author: GLICKSTEIN, Judge.

text:
    Robert P. McTEAGUE, Appellant, v. Lewis D. TREIBITS, Appellee.
    No. 79-942.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.

      James R. Hustad of Hustad & Kurtz, West Palm Beach, for appellant.
    Sidney A. Stubbs, Jr. of Jones, Paine & Foster, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Robert P. McTeague wished to construct a warehouse on a parcel of land he owned in Delray Beach, Florida. Not being able to finance the project, he placed an advertisement in the newspaper for prospective investors. Lewis D. Treibits responded to the advertisement. They formed a corporation, Tea-Tree, Inc., and each received 500 shares of the capital stock. They also executed a Shareholders’ Agreement, which provided a right of first refusal in the corporation in the event that either wished to sell his stock, and if the corporation declined, then the other shareholder had the right to accept the selling shareholder’s offer.

Paragraph 6 of the Shareholders’ Agreement states:

6. Purchase Price. The Shareholder desiring to sell his stock (seller) shall, after complying with the notice provisions of paragraph 4, be deemed to have granted the CORPORATION or the other shareholder (buyer) the right to set the price and terms for the stock of the shareholder desiring to sell (seller). Upon the CORPORATION or the shareholder (buyer) having received written notice of the offer to sell, it or he shall, at the meeting called for in paragraph 4(a) disclose the price and terms of the stock of the shareholder desiring to sell (seller) that he (buyer) has set. The shareholder desiring to sell (seller) shall then have the absolute right to purchase the shares of stock held by the other shareholder (buyer) at the price and terms set by the other shareholder (buyer). The shareholder desiring to sell (seller) must either accept or decline his right to purchase the other shareholder’s (buyer) stock at the price and terms he (buyer) has established at that meeting. If he declines, then the shareholder desiring to sell (seller) shall be bound to sell his shares to the other shareholder (buyer) at the terms and price he (buyer) established.

Mr. Treibits testified at the trial about paragraph 6:

Did I understand the terms of it? That one paragraph was confusing to me. I had to read it over and over again until I understood what it meant and the intent was there.

So did Mr. McTeague:

The thing that I remember is that I wanted to understand just what it said, and after going over it two or three or four times, I forget which, I finally got it through my head that this is what we really wanted, both of us, so that is what was incorporated into the shareholders’ agreement.

On May 11, 1978, Mr. Treibits wrote to Tea — Tree, Inc., and Mr. McTeague that he wanted to sell his 500 shares of stock in the corporation. Mr. McTeague in a responsive letter on behalf of the corporation wrote to Mr. Treibits that the shareholders’ meeting would be held on May 17, 1978, at the warehouse.

Also at that time the shareholders disputed a separate matter-the amount owed by the corporation to Robert Page Construction Company. The last mentioned company had built the warehouse for Tea-Tree, Inc., and was owned by Mr. McTeague. While Mr. Treibits conceded something was owed, he believed the amount was substantially less than that thought by Mr. McTeague.

Present at the shareholders meeting on May 17th were the two shareholders, an attorney representing Mr. Treibits and a court reporter. The transcript of the meeting reflects that Mr. McTeague presented a document on behalf of the corporation entitled “Condition of Sale,” which provided:

1. The sale price for 500 shares of Tea Tree Inc. to be $60,000.00 less advance of $12,000.00.
TERMS
$10,000.00 cash at Closing; a second mortgage of $38,000.00 at 9‘/2% for eight years; First principal payment due two years from date of Closing; interest payments to be paid quarterly commencing ninety days from the date of Closing. The Closing date to be within ten days after receipt of final construction payment from First Bank of Delray Beach or not longer than sixty days from date of acceptance of the condition of sale.
2. Full payment to Robert Page Construction Inc. for work done in accordance with his agreement in the amount of $28,738.00 plus 15% of all unpaid bills and work in progress from May 17, 1978 to Closing date.
3. Return of Sellers Construction security (if any) held by First Bank of Delray Beach.
4. Seller to assist in every way to obtain final Construction payment from First Bank of Delray Beach.

Mr. Treibits contended paragraphs 2, 3 and 4 of the Condition of Sale had nothing to do with paragraph 6 of the Shareholders’ Agreement. Mr. McTeague replied that they did. The meeting ended on the following note:

MR. TREIBITS: I have exercised my rights to purchase your shares of stock for $48 thousand [] under the terms in paragraph one that you submitted to me and I dispute paragraph two and three being included in the Condition of Sale because it is not called for in the Shareholder’s Agreement.
MR. McTEAGUE: Let it be noted that Mr. Treibits has not complied with the full Conditions of Sale and therefore we will conclude this meeting, if there is no other business.
MR. TREIBITS: All right, I agree that we should conclude the meeting.

On May 30, 1978, the attorney present at the shareholders’ meeting wrote Mr. McTeague’s attorney, who was not present, saying:

At the meeting Dave Treibits offered to purchase Bob McTeague’s stock after declining to sell to Bob. The problem was that Bob added some extraneous terms to the agreement which had nothing to do with the Stockholder’s Buy and Sell Agreement. Thus, Dave has now agreed to buy Bob’s stock for $10,-000.00 in cash plus a second mortgage of $38,000.00. . . .

On June 5, 1978, Mr. McTeague’s attorney wrote back:

In accordance with your client’s position as enumerated in your letters, please find enclosed the stock certificate owned by Robert McTeague in Tea-Tree, properly endorsed on the reverse side for transfer of his stock interest therein to Dave Treibits. Please advise when the closing date can be firmly established within the perimeter set forth at the meeting of the shareholders, i. e., within ten (10) days after closing on the construction mortgage, final draw, or sixty (60) days from date of the meeting at which the offer was made.

Mr. McTeague testified at the trial on January 18, 1979, that this transmittal of his stockv certificate was without authority.

The attorney for Mr. Treibits delivered the stock certificate to his client on July 14, 1978, and transmitted a check for $10,000, together with an executed note and mortgage for $38,000, to Mr. McTeague’s attorney. Upon receipt thereof, the latter returned them and requested that the stock certificate be retrieved from Mr. Treibits. At his attorney’s request, Mr. Treibits delivered the stock certificate to his attorney where it remained until the trial of this cause. Mr. McTeague brought this action to recover his stock certificate on September 6,1978. Following a non-jury trial, the trial court entered a final judgment on February 27, 1979, in favor of Mr. Treibits and made the following findings:

1. The original Shareholder’s Agreement between Plaintiff and Defendant dated November 21, 1977, establishes a procedure for the parties to utilize in the event that either party wishes to sell his stock. This procedure was initiated by Defendant TREIBITS and the procedure to establish a meeting was followed.
2. At the meeting for the sale of stock on May 17, 1978, Plaintiff McTEAGUE presented a document entitled, “Conditions of Sale.” Paragraph No. 1 of the “Conditions of Sale” contained “Price and Terms” in accordance with paragraph 6 of the Shareholder’s Agreement. Paragraphs 2, 3, and 4 of the “Conditions of Sale” were extraneous conditions not within the definition of “Price and Terms” of Paragraph 6 of the Shareholder’s Agreement. Therefore, Paragraph 2, 3, and 4 were a nullity.
3. Defendant TREIBITS had an absolute right under Paragraph 6 of the Shareholder’s Agreement to exercise his option to either buy McTEAGUE’s stock or sell his stock. He exercised his option to buy McTEAGUE’s stock. He complied with the “Price and Terms” by presenting a check for $10,000 and a mortgage for the balance of $38,000 to his attorney, James W. Nowlin, Jr.
4. There was no unauthorized settlement by Defendant McTEAGUE’s lawyer since there was no settlement involved, but merely the carrying out of the terms of paragraph 6 of the Shareholder’s Agreement upon Defendant TREIBITS’ exercise of his option to buy McTEAG-UE’s stock.

Certain preliminary matters must be considered. First, both parties testified that they studied paragraph 6 of the Shareholders’ Agreement and understood it. We conclude they had reached a binding agreement. In Blackhawk Heating and Plumbing Co., Inc. v. Data Lease Financial Corp., 302 So.2d 404, 408-9 (Fla.1974), the supreme court said:

Even though all the details are not definitely fixed, an agreement may be binding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them. A subsequent difference as to the construction of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet with respect thereto. 17 C.J.S. Contracts § 31.
******
As Professor Corbin stated in his treatise, Corbin on Contracts, Vol. 1 (1963), § 97, at 424:
“If the parties provide a practicable, objective method for determining this price or compensation, not leaving it to the future will of the parties themselves, there is no such indefiniteness or uncertainty as will prevent the agreement from being an enforceable contract.”
The contract should not be held void for uncertainty unless there is no other way out. As was stated by Justice Cardozo in Heyman Cohen & Sons, Inc. v. M. Lurie Wollen Co., Inc., 232 N.Y. 112, 133 N.E. 370, 371, “Indefiniteness must reach the point where construction becomes futile.”

Second, Mr. Treibits had an absolute right under paragraph 6 to buy Mr. McTeague’s stock even though there was uncertainty as to the meaning of the word “terms” in that paragraph. In Blackhawk Heating and Plumbing, Co., Inc. v. Data Lease Financial Corp., supra at 409, the court continued:

Again turning to Professor Corbin, he states at § 95, page 400:
“If the parties have concluded a transaction in which it appears they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filling of some gaps that the parties have left.”
******
. Where a dispute exists as to the amount of money to be paid on the exercise of an option, such a dispute does not vitiate an otherwise perfectly valid exercise of the option. .

The real issues sub judice are (1) what meaning should have been given to the word “terms” in paragraph 6 of the Shareholders’ Agreement, and (2) what action should the trial court have taken once having interpreted that word. As for the first issue, implicit in the trial court’s final judgment was its interpretation of “terms” in a restrictive sense similar to that given by the supreme court in Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931). In that case the court held:

The words “terms and conditions” in the sale of property usually have a definite meaning; namely, the amount, time and manner of payments.
Id., at 102 Fla. 106, 135 So. 533.

