text:
    Willie Lee COOPER, Sr., Appellant, v. Mae France COOPER, Appellee.
    No. 81-123.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Allen R. Bosworth of Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    Irwin A. Berkowitz, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Appellant seeks reversal of those portions of a final judgment of dissolution whereby appellee was awarded permanent alimony and a reasonable attorney’s fee.

He first argues that permanent alimony should not have been awarded because appellee’s Answer and Counterpetition contain neither any allegation upon which an award of alimony could be made nor a prayer therefor. The record supports appellant’s contention. Appellee’s counsel first made reference to a claim for alimony during his opening statement:

[W]e will request the Court award a lump sum alimony of the home to the wife.

In response to this claim appellant’s counsel, during his opening statement, objected.

MR. BOSWORTH: I would just like to point out, counsel has not pled any basis for alimony, whatsoever; nor has he requested it in his prayer for relief, answer, or his counterclaim, any award of lump sum alimony.
MR. BERKOWITZ: I have, Your Honor.
MR. BOSWORTH: He has requested adjudication of property rights, not—
MR. BERKOWITZ: Well, paragraph seven, that the property is located as follows — the respondent asserts a certain equity in the real property. She has made all payments, maintenance and upkeep on the real property.
MR. BOSWORTH: When you are talking alimony, you are talking ability to pay and need. That’s not alleged.
MR. BERKOWITZ: We have asked for the Court to award the respondent alimony in this action.
THE COURT: Where is it? I am looking at your counter-petition. I don’t see any request of alimony.
MR. BERKOWITZ: Well, Your Honor, if the situation arises, I would make an ore tenus motion at the close of the evidence and amend my pleadings to conform with the evidence. However, at this point, I would just allege the special equity in the house.
MR. BOSWORTH: I would note a continuing objection at this point, then, to any evidence that is going to be coming in to show the need or ability to pay alimony. Obviously, we are going to have to investigate these issues, as far as child support is concerned; but when we are talking about alimony, I am not prepared to defend alimony. I would have taken depositions if I would have known alimony is being requested.
THE COURT: I will sustain the objection.

At the close of the evidence appellee’s counsel made no motion to amend the pleadings to conform to the evidence. Notwithstanding the foregoing, the trial court awarded the wife $100 per month as permanent alimony.

To be sure, a judgment based upon a matter entirely outside the issues made by the pleadings cannot stand. Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Chandler v. Chandler, 330 So.2d 778 (Fla. 1st DCA 1976). This general rule was applied in James v. James, 374 So.2d 1085 (Fla. 5th DCA 1979), which is directly on point. There, the Fifth District Court of Appeal vacated that part of a final judgment of dissolution of marriage which awarded the wife permanent alimony where her petition for dissolution did not raise the issue of alimony. Accordingly, we vacate that portion of the final judgment which awarded appellee permanent alimony.

Appellant’s second point is that there is no predicate in the record for the trial court’s award of a reasonable attorney’s fee in the sum of $250 to appellee’s counsel. We agree.

The only testimony presented was that of appellee when examined by her counsel:

Q. Mrs. Cooper, you have agreed to pay me a reasonable attorney’s fee, is that correct?
A. Right.
Q. Have you paid anything?
A. No.
Q. Can you pay me anything?
A. Not today, I can’t.

An award of an attorney’s fee requires a predicate of substantial competent evidence in the form of testimony by the attorney performing services and by an expert as to the value of those services, Cohen v. Cohen, 401 So.2d 463 (Fla. 4th DCA 1981). In the absence of such evidence, we vacate that part of the final judgment which awarded an attorney’s fee to be paid by appellant.

The remainder of the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY and GLICKSTEIN, JJ., and PEARSON, DANIEL S., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ralph HUGHES, d/b/a R.E.D. Jewelry and Coin Exchange, Appellant, v. SECURITY ENGINEERING, INC., Appellee.
    No. 81-129.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Larry Klein and Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Joseph Lowe and Claudia B. Greenberg of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellee.
   PER CURIAM.

Affirmed on the authority of L. Luria & Son, Inc. v. Alarmtec International Corporation, 384 So.2d 947 (Fla. 4th DCA 1980).

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


text:
    Michael Eugene ALFORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-572.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant/defendant’s conviction is affirmed, but the cause is remanded to the trial court with instructions to vacate the provision in the judgment which requires the payment of monies pursuant to Sections 943.24 and 960.20, Fla.Stat. (1979). See State v. Byrd, 378 So.2d 1231 (Fla.1979); Cox v. State, 334 So.2d 568 (Fla.1976).

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: ORFINGER, Judge.

text:
    Ruth N. MOGUL, Appellant, v. Aaron FODIMAN, etc., et al., and Max A. Mogul, etc. et al., Appellees.
    No. 81-1047.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.

      Kenneth D. Morse and Janet E. Messer-vey of Matthias & Matthias, Orlando, for appellant.
    Davisson F. Dunlap of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for appellees.
   ON MOTION TO DISMISS

ORFINGER, Judge.

The issue presented by the motion to dismiss is whether, in supplementary proceedings following entry of a final judgment, an order denying a motion for protective order is appealable under Florida Rule of Appellate Procedure 9.130(a)(4) (1977).

In the supplementary proceedings, the judgment creditor sought to take the deposition of appellant, the judgment debtor’s wife, and requested production of numerous documents by means of a subpoena duces tecum. The appellant filed a motion for protective order which was denied after hearing, and this appeal followed.

Appellee says that the order in question is not among those non-final orders reviewable by appeal under Florida Rule of Appellate Procedure 9.130(a)(3). In proceedings prior to entry of final judgment, that position is correct. See Briggs v. Salcines, 392 So.2d 263 (Fla.2d DCA 1980). However, appellant points to subsection (a)(4) of the rule which she contends makes this order appealable as an order or an authorized motion entered after final order. Rule 9.130(a)(4) appears broad enough to permit an appeal from the order in question. This is clearly a “non-final order entered after final order on [an] authorized [motion].”

By analogy, an order setting aside a default before judgment was entered has been held not appealable under this rule, but an order vacating a default and the final judgment based on it has been appeal-able under the section in question. Appel-lee says that the distinction should be made between orders which affect the validity of the final judgment and those which do not, and while that would be a logical distinction, the clear language of the rule does not appear to be that restrictive.

The motion to dismiss the appeal is denied.

MOTION DENIED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . § 56.29, Fla.Stat. (1979).

      . Fla.R.App.P. 9.130(a)(4):
      Non-final orders entered after final order on motions which suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in Rule 9.110. Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule, (emphasis added).

      . Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980).

      . Bache, Halsey, Stuart, Shields, Inc. v. Mendoza, 400 So.2d 558 (Fla.3d DCA 1981).


author: SHARP, Judge.

text:
    Freddie DELEON, Appellant, v. STATE of Florida, Appellee.
    No. 81-265.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

AFFIRMED.

See Pendarvis v. State, 400 So.2d 494 (Fla. 5th DCA 1981).

ORFINGER and COWART, JJ., concur.


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

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. William MORGAN, as Personal Representative of the Estate of Linda J. Morgan, Deceased, and C & W Leasing, Inc., and Canal Insurance Company, Appellees.
    No. 80-1469.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.
    Robert A. Hannah of Pitts, Eubanks & Ross, P.A., Orlando, for appellant.
    Harry W. Lawrence of Lawrence, Griffin & Dick, Orlando, for appellee Canal Ins. Co.
    No appearance for appellees William Morgan and C & W Leasing, Inc., etc., et al.
   FRANK D. UPCHURCH, Jr., Judge.

This appeal concerns a dispute between two insurance companies arising from a suit wherein William Morgan as personal representative of the estate of Linda J. Morgan, deceased, recovered a judgment from appel-lee, C & W Leasing, Inc., a trucking firm.

Appellant Insurance Company of North America (INA), had insured C & W Leasing, Inc. but alleged that its policy had expired prior to the date of the accident. C & W had replaced its INA coverage with a policy from Canal Insurance Company which was in effect on the date of the accident. INA failed to notify the Public Service Commission that the policy had expired by filing Form K until after the date of the accident. Therefore, Canal contended the INA coverage was still effective and therefore INA was obligated to contribute fifty percent of the loss.

Canal invited the participation of INA in settlement of the claims, placed INA on notice of intent to settle and to seek contribution for such settlements. INA declined to participate and refused contribution. Summary final judgment for contribution was entered in favor of Canal. INA appeals.

The first point on appeal questions whether Public Service Commission Rule 25 is an unconstitutional exercise of agency rule-making power in violation of article II, section 3, Florida Constitution.

Rule 25-5.31(5)(A), Florida Administrative Code, requires thirty days notice to the Commission before the effective expiration or cancellation of an insurance policy issued to a motor carrier.

Section 120.54(7), Florida Statutes (1979), requires that each administrative rule refer “to the specific rule-making authority pursuant to which the rule was adopted ... to the section or subsection of the Florida Statutes or the Laws of Florida being implemented, interpreted, or made specific.” Rule 25-5.31(5)(A) cites as authority chapter 323, Florida Statutes, and the rules and regulations of the Florida Public Service Commission adopted thereunder.

It is Canal’s position that the Legislature enacted a comprehensive plan regulating motor carriers and then conferred upon the Public Service Commission the authority to administer that plan with the primary intent of protecting the public. INA maintains that established rules of statutory construction compel the conclusion that the Legislature intended to exclude the subject of expiration from the operation of section 323.06(3) or at least, create a reasonable doubt as to the power of the Public Service Commission to include expiration in Rule 25, and therefore this application of Rule 25 is an incorrect exercise of agency rule-making power.

