text:
    HURRICANE FENCE INDUSTRIES and Maryland Casualty Company, Appellants, v. Wallace L. BOZEMAN, Appellee.
    No. AD-488.
    District Court of Appeal of Florida, First District.
    May 6, 1982.

      David A. Simpson, Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellants.
    Roderic G. Magie, Levin, Warfield, Mid-dlebrooks, Mabie & Magie, Pensacola, for appellee.
   LARRY G. SMITH, Judge.

The primary issue presented here is one of jurisdiction and authority, on the part of a deputy commissioner, to order rehabilitation benefits in behalf of a worker’s compensation claimant. Specifically, is a request, either by the employee, employer, or the carrier, to the Division of Worker’s Compensation, for a referral for evaluation of the claimant’s need, etc., for rehabilitation as provided by Section 440.49(l)(a), Florida Statutes (1979), a necessary condition precedent to the award of rehabilitation benefits by the deputy commissioner under the new (1979) Workers’ Compensation Act? The deputy commissioner answered this question in the negative, and awarded rehabilitation. We affirm.

After his injury, the claimant continued to work for the employer until he received knee surgery in March, 1980. When he attempted to return to work for the employer, he found that his job was filled. In his employment as an estimator for the fence company owned by the employer, he occasionally was required to walk over rough terrain to gather the necessary information to complete his estimate, and he customarily engaged in other physical labor in connection with his job. At the hearing, the claimant testified that he doubted he could continue such work because of his knee condition. The claimant contacted the State Vocational Rehabilitation Service, which helped enroll him in a meat cutting school in Chipley, Florida, which is normally a thirty-six week training course, and paid his tuition. The claimant moved from Pensacola to Chipley in order to be near the school. He sought part-time employment in Chipley, but was unable to find employment he could do because of his injured knee.

The deputy commissioner pointed out in his order that after the claimant made arrangements to attend this school in Chipley, the employer offered him a job. The deputy ruled that this offer of employment “came too late.” Further, the deputy commissioner found that the claimant’s efforts to rehabilitate himself were reasonable and necessary under the circumstances, and that the carrier had made no effort to assist his rehabilitation, although the claimant was entitled to such benefits.

Our review convinces us that the deputy commissioner’s findings and conclusions on the rehabilitation issue are supported by the record. The evidence from the claimant, undisputed, discloses that he contacted the carrier seeking rehabilitation as early as October, 1980. He was informed that he was not eligible for rehabilitation because he did not have a back injury. A month later, he again contacted the carrier, informing the carrier of his intention to attend the school in Chipley. Again, he was told that he was not eligible. Apparently the carrier made no effort to communicate the claimant’s rehabilitation requests to his employer, nor to explain the claimant’s possible eligibility for such benefits, and the employer/carrier’s obligation to provide them. The employer’s first notice that rehabilitation benefits were being claimed apparently came by letter about the middle of December, 1980. The employer was not sure, but his guess was that it came from the Division of Vocational Rehabilitation (Florida Department of Health and Rehabilitation Services).

The employer/carrier argue that rehabilitation benefits are not available to a claimant unless he has first made application to the Division of Worker’s Compensation for referral “to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment.” Section 440.-49(l)(a), Florida Statutes (1979). We disagree. Although the procedural step spelled out in the statute is the “correct procedure,” as recently announced by this court in Walker v. New Fern Restorium, 409 So.2d 1201 (Fla. 1st DCA 1982), the absence of a Division report was not found to be a jurisdictional impediment to rehabilitation in Walker, nor is it here. Cf. Bailey v. Hawes Chrysler-Plymouth, 410 So.2d 986 (Fla. 1st DCA 1982), opinion filed March 15, 1982, affirming denial of rehabilitation benefits where the employee had not applied to the division for evaluation.

Our determination of the jurisdictional issue calls for examination of the specific language of the 1979 rehabilitation statute, as well as its predecessor. Former Section 440.49, repealed effective July 1, 1979, contained a provision limiting the authority of the deputy commissioner to award rehabilitation benefits. The repealed provision (Section 440.49(1), Florida Statutes (1978 Supp.)) provided in part:

However, no judge of industrial claims shall assume jurisdiction to approve or disapprove rehabilitation under this provision until the Division has been given reasonable time to evaluate the injured worker and advise all parties as to the rehabilitation program it may propose if said rehabilitation program is to be funded out of the fund established by s. 440.50

Under the pre-1979 statute, rehabilitation was funded out of the Special Disability Trust Fund, rather than by direct payments by the employer/earrier. Under this prior law, a judge of industrial claims (now deputy commissioner) could not assume jurisdiction to award rehabilitation benefits unless he had first received an evaluation report from the Division advising as to the rehabilitation program proposed for the claimant. Hall v. Red Bishop Roofing, 393 So.2d 618 (Fla. 1st DCA 1981); Keith v. City of Altamonte Springs, 344 So.2d 555 (Fla.1976).

No such limitation upon the jurisdiction or authority of the deputy commissioner appears in the 1979 version of Section 440.-49, which provides that rehabilitation must be provided by the employer or carrier, at its own expense. Upon application, under the 1979 amendment, the Division “may” refer the employee “to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment.” Upon receipt of a report of such evaluation, the deputy commissioner “may” order the service or treatment recommended in the report, or, the deputy may order “such other rehabilitation treatment or service deemed necessary,” to be provided at the expense of the employer or carrier. Section 440.-49(l)(a).

The new act’s increased emphasis upon rehabilitation, and liberalization of the prerequisites for eligibility on the part of the claimant' is evident. The former statute, Section 440.49 (1978 Supp.), provided for rehabilitation in cases “in which it appears that disability probably will be permanent . . . . ” The 1979 amendment eliminates the requirement of “permanent” disability, and provides for eligibility when “it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury . . . .” Section 440.-49(l)(a), Florida Statutes (1979).

It appears from the foregoing that while application to the Division for referral to a physician or facility for evaluation is contemplated by the new law, if rehabilitation is “not voluntarily offered or accepted,” nowhere is there any indication that such an application is a jurisdictional prerequisite to the receipt of rehabilitation benefits by the claimant. Any other interpretation of the new statutory language would be contrary to the self-executing concept firmly embodied (now even more so) .in the workers’ compensation law, and inconsistent with* the wording of the statute. The language that the Division “may refer” the employee for evaluation is permissive, not mandatory, and this provision further incorporates the permissive form in the provision that the deputy commissioner “may order” that the recommended treatment or service be provided. The additional language of subsection (l)(a), authorizing the deputy commissioner to order “such other rehabilitation treatment or service deemed necessary,” particularly when read in conjunction with the other subsections ((l)(b)-(f)), unquestionably confers upon the deputy commissioner the authority to award or decline to award the recommended treatment, or to award service or treatment even though not recommended in the report. We adhere, however, to the Walker opinion’s directives concerning the desired procedure to be followed.

Having disposed of the jurisdictional issue adversely to appellants’ position, we turn now to the circumstances of this case. We observe, initially, that the amended rehabilitation provision, with respect to “application” to the Division, does not differentiate between applications by the employee, employer, or the carrier. All are given equal right under the statute to apply to the Division for assistance in evaluating the rehabilitation needs of the employee, if rehabilitation is “not voluntarily offered or accepted.” We interpolate here that implicit in the concept of voluntary offer and acceptance of rehabilitative services is the notion that both the E/C and the claimant may make their own investigation as to the need for and suitability of a rehabilitation program. In this case, as above pointed out, the claimant’s desire for rehabilitation was made known to the carrier, and later, to the employer. Both did nothing. Either could have invoked the very statutory provision they now contend the claimant should have used, and no doubt would have used — judging from his successful efforts to obtain assistance through the state’s rehabilitative resources — if he had been so instructed. Had the E/C applied to the Division, presumably the Division’s response and the resulting evaluation report would have been the same, regardless of the applicant. The report would thus have been available to whichever party it might have benefited, and the testimony of the examining physician or other expert could have been presented in support of, or in defense of, the claim for rehabilitation.

The employer and carrier, having failed to avail themselves of the services of the Division, or to inform claimant of their insistence upon his following the procedure outlined in the statute, cannot now urge the claimant’s failure to do so as a defense to his rehabilitation claim. Moreover, the E/C’s contention that they were prejudiced by noncompliance with the “notice” provisions of the statute is without merit. The Division was not asked to take official action, and it took none. As for notice of the claimant’s efforts to obtain rehabilitation, aside from the notification to both already alluded to, appellee’s claim which was filed with the Division on December 17, 1980, specifically claimed rehabilitation in the form of the meat cutting program he was enrolled in, together with temporary total disability compensation during the period of training required. The pretrial stipulation and order also made the claim for rehabilitation the primary issue to be determined. Notwithstanding, the employer and carrier offered no evidence to refute the claimant’s contention that he was in need of rehabilitation, and at no time did the employer or carrier request an evaluation by the Division of Workers’ Compensation, or by any physician or other facility concerned with rehabilitative needs.

Although we can appreciate the chafing effect this decision might have upon the employer, and others similarly situated, we hasten to point out that the failure of the employer or the carrier, or both, to become sufficiently informed so as to properly understand the self-executing nature of the worker’s compensation law, and the increased responsibilities imposed upon them by the recent legislation, cannot be raised in defense of an otherwise meritorious claim. The facts of this case all too obviously reveal the lack of communication by the carrier with the employer, and a lack of concern by the employer until such time as the prospect of economic detriment presented itself. Then it was “too little — too late.” The rehabilitation features of the workers’ compensation law now in effect call for “prompt” rehabilitation services. A “do nothing” approach on the part of the employer and carrier is no longer a viable alternative.

AFFIRMED.

MILLS and SHAW, JJ., concur.

      . Florida Department of Labor and Employment Security.