It was also the position taken by Mr. Trei-bits at the shareholders’ meeting. We believe this to be a reasonable interpretation of the word as it appeared in paragraph 6 of the parties’ agreement. We also adhere to the general rule that on appeal the construction placed upon a contract by a trial court should be affirmed unless clearly erroneous. Clark v. Clark, 79 So.2d 426 (Fla. 1955); Bornstein v. Somerson, 341 So.2d 1043 (Fla.2d DCA 1977), cert. denied 348 So.2d 944 (Fla.1977); Rylander v. Sears Roebuck & Co., 302 So.2d 478 (Fla.3d DCA 1974).

Having concurred with the trial court in its interpretation of the word “terms,” we now turn our attention to what action should be taken with respect to Mr. McTeague’s stock. We note that Mr. McTeague testified as follows:

A. When I determined the sales price of the stock, I had to consider the liabilities of the corporation that, to me, would determine the value of the corporation. Now, if the price of $60,000 were coupled with what Tea-Tree owed Robert Page, that would constitute a true value for the corporation.
Q. Doesn’t that, in fact, settle the controversy between Tea-Tree, Inc. and Robert Page Construction Company, Inc.?
A. It would have.
Q. Which is now-it wasn’t then-but is now, the subject matter of other litigation which is going on right now?
A. It would have, yes.

The abovementioned “other litigation” refers to Robert Page Construction Company’s then pending claim against Tea-Tree, Inc., for the amount owed to the former for its construction of the latter’s warehouse. If Robert Page Construction Company prevails in that action, Mr. McTeague, as its owner, in essence will satisfy his claim sub judice that the true value of his stock in Tea-Tree, Inc. is $60,000 plus the amount owed to Robert Page. In light of the other concurrent action we believe that the trial court was correct in not ordering the return of the stock. Accordingly, we affirm the final judgment.

AFFIRMED.

ANSTEAD and MOORE, JJ. concur.

      . Paragraph 4 of the Agreement was the applicable paragraph and provided:

        4. Offer to Sell to Corporation and Shareholder. No shareholder shall sell, assign, or otherwise transfer any of his shares in the CORPORATION to any person, firm, entity or corporation, unless the shareholder desiring to make such transfer (hereinafter referred to as the “Transferor”) shall have first made a written offer to sell all of his shares to the CORPORATION and other shareholder and such offer shall not have been accepted by either.
      a.Within thirty (30) days after the receipt of such written offer, a meeting of the shareholders shall be called by the CORPORATION upon not less than ten (10) days, nor more than fifteen (15) days, notice by registered or certified mail, and such meeting shall be held at the then principal place of business of the CORPORATION during normal business hours. At such meeting, all the shares of the Transferor shall be offered for sale to the CORPORATION, and the CORPORATION may accept the Transferor’s offer, at the time of such meeting. The purchase or redemption by the CORPORATION shall be at the price as set forth in paragraph 6. If the CORPORATION accepts the Transferor’s offer to purchase or redeem the Transferor’s stock, the sale shall close not more than sixty (60) days after the date of acceptance of the offer by the CORPORATION.
      b. If all of the shares of the Transferor are not purchased or redeemed by the CORPORATION in accordance with the provisions of sub-paragraph (a) above, then the other shareholder may accept such offer, individually, and in that event, such other shareholder shall accept or reject the offer made by the Transferor within thirty (30) days of such shareholder meeting called by the CORPORATION. The purchase price shall be as set forth in paragraph 6 and the time of closing shall be within sixty (60) days of the acceptance of the offer by the individual shareholder.
      c. If all of the shares of the Transferor are not purchased or redeemed by the Corporation or shareholder in accordance with the provisions of subparagraphs (a) and (b) above, then, the Transferor may transfer his shares to any person, firm, entity or corporation, except that he shall not sell any such shares without first giving the CORPORATION and the other shareholder the right to purchase them at the price and on the terms offered by such other person, firm, entity or corpor.of’^M

      . The figure of $48,000 used by Mr. Treibits represented the net figure in paragraph 1 of the Condition of Sale; to-wit, $60,000 less an advance of $12,000.


source: Caselaw Access Project

author: HERSEY, Judge.

license: Public Domain

text:
    Les ROBINSON, Appellant, v. TOWN OF PALM BEACH SHORES, a Municipal Corporation, Appellee.
    No. 79-1034.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.

      William M. Furlow of T. G. LaGrone, P. A., Orlando, for appellant.
    Jonathon P. Lynn of Stephens, Schwartz, Lynn & Chernay, P. A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

Appellant, Robinson, was given a warning ticket for parking his pick-up truck in a certain area within the municipal limits of the Town of Palm Beach Shores in violation of a municipal ordinance. His complaint for declaratory judgment seeking a declaration that the ordinance in question was unconstitutional was dismissed with prejudice for failure to state a cause of action. This appeal questions the correctness of that dismissal.

The questions presented by appellant for our review are, first, whether a municipal ordinance with quasi-criminal sanctions may be the subject of an action for declaratory relief and second, assuming an affirmative answer to the first, whether it was error to dismiss appellant’s initial complaint with prejudice rather than with leave to amend. Appellee poses a third question: that is, whether appellant waived any right to appeal the refusal to grant leave to amend by failing to file a motion for rehearing and to amend the complaint, as suggested by Town of Micanopy v. Connell, 304 So.2d 478 (Fla. 1st DCA 1974).

We answer appellant’s first question affirmatively. The validity of a municipal ordinance may be tested in an action for

declaratory relief. The statute itself so provides. § 86.021 Fla.Stat. (1979). And see Keay v. City of Coral Gables, 236 So.2d 133 (Fla. 3rd DCA 1970).

Because of the resolution we now undertake of appellant’s second question we need not reach the question posed by appellee.

Section 86.021, Florida Statutes (1979), under which appellant seeks a remedy, provides, in pertinent part, as follows:

Any person claiming to be interested or who may be in doubt about his rights under a deed ... or whose rights, status or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance . may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance . . . and obtain a declaration of rights, status or other equitable or legal relations thereunder.

The requirements which must be met first by the pleadings and eventually by the evidence to entitle one to relief by way of declaratory judgment are succinctly stated in the following paragraph from May v. Holley, 59 So.2d 636, 639 (Fla. 1952):

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest^] are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.

We reiterate here that phrase from the opinion which is determinative of this appeal: “there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law.”

Appellant received a warning ticket. We can only assume that this is a courtesy extended by the police department since the ordinance contains no provision for a “warning.” The ticket recites that a record has been made of the violation and that, in the event of recurrence, a bond would be required. It might be said that appellant is thus placed in jeopardy-that he is one step closer to an exercise of authority under the ordinance than one who has not committed his first violation would be. But the fact is appellant is not in jeopardy unless he violates the ordinance. The issuance of courtesy warnings might be discontinued at any time, in which case a first offender would be in the same position as appellant finds himself. Moreover, the complaint alleges that as part of his duties plaintiff is required to work on a yacht docked in the Town of Palm Beach Shores. Section 5 of the ordinance provides that the ordinance does not prevent parking prohibited vehicles in the town during periods when the vehicles are being used for construction, deliveries and services within the town. We think that appellant has no standing, under the present circumstances, to contest the ordinance, whether by way of declaratory relief of otherwise. Bryant v. Gray, 70 So.2d 581 (Fla. 1954); Askew v. City of Ocala, 348 So.2d 308 (Fla. 1977).

Since appellant has no standing on the facts alleged, to seek declaratory relief, the trial court was not obliged to provide an opportunity to file an amended complaint.

We therefore affirm.

AFFIRM.

DOWNEY and ANSTEAD, JJ., concur.


author: PER CURIAM.

text:
    Tyrone Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 79-1869.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant was convicted of two counts of aggravated battery and appropriately sentenced. He appeals the conviction. We find no error and affirm the conviction. However, the State concedes error in the assessment of $2.00 against the appellant on each count. Cox v. State, 334 So.2d 568 (Fla.1976). The judgments are hereby modified by vacating that portion of each judgment which assesses $2.00 costs. In all other respects the judgments are affirmed.

AFFIRMED as modified.

MOORE, BERANEK and HERSEY, JJ., concur.


text:
    Michael PHIPPS, Robert A. Ware and Robert Tansill, Appellants, v. BOARD OF ADJUSTMENT, a board of review created by the ordinances of Palm Beach County, Lee Starkey, Chairman of the Board of Adjustment; Jan Wolfe, Warren Newell, Nathaniel Adams and Horace Pepper, as members of the Board of Adjustment, Appellees.
    No. 79-1920.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Robert A. Ware, Fort Lauderdale, for appellants.
    Charles F. Schoech, Asst. County Atty., West Palm Beach, for appellees.
   PER CURIAM.

Appellants have filed a notice of appeal from an order of the circuit court, sitting in its review capacity, denying their petition for writ of certiorari. Pursuant to Fla.R. App.P. 9.040(c) and 9.030(b)(2)(B) we treat this proceeding as one seeking our writ of common law certiorari.

Petitioners have failed to demonstrate that the circuit court departed from the essential requirements of law. Accordingly, the petition is denied.

CERTIORARI DENIED.

ANSTEAD, MOORE and HERSEY, JJ., concur.


author: GEIGER, DWIGHT L., Associate Judge.

text:
    STATE of Florida, Appellant, v. Bernard BUTTS, Appellee.
    No. 79-2065.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Michael J. Satz, State’s Atty., Raymond E. Michalak, Asst. State’s Atty., Fort Lauderdale, and Walter W. Wood, Asst, to the State’s Atty., Tallahassee, for appellant.
    Sheldon Golding, Fort Lauderdale, for ap-pellee.
   GEIGER, DWIGHT L., Associate Judge.

This is an appeal by the State from an information charging appellee with securities fraud. The State contends that the trial court erred in applying the general two year statute of limitations for non-capital crimes instead of the special five year statute of limitations for prosecution of securities violations.