INA notes that section 323.07, Florida Statutes (1979), provides the Public Service Commission with general regulatory authority over motor carriers but argues that those general provisions cannot be used to imply the power to require notice of expiration because the specific provisions of Section 323.06(3), Florida Statutes (1979), preempt this area. Section 323.07 provides in pertinent part:

The Commission may supervise and regulate every motor carrier in the state operating under the authority of this part, fix or approve . . . rules and regulations for such motor carriers, regulate the service and safety of operations of each such motor carrier .. . require the filing of annual and other reports and other data by the motor carriers; and supervise and regulate motor carriers in all other matters affecting the relationship between such companies and the traveling and shipping public.

Canal argues that the two statutory subsections should be construed in pari materia because they involve the same subject. State ex. rel. McClure v. Sullivan, 43 So.2d 438 (Fla.1949). Canal refers to cases supporting the legislative intent to extend broad discretion to the Public Service Commission in making its decisions. See Kimball v. Hawkins, 364 So.2d 463 (Fla.1978); Greyhound Lines, Inc., Southern Greyhound Lines Division v. Mayo, 207 So.2d 1 (Fla.1968); Fogarty Brothers Transfer, Inc. v. Boyd, 109 So.2d 883 (Fla.1959). Other cases grant authority by necessary implication within the limits of that discretion. Deltona Corporation v. The Florida Public Service Commission, 220 So.2d 905 (Fla.1969).

The legislative intent of chapter 323 was the protection of the public against injury caused by the negligence of motor carriers. INA’s contention that Rule 25-5.31(5)(A) is an abuse of the Public Service Commission’s authority and therefore unconstitutional would result in a gap in such protection if the first insurer failed to file notice and the motor carrier did not secure replacement insurance.

We conclude that to construe the Public Service Commission’s authority in a narrow sense would defeat the intent of the Legislature to protect the public. We therefore hold that Rule 25-5.31(5)(A) is not an abuse of the commission’s rule-making authority.

INA also contends that its policy and the Canal policy “did not share an identity of the nature of the risk covered,” because INA’s coverage was secondary as compared to primary coverage by Canal. It points out that INA received no premiums from C & W Leasing for coverage after April, 1978. On the other hand, Canal was paid the requisite premium and had accepted the contract obligation to provide coverage during the period in which the accident occurred. The only reason a claim is possible is because INA failed to file Form K notifying the Public Service Commission that the policy had expired.

A case directly on point is National Indemnity Company v. Pennsylvania National Mutual Insurance Company, 363 So.2d 151 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979), which was an action for declaratory judgment by one insurer of a motor transport company against a former insurer of the same company. On January 23, 1971, Penn cancelled its policy but did not notify the Public Service Commission. Six days later National issued a policy and filed its certificate with the Public Service Commission. When an accident occurred a few weeks later, the Public Service Commission had two certificates on file. The injured party filed suit against the insured, and National subsequently settled with the plaintiffs and filed an action for declaratory relief against Penn. The appellate court ruled that Penn’s policy was still in effect and that National’s cause of action for contribution or indemnity was viable.

We agree, however, with Judge Pearson’s dissent in National Indemnity:

I would affirm upon the principle that a legislative act should not be construed so strictly so as to defeat the obvious and more plausible intention of the lawmakers.... Common sense would indicate that neither the motor carriers nor the public could expect two liability policies to exist at the same time in a situation such as this. Of course, the public eventually pays for the insurance policies deposited by motor carriers. Therefore, to hold a first insurer liable after the second insurer has been substituted and accepted by the regulatory body is waste. ... I would follow the administrative interpretation of the statute shown by the acceptance of the new policy as a substitute. (Citations omitted.)

363 So.2d at 154.

The requirement of a bond as a condition of a valid permit to operate carries out the legislative intent to assure that anyone injured by a trucking company’s vehicle will have funds to compensate for his damages. Notice to the Public Service Commission assures the commission time to revoke the permit if for any reason the bond (or policy) is to terminate. Section 323.06(3), Florida Statutes (1979), provides:

No certificate or permit shall be valid until such bond has been filed and approved, and no such bond so accepted shall be cancelled by the company issuing the same upon thirty days’ notice to the Commission and upon such notice being given by the company issuing said bond or bonds, the certificate or permit of the person or the corporation given bond shall be revoked, unless a new bond shall be filed and accepted before the date for the cancellation of the said bond. However, the applicant may, in the discretion of the Commission, be allowed to file in lieu of bond an insurance policy, which shall be approved by the Commission, with some casualty or insurance company authorized to do business in the state.

C & W Leasing obtained a new policy (Canal’s) which was filed and accepted by the Public Service Commission. There was no lapse of coverage. The very purpose of the notice, the securing of new coverage or cancellation of the permit, had been fulfilled. To require INA to contribute to Canal in these circumstances would serve no purpose in the protection of the public and would simply be a windfall for Canal at the expense of INA. When it undertook the risk, Canal did not anticipate such contribution and it played no part in the extent of the risk which Canal was paid to assume. We therefore conclude that the summary judgment of the trial court was incorrect and REVERSE.

This opinion directly conflicts with National Indemnity Company v. Pennsylvania National Mutual Insurance Company, 363 So.2d 151 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979).

COBB, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The issue in this case is whether both INA and Canal had policies insuring C & W Leasing, Inc., on the date of the accident. I agree with the majority opinion that section 323.07, Florida Statutes (1979) provides the Public Service Commission with authority to promulgate Rule 25-5.31(5)(A). This Rule clearly requires that insurance policies filed with the Commission (pursuant to maintaining or obtaining a certificate or permit) must contain endorsements which state that these policies will not expire or be cancelled without notice to the Commission and the lapse of thirty (30) days thereafter. No notice was sent by INA prior to the accident. It then follows that INA’s policy was in effect. This is almost “on all fours” with National Indemnity Company v. Pennsylvania National Mutual Insurance Co., 363 So.2d 151 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979). See also American Automobile Insurance Co. v. Pajar, 316 So.2d 612 (Fla. 4th DCA 1975).

The majority, in my view, has undertaken to rewrite an agency rule, and incidentally a contract for insurance, along lines which are wise and perhaps advisable. However, that is not an appropriate judicial function. Home Development Company of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965); Steiner v. Physicians Protective Trust Fund, 388 So.2d 1064 (Fla. 3d DCA 1980), review denied, 397 So.2d 779 (Fla.1981). See also Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978); 4245 Corporation, Mother’s Lounge, Inc. v. Division of Beverage, 348 So.2d 934 (Fla. 1st DCA 1977).

      . Florida Administrative Code Rule 25-5.-31(5)(A):
      (5) Except as above set forth, the following form of endorsement must be attached to all insurance policies:
      (A) Endorsement covering Persons and Property except Cargo.
      The policy to which this endorsement is attached is written pursuant to and is to be constructed in accordance with Chapter 323, Florida Statutes, and the rules and regulations of the Florida Public Service Commission adopted thereunder. The purpose of this endorsement is to make certain during the term of said policy and any renewal thereof the liability of the company to any person injured in person or property by negligence of the insured as hereinafter set forth.
      In consideration of the premiums stated in the policy to which this endorsement is attached, the company agrees to pay the judgment creditor any final judgment rendered against the insured upon a liability hereunder within the limits set forth in the schedule shown hereon and further agrees that upon its failure to pay any such final judgment, such judgment creditor may maintain an action against the company in the proper court to compel such payment.
      And the said company for the consideration aforesaid by the policy of insurance to which this endorsement is attached, hereby insures and agrees to indemnify the insured during the term of said policy or any renewal thereof, against loss sustained by reason of bodily injury to or the death of any person or loss of or damage (in excess of $50.00) to property of others ... while operating as a motor carrier the motor vehicle or vehicles, trailer or trailers enumerated in the schedule of statements, or any substituted or emergency vehicle, under and in accordance with a certificate of public convenience and necessity, certificate or registration or permit issued by the Florida Public Service Commission, notwithstanding, and, in addition to liability risks of a different character, if any, provided of in said policy.
      No condition, provision, stipulation or limitation contained in the policy or any other endorsement thereon, nor the violation of any of the same by the insured shall affect any way the right of any persons injured in person or property by the negligence of the insured or relieve the company from the liability provided for in this endorsement, or from the payment to such person of any such judgment, within the limits set forth in the schedule shown hereon; but the conditions, provisions, stipulations and limitations contained in the policy, and any other endorsements thereon, shall remain in full force and be binding as between the insured and the company.
      The policy to which this endorsement is attached shall not expire nor shall cancellation take effect until after thirty (30) days notice in writing by the company shall have first been given to Florida Public Service Commission at its office in Tallahassee, Florida, said thirty (30) days notice to commence to run from the date the notice is actually received at the office of the Commission.

      . INA represented to the Public Service Commission that its policy contained this endorsement. Whether or not the endorsement was actually ever formally attached to the policy we do not think is determinative.


author: COWART, Judge.

text:
    Willie Mae SMITH, Appellant, v. Errol J. POTTER, Appellee.
    No. 80-1039.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.
    Michael A. Campbell of Greater Orlando Area Legal Services, Inc., Orlando, for appellant.
    Ronald S. Webster of Whittaker, Pyle, Stump & Webster, P. A., Orlando, for ap-pellee.
   COWART, Judge.

