author: ALDERMAN, Justice.

text:
    GULF POWER COMPANY, Appellant, v. Joseph P. CRESSE, Chairman, Gerald L. Gunter, John R. Marks, III, Katie Nichols, and Susan W. Leisner, as and constituting the Florida Public Service Commission, and The Citizens of the State of Florida, Appellees. The CITIZENS OF The STATE OF FLORIDA, Appellant, v. Joseph P. CRESSE, Chairman, Gerald L. Gunter, John R. Marks, III, Katie Nichols, and Susan W. Leisner, as and constituting the Florida Public Service Commission, and Gulf Power Company, Appellees.
    No. 60437.
    Supreme Court of Florida.
    Jan. 28, 1982.
    Rehearing Denied March 22, 1982.
    C. Roger Vinson of Beggs & Lane, Pensacola, for Gulf Power Co.
    Jack Shreve, Public Counsel and Benjamin H. Dickens, Jr., Associate Public Counsel, Tallahassee, for the Citizens of the State of Florida.
    William S. Bilenky, Gen. Counsel and Joe McGlothlin, Chief Rate Counsel, Tallahassee, Florida Public Service Commission, for appellees.
   ALDERMAN, Justice.

This cause is before us on consolidated direct appeals brought by Gulf Power Company and Citizens of the State of Florida to review Order No. 9852 of the Public Service Commission. Finding no merit to. the arguments presented by Gulf Power and Citizens, we affirm.

Gulf Power filed its petition and proposed rate schedules on March 3, 1980, pursuant to section 366.06(4), Florida Statutes (1979), the Florida “File and Suspend” Law. Within the statutory thirty-day review period, the Commission suspended the proposed rates and authorized an interim increase of $6,257,000 annually, subject to refund pending final disposition of the case.

On November 3, 1980, exactly eight months after Gulf filed its petition and proposed rate schedules, the Commission authorized Gulf to increase its rates and charges by $40,623,065 annually on a permanent basis and directed Gulf to file revised rate schedules to become effective and applicable to bills rendered for meter readings taken on and after November 10, 1980. Order No. 9628, dated November 10, 1980. The Commission also allowed Gulf to include in its rate base unamortized expenses resulting from the cancellation of its plan to construct a new utility plant at Caryville, and it added ten basis points to Gulf’s return on equity in recognition of its energy conservation efforts. Gulf filed its revised rate schedules and began to collect the additional revenue.

By Petition for Reconsideration dated November 25, 1980, Citizens requested the Commission to reconsider the Caryville cancellation charges and the addition of ten basis points to Gulf’s return on equity. Citizens did not request the Commission to reconsider the effective date of the new rates. The Commission, however, on its own initiative reconsidered the effective date of the rates authorized by Order No. 9628.

An agenda conference was held on February 9, 1981, at which time the Commission discussed and approved a change in the effective date of the approved rate increase. On March 5,1981, the Commission issued its Order No. 9852. It held that the approved rate increase was to apply to bills based on meter readings taken on or after December 3, 1980, thirty days after the effective date of the new rates and that Gulf must refund the approximately $2.2 million resulting from the application of the new rates to bills based on meter readings from November 10 through December 3. It permitted Gulf to include the unamortized Caryville cancellation charges in its rate base but required that within a year Gulf provide evidence of justification for cancelling this plant. The Commission concluded that it had properly exercised its authority when it added ten basis points to Gulf’s return on equity.

The issues presented by this appeal are: Was the Commission correct in ordering Gulf to begin billing under the new rates on meter readings taken thirty days after the effective date of the new rates, and in this case, thirty days after the expiration of the file and suspend period? Is the effective date of Commission action when the official vote is taken or when the written order is issued? Did the inclusion of the unamor-tized Caryville cancellation charges as a base rate component violate the essential requirements of law? Was the addition of the ten basis points to Gulf’s return on equity for energy conservation efforts an abuse of Commission discretion?

In response to the first issue, the Commission contends that it was following the law regarding prospective ratemaking when it ordered Gulf to bill at the new rates on meter readings taken on or after December 3, 1980. It also contends that to permit Gulf to bill at the new rates on the day following the suspension period, which in this case was the effective date of the Commission’s approval of the rate increase, would result in the billing of energy consumed before the end of the suspension period and before the effective date of Commission action. We agree and affirm the Commission’s action in requiring that the new rates be applied to bills based on meter readings taken on or after December 3, 1980.

As to the effective date of its action approving Gulf’s rate increase, the Commission contends that it was November 3,1980, the date on which the issues were decided and the official vote was taken. We agree. See § 366.072, Fla.Stat. (Supp.1980).