On December 8, 1978, appellee was charged in an eighteen count information with sale of unregistered securities, sale of securities by an unregistered dealer, and fraudulent securities transactions, in violation of various provisions of chapter 517, Fla.Stat. (1977). The information alleged that all of the offenses took place within the first four months of 1974. Appellee pled not guilty and on January 11, 1979, moved to dismiss the information on several grounds, including the two year statute of limitations for prosecution of non-capital crimes which was in effect at the time the offenses were allegedly committed, § 932.-465(2), Fla.Stat. (1973). A hearing on the motion was held on February 2, 1979. On June 27, 1979, the judge then assigned to the case ruled that the prosecution was not barred and that the applicable statute of limitations was § 517.302, Fla.Stat. (1973), a five year statute of limitation for prosecution of violations of chapter 517. (Seventeen counts of the indictment were specially dismissed on other grounds.)

Appellee moved for reconsideration of his motion to dismiss based on the statute of limitations. On August 13, 1979, immediately preceding trial on the merits, a hearing on the renewed motion was held before a second circuit judge who had in the meantime been assigned to the case. He .reserved ruling until the conclusion of the trial. On September 6, 1979, the court found appellee guilty as charged, but ruled that the action was barred by § 932.465(2) Fla.Stat. (1973), the two year, general statute of limitation. The court stated that the shorter two year statute controlled because statutes of limitation in criminal cases are to be liberally construed in favor of the accused. Thereafter, the State prosecuted this appeal, maintaining that the court erred in applying the doctrine of liberal construction to resolve an apparent conflict between the two criminal statutes of limitation.

Our sister court, the Fifth District Court of Appeal, has recently determined that the five year statute of limitation for prosecutions of chapter 517 offenses operates as an exception to the general two year statute of limitation. Carcaise v. Durden, 382 So.2d 1236 (Fla. 5th DCA 1980). The appellant in Carcaise, supra, argued that because of § 932.465, enacted in 1971, was enacted subsequent to § 517.302, first enacted in 1951, the conflict must be resolved in favor of the later enactment. The Fifth District ruled that each statute did not repeal the earlier statute by implication. We find this case and the case cited therein, Oldham v. Rook, 361 So.2d 140 (Fla.1978), to be controlling.

The trial judge erred in applying the general statute of limitations in effect in early 1974 for prosecutions of felonies not punishable by death, § 932.465(2) Fla.Stat. (1973); the specific statute of limitations in effect at that time for violations of the sale of securities law, § 517.302 allowed five years for prosecution of such violations. Since the prosecution was commenced well within five years of the date of the alleged commission of crime, we reverse the the order of dismissal.

This case is somewhat unusual because the trial judge reserved ruling on the motion to dismiss until after trial and a finding of guilt as a matter of fact by the court in a nonjury trial. Having ordered reversal of the dismissal, we remand the cause to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

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


text:
    Albert L. DANGLER, Appellant, v. Raymond D. PARKS, Orville R. Parks, and Ray’s Inn, Inc., a Florida Corporation, Appellees.
    No. 79-2587.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellant.
    No appearance for appellees.
   PER CURIAM.

AFFIRMED. See Florida Rules of Civil Procedure 1.380(b)(2)(D) and (F).

ANSTEAD, MOORE and HURLEY, JJ., concur.


text:
    J. Glennon TRAVIS, Appellant, v. LOST TREE VILLAGE CORPORATION, a Florida Corporation, et al., Appellees.
    No. 80-315.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 13, 1980.
    Robert J. Gorman of Brennan, McAliley, Hayskar, McAliley & Deckert, P. A., Fort Pierce, for appellant.
    Sherman N. Smith, III, Vero Beach, for appellees.
   HERSEY, Judge.

The non-final order from which this appeal is taken denied appellant’s motion for a temporary injunction to prevent involuntary termination of his membership in the John’s Island Club without affording him prior notice and an opportunity to be heard.

The trial court indicated a disinclination to substitute its judgment for that of the board of directors of the club. The order makes no determination as to the adequacy of the notice and hearing nor even of the necessity for prior notice and hearing. The motion for temporary injunctive relief is simply denied without prejudice to the remaining issues in the lawsuit.

Notice and an opportunity to be heard before membership in a private social club may be terminated are required by Section

617.10(2), Florida Statutes (1979). La Gorce Country Club v. Cerami, 74 So.2d 95 (Fla. 1954) demonstrates that this section applies to factual situations such as the one presented by this appeal. However, the record discloses that appellee has attempted to provide appellant with an opportunity to be heard. Further, appellee, in its brief, readily concedes the continuing legal obligation to comply with the statute and to afford due process. Under these circumstances intervention by a court in the form of injunctive relief would be premature.

Accordingly, we affirm.

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


author: COBB, Judge.

text:
    Wesley WILCHER, Appellant, v. STATE of Florida, Appellee.
    No. 80-841.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 8, 1980.
    Wesley Wilcher, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant, Wesley Wilcher, filed a motion with the trial court for post-conviction relief pursuant to Rule 3.850, alleging that the trial court had imposed a sentence in excess of the maximum authorized by law. Defendant, following his conviction of a second degree felony, was sentenced to five years imprisonment to be followed by ten years probation.

Wilcher argued that this split sentence deprived the Parole and Probation Commission of its lawful power to grant paroles, and relied on various Florida cases: Geter v. Wainwright, 380 So.2d 1203 (Fla.3d DCA 1980); Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979); Cooney v. State, 376 So.2d 926 (Fla.3d DCA 1979); Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979); State v. Williams, 237 So.2d 69 (Fla.2d DCA 1970); The trial court denied the motion and Wilcher has filed a timely appeal pursuant to Rule 9.140(g), Florida Rules of Appellate Procedure.

The state contends, and we agree, that section 948.01(4), Florida Statutes (1979), specifically authorizes the sentence imposed in this case. State v. Holmes, 360 So.2d 380 (Fla. 1978); Hicks v. State, 362 So.2d 173 (Fla.lst DCA 1978).

AFFIRMED.

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

      . Discharging a firearm in an occupied dwelling. § 790.19, Fla.Stat. (1979).


author: DANIEL S. PEARSON, Judge.

text:
    James BARCLAY and Avis Rent A Car System, Inc., etc., Appellants, v. Tranquilino RIVERO and Laura Rivero, his wife, Appellees.
    No. 79-1184.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Richard M. Gale, Robert L. Dubé, Miami, for appellants.
    Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & DeCastro and Abraham L. Bassie and Joel Lummer, Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Barclay and Avis, defendants in the trial court, appeal an adverse final judgment entered upon a jury verdict in a personal injury action. They contend that the trial court grossly abused its discretion and denied them due process by failing to grant a continuance, requested immediately before the- commencement of the trial, and an in-trial delay, both requests being occasioned by the inability of the appellants to procure the attendance at trial of a subpoenaed witness allegedly favorable to them.

It is fundamental that a litigant is entitled to his day in court. It is equally fundamental that a trial court must be given broad discretion in the setting and control of cases before it. Duran v. Neff, 366 So.2d 169 (Fla. 3d DCA 1979). Thus, while a litigant is entitled to his day in court, it does not follow that the day is to be selected by the litigant, his attorney, or his witness.

The trial in the present case occurred two years after complaint was brought. Notice that the cause was set for trial during the two-week period commencing April 16, 1979, was furnished to the parties three and one-half months beforehand. On April 16, both parties announced they were ready for trial and were informed by the court that it would commence the following morning, April 17, at 9:00 a.m. Moments before the trial began, counsel for appellants orally moved for a continuance on the ground that a witness he intended to call, Dr. Gregory, was scheduled to perform surgery and would not be available until the following day, April 18, at 1:30 p. m. The trial court denied the continuance, but declared a brief recess to allow appellants’ counsel to determine if Dr. Gregory would be available sooner.

Appellants’ counsel apparently reported to the court that Dr. Gregory could appear around 12:30 p. m. on April 17. Gregory did not appear. After the lunch recess, counsel reported that Gregory was called to emergency surgery to begin at 1:00 or 1:30 p. m. and could not come until 3:30 or 4:00 p. m. The court suggested that counsel obtain a firm commitment from the doctor, adding that it would not hold up the trial of the case, now nearly concluded, for two hours “on a maybe.” A firm commitment was not forthcoming.

The testimony in the trial concluded around 3:00 p. m. Before resting their case, appellants made one further request for continuance. The jury was sent to deliberate at 3:54 p. m. Gregory had not appeared. The verdict was returned at 4:55 p. m. Gregory had still not appeared. We find no abuse of discretion on the part of the trial court and no denial of appellants’ due process rights.

Affirmed.

      . Florida Rule of Civil Procedure 1.460(b) requires this motion to be in writing. The trial court did not base its ruling on this deficiency, nor do we.

      . Appellants cannot contend that Gregory’s non-appearance on April 17 was a surprise. A letter from Gregory to their counsel states that at counsel’s request Gregory “set aside time to appear at a court hearing on April 16, 1979.” Compare Troupe v. Evans, 366 So.2d 139 (Fla. 1st DCA 1979) (where the plaintiffs expert witness had erroneously diaried the trial date).

      . At the outset of the trial, counsel stated that Gregory was scheduled for surgery at 1:30 p. m. that day. That statement belies his later representation that Gregory was called to emergency surgery at that time.

      . The trial court also suggested that appellants should have taken Dr. Gregory’s deposition. The Riveros contend that the failure to take a deposition should be a factor here. We do not agree. Implicit in every case dealing with continuances to procure the live testimony of a witness is that a party cannot, if otherwise entitled to a continuance, be deprived of live testimony on the basis that he chose not to depose the witness.

      . The appellants at no time requested the court’s assistance to procure the attendance of Dr. Gregory, a witness under subpoena.

      . Compare LoBue v. Travelers Insurance Company, 388 So.2d 1349 (4th DCA 1980). There the court held it error to preclude the plaintiff from calling an expert witness who was in court and prepared to testify before the plaintiff had rested her case.