      . Chapters 79-40, 79-312, Laws of Florida (1979). The 1979 revision of Section 440.49, subsections (l)-(7), inclusive, for the first time in Florida elevated rehabilitation services to the category of benefits to which the eligible injured worker “shall be entitled.” It also mandated the provision of such services by the employer or carrier, at their expense, on a voluntary basis, provided for intervention by the Division in event such services are not voluntarily offered or accepted, and imposed a mandatory reduction of benefits payable to the employee upon refusal to accept rehabilitation “as deemed necessary by the deputy commissioner.” By contrast, the repealed revision of Section 440.49 merely authorized rehabilitative assistance by the Division, did not require the employer or carrier to provide rehabilitation, and made the reduction in benefits a matter within the discretion of the judge of industrial claims.

      .The injury occurred November 12, 1979. After surgery claimant’s recovery was slow. Dr. Cameron, claimant’s treating physician, thought he should be able to return to light work in August, 1980; however, in November, 1980, claimant had to be re-hospitalized for manipulation of his knee under anesthesia. MMI was reached on December 26, 1980, with a 10% permanent partial impairment of the lower right extremity. The doctor advised avoidance of heavy labor, or work in an occupation requiring climbing or squatting.

      . The claimant testified that he consulted with Mrs. Lakie Johnson about the advisability of attending the school, as well as with Mrs. Cha-sarik. Mrs. Johnson was identified as the “rehabilitation nurse” working out of Tallahassee, and Mrs. Chasarik was identified as the “rehabilitation nurse” working out of Pensacola. He also talked with Phil Jacobs, whom he identified as being with the Department of Vocational Rehabilitation. Although the testimony is not crystal clear concerning the official status of the “rehabilitation nurses” (the claimant was not represented by counsel at the hearing), reasonable inferences from the record, including the testimony of Lakie Johnson, indicate that she was employed by the Department of Labor and Employment Security. Mrs. Johnson, called as a witness by the claimant, testified in response to inquiries by the deputy commissioner that she was contacted by the claimant and that she found the meat-cutting school for him. When asked if she had referred the claimant to any type of training to restore him to gainful employment, she answered: “[W]e should have but we didn’t .... I didn’t write a report . . .. ” In explanation of her failure to follow-up in claimant’s case, she stated that she had assumed that her co-worker, Mrs. Chasarik, would “pick up the case.” She further stated that she “thought,” but was not sure, that she told the claimant to contact the Department of Vocational Rehabilitation.

      . While the evidence is susceptible to conflicting inferences and interpretations on the issue of whether it “appears” that claimant’s injury would preclude him from earning wages equal to wages earned prior to the injury, we cannot say that the deputy commissioner committed reversible error on this point. The claimant, who did not have the benefit of counsel at his hearing, was subjected to searching examination and cross-examination by the deputy commissioner and the employer/carrier’s counsel, and it is apparent from the record that the deputy commissioner fully considered the evidence and the arguments advanced by appel-lees and resolved the issue in favor of the claimant.

      . Section 23, Chapter 78-300, Laws of Florida (1978).

      . See, Sadowski, Herzog, Butler and Gobel, The 1979 Florida Workers’ Compensation Reform: Back To Basics, 7 Florida State University Law Review 641, 652-653, 673 (1979).

      . The purposes of the new provisions dealing with application to the Division are reflected in Chapter 38F-8, Florida Administrative Code, “Workers Compensation Rehabilitation,” e.g., Rule 38F-8.02, which provides, in part: “However, it is the responsibility of the Division of Workers’ Compensation, operating through its Bureau of Rehabilitation, to identify those injured workers who are entitled to or may benefit from rehabilitation, to insure that proper rehabilitation is being made available to them, to assist them with the necessary professional guidance injured workers often require in order to prepare them for rehabilitation, and to monitor their progress once in a rehabilitation program.”

      . The statutory entitlement to “prompt” rehabilitation places the burden of affirmative action on the employer or carrier, consistent with the act’s general scheme of insuring that an injured claimant is properly notified as to benefits available. See, e.g., Sections 440.185(2), (3), 440.185(10), Florida Statutes (1979); Dan’s Plumbing and CNA Insurance v. Smith, 410 So.2d 941 (Fla. 1st DCA 1982), opinion filed January 28, 1982.

      . As a further indication of the emphasis upon the requirement of promptness in providing rehabilitation, Rule 38F-8.02, “Workers Compensation Rehabilitation,” provides, in part: “Rehabilitation services shall be commenced at such time that the health of the eligible individual permits, regardless of whether maximum medical improvement has been reached.” This provision disposes of appellants’ contention that the claimant’s rehabilitation efforts were premature in this case.


source: Caselaw Access Project

author: ERVIN, Judge.

license: Public Domain

text:
    Abdullah KHAWAM, Appellant, v. COLLISION CLINICS INTERNATIONAL, INC., d/b/a Chassie’s Master and Insurance Company of North America, Appellees.
    No. AE-266.
    District Court of Appeal of Florida, First District.
    May 6, 1982.

      Stephen J. Pajcic, II and William A. Bald of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant.
    John J. Schickel of Cowles, Coker & Myers, Jacksonville, for appellees.
   ERVIN, Judge.

In this workers’ compensation appeal, we reverse and remand the deputy commissioner’s determination that benefits for attendant care requested, pursuant to Section 440.13, Florida Statutes (Supp.1978), are not compensable.

On June 26, 1979, Khawam, while in the employ of appellee Chassie’s Master, a Da-nia auto body repair house, was attempting to straighten the frame on a wrecked Mas-seratti when a chain snapped, hitting him in the face. The claimant lost one eye, and the other eye was so badly injured that he was determined to be legally blind. Admitting that he can make out only hazy shadows, the claimant is now able to carry on only a few perfunctory functions of life. He is able to pour milk or water, but he cannot cook for himself. He has burned himself on the coils of an oven in attempting to do so. He can dress himself, but because he cannot see, he cannot coordinate the colors of the clothing he wears. His refusal to accept his disability, moreover, has given rise to some potentially dangerous activities. For example, he occasionally drives to a local convenience store, or motors throughout the apartment complex in which he lives.

. The treating physician, Dr. Ronald Sin-gal, testified that it was medically necessary for the claimant to have attendant care. Singal noted that the claimant not only needs someone to cook and shop for him, but more importantly, the doctor determined that it was physically dangerous for the claimant to be left alone without someone to assist him. In Singal’s view, such care was more in the nature of housekeeping, as opposed to nursing care.

Although the employer/carrier was willing to provide some measure of home care, such benefits were terminated on October 3, 1980. However, in 1981 both Singal and Dennis Kirby, a vocational rehabilitation counselor, testified that the claimant needed attendant care services, although not on a permanent basis. They recommended that the claimant’s available attendant care be continued, but gradually reduced and finally terminated so that the claimant would not form a dependency on such services.

The deputy commissioner found that the type of care sought by the claimant was in the nature of housekeeping services. Relying principally on South Coast Construction Co. v. Chizauskas, 172 So.2d 442, 444 (Fla.1965) and Pan American World Airways, Inc. v. Weaver, 226 So.2d 801, 802 (Fla.1969), for the proposition that housekeeping services are not compensable, he denied the claim for compensation.

While it is true that Chizauskas, supra, at 444, does state that “[hjousekeeping and related services are not required to be furnished,” our review of the case indicates that Chizauskas deemed such services not compensable as a matter of fact rather than as a matter of law. Compensation was denied because the court found adequate support in the record to sustain the deputy commissioner’s findings “that the claimant did not need . . . the kind of care or attention required to be furnished by the statute.” Id. (e. s.)

In Pan American World Airways, supra, at 802-803, the court’s explication of Chizauskas disposed of any doubt as to the scope of compensable benefits available under Section 440.13, Florida Statutes. To paraphrase, the court stated that compensation for attendant care is to be provided if the condition of the injured worker specifically requires the palliative attentions of another, but compensation shall not be awarded if the injured worker requires no assistance which would mitigate or relieve the effects of injuries which were personal to him. Consequently, it is the need for, rather than the nature of the attendant services generated as a result of a compen-sable injury which determines whether those services are to be provided by the employer/earrier. To the extent such requested attendant care represents normal housekeeping functions, for which a need is not engendered by the injury, we would agree that “housekeeping services” are not compensable.

In analyzing a request for attendant care, the starting point requires scrutiny of the claimant’s need for the requested care. In the instant case, the deputy erred by examining the type of services requested, apparently without consideration of the claimant’s needs.

The evidence in the case at bar supports a need for attendant care, because Dr. Singal stated that it was medically necessary for Khawam to have palliative care. The duration of the care is a factual question, since both the doctor and the vocational rehabilitation counselor stated that the care should be gradually reduced in order to force the claimant to learn to care for himself and to function as normally as possible. This case is REMANDED for consideration of this factor.

SHIVERS and WENTWORTH, JJ., concur.

      . This view is in accord with numerous decisions of this court and the Industrial Relations Commission. See, e.g., Thatcher Glass Manufacturing Co. v. Buyna, 411 So.2d 1029 (Fla. 1st DCA 1982); Lopez v. Pennsuco Cement & Aggregates, Inc., 401 So.2d 875 (Fla. 1st DCA 1981); Clay Hyder Trucking Lines, Inc. v. Coffinbury, 9 F.C.R. 199 (1975); Craftsmen’s Village, Inc. v. Benach, 8 F.C.R. 372 (1974), cert. denied, 302 So.2d 762 (Fla.1974).


author: PER CURIAM.

text:
    JACK E. MERKLEIN, INC. and State Farm Fire & Casualty, Appellants, v. Paul A. HOHL, Appellee.
    No. AE-371.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Frank E. Maloney, Jr., Macclenny, for appellants.
    Philip S. Anderson of Anderson & Anderson, P. A., Fort Lauderdale, for appellee.
   PER CURIAM.