With regard to the remaining two issues, the Commission argues that it neither violated the essential requirements of law nor abused its discretion by including the unamortized Caryville cancellation charges as a base rate component or by adding ten basis points to Gulf’s return on equity in recognition of its energy conservation efforts. We agree.

Accordingly, we affirm.

It is so ordered.

ADKINS, BOYD, OVERTON and MCDONALD, JJ., concur.

SUNDBERG, C. J., concurs in result only.

      . § 366.06(2), Fla.Stat. (Supp.1980); Gulf Power Co. v. Bevis, 289 So.2d 401 (Fla.1974); City of Miami v. Florida Public Service Commission, 208 So.2d 249 (Fla.1968).

      . Our holding will not preclude utility companies in the future from billing at the new rates for all the energy consumed after the effective date of rate changes when technological advancements make possible the reading of all electric meters on the same day so as to ensure that consumption only from that day forward will be billed at the new rates.


source: Caselaw Access Project

author: ADKINS, Justice. McDONALD, Justice,

license: Public Domain

text:
    Carolyn IVEY, Petitioner, v. CHICAGO INSURANCE COMPANY, Respondent.
    No. 57129.
    Supreme Court of Florida.
    Feb. 11, 1982.

      James M. Barton, II of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for petitioner.
    Robert P. Gaines of Beggs & Lane; Pensacola, for respondent.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District, (Ivey v. Chicago Insurance Co., 372 So.2d 473 (Fla. 1st DCA 1979)), which allegedly conflicts with another district court of appeal decision, (United States Fidelity and Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979)), on the same point of law. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).

Petitioner, Carolyn Ivey (hereinafter petitioner), was a passenger on a motorcycle, owned and operated by William Vereeke, which was involved in an accident with an automobile owned and operated by Theodore Kast. At the time of the accident, the motorcycle was insured by respondent, Chicago Insurance Company, (hereinafter respondent), with liability coverage limits of $100,000 per person and $300,000 per accident. The Kast vehicle was insured with limits of $15,000 per person and $30,000 per accident.

Petitioner filed suit in circuit court seeking a declaratory judgment establishing that she had available, from respondent, uninsured motorist coverage in the amount of $100,000. Respondent’s answer denied that the policy which it issued to Mr. Ver-eeke provided uninsured motorist coverage in such amount, and claimed that as to petitioner, the Kast vehicle was not an uninsured motor vehicle as that term is defined in section 627.727(2)(b), Florida Statutes (1975).

The trial court herein, on a motion by respondent for judgment on the pleadings, entered final judgment in favor of respondent, basing its décision upon the holding of Government Employees Insurance Company v. Taylor, 342 So.2d 547 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla.1977). The District Court of Appeal, First District, affirmed the trial court in a per curiam decision without opinion. For the following reasons we quash the decision of the district court.

Florida law requires that all automobile liability insurance policies delivered or issued for delivery in this state include coverage for any bodily injury loss of the insured caused by the negligence of an uninsured motorist. See § 627.727, Fla.Stat. At the time that this cause arose, the term “uninsured motor vehicle” was defined to include “an insured motor vehicle when the liability insurer thereof ... [h]as provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” See § 627.727(2Xb), Fla.Stat. (1975). The uninsured motorist provision thus also provided protection from underinsured motorists as well as from those with no insurance.

Petitioner asserts that in determining the “limits applicable to the injured person [in this case, petitioner] provided under his uninsured motorist’s coverage”, the words “his uninsured motorist’s coverage” refer to the uninsured motorist coverage of another person’s policy of which the injured is a beneficiary as well as to the uninsured motorist coverage of the injured’s own policy. In simpler terms, petitioner’s position is that she may “stack” the uninsured motorist coverages of Mr. Vereeke’s policy and her own (of which we assume there is none), when computing the uninsured motorist coverage available to her. Thus, argues petitioner, the limit of her uninsured motorist coverage is $100,000 (the amount available under Mr. Vereeke’s policy), said amount exceeds the limits of Mr. East’s liability policy (making East an uninsured motorist as defined in section 627.727(2)(b), Florida Statutes (1975)), and petitioner is entitled to the uninsured motorist coverage of Mr. Vereeke’s policy.

Respondent, on the other hand, claims first, that the uninsured motorist coverage under the policy which it issued to Mr. Vereeke is limited to $15,000 per person and $30,000 per accident, and second, that, as to petitioner, Mr. East does not qualify as an uninsured motorist. In support of its second claim, respondent cites the decision in Taylor for the proposition that in computing her uninsured motorist coverage, petitioner may not include the uninsured motorist coverage available under Mr. Ver-eeke’s policy. As noted before, both the trial court and the district court agreed with respondent, each citing Taylor in its opinion.