      .In arriving at its decision, the trial court did not take into account the substance of Dr. Gregory’s expected testimony, since no proffer was made until the filing of a motion for new trial. If a party wants the critical nature of the excluded testimony to be a factor in measuring whether the trial court abused its discretion, then it is incumbent upon the party to make an in-trial proffer. See LoBue v. Travelers Insurance Company, supra. The only function which the post-trial proffer can serve is to demonstrate that appellants were harmed by the trial court’s ruling, see Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980), fn. 1, but in the absence of a threshold showing of error, harm is irrelevant. We note, however, that the proffer was that Dr. Gregory would have testified that Tranquilino Rivero did not have a residual permanent impairment or injury as a result of the accident. The appellants had already proved this through the deposition testimony of a Dr. Ramirez, and thus the testimony of Dr. Gregory could be deemed to be cumulative. The Riveros’ sole medical witness testified to a five per cent permanent impairment. Compare Troupe v. Evans, supra, (where the plaintiffs sole expert witness was clearly not cumulative.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. Gerald JOGAN a/k/a Gerald Joseph Jogan, Appellee.
    Nos. 80-614, 80-615.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.

      Janet Reno, State’s Atty., for appellant. Robert Tardif, Coral Gables, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

By consolidated appeals, the state challenges an adverse order which dismissed criminal informations, against the defendant, on the grounds that he had enlisted in the armed forces of the United States;' and a further order which denied the state’s motion to extend the speedy trial period pending review. Finding error in the entry of the challenged orders, we reverse and remand for further proceedings.

It appears that the defendant was a seventeen-year-old juvenile “bindover” to the felony division of the circuit court where he was charged, by separate informations, with five counts of burglary, two counts of grand theft, and one count of attempted burglary.

Defense counsel represented to the trial court that the defendant would enlist in the armed forces of the United States provided the pending charges were terminated. The trial court indicated a disposition to dismiss the informations on the condition that the defendant did, in fact, enlist in the military service. When the trial court was satisfied that the defendant had enlisted and had been accepted, it entered an order dismissing the informations.

While entry into the military service of one’s country has many redeeming virtues, it is not per se recognized as grounds upon which to dismiss a criminal information. Fla.R.Crim.P. 3.190(b).

Under our existing criminal justice system, the discretion to either prosecute or nolle prosequi a defendant (conditioned upon his entry into the military forces) is a pre-trial posture vested solely in the state attorney’s discretion.

In a post -trial posture, a trial court has great latitude and discretion in the disposition of a criminal proceeding. With a deserving defendant in an appropriate case, it may, in a non-capital felony, after a finding of guilty or the entry of a plea of nolo contendere, with or without an adjudication of guilt, withhold imposition of sentence and place the defendant upon probation. § 948.01(1), Fla.Stat. (1979). Under Chapter 958, the trial court has special authority to deal with the rehabilitation of youthful offenders including suspension of execution of sentence and placement of the youthful offender on probation. § 958.06, Fla.Stat. (1979). Additionally, under certain circumstances, pursuant to Section 958.13(1), Florida Statutes (1979), the court may expunge “[t]he records relating to the arrest, indictment, information, trial, or disposition of the alleged offenses of a person adjudicated a youthful offender . . . .”

In the post-trial posture, the trial court may withhold adjudication or sentence or both and impose, as a condition of probation, the requirement that the defendant enter the armed forces.

While the ruling and disposition of the charges by the trial court may well have been in the defendant’s best interests as well as that of society and consequently has much possible wisdom to commend it, an appellate court cannot sanction the dismissal of an information upon grounds which have no established basis in the law.

As to the second point presented on appeal, it appears from the record that after the trial court had entered its order dismissing the information, the state attorney announced its intention to appeal and requested an extension of the speedy trial period, pending review, which motion was denied.

In State v. Jenkins (Fla.1980) (Case no. 52,484, opinion filed July 24, 1980), our Supreme Court stated:

When the state files an interlocutory appeal or an appeal from a dismissal of an indictment or information, the state must request an extension of the speedy trial time period in accordance with rule 3.191(b)(2). In ruling on the request, the trial court’s only responsibility is to ensure that an extension does not violate the defendant’s constitutional right to a speedy trial pursuant to the standards set forth in Barker v. Wingo, 407 U.S. 514 [92 S.Ct. 2182, 33 L.Ed. 101] (1972). The trial court should liberally allow requests for extension, and, when entering its order, it should provide a reasonable time period for the state to proceed to trial upon completion of the appeal. The trial court should deny a request only when the defendant affirmatively shows that his right to a speedy trial under the Barker standards is constitutionally prejudiced by the extension.

-So.2d at-[at page 4 of slip opinion].

Accordingly, the orders dismissing the in-formations and denying the state’s motion to extend the speedy trial period are reversed with directions to reinstate the in-formations and grant the extension of the speedy trial period in accordance with State v. Jenkins, supra.

Reversed and remanded.

      .We recognize that acceptance into any branch of the armed forces of the United States is totally within the purview of the guidelines and procedures set forth by that particular branch of the military.

      . Fla.R.Crim.P. 3.191(d)(2).

      . We observe that a modification of Florida Rule of Criminal Procedure 3.191 will become effective on January 1, 1981. In Re Rules of Criminal Procedure, 385 So.2d 1367 (Fla.1980).


author: BASKIN, Judge.

text:
    EL MUNDO SUPERMARKET, INC., a dissolved Florida Corporation, Appellant, v. MICHELSA SUPERMARKET, INC., a Florida Corporation, and Jose Guitian and Israel Guitian, Appellees.
    No. 80-148.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.

      Ferguson & Gettinger, P.A., Miami, for appellant.
    Lewison, Rayvis & Donovan and Richard Donovan, Miami, for appellees.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

The appeal questions the propriety of the court’s dismissal of appellant’s complaint with prejudice based upon counsel’s failure to comply with local court rules designed to preclude forum-shopping. We reverse.

Appellant El Mundo Supermarket, Inc. originally brought an action to foreclose a chattel mortgage. While that proceeding was pending, El Mundo filed an identical complaint in a new case without referring the clerk to the prior action as required by local court rules. Appellees sought dismissal of the second action alleging the existence of the prior action. The motion was denied at that time. Eventually, the first case was dismissed for lack of prosecution. Approximately a year and a half after the dismissal of the first complaint, appellant filed a motion requesting the administrative judge to transfer the case to the judge assigned in the original cause. The motion was denied. Appellees then filed a motion to dismiss predicated upon appellant’s failure to comply with applicable rules of procedure. The trial court agreed and dismissed the complaint with prejudice.

Appellees contend that counsel’s failure to file a “Notice to the Clerk of Previous Filing” in accordance with Rule 10 of the Local Rules of Practice in the General Jurisdiction Division of the Circuit Court of the Eleventh Judicial Circuit (Dade County, 1976) indicates that counsel was forum-shopping and that dismissal was appropriate. Fla.R.Civ.P. 1.420(b).

We hold that dismissal with prejudice under these circumstances is too severe a penalty to impose upon the litigants for counsel’s failure to obtain a transfer to the original judge. The law abhors denial of access to the courts for any reason other than the willful abuse of the processes of the court. Rashard v. Cappiali, 171 So.2d 581 (Fla.3d DCA 1965). Dismissal with prejudice is a drastic punishment absent deliberate and insubordinate regard for the court’s authority. In re Estate of Ulm, 345 So.2d 1099 (Fla.2d DCA 1977); State v. Fattorusso, 228 So.2d 630 (Fla.3d DCA 1969). We note that there was no impediment to appellee seeking a transfer to the original division.

Dismissal of the first complaint for lack of prosecution should not have operated as a bar to the filing of the second action and the trial court erred in entering its order of dismissal. Hassenteufel v. Howard Johnson, Inc. of Florida, 52 So.2d 810 (Fla.1951); Tapper v. Taunton, 371 So.2d 595 (Fla. 1st DCA 1979).

Reversed and remanded.


author: HENDRY, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. DADE COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 80-576.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Margaret Ray Kemper and Jay H. Beck-erman and H. Reynolds Sampson, Tallahassee, for appellant.
    Robert A. Ginsburg, County Atty. and Murray A. Greenberg, Asst. County Atty., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

Appellant, Division of Administration, State of Florida Department of Transportation, seeks acquisition of land owned by appellee, Dade County, by statutory quick-taking. Ch. 74, Fla.Stat. (1979). By that abbreviated proceeding, specified public bodies are entitled to take possession and title in advance of final judgment in eminent domain actions by filing a declaration of taking, included in which must be a “good faith estimate of value, based upon a valid appraisal of each parcel . . .” § 74.031, Fla.Stat. (1979). If and when the court determines that the petitioner is entitled to possession prior to final judgment, deposit must be made into the registry of the court of a sum, not less than the good faith estimate mentioned, representing full recompense for the taking. § 74.051, Fla. Stat. (1979). Upon making the deposit, the petitioner is vested with title. § 74.061, Fla.Stat. (1979).

Appellant seeks to further abbreviate this procedure by declaring that it may take the subject property without compensation in any way whatever to appellee Dade County. This declaration is based upon the assertion that Article X, Section 6 of the Florida Constitution (1968) mandates compensation only for takings of private, i. e. non-gov-ernmentally-owned, property; and by reference to treatises and foreign caselaw. Since the present use by the county of the parent parcel would not be reduced by the taking, suggests appellant, appellee Dade County cannot point to a prospective loss for which it should be compensated.

Whatever the merits of that.contention, they will be fully aired in the trial court, and, no doubt, on appeal. However, the ruling appealed relates to the absence of a good faith estimate of value, based upon a valid appraisal. Appellant’s original offer to appellee, which was based upon its own estimate of the parcel’s market value, was in excess of $50,000. That offer was revoked, and replaced with the assertion outlined above. That assertion appears to us to be little more than an exercise in boot-straping: Appellant seeks to put itself into possession, with title, while forcing appellee to seek compensation subsequent to dispossession. We hold such a procedure to be clearly adverse to the underlying rationale of the quick-take statute, and therefore affirm the similar finding of the trial court.