Appellant filed a complaint in equity alleging that she had executed. a deed to appellee without adequate consideration and without intent to transfer an indefeasible legal title and praying that the deed be cancelled. The defendant filed an answer and counterclaim and moved for judgment on the pleadings. The trial court granted the motion and dismissed the complaint apparently on the basis that it did not state a cause of action. The complaint is poorly drawn; however, a liberal reading of it indicates that at one time appellant owned a home subject to two mortgages, that the two mortgages had been foreclosed and the foreclosure sale date set when appellee contacted appellant and “offered to help her save her property from the foreclosure sale” pursuant to which, to avert the foreclosure sale, appellee paid all sums due the two mortgagees and appellant executed to ap-pellee the deed in question.

Under these allegations of the complaint, the deed could be deemed a mortgage under section 697.01(1), Florida Statutes (1979). Equity peculiarly has jurisdiction to declare an instrument in the form of a unqualified conveyance to be, in equity, a mortgage merely securing a debt and to recognize the equity of redemption that remains in the grantor of such a deed. Since under Florida Rule of Civil Procedure 1.110(b) every complaint is considered to pray for general relief, it cannot be said that the complaint lacked such equity (or failed to state a cause of action) as to be subject to dismissal. Accordingly the judgment on the pleadings is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB and SHARP, JJ., concur.


text:
    Michael Jesse BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1564.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. The sole issue raised on appeal is whether appellant’s sentence is illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). This point is raised for the first time on appeal, and because Villery suggests that our supreme court contemplated that this issue be brought to the attention of the trial court in the first instance, we do not consider it on this appeal. However, this affirmance is without prejudice to appellant’s raising this issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

GRIMES, A. C. J., and OTT and SCHOONOVER, JJ., concur.


text:
    F. Ronald COLLINS, Appellant, v. Susan COLLINS, Appellee.
    No. 80-2198.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    Stephen D. Hughes, Largo, for appellant.
    No appearance for appellee.
   PER CURIAM.

We find that the Order upon Plaintiff’s Motion to Compel Sale of Real Property was improperly entered by the trial court and therefore reverse.

When there is a necessity for partition and sale of real property, and the parties refuse to cooperate, the sale must be held in accordance with the mechanics of section 64.061 et seq. Florida Statutes (1979). See Carlsen v. Carlsen, 346 So.2d 132 (Fla.2d DCA 1977).

The order below is set aside and this cause remanded for partition according to statutory procedures,

REVERSED.

GRIMES, A. C. J., and OTT and SCHOONOVER, JJ., concur.


text:
    A. Wayne LAFFERTY, Appellant, v. Mildred Cart LAFFERTY a/k/a Mildred C. Lafferty, Appellee.
    Nos. 81-85, 81-681.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    George P. Kickliter, Tampa, for appellant.
    Charles F. Clark and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   PER CURIAM.

Affirmed. Appellee having moved for attorney’s fees on this appeal, the motion is hereby granted with the amount of the fee to be determined by the trial court.

DANAHY, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. James HENDERSHOT, Appellee.
    No. 81-479.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.

      Jim Smith, Atty. Gen., Tallahassee and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Robert W. Pope, St. Petersburg, for ap-pellee.
   PER CURIAM.

The state appeals the trial court’s order suppressing the evidence against appellee. Because the police officer had no legal right to be in appellee’s back yard at the time he observed the marijuana plant, we AFFIRM. State v. Morsman, 394 So.2d 408 (Fla.1981).

BOARDMAN, A. C. J., and OTT and RYDER, JJ., concur.


text:
    Andrew CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-490.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment and sentence of the trial court. However, this cause is remanded for determination of the amount of credit for time served, if any, which appellant should be given. Shemwell v. State, 391 So.2d 218 (Fla.2d DCA 1980); Brooker v. State, 362 So.2d 697 (Fla.2d DCA 1978). Appellant need not be present for this purpose.

GRIMES, A. C. J., and OTT and SCHOONOVER, JJ., concur.


author: SCHEB, Chief Judge.

text:
    CHARLOTTE ASPHALT, INC., a corporation, Appellant, v. CAPE CAVE CORPORATION, Appellee.
    No. 81-674.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.

      Phillip J. Jones of Wotitzky, Wotitzky, Mandell, Batsel & Watkins, Punta Gorda, for appellant.
    Warren J. Kozlow and Steven M. Siegfried of Schoninger, Jankowitz & Siegfried, Miami, for appellee.
   SCHEB, Chief Judge.

Appellant sued to foreclose a claim of lien for asphalt allegedly supplied for roads in appellee’s Rotonda West development. At the close of appellant’s case in a non jury trial, appellee moved for a directed verdict on the ground that the testimony showed that a partnership rather than the appellant corporation supplied the asphalt, The trial court granted the motion and entered judgment for the appellee. This appeal ensued.

Appellant filed its claim of lien and suit to foreclose in its corporate capacity. Ap-pellee did not challenge appellant’s corporate existence. At trial appellant introduced invoices which showed that Charlotte Asphalt, Inc. made deliveries of the asphalt to appellee’s general contractor, Lateo Utilities, Inc. Appellant also introduced the deposition of Mr. Joel Jankowitz, appellee’s president, in which he acknowledged that Lateo had furnished an affidavit to appellee showing that Charlotte Asphalt, Inc. had supplied asphalt for the roads in its development.

Trial testimony introduced some confusion on appellant’s status when appellant’s vice president, Mr. Thomas Willis, testified. Although Mr. Willis mentioned that he was a “partner” in Charlotte Asphalt in 1974 and 1975 when the asphalt was supplied, he did identify the corporate invoices and the claim of lien filed by appellant as documents supporting appellant’s claim. Subsequently, the corporation’s president, Dr. Fred Swing, also stated that he was a partner in Charlotte Asphalt; however, the record reveals that Dr. Swing did not understand questions about his company’s formal organization. Nevertheless, Dr. Swing did state that while Charlotte Asphalt had originally been a partnership, that it was later incorporated.

The trial court granted appellee’s motion for directed verdict. Because this was a nonjury trial, the appellee’s motion should have been one for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b); however, both types of motions are governed by the same principles. Hartnett v. Fowler, 94 So.2d 724 (Fla.1957); Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977). The evidence must be evaluated in the light most favorable to the plaintiff, and any reasonable doubt must be resolved in the plaintiff’s favor. Professional Computer Management, Inc. v. Tampa Wholesale Liquor, 374 So.2d 626 (Fla. 2d DCA 1979); Baro v. Southeast First National Bank, 363 So.2d 397 (Fla. 3d DCA 1978). If any reasonable interpretation of the evidence supports the plaintiff’s claim, the court must deny the defendant’s motion. Courtney v. American Oil Co., 220 So.2d 675 (Fla. 4th DCA 1969).

The misunderstanding concerning corporate entity expressed by Mr. Willis and Dr. Swing is common among principals in small businesses. Considering the documentary evidence and moral testimony, the record as a whole can be reasonably interpreted to conclude that Charlotte Asphalt was incorporated at the times that it supplied the asphalt.

We note that appellant filed this suit on November 5, 1975. Now, more than six years later, the case has still not been heard on its merits. We do not ascribe this delay to any party, counsel or the court. The fact is, however, that to merit public confidence, courts must expeditiously resolve disputes. We, therefore, recommend to the trial court that this litigation be expedited to a prompt conclusion.

We vacate the final judgment for appel-lee and remand for further proceedings consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ., concur.

      . On a prior appeal we affirmed the trial court’s order striking Cape Cave’s defenses of payment of the claim asserted by Charlotte Asphalt because of its president’s failure to comply with orders directing him to produce documents in support of that defense. However, on the ground that the trial court went too far in imposing sanctions, we reversed the court’s order striking Cape Cave’s other defenses and its entry of a default judgment against Cape Cave. Cape Cave Corp. v. Charlotte Asphalt, Inc., 384 So.2d 1300 (Fla. 2d DCA 1980).


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Leonard Alexander JENKINS, Appellee.
    No. 81-1188.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, Tampa, for appellee.
   OTT, Judge.

Appellee was charged with possession of marijuana. A police officer had entered his residence in response to a call from a neighbor, who was justifiably concerned for ap-pellee’s welfare. The officer observed marijuana in plain view in several locations, and seized it without obtaining a warrant. The trial court granted appellee’s motion to suppress the evidence, after making the following findings:

1. under the emergency doctrine the officer had a right to enter the house;
2. the officer did not suspect the presence of illegal drugs;
3. the contraband was in plain view;
4. the house was vacant, the contraband was in no danger of being destroyed or removed, and no one was present in the house; and
5. warrantless seizure was not necessary by reason of the time element of other exigent circumstances.

The state contends on appeal that a warrant was not required because the marijuana was in plain view. We agree and reverse.

When an officer legally enters a constitutionally protected area and observes contraband in plain view, he may constitutionally seize it without first obtaining a warrant. Ensor v. State, 403 So.2d 349 (Fla.1981).

Accordingly, it was error for the trial court to grant appellee’s motion to suppress.

REVERSED and REMANDED.

GRIMES, A. C. J., and DANAHY, J., concur.


text:
    Staley Eugene BARRENTINE, Appellant, v. John Joseph MAKELY and Nationwide Insurance Company, Appellees.
    No. 80-1746.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 1981.
    J. Bert Grandoff and Victor J. Pellegrino of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, P. A., Tampa, for appellant.
    Barbara J. Paulson and Larry I. Gramo-vot of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellees.
   OTT, Judge.