In Taylor, the injured party, Taylor, whose personal insurance had limits of $10,-000 for injury to one person in one accident, was involved in a collision with a third party whose insurance had the same limits. At the time of the accident, however, Taylor was driving a vehicle owned by Jones, whose insurance had limits of $50,000 for one person in one accident. Taylor contended that the $10,000 coverage of his policy could be stacked on the $50,000 coverage of Jones’ policy, thereby causing his uninsured motorist coverage to exceed the liability coverage of the third party, and entitling him to recover uninsured motorist benefits of up to $60,000 from his and Jones’ insurance companies. The district court held that section 627.727(2)(b), Florida Statutes (1975), does not permit such stacking.

According to the Court in Taylor, the words “his uninsured motorist’s coverage” refer to the coverage of the policy issued to the injured party and do not include the uninsured motorist coverage of another person’s policy of which the injured, by having occupied the vehicle at the time of the accident, happens to be a beneficiary. The district court reasoned that “[sjuch other person’s policy is that person’s uninsured motorist coverage which that person, rather than the injured person, has purchased.” Taylor at 548. We, however, disagree with the holding in Taylor, and are of the opinion that the words “his uninsured motorist’s coverage” refer to the uninsured motorist coverage of another person’s policy of which the injured party happens to be a beneficiary as well as to the uninsured motorist coverage of the injured’s own policy.

We note, initially, that three recent district court decisions have rejected the holding in Taylor. See Cox v. State Farm Mutual Automobile Insurance Company, 378 So.2d 330 (Fla. 2d DCA 1980); Lezcano v. Leatherby Insurance Company, 372 So.2d 214 (Fla. 4th DCA 1979); and, United States Fidelity and Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979). The preceding three cases held that the words “his uninsured motorist’s coverage” “refer to any uninsured motorist coverage which is otherwise available to the injured party.” Cox at 332. Thus, according to' those cases, petitioner would be entitled to stack her and Mr. Vereeke’s uninsured motorist coverages in determining whether Mr. East is an “uninsured motorist” under the provisions of section 627.727(2Xb), Florida Statutes (1975). Although we are not bound by the district court decisions above, two points convince us that they reach the proper result.

First, if the tortfeasor here had no liability insurance, petitioner clearly would be entitled to stack the uninsured motorist coverages of her policy and Mr. Vereeke’s policy. We so held in Sellers v. United States Fidelity and Guaranty Co., 185 So.2d 689 (Fla.1966). Subsequent to that decision, chapter 71-88, Laws of Florida, broadened the definition of uninsured motorist coverage to provide protection not only from those who are uninsured, but also from those who, like Mr. East, are underinsured. See Williams v. Hartford Accident and Indemnity Co., 382 So.2d 1216 (Fla.1980).

Like the district court in Cox, we do not believe that when the legislature amended the law, broadening the definition of uninsured motorist to include those who are underinsured, it intended that distinctions be made between recoveries for injuries received from uninsured motorists and recoveries for injuries received from underin-sured motorists. The policy reasons for providing uninsured motorist coverage— protection from losses caused by tortfeasors who have no liability insurance — are equally applicable in the underinsured motorist situation, where protection is required from losses caused by those with inadequate insurance. There is no reason to allow stacking in one situation while prohibiting it in the other.

Second, we note the change in the wording of section 627.727(2)(b) since this cause of action arose. In 1977, the legislature amended the statute by replacing the term “his uninsured motorist’s coverage” with the term “uninsured motorist’s coverage applicable to the injured person.” See ch. 77-468, § 30, Laws of Florida. The change indicates that the insurance coverage which the injured is to include when determining whether a tortfeasor is an uninsured motorist is not limited to that provided by his own personal policy. The senate staff analysis and economic statement pertaining to chapter 77 — 468 states that the amendment “[cjlarifies legislative intent that underin-sured motorist protection follows the car rather than the person.” Thus Mr. Ver-eeke’s uninsured motorist coverage is applicable to petitioner, and may be included by petitioner in determining whether Mr. Kast is an “uninsured motorist” as defined by section 627.727(2)(b). In short, petitioner is entitled to stack the coverages.

Respondent argues that the 1977 amendment to the language of section 627.-727(2)(b) post-dated the accident in question, had an effective date after the accident, and was not intended to operate retroactively to clarify the intent of the prior wording. Respondent further contends that had the amendment merely been intended to clarify the law, rather than to change it, the legislature would have so indicated and would not have made the amendment prospective in its operation.

We disagree. An act’s legislative history is an invaluable tool in construing the provisions thereof. We believe that the 1977 amendment to section 627.727(2)(b) was intended to clarify the legislature’s intention, and that the amendment should be considered in construing said law. As Justice Roberts noted:

The rule seems to be well established the interpretation of a statute by the legislative department goes far to remove doubt as to the meaning of the law. The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.

Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788, 790 (Fla.1952), quoting General Petroleum Corp. of Cal. v. Smith, 62 Ariz. 239, 157 P.2d 356, 360 (1945). Likewise was the observation made in Amos v. Conkling, 99 Fla. 206, 126 So. 283, 288 (1930):

[I]t is proper to consider, not only acts passed at the same session of the Legislature, but also acts passed at prior or subsequent sessions, and even .those which have been repealed.

Thus we will consider the 1977 amendment when construing section 627.727(2Xb), Florida Statutes (1975), and do find that it indicates an intent on the part of the legislature that one in petitioner’s position be allowed to stack the uninsured motorist coverage of policies of which she is a beneficiary when determining whether another party is an uninsured motorist.

For the foregoing reasons, we disapprove the rulings of the district and trial courts herein which held that the words “his uninsured motorist’s coverage” as used in section 627.727(2)(b), Florida Statutes (1975), refer to the coverage of the policy issued the injured person and do not include the uninsured motorist coverage of another person’s policy of which the injured person is a beneficiary. The decision of the district court of appeal is quashed and the cause is remanded with instructions to further remand the same to the trial court for determination of whether the policy in question provides uninsured motorists coverage, and if so, the limits thereof, and for resolution in conformity herewith.

It is so ordered.

SUNDBERG, C. J., and BOYD and ALDERMAN, JJ., concur.

McDONALD, j., concurs with an opinion.

OVERTON, J., dissents.

McDONALD, Justice,

concurring.

I concur. In doing so I note that under the uninsured portion of Chicago’s policy the following provision exists:

II. Person Insured. Each of the following is an insured under this insurance to the extent set forth below:
* * ' # * * *
(b) Any other person while occupying an insured highway vehicle;

The plaintiff was occupying an insured highway vehicle and is thus an insured under Chicago’s policy. She would have the same rights and same coverage that the named insured has. She has a right, therefore, to litigate the issue of whether there is $100,000 coverage or $15,000 coverage on her underinsured motorist claim.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Lois Helen MILLS and American Crime Prevention Rehabilitative Services, Inc., Respondents.
    No. 60341.
    Supreme Court of Florida.
    Feb. 11, 1982.
    Samuel S. Smith, President, Miami Beach, John F. Harkness, Jr., Executive Director and H. Glenn Boggs, Asst. Staff Counsel-UPL, Tallahassee, and Ronald R. Richmond, Chairman, Standing Committee on Unauthorized Practice of Law, New Port Richey, of The Florida Bar; and Michael S. Davis, Appointed Bar Counsel, Orlando, for petitioner.
    Thomas S. Kirk, Orlando, for respondents.
   PER CURIAM.

This matter is before us on petition for unauthorized practice of law, response to rule to show cause, and report and recommendation of referee.

The referee recommends that the Supreme Court adopt the joint motion and stipulation of settlement in these proceedings as follows:

JOINT MOTION AND STIPULATION OF SETTLEMENT
Come now, the Petitioner, the Florida Bar, by and through its undersigned appointed bar counsel, and the Respondents, Lois Helen Mills and American Crime Prevention Rehabilitative Services, Inc., by and through their undersigned attorneys, and jointly move and stipulate as follows:
1. The Florida Bar filed a petition against unauthorized practice of law, charging that the Respondents, Lois Helen Mills and American Crime Prevention Rehabilitative Services, Inc., are engaging in the unauthorized practice of law in the State of Florida.
2. On August 27, 1981, the Supreme Court of Florida issued a Rule to Show Cause and Order Appointing Referee in this cause and vacated its prior Rule to Show Cause and Order Appointing Referee issued on May 14, 1981.
3. The Florida Bar is willing to conclude this matter against the Respondents if the Referee recommends that the Supreme Court of Florida will agree to the settlement and stipulation set forth herein.
4. The procedural provisions of Article XVI of the Integration Rule of the Florida Bar are, for the purposes of this stipulation, hereby waived.
5. It is agreed that if the stipulation and motion contained herein are not approved and entered by the Supreme Court of Florida, then this joint motion and stipulation shall be void.
6. Respondents, at all times material herein, were not and are not members of the Florida Bar, and were not and are not therefore licensed to engage in the practice of law in the State of Florida. Respondents further agree as follows:
(a) American Crime Prevention Rehabilitative Services, Inc., during the time Lois Helen Mills was its President, has given advice to prisoners on procedures to follow for appeals.
(b) American Crime Prevention Rehabilitative Services, Inc., during the time Lois Helen Mills was its President, has given advice to prisoners on case law affecting prisoners’ rights and appellate process.
(c) American Crime Prevention Rehabilitative Services, Inc., during the time Lois Helen Mills was its President, has interpreted case law and statutes for prisoners.
(d) The April, 1980 American Crime Prevention Rehabilitative Services, Inc., publication (Volume VI) states, “If you have a legal problem, we can offer general advice and direction. We can contact criminal justice, penal and court officials on your behalf to request erroneous information in your file be corrected or suggest to you possible course of action but we cannot represent you in attorney fashion.”
7. The aforementioned activities constitute the unauthorized practice of law.
8. The Respondent, Lois Helen Mills, shall read and abide by the decision of the Supreme Court of Florida in The Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978).
9. The Respondents, Lois Helen Mills and American Crime Prevention Rehabilitative Services, Inc., agree to the entry of an injunction permanently enjoining them from engaging in the acts set forth herein and from otherwise engaging in the practice of law in the State of Florida.
10. The Florida Bar withdraws its request that the Respondents be found in indirect criminal contempt of this Court.
11. That the Respondents, and each of them, jointly and severally, agree to pay the sum of $100.00 to the Petitioner as costs of this proceeding.