Affirmed.


text:
    Rogelio MEDEL, Petitioner, v. REPUBLIC NATIONAL BANK OF MIAMI, a National Banking Corporation; Robert Paul, Burton A. Landy, Stanley Arthur Beiley and James E. Yacos, d/b/a Paul, Landy, Beiley & Yacos, a partnership; and Michael Striar, Respondents.
    No. 80-669.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Stabinski, Funt, Levine & Vega and Martin Levine, Miami, for petitioner.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart, and Joseph W. Downs, III and Beth Spiegel, Miami, for respondents.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner, plaintiff below, seeks punitive damages against respondents, alleging conversion and intentional infliction of emotional distress. In reply to petitioner’s request for production of detailed financial data, respondents Paul, Landy and Beiley, doing business as a law firm of that name, and James Yacos, provided an affidavit to the effect that the firm’s partners' capital account held a balance in excess of $250,000. Motion to compel production of the requested documents was denied. This petition for certiorari review ensued.

The Florida Supreme Court has recently ruled upon the scope of discovery where punitive damages are sought:

[T]he trial court should always be sensitive to the protection of a party from harassment and from an overly burdensome inquiry. Florida Rule of Civil Procedure 1.280(c) provides that for good cause shown, the trial court may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires. The trial court should keep in mind that in most punitive damages cases, at the time plaintiffs are seeking discovery of defendants’ financial resources, there has not yet been a judicial determination of the defendants’ liability. If plaintiffs were allowed unlimited discovery of defendants’ financial resources in cases where there is no actual factual basis for an award of punitive damages, the personal and private financial affairs of defendants would be unnecessarily exposed and, in some cases, the threat of such exposure might be used by unscrupulous plaintiffs to coerce settlements from innocent defendants. In determining whether defendants’ motion for protective order under rule 1.280(c) is “for good cause shown,” the trial court may consider, among other things, whether or not an actual factual basis exists for an award of punitive damages.

Tennant v. Charlton, 377 So.2d 1169, 1170 (Fla.1979).

Thus, upon petitioner’s submittal of factual support for a punitive damages claim, and in the absence of demonstrated good cause for a protective order, the trial court abused its discretion by its denial of petitioner’s Motion to Compel. Sun Bank of Miami v. Johnson, 380 So.2d 567 (Fla. 3d DCA 1980). See, Ortiz v. Ortiz, 194 So.2d 38 (Fla. 3d DCA 1967); Parker v. Parker, 182 So.2d 498 (Fla. 4th DCA 1966), quoted approvingly in Orlowitz v. Orlowitz, 199 So.2d 97 (Fla.1967). Gf. Gruman v. Bankers Trust Co., 379 So.2d 658 (Fla. 3d DCA 1980); Alterman v. Alterman, 361 So.2d 773 (Fla. 3d DCA 1978), cert. denied 368 So.2d 1361 (Fla.1979).

We therefore quash the Order of the trial court denying the Motion to Compel Production.

      . Fla.R.App.P. 9.030(b)(2)(A) and 9.030(b)(3).


text:
    Anthony Lee JONES and Luella Toots, Petitioners, v. The Honorable Francis X. KNUCK, as Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida and Progressive Casualty Insurance Company, Respondents.
    Nos. 80-935, 80-1118.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.

      Nachwalter, Christie & Falk, Jay M. Levy, Miami, for petitioners.
    Joe N. Unger, Kopplow & Ramirez, Miami, for respondents.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

In accordance with the rule enunciated in Robinson v. Gale, 380 So.2d 513 (Fla. 3d DCA 1980), we treat these consolidated cases as a petition for a writ of certiorari and clarify our opinion rendered earlier in this cause. Jones v. Progressive Casualty Insurance Co., 373 So.2d 947 (Fla. 3d DCA 1979).

In Jones v. Progressive Casualty Insurance Co., supra, we reviewed a summary judgment requiring arbitration of the claims for uninsured motorist benefits of Jones, Toots, and Leonard, another appellant. The summary judgment required arbitration and also limited recovery to the amount of the arbitration award, if any, in excess of the policy limits of the alleged third party tortfeasor. On appeal, we affirmed this summary judgment as to Toots and Jones, noting that there was no error in limiting the amount of recovery because the insureds had allowed the statute of limitations to run against the alleged third party tortfeasor. Jones v. Progressive Casualty Insurance Co., supra.

After the issuance of our mandate affirming the summary judgment as to Jones and Toots, and without this court’s permission, the trial court entered yet another summary judgment. This second ruling opened the question of coverage for reconsideration and determined that Jones and Toots were not entitled to uninsured motorist coverage because they had violated the provisions of their insurance policy by allowing the statute of limitations to run against the alleged third party tortfeasor.

We hold that the action by the trial court constitutes a deviation from this court’s mandate. Compliance with our mandate is a purely ministerial act and the trial court may not depart from our mandate without our consent. O. P. Corp. v. Village of North Palm Beach, 302 So.2d 130 (Fla. 1974); Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So.2d 232 (Fla. 3d DCA 1979); Mendelson v. Mendelson, 341 So.2d 811 (Fla. 2d DCA 1977).

The order under review is quashed.


text:
    BISCAYNE CONSTRUCTION COMPANY, Appellant, v. METROPOLITAN DADE COUNTY, Dr. David Thornburgh, Walter G. Roggles and Roy C. Hosford, Appellees.
    No. 79-2263.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.

      Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellant.
    Robert A. Ginsburg, County Atty. and Thomas Goldstein, Asst. County Atty., Joseph Teichman, Hollywood, for appellees.
    Before HUBBART, BASKIN, and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We reverse the order of the trial court which dismissed for lack of prosecution Biscayne Construction Company’s complaint and Dr. Thornburgh’s permissive counterclaim against Biscayne upon a holding that (1) where during the year preceding the filing of the motion to dismiss, Biscayne procured the issuance of a pluries summons to a prospective third-party defendant which Biscayne, with leave of court, sought to join in defense of Thornburgh’s counterclaim, and this action is reflected in the clerk’s progress docket, there exists sufficient record activity under Florida Rule of Civil Procedure 1.420(e) to defeat a motion to dismiss, see Waiswilos v. Feacher, 370 So.2d 1250 (Fla. 4th DCA 1979); (2) the record action of Biscayne in procuring the issuance of this summons, albeit directed against a third-party defendant and unrelated to Biscayne’s original complaint against Roggles, Hosford, Dade County and Thornburgh, was sufficient to preclude dismissal of any part of the case, including Biscayne’s complaint and Thornburgh’s counterclaim against Biscayne, where the several causes of action were not severed, Phillips Petroleum Company v. Heimer, 339 So.2d 284 (Fla. 3d DCA 1976); Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976); and (3) in light of these holdings, it is unnecessary to reach the questions (a) whether Thornburgh’s pending “motion” to set the cause for trial, filed almost two years prior to the dismissal, was the equivalent of a notice of trial under Florida Rule of Civil Procedure 1.440(c) so as to preclude dismissal, see City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975); see also Visuana v. Metropolitan Transit Authority, 353 So.2d 183 (Fla. 3d DCA 1977); Downer v. Mercer, 324 So.2d 116 (Fla. 3d DCA 1976); and (b) whether Biscayne otherwise established good cause why its action should remain pending.

Reversed and remanded.


author: McCORD, Judge.

text:
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY (Self-Insured), Appellant, v. Janice POOLE, as Personal Representative of the Estate of Joseph C. Poole, Deceased, Appellee.
    No. QQ-83.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1980.

      Toby S. Monaco of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, Gainesville, for appellant.
    Eric E. Wagner, Ocala, for appellee.
   McCORD, Judge.

Appellant Southern Bell Telephone and Telegraph Company, the employer, brings this action for review of the order of the Judge of Industrial Claims which determined that claimant below, Joseph C. Poole, suffered a compensable injury. Claimant died during the course of this appeal, and Janice Poole, as personal representative of his estate, was substituted as party appel-lee. Poole sustained a lumbar disc injury in 1962 as the result of an accident arising out of and in the course of his employment with appellant. He continued to have back problems thereafter. In 1966, an operation was performed on is lower back which involved excision of herniated nuclei between L4 and L5 vertebra and between L5 and SI vertebra which included a spinal fusion. In April of 1968 a further operation was performed on his back to correct fatigue fractures of his lumbar fusion. On January 26, 1971, he was again admitted to the hospital for recurrent herniation of the nucleus at L4 and L5 and continuing pseudoarthrosis, or deterioration and instability of the lumbar fusion. At this time, Dr. Edward Kis-sam, who had treated Poole since 1966 and had performed all of his back operations, found that Poole was probably habituated or addicted to talwin, which he had been taking by injection daily for at least the past year. Another operation was performed on Poole’s low back and additional fragments of nucleus were removed. Dr. Kissam testified that Poole had a 15% permanent impairment to the body as a whole as a result of his back trouble and that his disability rating did not change after the 1969 and 1971 operations. In May 1971 appellant and Poole entered into a stipulation and joint petition for lump sum settlement for Poole’s workmen’s compensation claims against appellant for his back injuries pursuant to § 440.20(10), Florida Statutes, which provides in pertinent part as follows:

Upon the application of any party in interest and after giving due consideration to the interests of all interested parties, if a judge of industrial claims finds that it is for the best interests of the person entitled to compensation, said judge of industrial claims may enter a compensation order requiring that the liability of the employer for compensation shall be discharged by the payment of a lump sum equal to the present value of all future payments of compensation Upon joint petition of all interested parties and after giving due consideration to the interests of all interested parties, if a judge of industrial claims finds that it is for the best interests of the person entitled to compensation, such judge of industrial claims may enter a compensation order approving and authorizing the discharge of the liability of the employer for both compensation and remedial treatment, care, and attendance by the payment of a lump sum equal to the present value of all future payments for both compensation and remedial treatment, care, and attendance . . . .” (Emphasis supplied.)