It is now settled in this state that the results of a chemical test for the presence of alcohol in the blood of a suspect, administered under section 322.261(l)(a), Florida Statutes (1975), are admissible into evidence if the suspect consented to the test. Such consent may be express or implied, but an implied consent affirmatively withdrawn before the test is administered is insufficient. Sambrine v. State, 386 So.2d 546 (Fla.1980).

In the instant case appellee freely consented to a blood test following a vehicle accident. The results of that test were therefore admissible in this personal injury action unless barred by section 316.066(4), Florida Statutes (1971) (formerly section 317.171). Under that statute the results of a lawful blood alcohol test are inadmissible only if the test was ordered for the purpose of preparing, and the results thereof formed a basis for, the traffic accident report required by section 316.066(3). State v. Mitchell, 245 So.2d 618, 623[3, 4] (Fla.1971).

Under the evidence presented to the trial court it is quite clear that the blood alcohol test was made and its results obtained solely in connection with possible criminal charges. The investigating officer affirmatively testified that neither the test nor its results were necessary to his accident report, albeit they were appended thereto as a subsequent supplement.

We therefore REVERSE the summary judgment of the trial court and REMAND for further proceedings.

SCHEB, C. J., and BOARDMAN, J., concur.


text:
    Mason T. PRUNER, Appellant, v. ST. PAUL GUARDIAN INSURANCE CO., etc., et al., Appellees.
    No. 81-1000.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 1981.
    George R. McLain of Harnden, McClain, Spivey & Dart, Sarasota, for appellant.
    Jeffrey R. Fuller of Williams, Brasfield & Wertz, St. Petersburg, for appellee.
   PER CURIAM.

We affirm the amended final judgment entered by the trial court finding that insurance coverage is not afforded to Charles D. Rollings, III, for the intentional assault and battery committed by him upon the appellant, Mason T. Pruner.

BOARDMAN, A. C. J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    Thomas V. WAUGH, Appellant, v. STATE of Florida, Appellee.
    No. 81-1234.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 1981.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Thomas Waugh was given a fifteen-year sentence for violation of Florida’s Comprehensive Drug Abuse Prevention and Control Act. Later, he filed a motion to correct his illegal sentence alleging that he should have been sentenced as a youthful offender under section 958.04, Florida Statutes (1979). The trial judge’s response was an order classifying appellant as a youthful offender. Once the judge has classified a party as a youthful offender it is incumbent upon him to sentence the party in accordance with the statute. State v. Goodson, 403 So.2d 1337 (Fla.1981).

Appellant’s conviction is affirmed. However, his sentence is remanded to the trial court for resentencing in appellant’s presence so that he shall not be sentenced in excess of the maximum allowed under section 958.05, Florida Statutes (1979).

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


author: HOBSON, Acting Chief Judge.

text:
    Larry OSTEEN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1890.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 1981.
   HOBSON, Acting Chief Judge.

In connection with a Florida murder charge, Larry Osteen was held in detainer in Mobile, Alabama fighting extradition. He was confined there from July 20, 1974 until August 14, 1975, when he was transported to the Pinellas County jail.

The record contains an affidavit from Osteen’s Alabama attorney stating that, while fighting extradition to Florida, appellant was continuously incarcerated in the Mobile jails before being turned over to the Florida authorities. Osteen now challenges the trial court’s partial denial of his pro se motion for correction of sentence. The order below gave credit only for time served in the Pinellas County jail.

This court recently held that where properly documented, credit should be given for all time spent in foreign jails. Zulla, v. State, 404 So.2d 202 (Fla.2d DCA 1981). Therefore, appellant was entitled to credit for all time spent in jail in Alabama while he was held on detainer for Florida.

We remand to the trial court for resen-tencing, with instructions that if necessary, an evidentiary hearing be conducted to resolve any challenge raised to the validity of the Alabama affidavit.

BOARDMAN and GRIMES, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    John Stacy NALLEY, Appellant, v. Victoria Eve NALLEY, Appellee.
    No. WW-322.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Carolyn S. Zisser, Neptune Beach, for appellant.
    Dale G. Westling of Persons, Flowers & Westling, Jacksonville, for appellee.
   PER CURIAM.

The husband appeals from a final judgment of dissolution of marriage, alleging error in several respects, We affirm in part and reverse in part.

The parties were married in 1972. One child was born of this union, and two children from the wife’s previous marriage were adopted by the husband in 1974. At the time of the final hearing, the husband was employed as an air traffic controller with an annual salary of $84,000. The wife was not employed outside the home during much of the marriage, however at the time of the final hearing she was performing secretarial work on a part-time basis. Additionally, the wife received $800 per month in veterans benefits for the two older children as their natural father died while a prisoner of war in the Vietnam conflict.

In 1979 the wife filed the original petition for dissolution, and subsequently amended the petition seeking partition of the marital home. The husband answered and filed a counter petition praying for custody of the minor children, use of the marital home and division of jointly owned property. The wife then filed a voluntary dismissal of her petition and answered the husband’s counter petition. The wife prayed for custody of the minor children, exclusive use of the marital home, temporary and permanent alimony, child support and attorney’s fees. No request for general relief was made.

After a lengthy hearing the trial court awarded the wife the husband’s interest in the marital home as lump sum alimony and required her to make all future mortgage payments. The court ordered the husband to assign to the wife certain insurance policies which had been purchased with the older children’s veteran benefits. The wife was given permanent custody of all three children and very severe restrictions were placed on the husband’s right of visitation. The husband was further ordered to pay $600 per month child support.

On appeal the husband contends the court erred in granting relief not specifically pleaded, in severely limiting his visitation with the children and in requiring $600 per month child support.

We find there has been no abuse of discretion shown in the award of child support. The trial court is in the best position to assess the needs of the children and the ability of the parties to pay as it is acquainted firsthand with the evidence. Baldwin v. Baldwin, 388 So.2d 1333 (Fla. 4th DCA 1980). There was testimony regarding the increased needs of the children and the financial condition of both parents. The trial court’s award of $600 per month child support cannot be said to be an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We therefore affirm the child support portion of the final judgment.

We turn now to the trial court’s disposition of the husband’s request for visitation. A trial court is entrusted with the responsibility of determining the extent of visitation which is in the best interests of the child. Section 61.13(2)(b), Fla.Stat. (1979). The denial of visitation rights is generally disfavored, see Yandell v. Yandell, 39 So.2d 554 (Fla.1949), however when it is necessary to protect the welfare of the child the court has discretion to restrict or limit visitation. Gavronsky v. Gavronsky, 403 So.2d 627 (Fla. 1st DCA 1981). In Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979), the court upheld severe restrictions on the father’s right of visitation stating the restrictions were justified by a view of the record concerning the relationship of Mr. Adams and the children. The court in Hechler v. Hechler, 351 So.2d 1122 (Fla. 3d DCA 1977) held that when it is in the best interests of the minor child the trial court can limit or prevent visitation. The total denial of visitation was upheld in Baker v. Baker, 377 So.2d 776 (Fla. 3d DCA 1979) based upon the trial court’s findings of fact.

In the present case there was evidence presented to the trial court of physjcal and mental abuse of the children by the husband. The two older children testified concerning incidents of physical abuse and stated that they were in fear of the husband. Based on the record in the present case we find no abuse of discretion in the court’s denial of visitation with the eldest son and the limitations placed on visitation with the younger children.

Although we find the trial court was eminently fair to both parties in his award of alimony, the award of the marital home as lump sum alimony must be reversed for failure to plead for such relief. Foxx v. Foxx, 357 So.2d 754 (Fla. 1st DCA 1978); Dobbins v. Dobbins, 359 So.2d 48 (Fla. 1st DCA 1978). Appellant points out in his brief that the relief requested by the wife was limited to exclusive use and occupancy of the marital home and furnishings for the benefit of the minor children, and monies for temporary and permanent alimony. Accordingly, the trial court was limited to awarding the wife only exclusive use and possession of the marital home until the children reach majority or until they become emancipated. Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981). In reversing the award of the marital home as lump sum alimony we recognize that the trial court may wish to reconsider the interdependent awards of the responsibility for the mortgage, taxes, insurance and other expenses associated with the marital home.

The order of the trial is affirmed with regard to child support and visitation, in all other respects the order is reversed and remanded for reconsideration of the final judgment in light of this opinion.

McCORD and SHIVERS, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I would affirm the judgment below in its entirety. See, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Dobbins v. Dobbins, 359 So.2d 48 (Fla. 1st DCA 1978) (dissenting opinion).


text:
    Floyd F. CAPO, Appellant, v. STATE of Florida, Appellee.
    No. WW-492.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 7, 1982.

      Ken Davis and James P. Judkins of Davis & Judkins, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The State charged Capo by information with a variety of drug related offenses including two counts of importation and two counts of possession of more than 100 pounds of marijuana. Based upon a jury verdict, Capo was convicted of the four noted charges and now seeks review asserting as error, among other theories, that the evidence was insufficient and that the trial court erred in admitting evidence of criminal activity with which appellant was not charged.

Since the jury found Capo guilty, we must view the evidence in the light most favorable to the State. Parrish v. State, 97 So.2d 356 (Fla. 1s DCA 1957). The evidence indicates that in the spring of 1977, Pete Barwick approached Benny Shields about a possible drug smuggling operation which would take place in the area of St. Marks, Florida. Approximately a week later, Bar-wick introduced Shields to Capo. The three men drove about the area ultimately agreeing the smuggling operation would take place at the Shields’ marina and that there would be other smuggling operations if the first was successful. John Wells, a crewman on the first smuggling venture, testified he left Tampa for Colombia on the shrimp boat Aquarius and returned with between fifty and seventy-five 100 pound bags of marijuana. The operation took place on or about June 1, 1977.