We hereby adopt this joint motion and stipulation.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    William Lee THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 61164.
    Supreme Court of Florida.
    Feb. 11, 1982.
    Harold Solomon, Sp. Asst. Public Defender of Solomon & Mendelow Law Offices, Miami Springs, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for the State.
   PER CURIAM.

This is an appeal from a denial of collateral relief brought under Rule of Criminal Procedure 3.850. Appellant was adjudicated guilty of first-degree murder, following his second plea of guilty to that offense, and was sentenced to death. This Court affirmed. Thompson v. State, 389 So.2d 197 (Fla.1980). Prior to that decision, we allowed appellant to withdraw his first plea of guilty. See Thompson v. State, 351 So.2d 701 (Fla.1977). Although this is the first application for collateral relief, it is the third time this cause has been before this Court. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm, finding that the trial court properly denied relief.

As stated in detail in our second opinion, appellant was sentenced to death for his part in the brutal torturing and slaying of a female victim, in which we determined appellant was the dominant force. See 389 So.2d 197. In this proceeding, appellant contends that his codefendant, Rocco James Surace, forced him to take the full blame for the murder and that, contrary to appellant’s testimony at Surace’s trial, Surace was the moving force in the torture-murder. Appellant also argues that his death sentence is inappropriate because Surace received a life sentence. See Surace v. State, 378 So.2d 895 (Fla. 3d DCA 1980). Appellant contends Gafford v. State, 387 So.2d 333 (Fla.1980), and Slater v. State, 316 So.2d 539 (Fla.1975), require a reduction of his sentence to life imprisonment to make the sentences consistent and not disparate.

The record is clear that appellant testified under oath at codefendant Su-race’s trial and took the full blame for the murder. It is apparent that his testimony resulted in Surace’s conviction of only second-degree murder. Thompson claims in his statement for collateral relief that “[t]he whole testimony at [Surace’s] trial was the end product of [Surace’s] coaching. I wouldn’t have said any of it if I wasn’t scared that he would either kill me himself or have someone else do it.” The statement is signed by appellant as “true to the best of my memory.” Appellant offers no evidence, other than his present statement, to establish that his testimony at Surace’s trial was the product of coercion. We find that this statement recanting his sworn in-court testimony, standing alone in the manner it is presented, is insufficient to justify an evidentiary hearing for collateral relief, particularly where that testimony goes toward the issue of dominance which was fully litigated in the second full appeal before this Court.

Collateral relief proceedings may not be used as a vehicle to raise, for the first time, issues that the petitioner could have raised during the initial appeal on the merits, nor may they be used to retry issues previously litigated on direct appeal. Barclay v. State, 408 So.2d 1020 (Fla.1981); Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980); Witt v. State, 387 So.2d 922 (Fla.1980). On this record, no evidentiary hearing was required. We conclude the trial court properly determined that appellant is not entitled to any relief as a matter of law. Graham v. State, 372 So.2d 1363 (Fla.1979); Spenkellink v. State, 350 So.2d 85 (Fla.1977); State v. Weeks, 166 So.2d 892 (Fla.1964); see Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).

We affirm the trial court’s denial of collateral relief. No motions for rehearing will be entertained.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


author: ADKINS, Justice.

text:
    Steven WHITTEN, a minor, and Leland Whitten, Appellants, v. PROGRESSIVE CASUALTY INSURANCE CO., a foreign corporation, Appellees.
    Nos. 57709, 59022.
    Supreme Court of Florida.
    Feb. 18, 1982.

      Nolan Carter, Orlando, for appellants.
    . John L. Sewell, Francis E. Pierce, III and Ronald L. Harrop of Gurney, Gurney & Handley, Orlando, for appellees.
   ADKINS, Justice.