Above Poole’s signature on the joint petition that resulted in the “wash-out settlement” the following provision appears:

I understand that this petition is a complete release in favor of the employer and carrier and that I will not have any rights left against it or them and will not be able to change or modify this agreement or the order entered hereon. The “wash-out settlement” order discharged appellant from all liability for compensation and remedial benefits, past and future, for Poole’s foregoing back injuries.

Poole continuously worked for appellant until 1977, but sometime in 1969, he requested and received a different type job with appellant. He became a test deskman sitting in a secretarial-type chair taking telephone complaints and dispatching repairmen. He worked an 8-hour day with a 15-minute morning break, a one-hour lunch break, and a 15-minute afternoon break.

The testimony indicates that Poole was free from pain following his operation in 1971 and the wash-out settlement, but sometime in 1972 his back began to hurt again and became so intense that he obtained a doctor’s prescription for talwin, the pain killer which he had taken previously, and administered it to himself through daily injections. Testimony showed that with back trouble like Poole’s, sitting for extended periods of time can cause increased back pain. After he began the use of talwin, Poole noticed a gradual stiffening of his lower extremities. In July of 1976, he visited Dr. Philip M. Toyama, who felt at that time that the stiffness was just a natural progression of Poole’s back problems. Dr. Toyama continued to give Poole prescriptions for injectable talwin. Poole’s stiffness grew worse until he was admitted to the hospital under Dr. Kissam’s care in June 1977. At that time he had essentially no hip or knee motion and had an almost board-like hardness of the muscle tissue extending from his lower rib cage down to his ankles. According to testimony of Dr. Kissam and other doctors, that condition was due to the continuous use of injectable talwin, which transforms normal muscle tissue into a fibrotic condition like scar tissue. Dr. Kissam diagnosed Poole’s condition as muscle fibrosis or brawny edema. Due to his condition, Poole retired in August 1977 unable to work and almost immobile. His condition is expected to be permanent.

In April 1978 appellant made a claim from which this appeal ensued for compensation for the muscular stiffness which resulted from the use of talwin. Appellant disputed the claims on the following grounds, among others: (1) the wash-out settlement entered pursuant to § 440.20(10), Florida Statutes (1977), released appellant from responsibility for any further or future benefits of any nature under the provisions of the workmen’s compensation act; (2) Poole sustained no accidental injury arising out of and in the course of his employment with appellant at any time after the wash-out settlement. The Judge of Industrial Claims found that Poole’s condition was due to the continued use of talwin; that the use of talwin was by prescription and was both reasonable and necessary under the circumstances; that Poole had to resort to the talwin because his working conditions (the sitting requirement) coupled with his pre-existing back condition caused sufficient pain to require the relief given by the drug. Although not specifically stated, he apparently found that the prolonged sitting combined with his low-back problems constituted repeated trauma which caused an exacerbation of pain of which Poole had been free following his 1971 surgery. He further found that in order to maintain his job, it was necessary that Poole take talwin and that such resulted in mutual benefit to both him and his employer; that Poole developed a completely disabling condition as a direct and proximate result of the use of injectable talwin. The judge based his ruling upon the line of cases allowing recovery for injury resulting from repeated exposure to deleterious substances [Czepial v. Krohne Roofing Company, 93 So.2d 84 (Fla.1957), and others] and injury resulting gradually from repeated trauma [Keller Building Products of St. Petersburg v. Shirley, IRC Order 2-3263 (1977), cert. den. 362 So.2d 1054 (Fla.1978)]. He found that Poole’s injury arose out of and in the course of his employment and the claim was not barred by the wash-out settlement. He directed that appellant pay benefits to Poole.

It is clear from the evidence that following the wash-out settlement, Poole did not suffer a new and independent injury. His problems subsequent to the settlement were all related to his previous back injuries. The subsequent pain experienced in his work for which Poole took talwin was the result of the previous injuries. Poole suffered no additional or separate injury to his back after the wash-out settlement. Poole’s disability from muscle fibrosis resulted from medical treatment for pain which resulted from his previous injuries coupled with the requirements of his employment. Cases which have allowed compensation for such disability resulting from medical treatment invariably involve an initially compensable work-related injury followed by medical treatment which then results in further injury. For example, in Abbenante v. United Parcel Service, Inc., 241 So.2d 1 (Fla.1970), an employee sustained a cut finger while attempting to lift a refrigerator in the course of his employment. The finger became infected, and he was sent to the employer’s physician for a tetanus injection. An adverse reaction to the tetanus shot caused a heart attack, and the resulting disability was found to be compensable. This Court has previously stated the rule concerning compensability of injury resulting from medical treatment as follows:

Thus, it appears that the Florida rule is that when an injury necessitates treatment, and the treatment aggravates the original injury, such aggravation is com-pensable.

Warwick v. Hudson Pulp & Paper Company, Inc., 303 So.2d 701 (Fla. 1st DCA 1974).

In Keller Building Products of St. Petersburg v. Shirley, supra, the Industrial Relations Commission set forth six factors to be considered in identifying compensable exposures to deleterious substances. These facts would also be equally applicable in our view to cases alleging repeated trauma. One of the factors is whether or not the exposure subjects the claimant to more than the ordinary hazards confronting people generally. Applying this to the case sub judice, we find that sitting is not such an unusual activity that it could amount to repeated trauma that would give rise to injury. Thus, there having been no subsequent injury to Poole’s back following the wash-out settlement, Poole’s fibrotic condition which resulted from his back pain, which in turn resulted from sitting for long periods at his employment coupled with his previous back injuries, could be related only to such injuries. The fibrotic condition is thus not com-pensable because the wash-out settlement order discharged appellant from all liability for compensation and remedial benefits past and future for the back injuries he had sustained.

REVERSED.

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


text:
    GLADES COUNTY SUGAR GROWERS and Employers Insurance of Wausau, Appellants, v. Thomas GONZALES, Appellee.
    No. QQ-338.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1980.

      William L. Contole of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellants.
    Fred 0. Pasternack, Miami, for appellee.
   PER CURIAM.

The employer/carrier appeals a worker’s compensation order entered March 27,1979, after hearing on November 17,1978, awarding Gonzales continued temporary total disability and requiring the employer/carrier to pay all medical bills including those necessary for treatment of injuries from a non-eompensable automobile accident. We affirm in part and reverse for reconsideration of the award of medical costs.

On August 11, 1976, Gonzales suffered a compensable accident, resulting in a herniated disc and laminectomy at L-5 with decompression of the S-l nerve root. The surgery was performed on October 20,1976.

On January 2, 1977, before Gonzales had reached maximum medical improvement from the first accident, he was involved in a non-compensable automobile accident in which he sustained a herniated disc at L — 1. The herniated disc required a laminectomy at L-l-2 which was performed on August 30, 1977.

The employer/carrier raises the following points on appeal:

1. The judge of industrial claims erred in finding that the claimant had not reached maximum medical improvement from the compensable accident of August 11, 1976.
2. The judge of industrial claims erred in not setting forth a finding that he was rejecting Dr. Picaza’s testimony and/or Dr. Diaz-Padron’s testimony.
3. The judge of industrial claims erred in not setting forth any reasons or justifications for rejecting Dr. Pica-za’s testimony or Dr. Diaz-Padron’s testimony or for accepting Dr. Lopez’s testimony over that of Dr. Pica-za’s and/or Dr. Diaz-Padron’s.
4. The judge of industrial claims erred in not segregating the effects of the subsequent non-compensable accident of January 2, 1977, from those of the earlier compensable accident of Au- . gust 11, 1976.

5. The judge of industrial claims erred in finding that the employer and the carrier were responsible for the treatment for the claimant’s subsequent non-compensable accident of January 2, 1977.

Our review of the record indicates no error with respect to the first three points. We therefore affirm on these issues. There was competent, substantial evidence in the record based on the testimony of Dr. Lopez that maximum medical improvement from injuries received in the compensable accident had not been reached at the date of the hearing. In addition to this medical evidence, the deputy commissioner had the opportunity to observe the claimant himself.

Points 2 and 3 are without merit since the order clearly states that the testimony of Dr. Lopez was accepted. This was an implicit rejection of the contrary testimony of Dr. Picaza and Dr. Diaz-Padron. In Pierce v. Piper Aircraft Corp., 279 So.2d 281, 284 (Fla. 1973), the Supreme Court indicated only that under certain circumstances more explicit findings would be helpful:

[Wjhere testimony of two or more expert witnesses of comparable qualification are in direct conflict, it will be helpful to the Commission and this Court if some explanation is given as to why the testimony of one is accepted and the other rejected.

In Vargas v. Americana of Bal Harbor, 345 So.2d 1052, 1054 (Fla. 1976), the opinion clearly rejects the idea that orders should contain a recounting of the testimony. Pierce and Vargas do not impose any absolute requirement that an order explain why one doctor is found more credible than another. Questions of witness credibility, including that of expert witnesses, have always been for the trier of fact. South Venice Corp. v. Caspersen, 229 So.2d 652 (Fla.2d DCA 1969). So long as the order is not so deficient as to impede review when measured against the record facts, reversal is not in order.

As to Point 4, the order finds that the evidence failed to show “that the second accident had increased the degree of temporary disability;” that at the time of the hearing claimant “had not reached maximum medical improvement from the com-pensable accident and that his temporary disability still flows from this accident;” and that “there can be no apportioning, legally or factually, of the effects of the second accident until the claimant has attained maximum medical improvement.” We find no error in the failure to segregate the effects of the non-compensable accident.

The order does not find a merger, or a reverse merger of the effects of the two accidents as to the degree of temporary disability. Rather, it finds that the second accident did not increase the already existing disability. The issue is one of competent, substantial evidence to support the findings and not one of merger.

Dr. Lopez, who originally treated Gonzales, testified that Gonzales had not reached maximum medical improvement from either of the accidents when he examined him on June 28, 1978. Dr. Lopez was unable to differentiate- the effects of the two accidents with regard to the symptoms being experienced by Gonzales at the time of his examination. There was testimony regarding the degree of permanent impairment Gonzales could have expected from the first accident alone, or the second accident alone, but none to support an apportionment of temporary disability compensation attributable solely to the non-compen-sable accident. Reedy Creek Improvement District Fire Department v. LaCorte, IRC Order 2-3696 (February 9, 1979).