Merklein, Inc. argues that the deputy commissioner erred in awarding claimant rehabilitation benefits pursuant to Sections 440.15(2)(b) and 440.49(1), Fla.Stat. (1977), arguing that because the rehabilitation counselor did not recommend a course of instruction for rehabilitative purposes, there was no evidence from which the deputy could conclude that such benefits should be awarded. We affirm.

Claimant’s accident occurred on February 16, 1978, resulting in his sustaining a 20% permanent partial disability (PPD) to the right arm which the employer/carrier voluntarily accepted, and paid claimant benefits commensurate therewith. The rehabilitation claim is governed by the statute in effect at that time, and is substantially different than the later amended 1979 statute. The parties do not argue the applicability of that statute; however, we note the distinction to prevent any possible confusion similar to that in the present record.

Section 440.49(1) requires an evaluation or recommendation report from the division. The deputy has the authority to approve or disapprove rehabilitation, based upon all the evidence before him, and it is the deputy who must ultimately award or deny rehabilitation benefits. See Attkisson-Bankston, Inc. v. Davignon, IRC Order 2-2722 (February 4,1975). If we interpreted the statute as requiring prior division approval of a particular plan, such a result would strip the deputy of any adjudicative function, forcing him to “rubber-stamp” a rehabilitation officer’s report. In addition to the 20% PPD rating, the deputy had before him the treating physician’s testimony that claimant should perform less laborious work than he had in his former position as a carpenter. He also had the right to consider, consistent with the physician’s recommendation, claimant’s desire to be trained as a computer programmer, an occupation whose duties are clearly within claimant’s physical limitations.

Although we have observed that Section 440.49(1), Fla.Stat. (1979), is not controlling, we nevertheless believe that the amended statute clarifies the legislative intent that prior division approval is not a prerequisite to an award of rehabilitative benefits. Subsection one of the amended statute expressly states that “[o]n receipt of [the evaluation] report, and after affording the parties an opportunity to be heard, the deputy . . . may order that the service and treatment recommended in the report, or such other rehabilitation treatment or service deemed necessary, be provided at the expense of the employer or carrier.” (emphasis supplied)

To clarify another matter, the employer/carrier’s representation that Hall v. Red Bishop Roofing, 393 So.2d 618 (Fla. 1st DCA 1981), requires as a precondition to an award of such benefits that the claimant be in a program approved by the state is not well-founded. Hall affirmed a denial of rehabilitation benefits because the judge of industrial claims had not received the division evaluation report required under the 1978 statute. This court held that the employee had not been harmed by the judge’s refusal to adjudicate the issue, as the employee was free to present the question again when ripe.

Accordingly, the order of the deputy is AFFIRMED.

ERVIN, SHIVERS and WENTWORTH, JJ., concur.


author: MILLS, Judge.

text:
    Gerry WAITE, d/b/a Mr. G’s Pizza Place, Appellant, v. Richard T. WARD, d/b/a Flintwood Refrigeration Service, Appellee.
    No. AF-295.
    District Court of Appeal of Florida, First District.
    May 6, 1982.

      Paul A. Lehrman, Tallahassee, for appellant.
    Marlow V. White, Jr. of Busch & White, Chartered, Tallahassee, for appellee.
   MILLS, Judge.

Waite contends the trial court erred in dismissing his counterclaim for failure to state a cause of action. We affirm.

We agree with the trial court’s order which stated “that the release of lien pertinent to this action does not discharge any indebtedness of defendant to plaintiff.”

In addition, the action brought by the counterclaim is one for filing a baseless suit or malicious prosecution. This action cannot be filed until the original action is concluded. See Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980).

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


text:
    BOB WADE FORD, INC. and Lynn Underwriting Company, Appellants, v. Roy RUSSELL, Appellee.
    No. AF-318.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Rehearing Denied May 27, 1982.
    Bernard J. Zimmerman and Marshall S. Adler of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Scott H. Michaud of Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   MILLS, Judge.

The employer/carrier contend the deputy commissioner erred in awarding claimant permanent total disability benefits and in finding a causal connection between claimant’s right knee injury and the industrial accident. We affirm.

There is competent substantial evidence in the record to support the award of permanent total disability benefits.

The causality issue was decided adversely to employer/carrier in Bob Wade Ford, Inc., et al. v. Russell, 390 So.2d 827 (Fla. 1st DCA 1980).

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


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

text:
    FLORIDA REAL ESTATE COMMISSION and Division of Risk Management, Appellants, v. Charles E. FELIX, Appellee.
    No. AF-328.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Wendell J. Kiser, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Jesse F. Sparks, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

After we reversed a deputy’s compensation order and ordered this claim dismissed because the deputy found “there was no specifically identifiable effort which caused the heart attack,” State Real Estate Commission v. Felix, 383 So.2d 941 (Fla. 1st DCA 1980), another deputy revisited the same record and declared the first to have been in error, that claimant’s infarction was in fact precipitated by an unusual employment-related exertion, and that claimant’s disability is compensable. Although the new order is couched in terms of modifying the old order “because of a mistake in a determination of fact,” section 440.28, Florida Statutes (1981), the new order represents a simple reweighing of the old evidence and a deputy’s change of mind on the legal effect of the evidence reweighed. To put it more accurately, one deputy has substituted his judgment for that of another. This is no basis for a modification order. Power v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960).

REVERSED.

MILLS and SHAW, JJ., concur.


text:
    Burnell B. BROWN, Appellant, v. CHRISTIAN & MISSIONARY ALLIANCE FOUNDATION and the St. Paul Company, Appellee.
    No. AF-368.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P. A., Tampa, and Law Offices of Bruce L. Schemer, P. A., Fort Myers, for appellant.
    Peter C. Burkert of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   MILLS, Judge.

Claimant contends that the deputy commissioner erred in dismissing his claim. We affirm.

The dismissal is authorized by Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961). There is competent substantial evidence in the record that (1) claimant knowingly made false representations, (2) the employer relied on the misrepresentations, and (3) there was a causal connection between the misrepresentations and the injury.

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


text:
    William G. KELLY, Appellant, v. FLORIDA ATLANTIC UNIVERSITY and Division of Risk Management, Appellees.
    No. AF-456.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P. A., of West Palm Beach, for appellant.
    C. Randal Morcroft, Fort Lauderdale, for appellees.
   PER CURIAM.

This appeal concerns the interpretation to be placed on the deposition testimony of Doctors Murphy and Huntington on the degree of physical impairment suffered by claimant. We note that the evidence in question was by deposition and that our vantage point in interpreting the deposition is not inferior to that of the deputy. See Phipps v. Sheffman, 211 So.2d 598 (Fla. 3d DCA 1968) and Dukes v. Dukes, 346 So.2d 544 (Fla. 1st DCA 1976). We REVERSE and REMAND with directions.

Doctor Murphy testified that claimant suffered a 5% physical impairment; Doctor Huntington testified that claimant suffered a 20% physical impairment. We see no error in the deputy’s acceptance of Dr. Huntington’s testimony over that of Dr. Murphy. However, the deputy reduced the physical impairment to be awarded to 10% because he concluded that the 20% figure included an improperly assigned 10% disability for functional impairment. Although there are apparent incongruities in Dr. Huntington’s testimony as to the basis for his assignment of 20% physical impairment, we are convinced that these incongruities arise from semantic difficulties with the words of art, “impairment” and “disability.” Nevertheless, the doctor explicitly testified that:

Q. And what was your final opinion on permanent physical impairment from the injury in the accident, sir?
A. Was that he had a 20 percent disability of his lower back.
Q. Is that opinion of 20 percent disability to the low back the same as a 20 percent permanent physical impairment to the body as a whole, sir?
A. Yes.

This exchange persuades us that Dr. Huntington was testifying that the 20% impairment was physical, and that his use of “disability” was not an improper reference to disability in the sense of a loss of wage earning capacity. Accordingly, we REVERSE and REMAND with directions to award 20% physical impairment to the claimant.

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


text:
    Michael V. COSTELLO, Petitioner, v. Wayne M. CARLISLE, Respondent.
    No. AF-488.
    District Court of Appeal of Florida, First District.
    May 6, 1982.
    Michael V. Costello, petitioner, pro se. Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This cause arose as a petition for writ of mandamus to compel the trial judge to grant petitioner’s motion to discharge court-appointed counsel and to proceed pro se. We issue the writ.

Petitioner, an inmate being held in close custody at Florida State Prison, is the subject of a three-count information charging him with possession of contraband while in prison. He filed a timely motion to discharge court-appointed counsel and to proceed pro se. A hearing was conducted on the motion, at which testimony of prison officials and employees was taken, concerning the effect of petitioner’s close custody status on his ability to depose witnesses, perform the necessary legal research and have a cell where he may prepare his case without interruption. The trial judge denied petitioner’s motion on the basis that, providing petitioner with the accommodations necessary to adequately prepare his case would involve a great security risk in the prison and would require the trial court to issue orders that would contravene the rules and regulations of the institution. The judge declined to reach the issue whether petitioner is capable and competent to represent himself.

Thereafter, petitioner filed his petition for writ of mandamus in this court. We find that, under the circumstances, a writ of mandamus will lie to compel the trial judge to perform acts which are consistent with an accused’s fundamental constitutional rights. State ex rel Brown et al. v. Dewell, 123 Fla. 785, 167 So. 687, 690 (1936).

