revenue Rule 12B-5.03, urging that the rule imposes a tax for failure to keep records and that such a tax exceeds the Department of Revenue’s authority. Pioneer further contends that the hearing officer erred in finding that Pioneer’s invoices did not reflect the exempt purpose for which the fuel was used.

We affirm.

During a routine audit of Pioneer’s books, the Department of Revenue (Department) determined that taxes were owed on sales of fuel to Cipriani Trucking, Tropicana Products, Inc., and Tri-County Paving. Pioneer argued that the sales were tax exempt and at an administrative hearing presented evidence that the fuel was actually used for an exempt purpose. Neither party was satisfied with the hearing officer’s initial order and the Department submitted a proposed order which found that Pioneer did, in fact, prove that the fuel was used for an exempt purpose but recommended that the assessment be enforced. This order was adopted by the governor and cabinet, becoming final agency action. Pioneer asks this Court to decide

Whether in the absence of a properly executed blanket exemption and/or resale certificate, the tax liability on the dealer for sales of special fuels is absolute?

We answer in the affirmative.

Section 206.87(1), Florida Statutes (1978 Supp.) imposes an excise tax of eight cents per gallon on the first sale or transfer of title of all special fuels (e. g.„ diesel, propane) used or sold for use in Florida. Use is defined as “the placing of special fuel into any receptacle on a motor vehicle from which fuel is supplied for the propulsion thereof,” § 206.86(5), Florida Statutes (1977). The initial dealer is normally required to collect the tax “whether he be the ultimate seller or not.”

Dealers must be licensed by the state, § 206.89(1), Florida Statutes (1977), and those who are dual users of special fuel— those who purchase fuel for a taxable and a nontaxable use — are included in the definition of dealer, § 206.86(8)(h), Florida Statutes (1977). Sales for home, industrial, commercial, agricultural or marine purposes, or for consumption other than use, etc., are exempt from the tax, § 206.-87(4)(a), Florida Statutes (1978 Supp.), and the initial dealer can sell to other dealers without collecting the tax, the second dealer then becoming responsible for payment of the tax, § 206.87(2), Florida Statutes (1978 Supp.).

Section 206.59(1), Florida Statutes (1977), authorizes the department to

make rules and regulations which shall have the force and effect of law, to govern reports and accounts by all persons dealing in or handling motor fuel for the purpose of enabling the department to ascertain whether or not any motor fuels are being dealt with, handled, or stored in this state under certain circumstances as to become liable to the tax imposed by and law relating to a tax on motor fuel.

Acting under this authority, the Department promulgated Rule 12B-5.03. Subsection (1) of the rule establishes procedures by which the dealer may show that certain sales were tax exempt: (a) the dealer may obtain a resale or exemption certificate from the purchaser if appropriate or (b) show “on the sales invoice the exempt purpose for which the fuel was purchased and that the special fuel was not placed into the receptacle connected to the fuel supply system of a motor vehicle.”

Subsections (3) & (4) of the rule deal specifically with dual users and as the hearing officer noted, whether construing rules or statutes, the specific controls over the general. Louisville and Nashville Railroad Company v. Speed-Parker, 103 Fla. 439, 137 So. 724 (1931).

Subsections (3) and (4) require the dual user to furnish the dealer with a resale certificate covering all purchases of special fuels; the purchaser then assumes the liability for collection and payment of the tax on that portion of the fuel consumed in a taxable manner. Subsections (3) and (4) are very specific:

(3) * * * Unless such purchaser shall furnish the dealer with the resale certificate, the dealer making the sale is required to collect and remit the tax to the Florida Department of Revenue.
(4) A distributor or dealer shall refuse to accept a resale certificate, and shall collect the tax unless the purchaser has obtained a distributor’s or dealer’s license from the Florida Department of Revenue and his license number is stated on the retail certificate.

Therefore, unless the purchaser furnishes a valid resale certificate to the dealer, the obligation to collect and remit the tax remains with the dealer.