We conclude there is error with regard to Point 5. Although Section 440.-02(18), Florida Statutes, prohibits apportionment of temporary disability and medical benefits between the employer and the employee in the case of compensable aggravation of a prior condition, its specific terms do not control this case in which the com-pensable condition is affected by a later injury. In this situation, the employer is required to pay only for medical treatment or care which is causally related to the compensable accident in some way. The requirement that the employer pay for all treatment “necessary to remove the hindrance of the second accident impeding the recovery from the [compensable] accident” does not, in the context of the facts, properly express the standard for compensability for treatment for subsequent non-compen-sable injuries. Such an award would appear to include medical treatment required independently by the non-compensable injury, and which is but incidentally related to the compensable injury.

The award of medical costs must be reversed because it is impossible from the face of the order, or from record references by the parties, to determine the effect or intent of the order in establishing liability for all medical expense from the non-com-pensable injury. In reconsideration of this issue upon remand, costs should include all medical care necessary for treatment of the compensable injury. Costs should also include any treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. See: Jordan v. Florida Industrial Commission, 183 So.2d 529, 530 (Fla. 1966). But the award should not include medical treatment required independently by the subsequent non-compensable injury when the removal of a hindrance to recovery from the com-pensable injury is merely an incidental effect of such treatment. “It is the purpose of the [treatment] . . . that determines whether or not medical expenses . are compensable.” Barris v. Toppers of Florida, Inc., 382 So.2d 441, 442 (Fla. 1st DCA 1980).

Accordingly, the order is affirmed except with respect to medical costs; it is reversed on that issue and remanded for reconsideration on this record or such additional evidence as is necessary to determine medical costs, with directions to deny costs for treatment which was independently required by the non-compensable injury or related only incidentally to the compensable injury.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Had it done so it would be in error since merger properly applies only where a prior condition combines with a subsequent compen-sable condition to produce a greater permanent disability than would otherwise have existed. Chaffee v. Miami Transfer Co., Inc., 288 So.2d 209 (Fla. 1974), J. A. Jones Construction Co. v. Elmore, IRC Order 2-2901 (December 22, 1975). Eastern Air Lines, Inc. v. Smith, IRC Order 2-3147 (April 27, 1977). American Can Co. v. Tomasek, IRC Order 2-3365 (February 23, 1978), cert. denied, 368 So.2d 1375 (Fla. 1979). Reverse mergers are per se improper. Swanigan v. Dobbs House, IRC Order 2-3653 (January 15, 1979).


text:
    Victor Ramon PRIETO, Appellant, v. Dee Anne PRIETO, Appellee.
    No. 79-926.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 13, 1980.

      William John Mason and John C. Maine, Jr. of Mason & Meyerson, Miami, for appellant.
    Lewis W. Miles, II, Miami, for appellee.
   GLICKSTEIN, Judge.

This is an appeal by the former husband from a final judgment and post-judgment order award to the former wife of the following:

1. The marital home and furnishings as lump sum alimony.
2. Rehabilitative alimony of $50.00 per week for two years.
3. Child support for the parties’ two minor children of $50.00 per week, to be increased to $60.00 per week on March 31, 1981.
4.Attorneys’ fees of $2000.00.

With respect to the automatic increase of child support from $50.00 to $60.00 per week on March 31, 1981, we believe the trial court should not have ordered it. It occurs to us that the increase was to take place about the time the wife’s rehabilitative alimony ceased. Moreover, the increase was not nominal but amounted to twenty per cent for each child. In Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977), this court expressly disapproved an automatic five per cent per annum cost-of-living increase in child support. Sub judice the present award of $50.00 per week per child seems reasonable and any increase should be considered in the future upon appropriate motion for modification. Accordingly, we reverse and remand as to that point.

We affirm the remainder of the award upon the following principle recited in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980):

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BERANEK and HERSEY, JJ., concur.


author: ANSTEAD, Judge.

text:
    SOUTHWEST FLORIDA PRODUCTION CREDIT ASSOCIATION, Appellant, v. Klaus SCHIROW and Marita J. Schirow, his wife et al., Appellees.
    No. 79-1400.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Peter J. Forman of Gustafson, Stephens, Ferris, Forman & Hall, P. A., Fort Lauder-dale, for appellant.
    Roger L. Brown of Bird, Carpenter & Brown, P. A., Fort Lauderdale, for appel-lees.
   ANSTEAD, Judge.

This is an appeal from a final judgment in favor of the defendants-appellees in a mortgage foreclosure proceeding brought by the plaintiff-appellant. At issue is whether the provisions of Section 673.-606(1), Florida Statutes (1975) apply to a co-maker of a note. We hold that the statute does so apply and affirm the decision of the trial court.

On October 16, 1973, Southwest Florida Production Credit Association, appellant, loaned $134,000.00 to Klaus Schirow, his wife, Marita, C. H. Fawl and his wife, Valeria. The Fawls and Schirows formed a partnership for the purpose of raising cattle, and the loan proceeds were used for the purchase of livestock. As security for the loan, the Fawls executed a second mortgage on their ranch in DeSoto County and the Schirows executed a second mortgage on motel property located in Broward County. A mortgage was also given on the herd of cattle. Fawl assumed management of the business and cattle were purchased in his name only. Southwest subsequently granted extensions for repayment of the loan.

In August, 1974,- the Fawls personally borrowed an additional $47,000.00 from Southwest. Thereafter, the Fawls refinanced a total personal loan of $159,600.00 and executed a third mortgage on their ranch in favor of Southwest as security for this loan. After encountering difficulty in repayment of their individual loan from Southwest, the Fawls, with the agreement of Southwest, sold their ranch for $148,-945.00 and Southwest applied all of the proceeds in satisfaction of the Fawls’ personal loan. Southwest agreed with the Fawls to substitute a second mortgage on a duplex apartment building owned by the Fawls as collateral for the Schirow-Fawls loan.

At the time of the sale of the ranch, $31,700,00 was outstanding on the joint Fawls-Schirow loan. Southwest did not notify the Schirows of the sale of the ranch or the substitution in collateral. Shortly thereafter, C. H. Fawls died insolvent, and bankruptcy proceedings were initiated by Mrs. Fawl. The substituted collateral became worthless. Southwest then brought suit to foreclose upon the Schirows’ property.

In defense of the foreclosure action, the Schirows claimed that Southwest had discharged them by releasing the Fawls’ ranch as collateral without their permission, thereby impairing their right of recourse against the Fawls. The trial court’s judgment in favor of the Schirows was predicated on the following findings:

6. . . .To the extent the plaintiff attempted to apply all the proceeds to the second loan which was the inferior and subordinate mortgage lien, the plaintiff misapplied the proceeds from the sale of the collateral.
7. The plaintiff then released the second mortgage and substituted other collateral which is of no value as collateral. This release of collateral is an impairment of collateral as to the first indebtedness.

Southwest maintains that the trial court erred in holding that the defense of impairment of collateral was available to the Schi-rows. It alleges the defense is available only to sureties and to accommodation parties.

Section 673.606(1), Florida Statutes (1975), provided as follows:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
* * * * * *
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse, (emphasis added)

The provision in question is identical to Section 3-606(1) of the Uniform Commercial Code. The official comment to that Code provision characterizes the defenses contained therein as “suretyship” defenses: “the suretyship defense stated has been generally recognized as available to endorsers or accommodation parties.” (emphasis added)

There are apparently no Florida cases determining whether “any party,” as used in Section 673.606, includes the co-maker of a note or is confined to only an accommodation party or surety. There is a split of authority in other jurisdictions as to whether a maker of a note is discharged by the holder’s impairment of collateral. Cases holding that a maker is not discharged include Commerce Union Bank v. May, 503 S.W.2d 112 (Tenn.1973); Wohlhuter v. St. Charles Lumber & Fuel Co., 62 Ill.2d 16, 338 N.E.2d 179 (1975); Peoples Bank of Point Pleasant v. Pied Piper Retreat, Inc., 209 S.E.2d 573 (W.Va.1974); Smiley v. Wheeler, 602 P.2d 209 (Okl.1979); Oregon Bank v. Baardson, 256 Or. 454, 473 P.2d 1015 (1970). And cases holding contra include Beneficial Finance Co. of New York, Inc. v. Husner, 82 Misc.2d 550, 369 N.Y.S.2d 975 (1975); and Rushton v. U. M. & M. Credit Corporation, 245 Ark. 703, 434 S.W.2d 81 (1968).

We are impressed with the clear and unambiguous language used in the statute in providing that any party to the instrument is discharged to the extent the holder unjustifiably impairs any collateral. The plain meaning of the phrase “any party” clearly would include a co-maker. No one can deny that a co-maker is a party to the instrument. Many times we are called upon to construe ambiguous provisions in the statutes and in doing so we must employ various rules of construction to arrive at the meaning of the words used. But unless we are faced with some ambiguity we should give words their plain meaning and stop there. We believe this is such a case.

The evidence presented below supports the trial court’s conclusion that the appellees were legally entitled to recourse against the Fawls and would have been entitled to recourse against the security put up by the Fawls had the appellant not released the security. There is also evidence that the Schirows were in fact accommodation makers, and that the appellant had knowledge of that status. However, we do not feel it is necessary to pass on the sufficiency of that evidence since we have concluded that the appellees were entitled to the protection of Section 673.606(1) as “any party” to the instrument, and that the evidence supports the trial court’s conclusion as to the effect of the release of the collateral upon the appellees’ right of recourse against the Fawls.

Accordingly, the judgment of the trial court is hereby affirmed.

HURLEY, J., and RIVKIND, LEONARD, Associate Judge, concur.