Subsequently, Wells and Shields were contacted about a second smuggling operation which took place on or about June 22, 1977. Although neither participated physically in the operation, Shields testified that he was paid for the second operation. Bookie Holland, a lookout for both smuggling ventures, testified he saw between thirty and forty bales being unloaded on the docks during the second venture. During the State’s presentation, law enforcement officers testified they took samples from materials caught in the dock on the day following the second operation and determined the samples were marijuana. Over defense objection, the State also presented the testimony of Andrew Ray Lynn who stated that Capo approached him later that summer concerning the importation of several tons of marijuana from Colombia. After the initial contact, Lynn and Capo drove about looking for places to unload marijuana on the Carrabelle River. The State also called Michael Williams who corroborated some of Lynn’s testimony. In an effort to rebut this testimony, Capo attempted to introduce the testimony of two officers whom the defense asserted would testify Capo called them to report another smuggling operation. The trial court refused to admit the testimony and did not allow Capo to proffer the testimony. On August 4, 1980, the jury returned a verdict of guilty on each of the four noted charges.

We have reviewed the record and have determined the evidence supports Capo’s conviction. Shields’ testimony indicates Capo participated in the smuggling operation by planning and by making the necessary arrangements. Thus, it is apparent Capo participated in the operations as an aider and abettor. Section 777.011, Fla. Stat. (1975). The actual importation for the first venture was established by Wells’ testimony the boat went to Colombia where the crew obtained the marijuana. The appellant asserts, however, there is no evidence of the origin of the marijuana involved in the second load and that the size of the boat and quantity of marijuana involved is not a sufficient evidentiary base upon which the jury could determine the marijuana was imported. U. S. v. Soto, 591 F.2d 1091 (5th Cir. 1979). In this case, however, there is evidence of a common scheme before, during, and after the second operation which provides sufficient circumstantial evidence upon which the jury could reasonably determine the second load of marijuana was imported.

Similarly, Wells testified that the first operation involved between fifty and seventy-five bags of marijuana weighing 100 pounds each. Holland’s testimony that the second operation involved twenty or thirty bales, the evidence of a common scheme and the expert’s analysis of the marijuana found on the dock is sufficient evidence upon which the jury could base its determination that the second load involved more than 100 pounds of marijuana. Accordingly, the evidence is sufficient to sustain Capo’s conviction.

The trial court also appropriately admitted the testimony of Lynn and Williams. Evidence is relevant if it bears a certain relation to a fact in issue. Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980). This testimony is relevant and admissible because it establishes Capo’s continuous pattern of similar conduct. Wilson v. State, 330 So.2d 457 (Fla.1976); Williams v. State, 110 So.2d 654 (Fla.1959).

We have considered the other issues raised on appeal and have determined they do not warrant reversal. Accordingly, the judgment below is AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and JOANOS, JJ., concur.


text:
    Cornelia RAPPOPORT, Appellant, v. AMERICAN HOSPITAL and Risk Corporation of Florida, Appellees.
    No. ZZ-250.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Robert H. Gregory, Miami, for appellant.
    David R. Howland of Ress, Gomez, Rosenberg & Howland, P. A., North Miami, for appellees.
   PER CURIAM.

The appellant (claimant) was an LPN at the employer hospital. The claimant experienced some pain which she attributes to her lifting heavy patients. After hearing the claimant’s testimony and considering somewhat contradictory histories given by the claimant to her physicians the Deputy Commissioner found no compensable accident.

Ordinarily such a finding, if supported by the record evidence, will not be upset on appeal. However in this case there was a 284 day interval between hearing and entry of an order. In a case like this, where the chief issue is the credibility of the claimant, we feel that the delay was excessive. We therefore reverse the order below and remand for a de novo hearing.

In doing so we are aware of the cases in which our Supreme Court has held the 30 day period of Florida Statutes § 440.25(3)(b) to be directory only. In Scottie-Craft Boat Corp. v. Smith, 336 So.2d 1150 (Fla.1976), and in Miller v. Oolite Industries, Inc., 336 So.2d 1152 (Fla.1976), the Supreme Court held that delays of 250 days and 18 months respectively did not require reversal. As noted in a special concurrence by Justice England to Scottie-Craft, joined by two of the four majority votes, those decisions left the IRC discretion to find some orders “stale.” If the Commission found that the fact findings were dependent upon hearing-level advantages, then it could remand for a new hearing in the interests of justice.

Here we have the same situation. The credibility of a witness is largely dependent upon her demeanor. It would be difficult for anyone to recall live testimony after seven months and in all probability the decision below was based upon the transcript. In our opinion the interests of justice require a new hearing. Accordingly, the order is vacated and the cause is remanded.

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


text:
    Barrie KELLNER, Appellant, v. F N D ENTERPRISES, INC., and Argonaut Insurance Company, Appellees.
    No. AB-233.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    L. Barry Keyfetz, Miami, for appellant.
    Bradley P. Goodman of Vernis, Bowling, West, Montalto & Goodman, Coconut Grove, for appellees.
   PER CURIAM.

Claimant appeals the deputy commissioner’s denial of her claim for workers’ compensation benefits. We affirm.

We note, however, the employer/carrier has conceded that claimant’s attorney is entitled to a fee for securing payment of Dr. Feinstein’s bill because he was authorized, although inadvertently. We, therefore, award claimant’s attorney a fee of $650 for services in the prosecution of this claim at the hearing below and on appeal before us.

ROBERT P. SMITH, Chief Judge, and MILLS and SHIVERS, JJ., concur.


text:
    G. F. G. JANITORIAL SERVICE and Lumbermens Mutual Casualty Company, Appellants, v. Carmen GONZALEZ and Division of Workers’ Compensation, Appellees.
    No. AB-237.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.

      Summers Warden, Miami, for appellants.
    Law Offices of John V. Christie, P. A., Miami, for appellees.
   PER CURIAM.

The employer/carrier appeal the deputy commissioner’s award of temporary total disability benefits, 5% permanent partial disability benefits, and medical bills for claimant’s phlebitis and low back injuries. We affirm the order except for the award of permanent partial disability benefits and payment of Dr. Lopez’ bill for treatment of claimant’s low back symptoms.

There is no medical evidence in the record which indicates claimant’s low back symptoms are causally related to her industrial accident and the deputy commissioner failed to make any finding that claimant’s back injury was, in fact, causally related. The only medical evidence indicating any degree of permanent disability was relative to claimant’s back symptoms. The award of permanent partial compensation and medical benefits for the back symptoms is therefore erroneous.

Accordingly, the order is affirmed in part and reversed in part.

ROBERT P. SMITH, Jr., C. J. and MILLS and SHIVERS, JJ., concur.


text:
    James WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. AB-257.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.

      James Williams, pro se.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

In his second appearance here Williams appeals denial of his petition for post-eon-viction relief pursuant to Rule of Criminal Procedure 3.850. The denial was without an evidentiary hearing. In his petition Williams alleges that a tape of a conversation in his home was admitted into evidence at his trial, violating the dictates of State v. Sarmiento, 397 So.2d 643 (Fla.1981) and Hoberman v. State, 400 So.2d 758 (Fla.1981). If Sarmiento and Hoberman issues are available in a motion for post-conviction relief the cause must be remanded for an evidentiary proceeding on these allegations.

While questions of admissibility of evidence are not ordinarily appropriate for petitions for post-conviction relief, this case presents a more subtle problem. In the two cases above, the Florida Supreme Court announced a new interpretation of the Florida Constitution. Certain changes in constitutional doctrine give rise to a claim for Rule 3.850 relief. We are of the opinion that the change announced in the above cases is not available to this petitioner and affirm.

Ideally, the retroactive effect of a decision changing constitutional doctrine is announced in the same decision. This is particularly important since the comment in Benyard v. Wainwright, 322 So.2d 473 (Fla.1975), that the Florida Supreme Court has the sole power to determine the retroactive effect of its decisions. Unfortunately the Sarmiento and Hoberman opinions give no guidance on this point. We must therefore rule on this issue. We certify the following question as one of great public importance:

Does the rule of exclusion announced in State v. Sarmiento, 396 So.2d 643 (Fla.1981), and Hoberman v. State, 400 So.2d 758 (Fla.1981), provide grounds for post-conviction relief when raised for the first time in a Rule 3.850 proceeding by a defendant whose conviction became final before these decisions were filed?

In determining the availability of Sarmiento issues in 3.850 petitions we are guided by the opinion in Witt v. State, 387 So.2d 922 (Fla.1980). In that opinion our Supreme Court set out the test of when a change in decisional law requires reversal of a once valid conviction. • First, that change must, as it does here, come from the state or federal supreme court. Second, the change must be, as it is here, constitutional in nature. Third, the change must be of fundamental significance. The change may not be merely an evolutionary refinement in the criminal law but rather a “jurisprudential upheaval.” The significance of a change must be decided case by case, balancing the desire for uniformity for the criminal defendant against the well recognized need for decisional finality.