Tropicana Products, Inc., Cipriani Trucking, and Tri-County Paving all were dual users of fuel and all furnished resale certificates to Pioneer. However, none of these certificates contained a dealer’s license number and none of the purchasers were dealers when the fuel was sold. There being no valid certificates to transfer the obligation, Pioneer remained responsible for collecting and paying the tax.

Pioneer’s challenge to Rule 12B-5.03 misapprehends the rule’s purpose and function. The rule requires that certain records be kept and certain procedures followed so the department can ascertain whether any motor fuels in the state are subject to taxation. This is all the rule does and its scope is well within the statutory grant of authority. The rule does not impose a tax for failure to keep records. Merely because the failure to keep records results in an assessment of taxes, one should not conclude that it is the failure which is being taxed. It is the fuel sold which is being taxed; when the required records are not available to prove the sales exempt, the tax must be paid. Fred McGilvray, Inc. v. Askew, 340 So.2d 475 (Fla.1976).

The statute imposed the primary responsibility for collection and remittance of the taxes on Pioneer. The rules provided a means whereby Pioneer could have transferred this obligation to the purchasers. Pioneer failed to follow these procedures; the liability for the taxes therefore, rests with Pioneer.

With regard to Pioneer’s second point, since all of the purchasers were dual users, the procedures set out in subsections (3) and (4) of the rule were mandated and the invoice notations were irrelevant.

AFFIRMED.

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


author: PEARSON, Judge.

text:
    Vincent J. CATANIA, John Edward Dortch, Albert Babchick, and Donald J. Duerr, Appellants, v. EASTERN AIRLINES, INC., Appellee.
    Nos. 79-1009 to 79-1012.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1980.
    Rehearing Denied April 14, 1980.

      August, Gassen, Pohlig & Milstein and Rosemary J. Michael, Miami, for appellants.
    Carmen L. Leon, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PEARSON, Judge.

In these appeals, arising from a common basis, the appellants, Vincent J. Catania, John Edward Dortch, Albert Babchick and Donald J. Duerr, alleged in separate complaints filed in the circuit court that they had been wrongfully discharged by the ap-pellee, Eastern Air Lines, Inc. They claimed the right to compensatory and punitive damages in three counts upon various legal theses. The trial court dismissed Counts II, III and IV of the legally-identical complaints. The court thereafter entered a summary judgment on Count I and a final summary judgment for the defendant upon the action.

The points presented by the plaintiffs correspond to the theories for recovery advanced in the complaints. Count I appears to proceed upon a contract theory by alleging that the plaintiffs had a right not to be discharged upon false charges which the employer knew to be false and without the good faith employment of review procedures provided for non-union employees. A summary judgment was entered on this count.

We think that it is clear from the trial judge’s action on the other counts of the complaint that he would have dismissed Count I, along with Counts II, III and IV, except for the allegation in Count I that the plaintiffs were entitled by contract to a review of their discharge which was not afforded them. The record before the court on the motion for summary judgment shows without genuine issues that the review was afforded. The plaintiffs’ argument that the review was not made in good faith is not supported by any fact in the record. A summary judgment on Count I is proper if the remaining allegations do not state an action in contract.

The plaintiffs recognize that the law in Florida, and in most jurisdictions, is that if the period of employment is indefinite, either party may terminate it at any time; that is, unless the employment contract specifically obligates both the employer and the employee for a definite term of employment, the employment is considered to be indefinite and terminable at the will of either party. See DeMarco v. Publix Super Markets, Inc., 360 So.2d 134 (Fla. 3d DCA 1978); and Hope v. National Airlines, 99 So.2d 244 (Fla. 3d DCA 1957).