The United States Supreme Court, in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), found that the Sixth Amendment of the United States Constitution guarantees an accused the right to represent himself. The Florida Supreme Court, in Goode v. State, 365 So.2d 381, 383 (Fla.1979), noted that Florida has historically recognized the right of a criminal defendant to represent himself. State v. Cappetta, 216 So.2d 749 (Fla.1968); Deeb v. State, 131 Fla. 362, 179 So. 894 (Fla.1937); Cook v. State, 167 So.2d 793 (Fla. 1 DCA 1964). As stated in Faretta, supra, at 835, 95 S.Ct. at 2541, the duty of the trial court upon receiving a timely motion to proceed pro se is first, to make the defendant aware of the benefits he must relinquish, and the dangers and disadvantages of self representation. Thereafter, the trial court must make a determination that defendant is making his choice voluntarily and intelligently. While this court has said the trial court should also determine whether unusual circumstances exist which would cause the accused to be deprived of a fair trial if permitted to conduct his own defense, the intent of that inquiry into the accused’s age, mental derangement, lack of knowledge, education, or inexperience in criminal proceedings, is to make certain that defendant is aware of the disadvantage under which he is placing himself. See Robinson v. State, 368 So.2d 674, 675 (Fla. 1 DCA 1979), Ausby v. State, 358 So.2d 562 (Fla. 1 DCA 1978).

Among the disadvantages petitioner Costello will experience are his restricted access to law books, his inability to conduct investigations and to interview and depose witnesses as he desires, and the inadequacy of his living quarters. Some of these problems have been addressed by other jurisdictions. See e.g., Wells v. State, 358 So.2d 1113 (Fla. 4 DCA 1978). See generally, 98 A.L.R.3d 13-92 (1980, supp. 1981).

Accordingly, the trial court is ordered to conduct the hearing on petitioner Costello’s Motion to Proceed Pro Se, said hearing to comply with the dictates of Faretta v. California, supra, and Goode v. State, supra.

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

      . Petitioner had also filed with the trial court a motion to gain access to the prison’s law library, because under the Department of Corrections’ regulations, prisoners being held in close custody are not permitted into the library; instead, upon request, books and cases are brought to the close custody prisoners in their cells. He also filed a motion to be assigned to a wing of the institution where he would have sufficient solitude to adequately prepare for trial. These motions are not before us and we decline to consider them.

      . Petitioner could have raised the issue on appeal and in all probability been provided a new trial. See 98 A.L.R.3d § 4(a) (1980, supp. 1981). However, we agree with the Ninth Circuit’s statement in Bittaker v. Enomoto, 587 F.2d 400, 403 (9th Cir. 1978), cert. denied 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 386 (1978), that the “purpose of the right is to protect the defendant’s personal autonomy. Thus, a denial of the right automatically prejudices the defendant’s freedom interest.” Therefore, we follow the Florida Supreme Court in State ex rel Brown et al. v. Dewell, 123 Fla. 785, 167 So. 687 (1936), holding,
      Where denial of the benefit of the constitutional Bill of Rights is clearly alleged and shown, the remedy by writ of error may not be adequate to fully protect the rights of an accused to a speedy and fair trial according to essential requirements of law, and where the demonstrated exigencies of a particular situation shown to exist demand it, an appropriate original writ from the Supreme Court may be issued before, or during the progress of, a criminal trial in order to secure to a defendant prior to conviction the protection of a fundamental right secured to him by the Constitution as a part of his trial.


text:
    GENERAL ELECTRIC COMPANY and Electric Mutual Liability Insurance Company, Appellants, v. Max HAWKINS, Appellee.
    No. AH-77.
    District Court of Appeal of Florida, First District.
    May 7, 1982.
    Jesse F. Sparks of Jesse F. Sparks, P. A., Orlando, for appellants.
    Christopher W. Wickersham of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   PER CURIAM.

The order sought to be appealed establishes claimant’s entitlement to workers’ compensation benefits under chapter 440, Florida Statutes, but retains jurisdiction to determine the amount of benefits due. We are without jurisdiction to review this non-final order and dismiss the appeal sua sponte. Cf. United States Fidelity and Guaranty Co. v. Sloan, 410 So.2d 549 (Fla. 1st DCA 1982).

DISMISSED for lack of jurisdiction.

ROBERT P. SMITH, Jr., C. J., and ERVIN and SHAW, JJ., concur.


text:
    CAST CRETE CORPORATION and R. P. Hewitt & Associates, Appellants, v. Willie TURNER, Appellee.
    No. AF-432.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, P. A., Orlando, for appellants.
    J. David Parrish of Hurt & Parrish, P. A., and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   MILLS, Judge.

The employer/carrier appeal a workers’ compensation order providing claimant with chiropractic treatment for 90 days. We affirm.

The deputy commissioner’s order is supported by competent substantial evidence. Section 440.18(2), Florida Statutes (1981), permits a deputy to order change in treatment for good cause shown. See Robinson v. Hall Co., 219 So.2d 688 (Fla.1969).

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


author: THOMPSON, Judge.

text:
    JANDY, INC. and the Home Insurance Company, Appellants, v. Willie MOSLEY, Appellee.
    No. AG-6.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Barry A. Pemsler of Richard, Tharp & Pemsler, Miami, for appellants.
    Ira J. Druckman, Miami, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred by awarding claimant permanent partial disability (PPD) benefits based on loss of wage earning capacity and erred by awarding claimant an attorney’s fee.

Claimant sustained a compensable injury to his neck on April 22, 1972. Claimant subsequently returned to work for the same employer, but performed a less physically demanding job than the one he performed prior to the accident. However, due to pain claimant ceased working for his employer in December of 1978. Dr. Johns, a neurosurgeon, indicated that claimant had a 6% to 8% PPD of the body as a whole, and that claimant could return to the same position that he held at the time of the injury. Dr. Yates, also a neurosurgeon, indicated that claimant had a 15% PPD. Claimant stated that following maximum medical improvement (MMI) he had not sought employment due to severe pain.

Claimant owns a fish market and a paving business, both of which are operated by his children. Although claimant apparently does not actively participate in the day-today operations of these businesses, he does perform supervisory duties. Claimant re-, ceives a combined weekly sum of $200.00 from these two businesses. The deputy found that this $200.00 was a return on claimant’s capital investment, as opposed to wages. The deputy made no mention of the admittedly complete lack of a job search, and did not excuse claimant’s failure to seek employment. The deputy awarded claimant, inter alia, compensation representing a 30% PPD of the body as a whole based on loss of wage earning capacity.

The deputy erred in awarding claimant 30% PPD of the body as a whole based on loss of wage earning capacity. Due to the complete lack of work search and to the absence of exceptional circumstances to excuse such a search, there is no basis for finding a loss of wage earning capacity. There is no medical evidence in the instant case to indicate that claimant’s health prevents gainful employment and no indication that a work search would be futile. See Exxon Co., U. S. A. v. Alexis, 370 So.2d 1128 (Fla.1978); Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976). Accordingly, this case is distinguishable from Sizemore v. Canaveral Port Authority, 332 So.2d 23 (Fla.1976), cited by claimant, where there was medical evidence that the claimant’s health prevented gainful employment. Claimant’s testimony that he could not search for work because he was in pain is an insufficient ground on which to base an excusal of a job search. See Clark v. Western Knapp Engineering Co., 190 So.2d 334 (Fla.1966); Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); Brevard County School Board v. King, 378 So.2d 1312 (Fla. 1st DCA 1980).

The award of PPD benefits based on a loss of wage earning capacity is accordingly reversed and the case is remanded to the deputy to make a finding based solely on claimant’s anatomical impairment. The attorney’s fee awarded by the deputy is likewise reversed as the amount thereof may be affected by the deputy’s finding on remand. See Brevard County Clerk of Court v. Winslow, 399 So.2d 111 (Fla. 1st DCA 1981). Accordingly, this case is reversed and remanded for proceedings consistent with this opinion.

JOANOS and WIGGINTON, JJ., concur.


author: BOOTH, Judge.

text:
    STATE of Florida, Appellant, v. Arthur David ZIMMERMAN, Appellee.
    No. AG-308.
    District Court of Appeal of Florida, First District.
    May 10, 1982.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellant.
    Carl S. McGinnes, Asst. Public Defender, for appellee.
   BOOTH, Judge.

The State appeals an order suppressing physical evidence seized from appellee, alleging that the search of appellee’s motorcycle and the articles found thereon which produced the cannabis was constitutionally permissible. We agree and reverse.

Appellee and a companion cyclist were stopped by several officers because the motorcycles upon which they were riding met a description which Officer Swatt had received earlier that day concerning two murder suspects who were believed to be armed. Appellee and his companion were ordered at gunpoint to keep their hands raised and were placed in the middle of a semi-circle formed by patrol cars, approximately ten to fifteen feet away from the motorcycles. They were subjected to a pat-down search, handcuffed, advised of their Miranda rights, and placed in a patrol car. During that course of events, Officer Swatt walked over to the motorcycles and smelled the odor of marijuana emanating therefrom. The officer proceeded to search a flannel shirt which was rolled up and attached to appellee’s motorcycle with an elastic bundle cord. Within a plastic baggie which was within a grocery bag which was within the flannel shirt, the officer discovered marijuana. It is that evidence which the trial judge suppressed on the authority of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981).

The State contends that the search was constitutionally permissible under the rationale enunciated in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). We agree with that contention. In Belton, the Supreme Court set forth the “straightforward, workable rule” that the scope of a search incident to arrest includes the interior passenger compartment of an automobile and the articles found therein where the arrestee is the recent occupant thereof. As that court noted:

When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While the Chimel ease established that a search incident to an arrest may not stray beyond the area within the immediate control of the ar-restee, courts have found no workable definition of the “area within the immediate control of the arrestee” when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within “the area within which an arrestee might reach in order to grab a weapon or evidentiary item.” Chimel, supra, at 763. In order to establish the workable rule this category of eases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

We read the Belton case as precluding a case-by-case determination as to whether the interior of an automobile is within the scope of a search incident to arrest. Chapas v. State, 404 So.2d 1102 (Fla. 2d DCA 1981).

Accordingly, we conclude that the search of the articles strapped to appellee’s motorcycle was a constitutionally permissible search incident to a lawful custodial arrest and REVERSE.

SHIVERS and JOANOS, JJ., concur.