It is our opinion that Sarmiento is merely a refinement in the criminal law. The case is an initial interpretation of Article I Section 12 of the Florida Constitution. It is not a revolution in Fourth Amendment Law. The opinion in Sarmiento does not suggest that the Supreme Court considers it a jurisprudential upheaval. The new rule does not call into question the integrity of the trial nor the veracity of the evidence. The jurisdiction of the courts and the criminality of Williams’ action is unchanged. As noted in Witt at page 929 emergent rights providing new standards for the admissibility of evidence do not call for Rule 3.850 relief. We feel that Sarmiento is just such a case.

The order is AFFIRMED; question CERTIFIED.

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

      . Williams v. State, 377 So.2d 755 (Fla. 1st DCA 1979).

      . The record does not conclusively show that a Sarmiento violation occurred here. The State asserts that the informant, Walker, who carried the bugging device by means of which appellant’s statements were taped-recorded by a sur-veiling officer, was standing outside the door of appellant’s home during the recorded conversation. The State’s position is supported, by inferences drawn from the testimony of the informant, but the issue was not directly addressed in the testimony. Since the facts were not clearly developed on this issue, and in view of appellant’s categorical declaration that the recording was made from within his home, we would consider this a factual issue requiring an evidentiary hearing in event the certified question is answered in the affirmative.


text:
    Robert Alan BOALT, Appellant, v. STATE of Florida, Appellee.
    No. AC-251.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Robert J. Fogan, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Bracey v. State, 356 So.2d 72 (Fla. 1st DCA 1978).

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


text:
    Isaac SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. AC-424.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Michael Allen, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 400 So.2d 542 (Fla. 3rd DCA 1981).

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


text:
    Elry V. NEAL, Appellant, v. STATE of Florida, Appellee.
    No. AD-188.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Michael Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 400 So.2d 542 (Fla. 3rd DCA 1981).

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


text:
    Alex Henry YOUNG, III, Appellant, v. STATE of Florida, Appellee.
    No. AG-20.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1981.
    Alex Henry Young, III, pro se.
    No Appearance for appellee.
   PER CURIAM.

Appellant appeals the denial of his motion for post conviction relief in which he charged that the trial court erroneously failed to follow the requirements of Section 947.16(3)(a), Florida Statutes (1979) in entering its order retaining jurisdiction for the first one-third of appellant’s sentence. After review of the record, we must agree with appellant that the trial judge failed to state, with particularity, his justification for retaining jurisdiction over appellant for review of any parole commission release order. Ordinarily, the appropriate remedy for this omission would be remand to the trial judge to make the required findings. Tompkins v. State, 386 So.2d 597 (Fla. 5th DCA 1980). However, it has come to our attention that Section 947.16(3)(a) was enacted subsequent to the commission of the offenses for which appellant was sentenced in the present case. Thus retroactive application of the statute would be ex post facto in effect and would violate appellant’s constitutional rights. State v. Williams, 397 So.2d 663 (Fla.1981).

Accordingly, we reverse the denial of appellant’s motion and remand for proceedings consistent with this opinion.

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


text:
    Bruce W. KNIGHT, Appellant, v. Debra E. KNIGHT, Appellee.
    No. 81-77.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 15, 1982.
    Andrew H. Boros, Miami, for appellant.
    Underwood, Gillis, Karcher, Reinert & Valle and Thomas R. Trompeter, Miami, for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Affirmed.


text:
    George Francis WATERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-173.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

A jury found appellant guilty of the crime of sexual battery upon his daughter. He contends that the trial court erred in admitting evidence of a polygraph examination given him based on a stipulation, and in admitting his inculpatory statement made to the polygraph examiner following the examination. We affirm.

Appellant had initially been charged with sexual battery upon his two daughters. Prior to trial of these charges, appellant and the State entered into a written stipulation that appellant would submit to a polygraph examination, that the results would be admissible in evidence and that the charges would be tried together. On the day set for trial, the State sought by motion to expand the time frame during which it alleged the various incidents took place, and when the motion was denied, the State nolle prossed both informations. A new information was filed the next day alleging sexual battery against the older daughter, resulting in the conviction here.

Appellant’s first contention is that since the stipulation for the polygraph examination provided that the results would be used only in a joint trial of charges involving both daughters, it cannot be used in a trial of charges involving only one daughter. Appellant relies on Young v. State, 387 So.2d 512 (Fla. 1st DC A 1980) for the proposition that evidence of a polygraph examination taken pursuant to a stipulation is limited only to what was stipulated and no more.

We do not find any violation of the stipulation. Although the stipulation agrees to a joint trial, we find neither a direct reference nor any inference from the language used that the results could be introduced only at a joint trial. The examination was given three times. During the last examination, appellant conceded that both his daughters were telling the truth. Questions asked of appellant by the polygraph examiner relating to the other daughter were deleted from the report, and since appellant conceded that both daughters had told the truth, no prejudice to appellant is shown.

Appellant’s voluntary confession to the examiner made after the examination was over, was properly admitted. Hostzclaw v. State, 351 So.2d 970 (Fla.1977). There was ample evidence, aside from the polygraph results and the confession to sustain the conviction. We have considered appellant’s remaining point and find it without merit.

AFFIRMED.

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

      . Excluding the formal parts, the stipulation, captioned as to both informations, provided:
      IT IS HEREBY STIPULATED AND AGREED that the Defendant, GEORGE FRANCIS WATERMAN, would participate in the taking of a polygraph examination; that the results of said polygraph examination would be admissible in evidence at trial of these matters; that results of the polygraph examination are to include any and all parts of the examination procedure; that the above two charges are to be consolidated for trial so that both charges will be tried, heard and resolved in one trial by one jury on December 9, 1980.


text:
    Kelvin O’BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 81-271.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

In appealing his judgment and sentence for sexual battery, appellant asserts two procedural trial errors and also contends he should have been sentenced as a youthful offender pursuant to Chapter 958, Florida Statutes (1979). We find no merit to appellant’s first two objections and further determine he failed to present his sentencing argument to the trial court. Accordingly the judgment and sentence are affirmed without prejudice to appellant’s right to seek appropriate relief, e.g., through Florida Rule of Criminal Procedure 3.850. See Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981); Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981).

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


author: HURLEY, Judge.

text:
    The BROWARD COUNTY PARAPROFESSIONAL ASSOCIATION, an affiliate of The Broward County Classroom Teachers Association, Appellant, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. 79-1017.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Richard H. Frank and Mark F. Kelly of the Law Offices of Richard H. Frank, P. A., Tampa, for appellant.
    Paul C. Heidmann of Muller, Mintz, Kornreich, Caldwell & Casey, P. A., Miami, for appellee.
   HURLEY, Judge.

This appeal challenges a provision in the final judgment which permits the appel-lee/school board to deduct unemployment compensation benefits from an arbitration award. We reverse and remand.

On November 6, 1978, an arbitrator issued a written decision in which the appel-lee/school board was required “to pay to grievants [two teacher aides] at their regular rate of pay, and to restore their regular benefits, for the work they would have performed during the period from April 28, 1978 to the end of the 1977-78 school term.” None of the parties to the arbitration filed a motion to vacate, modify or correct the award within ninety days as required by Sections 682.13-14, Florida Statutes (1979). Nonetheless, when appellant sought to confirm the award, appellee claimed a right, as a matter of law, to offset the amount of unemployment compensation benefits received by the teacher aides. The trial court agreed and this appeal ensued.

We cannot accept the school board’s contention that it was empowered to adjust the arbitrator’s award without the benefit of a motion for modification. Such unilateral action tears at the very heart of the arbitration process. Clearly, it was within the arbitrator’s province to resolve the controversy and fashion an appropriate remedy. Thus, the resulting decision was binding on both parties unless properly modified. Irrespective of whether the error was characterized as a miscalculation or if it was founded on the notion that the arbitrator exceeded his powers by awarding a greater sum than the law allowed, appel-lee/school board was obliged to seek judicial relief. Absent a timely motion to vacate, modify or correct the award, the trial court had no discretion but to confirm the award as rendered. In Travelers Insurance Co. v. Allen, 356 So.2d 1287 (Fla.3d DCA), cert. denied, 364 So.2d 893 (Fla.1978), our sister court said:

The law is well-settled that a court must confirm an arbitration award upon application of any party to the award unless within ninety (90) days after receipt of the arbitration award a party thereto has filed a motion with the court to vacate, modify or correct the award. This ninety (90) day limit is subject to one exception: if a motion to vacate the award is based on corruption, fraud, or other undue means, the motion must be filed within ninety (90) days after such grounds are known or should have been known to the injured party. If an appropriate motion to vacate, modify or correct the award is not filed within the applicable time periods, the court has no alternative but to confirm the arbitration award. Id. at 1288.

Accordingly, the judgment on appeal is reversed and the cause is remanded with instructions to confirm the award as rendered.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    Omar LOPEZ, Jose Manuel Lopez Ambrosia Lopez and South Carolina Insurance Company, Appellants/Cross-Appellees, v. Isidore COHEN and Miriam Cohen, as the Personal Representatives of the Estate of Jerold Cohen, deceased, Rochelle Vicki Cohen and Allstate Insurance Company, a foreign corporation, Appellees/Cross-Appellants.
    No. 79-2281.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellants/cross-appellees Lopez.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellant/eross-appellee South Carolina Ins. Co.
    Theodore A. Deckert and David J. Glatt-horn of Brennan, McAliley, Hayskar, McAli-ley & Deckert, P. A., West Palm Beach, for appellees/cross-appellants.
   PER CURIAM.

From an order granting a motion for a new trial, appeal and cross-appeal were taken, the lower court having awarded a new trial on all issues of liability and damages. We reverse and reinstate the verdict of the jury, but reduce the award to the plaintiff parents to $7,200; we deny the cross-appeal for new trial.