This appeal presents two causes consolidated for review on the Court’s own motion. Fla.R.App.P. 9.040(a). The Circuit Court of the Ninth Judicial Circuit, Orange County, upheld the constitutionality of section 57.-105, Florida Statutes (1979), thereby giving this Court jurisdiction under article V, section 3(b)(1), Florida Constitution (1972). The rest of the case was transferred from the Fifth District Court of Appeal pursuant to Florida Rule of Appellate Procedure 9.040(b).

On July 15, 1977, appellant Steven Whit-ten, a minor, received serious injuries in a traffic accident caused by the negligence of another driver. Whitten was operating a motorcycle borrowed from Roy V. Eloranta, a minor, and insured by appellee Progressive Casualty Insurance Company. Appellant settled his claim against the tort-feasor’s insurer for $15,000, the entire amount of the liability insurance policy. Steven and his father, Leland Whitten, then sought additional compensation from uninsured vehicle coverage by suing Progressive together with their own insurer, Nationwide Mutual Insurance Company.

The Progressive Casualty Motorcycle Insurance application form listed Jack R. Elo-ranta as the applicant and Roy V. Eloranta as the principal operator. The form also contained a “Notice of Rejection of Uninsured Motorists Coverage” signed by Jack Eloranta. The motorcycle insurance policy, which was issued to Jack R. Eloranta as the named insured, included the word “Rejected” next to the uninsured motorist coverage.

The Circuit Court for Orange County granted Progressive’s motion for summary judgment and motion to tax costs including statutory attorney’s fees. Appellants bring this appeal from the final order of the trial court ruling section 57.105, Florida Statutes (1979), constitutional.

The first issue concerns the effectiveness of Jack Eloranta’s rejection of uninsured motorist coverage under section 627.727, Florida Statutes (1977).

Appellants claim that the rejection by Jack Eloranta was invalid as a matter of law. They argue that Roy Eloranta, as principal operator of the motorcycle, should have been listed as a named insured and' given the right to reject uninsured motorist coverage. In the alternative, they seek jury resolution of the question whether Roy should have been a named insured on his father’s policy.

Appellee Progressive contends that Jack Eloranta was the proper person to reject the uninsured motorist coverage. Progressive argues that his rejection was binding on any additional insureds under the policy.

Section 627.727(1), Florida Statutes (1977), reads in part:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage.

(Emphasis added).

This statute provides that the appropriate party to reject uninsured motorist coverage is the named insured, not the principal or other operator of the motor vehicle. The policy issued by Progressive included a signed rejection of uninsured motorist coverage by Jack Eloranta, the insured named in the policy. His valid rejection was binding on Roy and any additional insureds named in the policy.

Other courts have reached similar conclusions in resolving this issue. In United States Fidelity and Guaranty Co. v. Williams, 375 So.2d 328 (Fla. 1st DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980), unin sured motorist coverage was rejected by the named insured, the mother of the decedent. According to the district court, “[although appellee’s decedent was rated on the policy as the sole operator of the insured vehicle, this did not make her a ‘named insured’ for purposes of uninsured motorist coverage under the terms of the policy or under section 627.727, Florida Statutes (1977).” Id. at 329. Applied to the present case, Roy Eloranta’s status as the principal operator would not make him a named insured for the purpose of rejecting uninsured motorist coverage.

Continental Insurance Co. v. Roth, 388 So.2d 617 (Fla.3d DCA 1980), found the father’s rejection of uninsured motorist coverage binding on his son, even though the son was included as a named insured on the policy. The court held “that any named insured, as the statute says, may reject uninsured motorist coverage for all insureds — named or additional.” Id. at 618 (emphasis in original). Therefore, it would make no difference whether Roy Eloranta should have been a named insured on the Progressive policy. His failure to reject the uninsured mo'torist coverage would not affect the valid rejection signed by Jack Elo-ranta, the named insured.

The decision of the named insured accepting or rejecting uninsured motorist coverage is binding on any additional insureds under the policy. Lancaster Oil Co., Inc. v. Hartford Accident & Indemnity Co., 486 F.Supp. 399 (N.D.Fla.1980) (selection of lesser coverage by president of insured corporation applies to employees driving company cars); Travelers Insurance Co. v. Bartoszewica, 404 So.2d 1053 (Fla.1981) (declaration of corporation as named insured of personal injury protection insurance policy does not include employees as named insureds); Del Prado v. Liberty Mutual Insurance Co., 400 So.2d 115 (Fla. 4th DCA 1981) (employee as permissive user of insured vehicle cannot complain of deficiencies regarding rejection of uninsured motor ist coverage by employer corporation as named insured); Maxwell v. United States Fidelity and Guaranty Co., 399 So.2d 1051 (Fla. 1st DCA June 16, 1981) (Ervin, J., specially concurring) (employee as additional insured permissive operator of fleet vehicle must be considered bound by rejection of uninsured motorist coverage by insured employer); Mattingly v. Liberty Mutual Insurance Co., 363 So.2d 147 (Fla. 4th DCA 1978), cert. denied, 370 So.2d 460 (Fla.1979) (selection of lower amounts by automobile manufacturer as named insured covers lessees of motor vehicles); Glover v. Aetna Insurance Co., 363 So.2d 12 (Fla. 1st DCA 1978) (rejection of uninsured motorist insurance by president of insured employer extends to employees operating company’s commercial vehicles); Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla.3d DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967) (rejection of uninsured motorist coverage by automobile rental agency as named insured binds renters of cars). As the named insured in the Progressive policy, Jack Elo-ranta alone had the authority to reject or accept uninsured motorist coverage in amounts less than liability limits.