      . The validity of the stop was not an issue before the trial court.

      . In Robbins, the court specifically noted that the State did not argue the possible applicability of the search incident to arrest exception to the Fourth Amendment’s warrant requirement.

      . We consider the area of the motorcycle searched to be within the “passenger compartment” for purposes of applying the Belton decision to the case sub judice.


text:
    Helen ROBBINS, Appellant, v. ROPHIE SHOES, INC. and Albert Rophie, d/b/a Family Shoe Box, Appellees.
    No. AJ-94.
    District Court of Appeal of Florida, First District.
    May 10, 1982.

      William C. Kaleel, Jr. of Kaleel & Kaleel, P. A., St. Petersburg, for appellant.
    Robert M. Todd of Lyle & Skipper, P. A., St. Petersburg, for appellees.
   MILLS, Judge.

Claimant appeals from a workers’ compensation order dismissing her claim because Section 440.15(3)(b)3d, Florida Statutes (1981), bars the payment of wage loss benefits to an employee who has reached the age of 65 and becomes eligible for social security benefits. We affirm.

Claimant contends Section 440.15(3)(b)3d, Florida Statutes (1981), is unconstitutional. We decline to rule on this issue because claimant lacks standing to challenge the constitutionality of the Section. The record in this case is devoid of evidence showing that claimant is entitled to wage loss benefits. See Eckerd Corp. v. Coker, 411 So.2d 1026, 1982.

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


author: HENDRY, Judge.

text:
    Ernest ROBBINS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2264.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
   HENDRY, Judge.

In 1973, Robbins pled guilty to robbery and unlawful display of a firearm during the commission of the robbery. He was sentenced to five years imprisonment for the robbery, to be followed by three years probation on the unlawful display count.

After completing his prison sentence and while serving his probationary term, Robbins was charged with violation of probation. His probation was revoked and Robbins was sentenced to fifteen years imprisonment for the unlawful display of the firearm.

On appeal, this court affirmed the trial court’s order of revocation and sentence in reliance upon Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976). The Johnson case was subsequently overruled in Johnson v. State, 366 So.2d 418 (Fla.1978). The Supreme Court granted Robbins’ petition for certiorari and remanded the case to this court for reconsideration in light of its Johnson decision.

As in the first appearance of his case before this court, Robbins argues that the trial court lacked jurisdiction to impose the fifteen year sentence because the original order placing him on probation violated the “single transaction rule.” He contends that robbery and unlawful possession of a firearm while engaged in a criminal offense are facets of the same transaction and sentence could only have been imposed for the highest offense, to-wit: robbery. We agree and reverse.

The record before us indicates that the display in question took place in the course of the robbery itself, constituting the element of force or putting in fear by which the robbery was accomplished. The law is well-settled that under these circumstances, one who is convicted both of robbery and display of a firearm during the commission of that robbery cannot be separately sentenced for each offense. Johnson v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973). Thus, Robbins’ initial probationary sentence was illegal.

The state argues, however, that relief in this court is precluded by Robbins’ guilty plea and his failure to contemporaneously object to the imposition of sentence so as to properly preserve the point for appeal. This contention is erroneous. Appellate review is always available where a court has imposed an illegal sentence, even if the judgment and sentence have resulted from a guilty plea. Bridges v. State, 376 So.2d 233 (Fla.1979); see also Chikitus v. Shands, 373 So.2d 904 (Fla.1979). And, where fundamental error (such as a sentence which exceeds the lawful limit) appears on the record, it is reviewable by this court despite the failure of the appellant to raise the issue below. Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973).

The order placing Robbins on probation was void ab initio and all proceedings flowing from the probation are also a nullity. Therefore, the sentence imposed for violation of the probation is an illegal sentence. See De La Paz v. State, 358 So.2d 1093 (Fla. 3d DCA), cert. denied, 359 So.2d 1220 (Fla.1978); Williams v. State, supra; Ware v. State, 231 So.2d 872 (Fla. 3d DCA 1970).

Accordingly, the order appealed is reversed and the cause remanded to the trial court with directions to discharge the appellant.

Reversed and remanded with directions.

      . Robbins v. State, 364 So.2d 871 (Fla. 3d DCA 1978).

      . Robbins v. State, 381 So.2d 1370 (Fla.1980).

      . Note that although multiple sentences for lesser included offenses are precluded, multiple convictions for lesser included offenses are not barred by either the state or federal constitution. State v. Hegstrom, 401 So.2d 1343 (Fla.1981). The Supreme Court recently reaffirmed this principle in a situation factually identical to the instant case. State v. Monroe, 406 So.2d 1115 (Fla.1981).

      . Although his guilty plea is not an impediment to Robbins’ attack on the sentence, Robinson v. State, 373 So.2d 898 (Fla.1979); Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980), it does waive any claim of double jeopardy and opportunity to have the judgment of conviction set aside. Robinson v. State, 239 So.2d 282 (Fla. 2d DCA 1970); Peel v. State, 150 So.2d 281 (Fla. 2d DCA 1963), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965).


text:
    Samuel LIGHTSEY, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 81-858.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Bennett H. Brummer, Public Defender and Stephen A. Glass, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Shular, 400 So.2d 781 (Fla.3d DCA 1981); State v. F.E.J., 399 So.2d 47 (Fla.5th DCA 1981); Gerrard v. State, 345 So.2d 849 (Fla.3d DCA 1977); Ponder v. State, 323 So.2d 296 (Fla.3d DCA 1975); State v. Mullin, 286 So.2d 36 (Fla.3d DCA 1973); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).


author: FERGUSON, Judge.

text:
    Alan GREENSTEIN and Cindy Greenstein, Appellants, v. GREENBROOK, LTD., and Florida Housing Capital Corporation, Appellees.
    Nos. 81-1253, 81-1254.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.

      George, Hartz & McNary, Miami, Amy Shield Levine, Boca Raton, for appellants.
    Finley, Kumble, Wagner, Heine & Under-berg and Phyllis K. Harte, Miami, for ap-pellees.
    Before HENDRY and PEARSON, DANIEL and FERGUSON, JJ.
   FERGUSON, Judge.

Cindy and Alan Greenstein appeal from Orders of Final Judgment of Dismissal and Final Summary Judgment entered on their Complaint for Specific Performance of a contract to build and deliver title to a home. By this appeal the Greensteins seek to have declared unconscionable and unenforceable a provision in the contract which excludes specific performance as a remedy in the event of default.

By terms of the contract the selling price of the home to be built was $81,990.00. The Greensteins, as required, made a deposit of $8,199.00 (10%) and secured mortgage financing for the balance. In March, 1980, with construction of the home 75% complete, GREENBROOK, LTD. halted construction and defaulted allegedly because of financial difficulties. The Greensteins, given a choice of terminating the contract and receiving their deposit back or paying $24,-000.00 in addition to the original contract price in order for construction of their home to be completed, chose to file suit for specific performance under the original contract.

On entering summary judgment for GREENBROOK, LTD. on the suit by Greenstein for specific performance, the trial court found:

. . . there is no material issue of fact in dispute, and that the Defendant, GREENBROOK, LTD., defaulted on the contract by reason of circumstances beyond its control and within the meaning of the . . . contract. .. . that the Plaintiffs received a proper and full refund check that paragraph 10 of the . .. contract is not unconscionable as a matter of law. . . .

This court has recently upheld as valid a provision in a real estate sales contract excluding specific performance as a remedy. Sun Bank of Miami v. Lester, 404 So.2d 141 (Fla. 3d DCA 1981). We are aware of no other Florida case where a party sought specific performance as a remedy for breach of contract, where the contract expressly excluded such a remedy. In Dillard Homes, Inc. v. Carroll, 152 So.2d 738 (Fla. 3d DCA 1963), a case of first impression in the state, this court held that where a contract fixed the deposit as liquidated damages in the event of a default by Purchaser, retention of the deposit by the Seller would be the exclusive remedy and Seller would be denied specific performance. It seems clear from the cases that the courts of this state will uphold any limitation of remedy provision in a contract, which limitation is mutual, unequivocal and reasonable. See, e.g., Black v. Frank, 176 So.2d 113 (Fla. 1st DCA 1965) (upholding provision limiting relief available for breach of contract to the return of capital stock). Here, the parties agreed that specific performance would not be available to either side as a remedy in the event of default, and there being no showing that the agreement is unreasonable, the Final Summary Judgment and Final Judgment of Dismissal entered herein are

AFFIRMED.

      .The provision reads:
      DEFAULT. In the event of a default by a Seller, Purchaser shall be entitled to a full refund of all monies theretofor paid to Seller in full and complete settlement of all claims against Seller. In the event of a default by Purchaser, Seller shall retain all monies there-tofor paid by Purchaser as liquidated and agreed upon damages since the amount of actual damages sustained by Seller is incapable of ascertainment. This provision has been specifically agreed upon by the parties because a default on the part of Purchaser would have adverse financial effects upon Seller as a result of increased costs, expenses and fees having been incurred by Seller and by its having lost the opportunity to sell the Property to other purchasers. Neither party, regardless of which shall be in default, shall be entitled to specific performance of the Contract, (emphasis added).

      . Whether the breach by Seller was in bad faith remains a disputed issue of fact and should not have been disposed of by the court within the Summary Judgment.

      . Appellants respond that the deposit check, without interest, was tendered to them in settlement, as liquidated damages, but was refused.