Plaintiffs, Isidore and Miriam Cohen, as the personal representatives of the estate of Jerold Cohen filed suit against Omar Lopez, Jose Manuel Lopez, and the owner’s insurer, seeking damages for the wrongful death of Jerold Cohen. They also sued their own insurer, claiming under-insurance coverage. Omar Lopez and his parents and natural guardians counterclaimed against the personal representatives, Rochelle Vicki Cohen, and the owner’s insurer, seeking damages for personal injuries. Both the decedent and Omar Lopez were minors at the time of the accident; Jose Manuel Lopez was the owner of the car defendant Lopez was driving, and Rochelle Vicki Cohen was the owner of the car plaintiff’s decedent was driving.

Stated in brief, the Lopez vehicle was eastbound on a four-lane street while the Cohen vehicle was proceeding west, both approaching an intersection; it was late at night. The impact occurred just east of the intersection, when the Cohen vehicle apparently turned left or south across the street toward a convenience store. There was evidence that the control signal for Lopez was green as he passed through the intersection at a speed of 45 to 50 miles per hour and that the Cohen vehicle, without having on its directional signal or appearing to apply its brakes, turned in front of him; on the other hand, there was evidence that the Cohen vehicle had on its left turn signal, that the control signal for Lopez had already turned red, that he accelerated farther, running the light, that he left skid marks, and that he was traveling at a high rate of speed, the speed limit in the vicinity being 40 miles per hour. There also was testimony that Cohen had started driving about three months before the accident, that he was nearsighted and needed glasses, and that, from different witnesses, his glasses were found in the car and they were not found in the car after the accident.

The jury’s verdict found for the plaintiff personal representatives and for the coun-terplaintiff Omar Lopez. Jerold Cohen was found 65 percent negligent and Omar Lopez 35 percent negligent; the jury also found that the counterplaintiff parents sustained damages in the amount of $10,000 on their claim for medical treatment and care of Omar Lopez, loss of his services, and damages to the vehicle he was operating.

Motions for new trial, together with other motions, were filed by the personal representatives and by Rochelle Vicki Cohen and her insurer. In its order granting a new trial the court stated “this Court finds that the verdict rendered herein is contrary to the manifest weight of the evidence as to both liability and damages, and further indicates a probable quotient verdict and a failure by the jury to properly consider the instructions of this Court in applying the law to the evidence.”

In Wackenhut v. Canty, 359 So.2d 430, 435 (Fla.1978) it was held that

Although an order for new trial need not meant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla.3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.

Recognizing the ruling in Wackenhut that the trial judge must give reasons in support of his findings, in Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980), there was added,

In reviewing the type of discretionary act of the trial court [to grant or deny a motion for new trial], the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.

See Akers v. Palm Beach Newspapers, Inc., et al., 386 So.2d 282 (Fla. 4th DCA 1980); Staib v. Ferrari, Inc., 391 So.2d 295 (Fla. 3rd DCA 1980); Equitable Life Assur. Soc. v. Fairbanks, 400 So.2d 550 (Fla. 4th DCA 1981).

In arriving at its conclusion above to grant the motion, the Court noted:

a. The jury in this ease apportioned negligence between Omar Lopez and the deceased, Jerold Cohen, by finding the deceased Cohen boy to be 65% responsible for the accident involved herein and the Lopez boy 35% responsible. There is considerable evidence in the record that the Lopez boy was speeding at the time of the accident and this Court feels that any evidence of contributory negligence on the Part of the Cohen boy would have to be measured in relation to the speed of the Lopez vehicle. This Court finds that the evidence presented at the trial cannot support a finding by the jury that the Cohen boy, if he was guilty of any negligence, was proportionately roughly two-thirds responsible for the accident involved herein versus only one-third responsibility to the Lopez boy.
b. When the various damage figures awarded by the jury are reduced in accordance with the doctrine of comparative negligence, the net recoveries to the parties are virtually equal to the total damage sums suggested by counsel for the Lopezes and South Carolina during closing arguments. This Court feels that this result is more than just a coincidence. Of particular note in this regard is the jury’s award of $10,000 to the parents of the Lopez boy, despite the instructions of the Court, according to agreement of counsel, that the most the jury could award the Lopez parents as total damages was a sum of approximately $7,200. This Court finds that the jury must have, in arriving at some apportionment of negligence, squared their dollar findings with the numbers that were suggested to them during closing argument. This Court can see no other basis for the jury awarding $50,000 for a leg injury which resulted in a minor disability and was not substantially disabling, and awarding $30,000 in damages for the life of a 17-year-old boy.

The Court appeared to be concerned first above with who was more at fault as between the two drivers and the proportion of responsibility. There is no question but what these were jury questions under the conflicting evidence. It was for the fact finder as to which testimony was more credible. Mere disagreement with the verdict of a jury is not sufficient warrant for a new trial. Snider v. Bancroft Inv. Corp., 61 So.2d 184, 185 (Fla.1952). The reasons given by the court do not support the finding that the verdict was contrary to the manifest weight of the evidence, but lead us to believe that the court disagreed with the findings of the jury on liability and damages. The only effect of granting a new trial on this issue would be to have another jury try the case.

The trial court also felt that the verdict indicated a quotient verdict. “. . . . To constitute a quotient verdict however, it is essential that there be a preliminary agreement or understanding among the jurors that each will select a figure as representing his opinion of value or damage and that the sum of said amounts divided by the number of jurors will be accepted by each as his or her verdict, and is in fact so accepted.” Marks v. State Road Department, 69 So.2d 771, 773 (Fla.1954). There is no record support for the finding of a probable quotient verdict. The transcript of the testimony reflects that the jury was polled by the clerk as to whether the verdict was their verdict and each answered in the affirmative.

The result clearly demonstrates, however, that there was a failure by the jury properly to consider the instructions. The court instructed that if the verdict was for the parents of Lopez on their claim, the verdict should be in the stipulated amount of $7,200. Nevertheless, the jury awarded damages of $10,000.

There also was concern by the court, as indicated in paragraph “b” of its order that the recoveries to the parties were virtually equal to the total damage sums suggested by counsel for counterplaintiffs during closing argument. It saw no other basis for the jury awarding greater damages for a leg injury than for the life of the decedent. In Braddock v. Seaboard Air Line Railroad Company, 80 So.2d 662 (Fla.1955), it was held that a jury might properly award damages equal to or in excess of those requested by counsel in closing argument. And in Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361, 365 (Fla.1974), it was observed that, “Great effect is given by our judicial system to the fact-finder’s award of damages.”

The jury was instructed that the only item to be considered in assessing damages recoverable by the Cohen parents was their mental pain and suffering as a result of their son’s death. The damages incurred by Lopez, who had a much longer life expectancy than the decedent’s parents, included more than pain and suffering; the jury was instructed it should also consider bodily injury, disability, and loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. There is no basis for the trial court’s determination that these items of damages may not or should not exceed the pain and suffering of the decedent’s parents.

Because of our decision that the verdict of the jury should be reinstated, it is not necessary to determine whether the trial court erred in excluding the testimony of a witness as to the speed of the eastbound Lopez vehicle, the witness viewing the headlights as it approached her while she was westbound as a passenger.

On the cross-appeal from the order granting new trial it is argued that it was error to allow the mother of Lopez to testify over objection that she was forced to discontinue her employment for some months to care for her son and to the approximate amount of earnings that she lost as a result. No claim however was made by the Lopezes for loss of earnings by Mrs. Lopez, nor did the attorney for the Lopezes in closing argument ask for loss of earnings; in fact, the court instructed the jury that it had been stipulated by counsel what amount the jury could consider for the parents. The award should be reduced to the stipulated amount of $7,200. Lewis v. Gauzens, 318 So.2d 174 (Fla. 3rd DCA 1975).

It was also argued that the trial court erred in allowing an answer from a medical witness that was beyond his competency and which invaded the province of the jury as the ultimate trier of fact, citing Lorber v. Aetna Life Insurance Company, 207 So.2d 305 (Fla. 3rd DCA 1968). Mentioned in Lorber, though, as being contra to the rule that physicians should not be able to state an opinion as to whether there was a total disability under a policy because that was the basic question before the trier of fact is the decision of Mutual Ben. Health & Acc. Ass’n. v. Bunting, 133 Fla. 646, 183 So. 321 (1938). Even prior to the adoption of § 90.703 of the Evidence Code, a witness was permitted to testify to an ultimate fact such as total disability. North v. State, 65 So.2d 77 (Fla.1952).

The last point by the cross-appellants groups together what are classified as numerous improprieties of opposing counsel and other events at trial which had a cumulative prejudicial effect on the Cohens’ rights to a fair trial. Each of the matters complained about has been carefully examined and found not cumulatively warranting a new trial, the court taking such action at the time of commission as might be judged to be appropriate. It was conceded that each when considered in isolation might be deemed harmless error.

We therefore reverse with directions to reinstate the verdict of the jury, but to reduce the award for the plaintiff parents to $7,200. The cross-appeal for new trial is denied.

REVERSED and REMANDED.

BERANEK and HERSEY, JJ., and WARREN, LAMAR, Associate Judge (Retired), concur.


author: BERANEK, Judge.

text:
    Addie Maude JOHNSON, Appellant, v. CITY OF POMPANO BEACH, a municipal corporation, M. Dailey and W. Tobey, Appellees.
    No. 79-2579.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellees.
   BERANEK, Judge.