      . But see Guida v. Exchange National Bank of Tampa, 308 So.2d 148 (Fla. 2d DCA 1975).


author: MOORE, Judge.

text:
    Vernon Lee WORTH, Appellant, v. Richard P. STAHL, individually and d/b/a Dutchman’s Rathskeller Lounge, et al., Appellees.
    Nos. 79-1505, 79-1841.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Linda F. Albritton of Haines & Rossow, Chartered, North Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellee.
   MOORE, Judge.

The plaintiff in the trial court sued the owner of a tavern for personal injuries incurred when attacked by another patron. He appeals a final summary judgment in favor of the tavern owner.

The sole issue in this appeal involves the standard of care owed by a tavern owner to his customers. Appellant contends that the standard is one of a general duty to protect. Appellee argues that the standard is one of a duty to maintain the premises in a reasonably safe condition, free from those risks which are known, or through the exercise of reasonable care, should be known to the owner. Under the facts of this case we agree with the appellee and affirm.

Appellant entered appellee’s tavern, left, and returned sometime later in the evening. After a discussion with one Howard Hunt, he resumed sitting at the bar and then went to the rest room. Upon leaving the rest room he was accosted by Hunt and four or five others who physically assaulted him. He sued the owner for damages and alleged negligence in the following paraphrased particulars:

(a) the owner allowed strangers on the premises when he knew or should have known they were prone to violence toward other patrons,
(b) the owner served intoxicating beverages to strangers whom he knew or should have known were prone to violence after partaking of the beverages,
(c) the owner allowed strangers to remain on the premises after they became violent toward other patrons,
(d) the owner failed to aid the plaintiff when he was assaulted, and
(e) the owner failed by exercise reasonable care in protecting the plaintiff from assault by the strangers mentioned above.

Immediately prior to the commencement of trial, the plaintiff sought a ruling from the court on the applicable law. After obtaining a preliminary oral ruling from the court, the plaintiff, in an unusual move, asked for an involuntary dismissal of his suit for the purpose of appealing that ruling. That appeal was dismissed by this Court. Thereafter, the trial court set aside its oral ruling and the involuntary dismissal, and upon stipulation of counsel, granted the summary judgment from which this appeal stems.

The applicable law regarding the standard of care required of owners of places open for public entertainment is stated succinctly in Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969), cert. discharged, 235 So.2d 294 (Fla.1970):

The operator of a place of public entertainment owes his invitees the duty to use due care to maintain his premises in a reasonably safe condition commensurate with the activities conducted thereon. This includes a duty to exercise reasonable care to supervise the patrons for the purpose of preventing injuries the risk of which was known to the operator or by the exercise of reasonable care should have been known to him. The duty to supervise does not, however, require the operator to furnish each patron with an usher or to guard against the risk created by a specific patron, unless the operator has actual or constructive knowledge of the need for specific supervision and a reasonable opportunity to exercise it. Otherwise, the operator would be in the position of an insuror of the safety of his patrons, (citations omitted). Id at 778.

The appellant conceded to the trial court that he had no proof of the appel-lee’s knowledge of the violent character of Hunt, or that the appellee should have known it. Instead, he argues that there is a general duty to use reasonable care to protect the patrons. We agree that such a duty does, indeed exist; however, the owner of a public place is not liable in damages to one who is injured by the unforeseen, violent acts of another. There was simply no proof that Hunt's acts were foreseeable.

We are urged to adopt the dissent in Warner, supra. This we cannot do. See, Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Furthermore, we are not concerned with liability for the acts of an intoxicated person because there was no proof, or suggestion, of such intoxication.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ., concur.


author: PER CURIAM. HURLEY, Judge,

text:
    August D. MALFREGEOT, Appellant, v. MOBILE HOME PARK OWNERS AND DEALERS OF MARTIN COUNTY, INC., a Florida Corporation not for profit, Appellee.
    No. 80-274.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.

      James E. Knight, Stuart, and Gaylord A. Wood, Jr., Fort Lauderdale, for appellant.
    Jordan Fields, Stuart, for appellee.
   PER CURIAM.

This is an appeal from an order of the State of Florida Commission on Ethics denying appellant’s motion to tax attorney’s fees and costs.

Section 112.317(8), Florida Statutes (1979) provides:

In any case in which the commission determines that a person had filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee and in which such complaint is found to be frivolous and without basis in law or fact, the complainant shall be liable for costs plus reasonable attorney’s fees incurred by the person complained against. . (Emphasis added.)

Appellant contends that the Commission only considered whether there was malicious intent on the part of Mr. Bone individually, and did not address the issue of malicious intent of the corporation. We find this position to be without merit due to the specific finding of the commission that the complaint was not frivolous in law or fact even though it found summarily that there was no probable cause to constitute a violation of the code of ethics. The wording of Section 112.317(8) precludes recovery of fees and costs even if there was a determination of malicious intent of the corporation, without the accompanying finding of frivolity.

AFFIRMED.

DOWNEY, J., and SHARP, G. KENDALL, Associate Judge, concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring.

Since the Commission on Ethics expressly found that the complaint herein was not frivolous or without basis in law or fact, the Court does not reach the Commission’s finding that Richard C. Bone acted without malicious intent. I, too, will not delve into that finding but, for future guidance, I believe it is appropriate to point out that when a complaint is filed by a person acting in a representative capacity, as was the case here, any inquiry into malicious intent would have to encompass the mind-set of the sponsoring group or organization; it should not be limited to a consideration of the agent or representative’s personal motivation, In the case at bar, the record reflects that the complaint was filed by “Richard C. Bone, Treasurer, representing Mobile Home Park Owners and Dealers of Martin Co., Inc.” Furthermore, it is conceded that the association, by duly enacted resolution, authorized Mr. Bone’s action. Thus, on the issue of malicious intent, I believe that the commission erred by imper-missibly restricting its inquiry to Mr. Bone’s motivation as opposed to that of the owners and dealers association.

Second, the Commission erred when it denied appellant, the person complained against, the right to introduce into evidence depositions of various officers and board members of the complainant association. The fact that the deponents were present at the hearing was irrelevant. Fla.Admin. Code Rule 34-10.19(4)(d) states in part:

The Commission shall not allow the introduction into evidence of an affidavit of a person when that person can be called to testify; this shall not preclude the admission of a deposition of such person, however, for any reason permissible in a court of law under the Florida Rules of Civil Procedure.

In turn, Rule 1.330(a)(2), Fla.R.Civ.P., provides:

The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under Rule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency that is a party may be used by an adverse party for any purpose.

The very same contention was placed before the court in Monsalvatge and Company of Miami, Inc. v. Ryder Leasing, Inc., 151 So.2d 453 (Fla. 3rd DCA 1963). There the trial court had denied the admission of an officer’s deposition because the witness was present in the courtroom. The appellate court reversed, finding clear error and noting that “(t)he use of such a deposition is not conditioned upon the availability of the deponent.” Id. at 455.

Though I believe these errors are serious, I concur in the opinion of the Court because I conclude that the Commission’s threshold finding of nonfrivolousness is founded upon substantial competent evidence which therefore precludes recovery of costs and attorney fees.

      . Section 112.317(8), Florida Statutes (1979).


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

text:
    Melvin H. WOODARD, Appellant, v. PROFESSIONAL PRACTICES COUNCIL and School Board of Pinellas County, Appellees.
    No. TT-158.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.

      Philip J. Padovano and Ronald G. Meyer, Tallahassee, for appellant.
    William A. Borja, Clearwater, and James D. Little and Gene T. Sellers, Tallahassee, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Substantial competent evidence supports the finding of the State Board of Education that by furnishing marijuana and beer to young teenage students in the Pinellas County school system, appellant Woodard, a teacher, engaged in misconduct in office which seriously reduced his effectiveness as an employee of the school board, justifying his dismissal, Section 231.28, Florida Statutes (1979). Expert opinion testimony before the hearing officer furnished a record foundation for the Board of Education’s finding or conclusion, contrary to that recommended by the hearing officer, that furnishing beer and marijuana to students seriously impaired appellant’s effectiveness as a teacher. Florida Cities Water Co. v. Public Serv. Comm’n, 384 So.2d 1280 (Fla.1980); McDonald v. Department of Banking and Finance, 346 So.2d 569, 583 (Fla. 1st DCA 1977). Boyette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977) is distinguished in that the underlying charge of misconduct which was asserted as grounds for teacher discipline was not sustained by substantial competent evidence, and the incident therefore did not substantiate the teacher’s resulting notoriety.

AFFIRMED.

BOOTH and SHAW, JJ., concur.


text:
    Oheneyo REYES, Appellant, v. John Allan JOHNSTONE, Appellee.
    No. QQ-373.
    District Court of Appeal of Florida, First District.
    Sept. 30, 1980.
    Israel Abrams, P. A., North Miami Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Reyes appeals, urging that the Judge of Industrial Claims erred in finding that he received proper notice of the hearing on Johnstone’s claim. We agree and reverse.

In order to satisfy the requirements of Chapter 440 Florida Statutes and of due process, the record must affirmatively demonstrate that notice of a hearing was given to the employer. Luzak Food Corp. v. Dovel, IRC Order 2-3035 (1976). Section 440.25(3)(a) Florida Statutes (1977) requires that the Judge of Industrial Claims give this notice. Here, the official notice sent to the employer by certified mail was returned unclaimed and no other notice was sent by the Judge of Industrial Claims. The only record indication that Reyes received any notice at all is the statement by claimant’s attorney that notice of the hearing was included with other documents sent to Reyes.

We are aware that personal notice is no longer required, compare sections 440.-25(3)(a) Florida Statutes (1974) and 440.-25(3)(a) Florida Statutes (1977), and under certain circumstances actual notice may be sufficient. Burdine’s v. Wilson, 9 FCR 212 (1974), cert. denied 313 So.2d 38 (Fla.1975). However, notice sent by claimant’s attorney is not sufficient to satisfy the requirements of the statute. Donald M. Patterson, Inc. v. Carnegie, 9 FCR 368 (1976).

In view of this decision, it is not necessary to determine appellant’s Point II.

Reversed and remanded for a hearing de novo.

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