      . In this suit for specific performance, we have not decided whether Purchaser, in an action for damages upon Seller’s default, would be limited to the return of his deposit, where Seller’s default was shown to be in bad faith. Cf. Sper-ling v. Davie, 41 So.2d 318 (Fla.1949) (court would not restrict Purchaser to recovery of amount paid, where breach was solely the result of bad faith on the part of the Sellers).


text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Kenneth SHEROUSE, Appellee.
    No. 81-1482.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and John W. Wylie and A. H. Toothman, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Fred R. Ober, Miami, for appellee.
    Rossman & Baumberger and Robert D. Peltz, Miami, for Academy of Florida Trial Lawyers as amicus curiae.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Appellee’s motion for attorney’s fees is denied. Trexler v. Fiat Motor Co., 400 So.2d 1320 (Fla. 5th DCA 1981); Appenfeldt v. Quinn, 399 So.2d 1026 (Fla. 2d DCA 1981); §§ 57.105, 59.46, Fla.Stat. (1981).


text:
    Jack AUSTIN, Appellant, v. AUSTIN’S RACK, INC., Appellee.
    No. 81-1523.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Joseph S. Paglino, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Alan T. Dimond and Steven Goldsmith, Miami, for appellee.
    Before HUBBART, C. J., DANIEL S. PEARSON, J., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Because there is a complete absence of any justiciable issue, we find this appeal to be wholly frivolous. Accordingly, we grant Austin’s Rack’s Motion for Attorney’s Fees and order Jack Austin to pay Austin’s Rack, Inc. an attorney’s fee in the amount of $1,000. T. I. E. Communications v. Toyota Motor Carriers, Inc., 391 So.2d 697 (Fla.3d DCA 1981); §§ 57.105, 59.46, Fla.Stat. (1981).


text:
    Ira L. STERN and Jean Stern, his wife, Appellants, v. TROPICAL INTERNATIONAL ENTERPRISES, INC., Appellee.
    No. 81-1596.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Rosen, Rosen & Associates and Ronald Rosen, Miramar, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael A. Mullen, Miami, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Goldberg v. Contex Industries, Inc., 362 So.2d 974 (Fla. 3d DCA 1978); Hamilton v. Shell Oil Company, 233 So.2d 179 (Fla. 4th DCA 1970); Berrier v. Associated Indemnity Company, 142 Fla. 351, 196 So. 188 (1939).


text:
    Brett A. MOSES, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1908.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Magazine & Blumenfeld and Eric Cohen, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds and Alan T. Lipson, Asst. Attys. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

We reverse upon a holding that under the facts presented on this record the trial court should have applied the place of business exception of Section 790.25(3)(n), Florida Statutes (1979). See also Peoples v. State, 287 So.2d 63 (Fla.1973); Section 790.25(4), Florida Statutes (1979).

Reversed and remanded.


text:
    METROPOLITAN DADE COUNTY, Florida, Merrett Steirheim, County Manager, B. W. Williams, Jr., Tax Collector for Dade County, Florida, Harry L. Coe, Director of the Department of Revenue, State of Florida, Appellants, v. ST. JOE PAPER COMPANY and Theodore B. Gould, Appellees.
    No. 81-1970.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.

      Robert A. Ginsburg, County Atty., and James K. Kracht, Asst. County Atty., for appellants.
    Mahoney, Hadlow & Valdes-Fauli and Harley S. Tropin and Christine M. Arguello, Miami, for appellees.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Without consideration of the merits, the order under review, which was entered after final judgment, is vacated because the trial court was then without jurisdiction. Davidson v. Stringer, 109 Fla. 238, 147 So. 228 (1933); 13 Fla.Jur.2d Courts and Judges § 31 (1979).


text:
    Ronald SCHERFER and Sharyn Scherfer, his wife, Appellants, v. BRICKELL BISCAYNE CORPORATION, Appellee.
    No. 81-2717.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Merlin & Horowitz; Ciravolo & Feldman and Bennett G. Feldman, Miami, for appellants.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Byron G. Petersen and Barry D. Hunter, Miami, for appel-lee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The trial court denied plaintiff’s motion for a temporary restraining order, pending the outcome of a declaratory judgment action to determine the parties’ rights under a contract for the purchase and sale of a condominium. The temporary restraining order sought a postponement in the closing date. No clear abuse of the trial court’s discretion has been shown and, thus, the order under review is affirmed. Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979); City of Coral Springs v. Florida National Properties, Inc., 340 So.2d 1271 (Fla. 4th DCA 1976).

Affirmed.


text:
    Louis Tyrone WILBANKS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-384.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Louis Tyrone Wilbanks, in pro. per.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

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


author: BASKIN, Judge.

text:
    Valentin HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-871.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    Middleton & Giant, Gainesville, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Appellant, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and this court having considered the record presented and the excellent order in which the trial court stated the findings upon which it premised its decision and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    George Alphonso SEYMOUR, Appellant, v. The STATE of Florida, Appellee.
    No. 82-920.
    District Court of Appeal of Florida, Third District.
    May 11, 1982.
    George Alphonso Seymour, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

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

Affirmed.


author: DOWNEY, Judge. HERSEY, Judge,

text:
    BELVEDERE DEVELOPMENT CORPORATION and Colonnades, Inc., Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION and Palm Beach County, et al., Appellees.
    No. 79-2306.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.

      C. Ray Greene, Jr., and William L. Coal-son of Greene & Greene, P. A., Jacksonville, for appellants.
    H. Reynolds Sampson, Gen. Counsel, and Alan E. DeSerio, Tallahassee, for appellee Dept, of Transportation.
   DOWNEY, Judge.

Belvedere Development Corporation and Colonnades, Inc., two of numerous defendants in an eminent domain case, appeal from a final judgment, entered pursuant to a jury verdict, that awarded them $2,385 and $15,800, respectively, as the value of the land taken.

As part of the project involving construction of a new bridge across the intereoastal waterway from Blue Heron Boulevard to Singer Island, the Division of Administration, State of Florida Department of Transportation, and Palm Beach County on September 8, 1972, filed a complaint in eminent domain to condemn various parcels of real property. Belvedere and Colonnades were named as the owners of two parcels (parcel 111 and parcel 110, respectively) sought to be condemned. The complaint, which contained the legal description of each parcel, demonstrated the parcels were riparian lands and further provided that

the rights to use and enjoy the riparian rights of and pertaining to said lands, including the rights to bulkhead and fill, said lands as provided by law, which are not in conflict with the interests of the Florida Department of Transportation in the construction and maintenance of said public highway

were reserved to Belvedere and Colonnades. On November 15,1972, the court entered an order of taking that included the above quoted reservation of riparian rights to Bel-vedere and Colonnades.

On June 27, 1979, the cause came on for jury trial on the sole question of the amount to be paid Belvedere and Colonnades as full compensation for the land taken plus damages to the remainder. During the course of the trial the condemnor-appellees’ appraisal expert testified that appellants would suffer no severance damages because a) the rights reserved to the appellants in the order of taking indicated that no riparian rights were taken from either parcel, and b) neither appellant would suffer any economic detriment as a result of the takings. The appellees’ expert also testified that full compensation due appellants for the taking of parcels 110 and 111, as of December 4, 1972, was $6,550 and $1,400, respectively.

The property owner-appellants’ first expert appraisal witness, Samuel Holden, testified that the total compensation due Colonnades for the taking of parcel 110, as of December 4, 1972, was $106,042. Five percent of that amount was compensation for the loss of riparian rights. He also testified full compensation due Belvedere for parcel 111, as of December 4, 1972, was $27,638; $7,259 of that sum was for loss of riparian rights.

Appellants’ second expert appraisal witness, Roy Smith, testified that the salvage damage (which included the loss of riparian rights) resulting from the taking of parcel 110 was $108,880, and the total loss resulting from the taking was $138,880. As to parcel 111, the loss of riparian rights amounted to $24,195, with the total loss resulting from the taking being $44,535.

The jury returned verdicts finding that (1) the compensation awarded to appellant Colonnades was $15,800 for the value of the land taken (parcel 110) and $0 for severance damages, for a total award of $15,800; and (2) the compensation awarded to appellant Belvedere was $2,385 for the value of the land taken (parcel 111) and $0 for severance damages, for a total award of $2,385. The trial court entered final judgments pursuant to the verdicts and this appeal followed.

Of the seven points raised on appeal only one really warrants any extended discussion. Appellants’ first point presents the following question: “May riparian rights be enjoyed by an owner of non-riparian land?” Appellants do not propose a direct answer to the foregoing question; however, they appear to argue the answer should be “no” on the grounds that riparian rights are inseparable from riparian lands. They further argue that once the appellees condemned and took appellants’ riparian lands they (appellees) also necessarily took appellants’ riparian rights, and so appellants, as a matter of law, must recover compensation from the appellees for the taking of those riparian rights.

Appellants cite numerous eases from Florida and other states to support their position. In turn, appellees cite numerous cases in support of their position that (a) riparian rights are severable from riparian lands, and (b) appellees’ reservation of riparian rights to appellants precludes appellants from recovering any compensation for loss of riparian rights since appellants did not lose such rights.

Appellants cite no Florida case that holds riparian rights may not be severed from riparian lands. However, Burkart v. City of Fort Lauderdale, 168 So.2d 65 (Fla. 1964); Peebles v. Canal Authority, 254 So.2d 232 (Fla. 1st DCA 1971); and 78 Am.Jur.2d, Waters § 278, contain statements that support appellees’ position. See also Capies v. Taliaferro, 144 Fla. 1, 197 So. 861 (1940), and Padgett v. Central & Southern Fla. Flood Con. Dist., 178 So.2d 900 (Fla. 2d DCA 1965). We have also considered Section 197.315(3)(a), Florida Statutes (1971), which appears in the 1979 statutes as Section 197.228(1). That statute purports to define riparian rights in a fashion supportive of appellants’ contentions. However, the historical location of that statute within a chapter on taxation and the major thrust of the content of the original legislative enactment of the statute (Chapter 28262, Laws of Florida (1953)), lead us to conclude that Section 197.-315(3)(a), and its lineage are taxation statutes rather than statutes that describe substantive property rights. The checkered history of Section 197.228, Florida Statutes (1979), and the problems it has created in the determination of water rights is recounted in Maloney, Plager & Baldwin, Water Law, § 22.3. Because of the dubious effect of said legislative act upon the question presented in this case we hold it to be inapplicable.