Addie Maude Johnson, plaintiff in the trial court, appeals from an adverse summary judgment in an action for (1) malicious prosecution, (2) false arrest and false imprisonment, (3) assault and battery, (4) abuse of process, and (5) conspiracy. Plaintiff concedes summary judgment was properly entered on assault and battery and neither party discusses abuse of process or conspiracy. We thus limit our consideration to the remaining theories. We find that genuine issues of material fact existed concerning probable cause or the absence thereof as it relates to malicious prosecution and false arrest and reverse the final summary judgment entered herein as it pertains to these theories.

In order to state a cause of action for malicious prosecution, a plaintiff must establish a concurrence of six elements:

(1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conforming to legal standards resulting to the plaintiff.

Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412, 414-415 (Fla. 4th DCA 1980). The defendants/appellees, Dailey and To-bey, law enforcement officers employed by the defendant/appellee, City, were involved in the arrest of Addie Johnson for possession of lottery tickets. Although the arrest occurred on February 16, 1974, charges were not filed until 1975 and were dismissed based upon the 90-day speedy trial rule governing misdemeanors. Lottery tickets were alleged to have been taken from plaintiff’s purse by the officers on the day of the arrest. Plaintiff stated she did not possess lottery tickets and had no idea what one even looked like. The testimony of the police officers and plaintiff was in direct conflict as to the presence of lottery tickets in her purse. Obviously without the tickets there was no probable cause for plaintiff’s arrest or prosecution. Under these circumstances we conclude issues of fact existed and summary judgment was thus improper.

Defendants/appellees assert that element (4), an absence of probable cause for prosecution, should have been decided by the court as a matter of law. Where the facts are undisputed, probable cause is a pure question of law for the court; however, where the facts are disputed, the question must be submitted to the jury. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979). The record in this case presents two distinct versions of the facts surrounding defendant’s arrest and prosecution. The police version clearly supports probable cause, but the appellant’s factual version is directly contrary and does not support probable cause. Under these circumstances, an issue of fact was presented and the court erred in deciding the issue of probable cause as a matter of law. Moreover, malice may be inferred from a lack of probable cause, Gallucci v. Milavic, 100 So.2d 375 (Fla.1958), so element (5) is also related to the existence or absence of probable cause. Since the facts pertaining to probable cause were in controversy, the court erred in entering summary judgment as to the malicious prosecution count.

As to false arrest and false imprisonment, plaintiff was required to show that the defendants, in procuring her arrest, exercised unlawful restraint and detained her against her will. Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla. 3d DCA 1977). The issue, once again, is whether probable cause existed upon which defendant should have been arrested. Again, relevant facts as to this issue were in dispute and the trial court improperly granted summary judgment on this count.

The final summary judgment is reversed insofar as it pertains to the malicious prosecution and false arrest and false imprisonment counts. The judgment is affirmed in all other respects.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY and ANSTEAD, JJ., concur.


text:
    HERBERT HAYES YACHT AND SHIP SALES, INC., Appellant, v. Joel A. LOVELL and State of Florida, Unemployment Appeals Commission, Appellees.
    No. 80-824.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      Roger D. Haagenson, Fort Lauderdale, for appellant.
    James R. Parks and Scott F. Randolph, Tallahassee, for appellee, Unemployment Appeals Commission.
   PER CURIAM.

Herbert Hayes Yacht and Ship Sales, Inc., appeals a final order of the Unemployment Appeals Commission of the Department of Labor and Employment Security which affirmed an appeals referee’s decision determining that Joel A. Lovell was entitled to unemployment compensation benefits. Mr. Lovell worked as a yacht salesman for the Hayes Yacht and Ship Sales Company. The issue below was whether Mr. Lovell was in fact an employee or an independent contractor as asserted by appellant. We conclude that the Commission erred in its determination that Mr. Lovell was an employee and reverse.

The criteria for determining independent contractor vs. employee status has been often set out by the courts. See Justice v. Belford Trucking Co., 272 So.d 131 (Fla. 1972); Cantor v. Cochran, 184 So.2d 173 (Fla.1966); and Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941). As this court stated in Collins v. Federated Mutual Implement and Hardware Insurance Co., 247 So.2d 461, 463 (Fla. 4th DCA), cert. denied, 249 So.2d 689 (Fla.1971):

Generally the test of what constitutes independent service lies in the control exercised, the decisive question being who has the right to direct what shall be done, and when and how it shall be done. The right of control as to the mode of doing the work contracted for is the principal consideration in determining whether one is employed as an independent contractor or as a servant. The relationship of employer and employee requires control and direction by the employer over the actual conduct of the employee.

Instead of employing the criteria for employee status as stated in the aforementioned authorities, the commission made the following findings in this regard:

Employer [Herbert Hayes Yacht & Ship Sales, Inc.] contends that the claimant was an independent contractor and, therefore, not covered under unemployment compensation. The claimant disagrees with this and indicates that he was in fact an employee. There has been no evidence of probative value presented in this case to show that the claimant was in fact an independent contractor and the employer’s testimony clearly shows that he was expected to be under their direction for the purpose of sales, and he could not go out on his own and perform sales for other brokers. This alone would qualify the claimant as an employee and under the direction of the employer. (Emphasis supplied.)

Even if there were evidence that Mr. Lovell could not sell yachts for companies other than the Hayes Company, this would not mean he must be found to be an employee as a matter of law. Mr. Lovell was an experienced yacht salesman who testified that he had his own customers. His only compensation was commissions he was paid on the yachts he sold. He controlled his own manner of working and his hours were not determined by the Hayes Yacht Company. Mr. Lovell worked his own hours and conducted his own dealings both in and out of the office. The Hayes Yacht Company provided him with a desk and a telephone, but absent evidence of a right to control, the finding of an employee status was not warranted. See Jean M. Light Interviewing Services, Inc. v. State, 254 So.2d 411 (Fla. 3d DCA 1971), and Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958).

The commission placed unwarranted importance on the single fact that Mr. Lovell was not permitted to sell for other companies while engaged by appellant. This fact alone did not require a ruling of employee status.

We conclude that the record is lacking in competent and substantial evidence to support the decision of the commission and same is hereby reversed.

REVERSED.

MOORE, BERANEK, and HERSEY, JJ., concur.


author: MOORE, Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Roosevelt WRIGHT, Appellee.
    No. 80-1114.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Sam Daniels of Daniels & Hicks, Miami, and Law Offices of Raymond V. Perosino, Fort Lauderdale, for appellant.
    Larry Klein, West Palm Beach, and DiGi-ulian, Spellacy & DiChiara, Fort Lauder-dale, for appellee.
   MOORE, Judge.

Liberty Mutual Insurance Company, the defendant below, appeals from a final summary judgment in a declaratory action determining that it provided uninsured motorist coverage for injuries sustained by Roosevelt Wright, the appellee, in an automobile accident with an uninsured motorist. Liberty Mutual had issued an insurance policy to Alpine Motors, Inc., the owner of the vehicle driven by Wright. The trial court granted the summary judgment because Liberty Mutual failed to maintain in its files a written rejection of uninsured motor-, ist coverage. We reverse because a written rejection, under the facts of this case, is unnecessary.

Liberty Mutual had issued a policy of insurance to Alpine Motors, affording it $250,000/$500,000 liability coverage for the one year period between May 15, 1976 and May 15, 1977. The policy, as written, afforded no uninsured motorist coverage. On November 5, 1976, the automobile collision took place.

In her deposition, Louise Wilkins, a records custodian for Liberty Mutual, testified that she sent an uninsured motorist “rejection of insurance form” to Alpine’s comptroller on May 17, 1976. On June 7, 1976, she telephoned the comptroller concerning the rejection form. The comptroller told her that he had signed and returned the form the previous week. She did not, however, have the signed copy in her files. Nevertheless, the sales file contained the following letter from Alpine Motors, dated January 9, 1978:

Liberty Mutual Insurance Co.
1582 East Commercial Boulevard
Fort Lauderdale, Florida 33334
Gentlemen:
‘We (Alpine Motors, Inc.) rejected the uninsured motorist coverage as offered effective 5-15-76.
The attached uninsured motorist form is to replace the form that we signed on or about 5-15-76. Said form now misplaced.
It was our intent at that time to reject uninsured motorist coverage as of 5-15-76, and continuing throughout the term of our policy.’
Barbara H. Thompson
Barbara H. Thompson
Comptroller

Section 627.727(1) Florida Statutes (1975), requires an insurance carrier to write uninsured motorist coverage in an amount equal to the level of liability insurance coverage selected unless the named insured rejects such uninsured motorist coverage. Recently, this court held that where there is no dispute between the insurance carrier and the contracting insured as to the absence of coverage, a written rejection is not required. Del Prado v. Liberty Mutual Insurance Company, 400 So.2d 115 (Fla. 4th DCA 1981). In the present case, the named insured, Alpine Motors, Inc., as well as the insurer, maintained that uninsured motorist coverage was rejected. Consequently, Wright, a stranger to the negotiations leading to the policy, cannot insist on a written rejection. See Del Prado v. Liberty Mutual Insurance Company, supra.

The trial court, therefore, erred by finding uninsured motorist coverage due to the absence of a written rejection.

Accordingly, we reverse the final summary judgment.

REVERSED.

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

      . This court in Del Prado did not rule on whether a rejection must be in writing where the named insured insists upon a written rejection. Consequently, we also find it unnecessary to reach that question in the present case.