The circuit court correctly granted a summary judgment in favor of Progressive by determining as a matter of law that the policy did not include uninsured motorist coverage.

Appellants next challenge the assessment of attorney’s fees against them pursuant to section 57.105, Florida Statutes (1979), which provides:

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

Appellants maintain that the above statute impinges upon this Court’s procedural rulemaking authority under article V, section 2, Florida Constitution (1972). To the contrary, an award of attorney’s fees is a matter of substantive law properly under the aegis of the legislature. See Estate of Hampton v. Fairchild-Florida Construction Co., 341 So.2d 759 (Fla.1976); Campbell v. Maze, 339 So.2d 202 (Fla.1976); Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla.1973); Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); State ex rel. Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668 (1924).

This Court accordingly affirms the decision of the trial court declaring section 57.-105, Florida Statutes (1979), constitutional.

Appellants’ final contention pertains to the propriety of the award of attorney’s fees under this statute based on the facts below.

This case affords the first opportunity for the Court to review the assessment of attorney s fees pursuant to section 57.105, Florida Statutes (1979). Several recent district court decisions interpreting the statute have provided useful standards and guidelines to assist trial courts in awarding legal fees.

Statutes authorizing an award of attorney’s fees are in derogation of the common law. Therefore, such statutes must be strictly construed. Kittel v. Kittel, 210 So.2d 1 (Fla.1968).

As a prerequisite to an award of attorney’s fees under section 57.105, the court must find “a complete absence of a justicia-ble issue of either law or fact raised by the losing party.” Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980), interpreted this phrase to mean a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous. The district court held that “a trial court must find that the action is so clearly devoid of merit both on the facts and the law as to be completely untenable.” Id. at 175 (emphasis in original). See Trexler v. Fiat Motor Co., 400 So.2d 1320 (Fla. 5th DCA 1981); Executive Centers of America, Inc. v. Durability Seating & Interiors, Inc., 402 So.2d 24 (Fla.3d DCA 1981); Buckner v. Allergan Pharmaceuticals, Inc., 400 So.2d 820 (Fla. 5th DCA 1981); Braden River Civic Association v. Manatee County, 403 So.2d 1007 (Fla.2d DCA 1981); Kisling v. Wooldridge, 397 So.2d 747 (Fla. 5th DCA 1981); Sachs v. Hoglund, 397 So.2d 447 (Fla.3d DCA 1981); White v. Montebello Corp., 397 So.2d 326 (Fla. 5th DCA 1981); City of Deerfield Beach v. Oliver-Hoffman Corp., 396 So.2d 1187 (Fla. 4th DCA 1981); Denes & Denes & Associates, Inc. v. Walter E. Heller & Co., 396 So.2d 760 (Fla.3d DCA 1981); T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980); Hernandez v. Leiva, 391 So.2d 292 (Fla.3d DCA 1980); Love v. Jacobson, 390 So.2d 782 (Fla.3d DCA 1980).

The holdings of Allen v. Estate of Dutton and these later cases comport with the intent of the legislature in adopting the statute. See Note, Attorney’s Fees: Florida Statute 57.105, 5 Nova L.J. 89 (1980), and sources cited therein. A trial court’s finding of a complete lack of a justiciable issue is justified in cases where the attempt to create a controversy is frivolous. Hernandez v. Leiva, 391 So.2d at 295. The language of section 57.105 is analogous to this Court’s definition of a frivolous appeal found in Treat v. State ex rel. Mitton, 121 Fla. 509, 510-11, 163 So. 883, 883-84 (1935):

A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed. It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justiciable question can be spelled out of it, or from any part of it, even though such question is unlikely to be decided other than as the lower court decided it, i.e., against appellant or plaintiff in error.

(Citation and footnote omitted.)