Since the only Supreme Court decisions relevant to this case (Burkart, supra, and Capíes, supra) support appellees’ position, we are constrained to follow those decisions. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In addition, the following cases from other jurisdictions support appellees’ position: Mianus Realty Company v. Greenway, 151 Conn. 128, 193 A.2d 713 (1963); Williams v. Skyline Development Corporation, 265 Md. 130, 288 A.2d 333 (1972); Commonwealth, Marine Resources Com’n. v. Forbes, 214 Va. 109, 197 S.E.2d 195 (1973). Accordingly, we' hold that appellees had the authority to take appellants’ land while reserving to appellants the riparian rights of that land.

Peebles v. Canal Authority, 254 So.2d 232 (Fla. 1st DCA 1971), presents a contrasting factual situation that emphasizes the importance of the reservation of rights in the present case. In Peebles the condemnor acquired the fee simple title to the property taken without in any way limiting the estate or use involved. Thus the court held it was not proper for the condemnor’s appraiser to take into consideration the condemn- or’s allowance of access to the river based on the condemnor’s usual policy of allowing such access. In that regard the court stated:

It is established law that privileges in the property taken, (in this case, access to a body of water) the enjoyment of which is not compatible with the exercise of the title taken (here, a fee simple absolute) by the condemning authority, cannot be considered in awarding compensation unless they are formally established by the condemnation proceeding. Privileges .. . which are merely permissive and subject to revocation by the condemning party at any time cannot be availed of in reduction of damages. 4, Nichols on Eminent Domain, § 12.41(2); Smith v. City of Tallahassee, 191 So.2d 446 (Fla.App. 1st, 1966). Any restriction on the extent of the taking should be stipulated in the petition and the Order of Taking, for the condemnor is bound by these instruments. Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla.App.2nd, 1961). 254 So.2d at 233 (Emphasis added.)

Following the lead of the Peebles case, the condemnor here made it clear in the petition that the riparian use of this property was reserved to the owners except only as it might conflict with the limited interests of the D.O.T. in the construction and maintenance of the highway. The order of taking also followed Peebles in specifying that the riparian rights were reserved to the owners.

Consequently, our study of this case leads us to the conclusion that the jury award was correct. The condemnor-appel-lees’ reservation of the riparian rights to the property owner-appellants, together with the evidence adduced was sufficient for the jury to determine the valuation issues between the parties. And the determination of those issues was the jury’s function. 21 Fla.Jur.2d, Eminent Domain § 136.

For the reason set forth above, we also conclude that appellants’ argument relative to jury instructions is without merit.

Two other points raised by appellants have to do with asserted procedural errors during the trial. Neither has merit. The trial judge advised the jury as they were departing the jury box to deliberate that, if they were unable to readily arrive at a verdict, they would probably have to return the next day. They did not arrive at a verdict that night; however, when they returned the next day, they did so. Appellants contend that the judge’s comment had the effect of an “Allen Charge”, which resulted in coercing the jury into arriving at a hurried verdict. We disagree. No error was apparent. The other point involved a juror who, as he was leaving the jury box, asked the clerk the whereabouts of the deed that transferred appellants’ title to the D.O.T. The trial judge advised the jury there was no such deed in evidence. Everyone was milling around in the courtroom and it appears counsel was unaware of that colloquy. In any event, no harmful error is demonstrated in this regard.

Thus, having fully considered all of appellants’ contentions, we fail to find any reversible error, and we affirm the final judgment under review.

Because Florida is blessed with a great amount of riparian land, we hereby certify the following question, which we have answered in the affirmative, to be a question of great public importance:

Does Florida law permit riparian (or littoral) rights to be separated from riparian lands?

AFFIRMED.

LETTS, C. J., concurs.

HERSEY, J., concurs specially.

HERSEY, Judge,

concurring specially.

I specially concur in the result, being persuaded that, as suggested by the majority opinion, the weight of Florida authority slightly favors the proposition that riparian rights may be separated from the upland. Having said that, I hasten to urge that the Supreme Court reverse this trend.

“Riparian rights” is a term rather loosely used to describe the rights which inure to the benefit of an owner of property abutting a river or stream (littoral rights being the term more appropriately used to describe similar rights in relation to a lake or the ocean) to use the water and the soil under the water to the thread of the stream. Black’s Law Dictionary, 4th Edition, 1951.

Such rights basically include (1) general use of the water adjacent to the property, (2) to wharf out to navigability, (3) to have access to navigable waters and (4) the right to accretions.

How could it seriously be contended that appellants in this case retain any of those rights despite the language in the Order of Taking (the functional equivalent of a deed)? They have no easement or other retained rights to enter upon appellee’s land. If a dock is built by appellants it will have to be free-standing, without contact with appellee’s land. And how are they to “use” the water, say for swimming, when they have no access to it other than by boat? And consider the horrendous problem of accretions!

To speak of riparian or littoral rights unconnected with ownership of the shore is to speak a non sequitur. Hopefully, the Supreme Court will take jurisdiction and extinguish this rather ingenious but hopelessly illogical hypothesis.

      . Section 197.315(3)(a) was in effect at the time of the taking (November 15, 1972); thus we discussed it because it is arguable that it had a bearing on appellants’ right to full compensation for the taking. We note that, as appellees point out, the repeal of Chapter 197, Florida Statutes (1971), by Chapter 72-268, Laws of Florida (1972), effective December 31, 1972, without a subsequent legislative reenactment of Section 197.315(3)(a), might well render Section 197.228(1) a nullity. See Sections 11.2421, 11.2422, 11.2424, Florida Statutes (1973); Massachusetts Bonding & Insurance Company v. Bryant, 175 So.2d 88 (Fla. 1st DCA 1975); 30 Fla.Jur., Statutes, § 72, p. 219.


author: LETTS, Chief Judge.

text:
    Vannoy BANKS and Christina E. Banks, Appellants, v. Anthony SALINA and Donna Salina, his wife, Appellees.
    No. 81-261.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.

      Edna L. Caruso, West Palm Beach, for appellants.
    J. Terence McManus and Raymond G. Ingalsbe of Ingalsbe, McManus & Wiitala, P.A., North Palm Beach, for appellees.
   LETTS, Chief Judge.

This appeal evolves from a sale, between individual buyers and sellers, of a fifteen year old house which had a leaking roof and a defective swimming pool. The trial court acting as the trier of the fact ruled for the buyers and entered awards for (1) roof replacement, (2) carpentry costs to repair the damage caused by the leak, and (3) repair of the swimming pool. We affirm the first of these awards and reverse the other two.

Considering them in reverse order, the contract of sale contained no warranties, nor were there material misrepresentations relative to the pool although there was testimony that the sellers knew it was not in good condition. In Florida, there is no duty to disclose when the parties are dealing at arms length. Ramel v. Chasebrook Construction Company, 135 So.2d 876 (Fla. 2d DCA 1961).

As to the continuing roof leaks, which resulted in carpentry damage to the house after the sale was consumated, the sellers did, under the contract of sale, have a duty to repair the roof and dispatched roofers to carry out that task on several occasions. However, the buyers refused to let them proceed unless the roofing companies would “guarantee” their work. The agreement to repair the roof made no mention of guarantees and it is common knowledge that roofers do not normally guarantee spot repairs. Thus we are of the opinion that the buyers’ demands of the roofers were unreasonable and as a consequence the sellers should not be held accountable to repair the damage which occurred after the sale and which was occasioned by the leaks, especially as the leaks continued unabated and unattended for over eighteen months. We hold this self-incurred delay triggered the doctrine of avoidable consequences as to the buyers who had a duty to mitigate their damages and carry out the roof repairs themselves. Jenkins v, Graham, 237 So.2d 330 (Fla. 4th DCA 1970). It is true the trial judge found that the buyers could not afford these repairs. However, our perusal of the record does not support this finding and counsel for the buyers admitted, during oral argument before this Court, that lack of funds was not the reason the buyers did not repair the roof.

Lastly, as to the provision in the contract to repair the roof itself, the Court ruled in favor of the buyers for a new roof as distinct from the repair thereof. We are not too happy with this result, but there is competent substantial evidence in the record that might support this particular award and we will not substitute our judgment for that of the trial judge. Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Accordingly, we affirm the award of $3,641 as to the roof, but reverse the award of $1,233 to restore the pool and reverse the award of $8,100 attributable to the carpentry.

AFFIRMED IN PART AND REVERSED IN PART.

DOWNEY and WALDEN, JJ., concur.

      . Some other minor items not attributable to the roof were included in the carpentry bill. They are, however, as in the case of the pool, defects for which no warranty was given.

      . There is also evidence that the sellers personally attempted to repair the roof but the buyer also dismissed them from this effort.

      .The final judgment’s addition of these three figures totalled $13,947, but we assume this to be an arithmetical error and that the total was intended to be $12,974.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Patricia H. PARKHURST, Appellant/Cross-Appellee, v. Arthur B. PARKHURST, Appellee/Cross-Appellant.
    No. 81-536.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.

      James Fox Miller of Miller & Schwartz, P. A., Holly wood, for appellant/cross-appel-lee.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appel-lee/cross-appellant.
   PER CURIAM.

We hold that the trial court’s decision to adopt the master’s recommendation and continue rehabilitative alimony at $250 per month for an additional forty months constitutes a permissible exercise of the court’s discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Furthermore, the record contains sufficient facts to justify the court’s discretionary decision not to make the award of alimony retroactive to the filing date of the petition for modification. McArthur v. McArthur, 106 So.2d 73 (Fla.1958); cf. Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977), appeal dismissed, 362 So.2d 1050 (Fla.1978).