The gist of appellants’ argument is that:

“To require employers to demonstrate valid grounds and methods for an employee’s discharge does not unduly restrict employers; it merely provides some balance of power. It is apparent that there is not truly freedom of contract between an employer and employee; the individual employee has no power or ability at all to negotiate an employment contract more favorable to himself. And the traditional common law doctrine totally subordinates an interest of the employee to the employers’ freedom.
“Modern commentators have thoroughly criticized the old rule for its harshness and lack of logic and as resting on questionable and outdated justifications, and no longer being applicable to contemporary employment conditions. For these reasons, many courts have found a breach of contract for wrongful discharge despite the old rule, doing so on public policy grounds. They have implied a good faith element restriction on an employer’s absolute and unbridled right to discharge for any reason, no reason, or a false reason, or they have found that in given instances the grounds for the discharge contravened other strong public policies of the state.”

We reject the plaintiffs’ invitation to be a “law giver” in this case. We do so recognizing that the courts in some jurisdictions have taken the path the plaintiffs wish us to take. See Pstragowski v. Metropolitan Life Insurance Company, 553 F.2d 1 (1st Cir. 1977); Koch Industries, Inc. v. Vosko, 494 F.2d 713 (10th Cir. 1974); Fortune v. National Cash Register Company, 373 Mass. 96, 364 N.E.2d 1251 (1977); Monge v. Beebe Rubber Company, 114 N.H. 130, 316 A.2d 549 (1974); and Petermann v. International Brotherhood, etc., 174 Cal.App.2d 184, 344 P.2d 25 (1959).

We find the plaintiffs’ cases inappropriate for an extension of the law in that the burden of each count of the complaint is that the defendant’s motive for not wishing to employ the plaintiffs further was a bad motive. The courts have generally found it difficult and inappropriate to make civil actions dependent on the motive or intent of the defendant, except where such an element is central or integral to the form of action undertaken. Cf. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 221 (1936).

The second count of the complaint sought injunctive relief and damages because:

“Defendant’s action in discharging plaintiff violated the express policy of the legislature articulated in Florida Statutes 447.01 to protect the non-unionist as well as the unionist, and to protect the ‘right to work (which is) the right to live,’ and tortiously penalized plaintiff for carrying out the public policy of the state, as expressed in constitutional and statutory law.”

The plaintiffs’ attempt to describe a tort arising out of the contracts of employment is too general to permit legal analysis. Not every violation of public policy is a tort in the absence of an allegation of acts constituting a breach of the plaintiffs’ legal rights and causing injury to the plaintiffs’ person, property or reputation. See 74 Am. Jur.2d Torts § 3 (1974); and see Shaw v. Fletcher, 137 Fla. 519, 188 So. 135 (1939).

The third count alleges:

“In discharging plaintiff, defendant acted in a manner intended to inflict severe and permanent mental and emotional distress, or exceeded all bounds and defendant should have known that the natural force, effect, and weight of its actions would cause such mental distress.”

This count likewise was properly dismissed. See Steiner and Munach, P. A. v. Williams, 334 So.2d 39 (Fla. 3d DCA 1976); and Brooks v. South Broward Hospital District, 325 So.2d 479 (Fla. 4th DCA 1975).

A fourth count (found only in plaintiff Duerr’s complaint) claims damages because the defendant “shadowed” Duerr and kept him under surveillance. It is alleged that this is a count claiming tort liability for the invasion of the plaintiff’s right to privacy. The tort has been recognized in Florida. See Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1945). A cause of action based on a defendant’s surveillance of a plaintiff was dealt with in Tucker v. American Employers’ Insurance Company, 171 So.2d 437 (Fla. 2d DCA 1965).

In the Tucker opinion the court adopted the reasoning in Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), and held that in order to state a cause of action under this theory, the surveillance of the plaintiff by the defendant must be shown to have been in a vicious and malicious manner not reasonably limited to a legitimate purpose, citing to Pinkerton National Detective Agency, Inc. v. Stevens, 108 Ga.App. 159, 132 S.E.2d 119 (1963). The allegations in this count are wholly inadequate to state a cause of an action for invasion of privacy because none of the essential elements are alleged.

The judgment is affirmed.

      . Appellant Due'rr’s complaint contained a fourth count, and appellant Dortch’s complaint was worded on a slightly different legal basis.