After careful review of the parties’ respective financial conditions,, however, we are compelled to hold that the court abused its discretion and erred by failing to award costs and attorney’s fees to the former-wife. Gerber v. Gerber, 392 So.2d 317 (Fla. 4th DCA 1981); Hill v. Hill, 376 So.2d 472 (Fla. 4th DCA 1979); Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978).

Accordingly, we affirm in part and reverse in part and remand the cause for further proceedings consistent with this opinion.

DOWNEY and HURLEY, JJ., concur.

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

ANSTEAD, Judge,

concurring in part and dissenting in part:

The former wife contends that she should have been awarded permanent alimony in an amount substantially in excess of the $250.00 monthly recommended by a special master and approved by the trial court. At the heart of the controversy is a provision in a settlement agreement executed by the parties at the time of their divorce several years ago:

A. The Husband shall pay to the Wife as periodic rehabilitative alimony the sum of $650.00 per month, payable in installments of $325.00 on the First and 15th day of the month, commencing on the 1st day of March, 1975, and continuing each and every month thereafter for a period of 5 years. At the end of 5 years, the Husband’s obligation for periodic alimony as aforesaid shall cease; provided, however, that both parties agree that the Wife may file a petition with the Court requesting an assessment of the need of additional rehabilitative alimony under the circumstances and the law that exists at that time. In any event, alimony shall cease upon the remarriage or death of the Wife.

The former wife claims that under this provision she was entitled in essence to a de novo determination of her need for permanent alimony at the end of five years. On the other hand the husband claims that this provision was specifically intended to limit the wife to rehabilitative rather than permanent alimony. The special master and the trial court apparently agreed with the husband since they denied the wife’s claim for permanent alimony. I do not believe we can disturb that factual resolution since neither of the parties offered any evidence, outside of the agreement itself, to demonstrate their intent at the time they made this agreement. I agree with this conclusion reluctantly, because I think the alimony provision was ambiguous and that evidence should have been submitted to resolve the ambiguity. In most cases where rehabilitative alimony is awarded, the wife should be entitled to return to court, if the expected rehabilitation does not work out, and secure either an extension of the rehabilitative alimony, if rehabilitation is still possible, or permanent alimony. See O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982). In addition, the trial court found that the former wife had already substantially rehabilitated herself. Apparently this determination was predicated on the fact that the wife’s earnings were expected to increase in the next several years during which time the two children of the parties would reach majority leaving the wife with only herself to look out for. This too is a factual finding that is difficult to reverse under the standards set out in Ca-nakaris relied on by the majority.

I also concur in the majority’s resolution of the attorney’s fee issue. However, I would reverse the trial court’s decision not to make the extension of alimony retroactive. Clearly, the wife demonstrated a continuing need for the additional alimony and the husband’s capacity to respond to that need was the same at all times. If necessary any arrearages determined to be due could be made payable over a period of time to accommodate the husband’s ability to respond. However, if he could pay $650.00 monthly previously plus child support, surely he could pay $250.00 monthly plus an amount to pay off the arrearage.

      . Other consideration was also provided in the agreement for the wife including the convey-anee of the husband’s interest in the marital home.


text:
    BERGEN POINT BRASS FOUNDRY, INC., a New Jersey corporation, d/b/a Standard Bronze Company, Appellant, v. AMERICAN ATHLETIC CORPORATION, a Florida corporation, Appellee.
    No. 81-758.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Robert F. Eimers of Eimers & Jerome, Miami, for appellant.
    David T. Price of Price, Byrne & Trib-bett, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981).

ANSTEAD, GLICKSTEIN, and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    FORT LAUDERDALE BOARD OF ADJUSTMENT and City of Fort Lauderdale, Petitioners, v. Charles E. NASH, III, Respondent.
    No. 82-9.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.

      Donald R. Hall, City Atty., and T. J. Ansbro, Jr., Asst. City Atty., Fort Lauder-dale, for petitioners.
    Arthur M. Wolff of Wolff & Gora, P. A., Fort Lauderdale, for respondent.
   BERANEK, Judge.

Petitioners, Fort Lauderdale Board of Adjustment and City of Fort Lauderdale, seek review of an order of the Circuit Court which reversed a decision of the municipal Board of Adjustment. Respondent, Charles E. Nash, III, was an applicant seeking a residential set-back zoning variance before the Board, which unanimously denied his application. Respondent subsequently filed a petition for writ of certiorari to the Bro-ward County Circuit Court seeking to overturn the decision of the Board. The Circuit Court entered an order dated November 3, 1981, granting the petition and reversing the Board’s decision. The Circuit Court ruled petitioner was entitled to the variance.

Petitioners contend that the Circuit Court departed from the essential requirements of law in that it exceeded the limitations of review to which it was confined. A reviewing court’s consideration in a certiorari proceeding is restricted solely to the record of the proceeding conducted by the administrative agency on which its questioned order is based. Dade County v. Marca, S. A., 326 So.2d 183 (Fla.1976). In reviewing the record before us, we find that the trial court personally inspected both the property and the surrounding area. This inspection constituted important independent evidence beyond that contained in the record of the Board’s proceedings. This inspection occurred out of the presence of the attorneys or parties. We grant the writ of certiorari and remand to the trial court for further consideration confined solely to the record of the proceedings before the Board.

CERTIORARI GRANTED.

GLICKSTEIN and DELL, JJ., concur.


author: DELL, Judge.

text:
    Frank GLUSMAN and Harold Gordon, Petitioners, v. Philip T. WARREN, individually; Philip T. Warren, as Trustee; Sherwin Ross and Irwin Adler, individually; and Philip T. Warren, Sherwin Ross and Irwin Adler d/b/a Boca Raton Properties, a Florida partnership, Respondents.
    No. 82-84.
    District Court of Appeal of Florida, Fourth District.
    May 12, 1982.
    Wesley A. Lauer of Guren, Merritt, Fischer, Udell, Lasky, Sogg & Cohen, Miami, and Robert M. Montgomery, Jr., of Montgomery, Lytal, Reiter, Denney & Sear-cy, P. A., West Palm Beach, for petitioners.
    Richard L. Lapidus of Lapidus & Stettin, P. A., Miami, for respondents.
   DELL, Judge.

Petitioners Frank Glusman and Howard Gordon bring this petition pursuant to Florida Rule of Appellate Procedure 9.100 to review a non-final order requiring them to post a $7,000,000 bond as a condition to continuing a notice of lis pendens.

On January 5, 1982, petitioners filed a complaint for breach of fiduciary duty, partition, declaratory judgment and other equitable relief against respondents and recorded a lis pendens. The complaint alleged an oral agreement to form a partnership to acquire and develop land in Palm Beach County and that the respondent Philip T. Warren took title to property as trustee for petitioner Glusman under an agreement signed by Warren and Glusman. The signed agreement, however, stated that Glusman was to have no equitable interest in the property.

Respondents moved for an emergency hearing on their motion to either dissolve the lis pendens or require the petitioners to post a $7,000,000 bond, contending that the property would be lost to foreclosure if a proposed sale for $7,000,000 could not be closed due to the recorded lis pendens. Respondents argued and the trial court found that the complaint was not based on a duly recorded instrument and required a bond. Counsel for the petitioners had less than 24 hours notice of this hearing. The trial court took no evidence as to the amount and terms of a reasonable bond and accepted respondents’ argument that the amount of the bond should equal $7,000,000 to be posted by 4:00 P.M. of the next business day.

The petitioners contend that the trial court departed from the essential requirements of the law in two respects. First, that the complaint was based on a duly recorded instrument so that the trial court lacked the power to impose a bond under Section 48.23(3), Florida Statutes (1979), and second, that the trial court should have taken evidence on the issue of the amount and terms of an indemnity bond sufficient to protect the respondents from a wrongful continuation of the lis pendens.

The trial court properly found the complaint was not based on a duly recorded instrument. Although at the hearing the petitioners presented a recorded deed conveying the real property to respondent Warren as trustee, that deed had not been attached to the complaint nor made part thereof by reference. Had the deed been attached to the complaint or adequately identified in the complaint a serious question would remain as to whether it would furnish an adequate basis for a lis pendens without bond. Since the grantee was named as trustee without identification of the beneficiaries or the nature and purposes of the trust and no trust agreement of record was identified, the grantee received fee simple title. § 689.07(1), Fla.Stat. (1979). If a complaint is not based on a duly recorded instrument or mechanic’s lien and irreparable damage would result if a bond were not required, a bond is mandatory even if the bond could not be posted. Cam Corporation of Broward v. Goldberger, 368 So.2d 56 (Fla. 4th DCA 1979). Petitioners’ first point is without merit.

Petitioners’ second condition has merit and this cause must be remanded for a hearing on respondents’ actual damages and costs. The trial court set the $7,000,000 bond as a condition on the continuation of the lis pendens without taking any evidence. Such a bond must be set in accordance with Florida Rule of Civil Procedure 1.610(c) on injunction bonds, Kirk v. Baumann, 336 So.2d 125 (Fla.2d DCA 1976), and an injunction bond must be sufficient to cover the actual costs and damages the enjoined party may suffer. Lewis v. Lewis, 66 So.2d 260, 263 (Fla.1953). The petitioners in this case did not have adequate notice to present evidence on the amount and terms of a reasonable bond. While the trial court may have been correct in setting a $7,000,000 bond after taking evidence on this issue, setting this bond without any evidentiary basis was a departure from the essential requirements of the law and must be corrected by another hearing on this issue.

The petition for certiorari is granted and that part of the order conditioning the continuation of the lis pendens on a $7,000,000 bond is vacated. This cause is remanded for an evidentiary hearing on the amount and terms of an indemnity bond sufficient to protect the respondents from damages and costs if the lis pendens is found to have been wrongfully continued.

CERTIORARI GRANTED AND REMANDED WITH INSTRUCTIONS.

ANSTEAD and HERSEY, JJ., concur.