The purpose of section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reckless waste of judicial resources as well as the time and money of prevailing litigants. Sachs v. Hoglund, 397 So.2d at 448. See also Executive Centers of America, Inc. v. Durability Seating & Interiors, Inc.; Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla.3d DCA 1981); T.I.E. Communications, Inc. v. Toyota Motors Center, Inc.; Hernandez v. Leiva.

While the statute serves a salutory purpose, it may not be extended to every case and every unsuccessful litigant. City of Deerfield Beach v. Oliver-Hoffman Corp., 396 So.2d at 1188. Not every party that prevails in a motion for summary judgment, motion to dismiss for failure to state a cause of action, judgment on the pleadings, evidentiary hearing or trial is automatically entitled to attorney’s fees under section 57.105. Hernandez v. Leiva, 391 So.2d at 294. See also Executive Centers of America, Inc. v. Durability Seating & Interiors, Inc.; Denes & Denes & Associates, Inc. v. Walter E. Heller & Co.; Allen v. Estate of Dutton; MacBain v. Bowling, 374 So.2d 75 (Fla.3d DCA 1979). Merely losing, either on the pleadings or by summary judgment, is not enough to invoke the operation of the statute. City of Deerfield Beach v. Oliver-Hoffman Corp., 396 So.2d at 1188; Allen v. Estate of Dutton, 384 So.2d at 175.

In this case, the trial judge granted a summary judgment and awarded attorney’s fees in favor of appellee. A summary judgment is rendered upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla.R. Civ.P. 1.510(c). This standard is not equivalent to the finding of frivolousness required by section 57.105 for an award of attorney’s fees.

The position asserted by appellants was erroneous on the merits. However, their claims were not frivolous or entirely devoid of even arguable substance. Since a justiciable issue of law was raised, the trial court should not have assessed attorney’s fees against appellants. Trexler v. Fiat Motor Co.; Buckner v. Allergan Pharmaceuticals, Inc.; Parkway General Hospital, Inc. v. Stern; Braden River Civic Associa tion v. Manatee County; Appenfeldt v. Quinn; City of Deerfield Beach v. Oliver-Hoffman Corp.; Denes & Denes & Associates, Inc. v. Walter E. Heller & Co.; Hernandez v. Leiva; Allen v. Estate of Dutton.

The statute provides that a party is entitled to an award of attorney’s fees only when the court determines that there was a complete absence of a justiciable issue raised by the losing party. Without such a finding, an order assessing attorney’s fees is technically deficient and must be reversed. Allen v. Estate of Dutton, 394 So.2d 132, 135 (Fla. 5th DCA 1980); City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112, 1113 (Fla.3d DCA 1980); but see Autorico, Inc. v. Government Employees Insurance Co., 398 So.2d 485, 488 (Fla.3d DCA 1981).

The order under review is technically deficient because it contains no finding by the circuit court regarding a complete absence of a justiciable issue. The statutory requirements of section 57.105 were not met in this case.

Therefore, this Court affirms the trial court’s entry of summary judgment but reverses the order awarding attorney’s fees pursuant to section 57.105, Florida Statutes (1979).

SUNDBERG, C. J., and BOYD, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


text:
    Arthur F. GOODE, III, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. 61693.
    Supreme Court of Florida.
    Feb. 23, 1982.

      Wilbur C. Smith, III, of Smith, Carta, Ringsmuth & Kluttz, Fort Myers, for petitioner.
    Jim Smith, Atty. Gen. and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

We have for consideration a petition for writ of habeas corpus attacking the competency of petitioner Goode’s attorney on appeal from his conviction and a motion for stay of execution.

Petitioner’s conviction and sentence were affirmed by this Court, Goode v. State, 365 So.2d 381 (Fla.1978), and his petition for writ of certiorari was denied by the United States Supreme Court. Goode v. Florida, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

A motion to vacate judgment and sentence was denied by the trial judge. Upon appeal this order was affirmed. Goode v. State, 403 So.2d 931 (Fla.1981). Thereafter the Governor issued a warrant ordering petitioner’s execution to be held on March 2, 1982. These proceedings resulted.

Petitioner argues that the trial judge committed error in three regards: (1) he sentenced petitioner to death because he believed petitioner might be released on parole and commit further acts of violence in the future, (2) he found petitioner’s mental condition to be a mitigating circumstance but failed to recite that finding of fact and thus petitioner was denied effective appellate review in this Court, and (3) the sentencing judge applied the incorrect burden of proof in determining whether evidence established mitigating or aggravating circumstances. He contends that his appellate counsel was ineffective because he failed to raise the issues that the judge improperly considered non-statutory aggravating circumstances, that the sentencing judge failed to recite the finding of a mitigating circumstance which he in fact found, and that the sentencing judge applied an incorrect burden of proof in determining whether the evidence established mitigating or aggravating circumstances.

At trial petitioner insisted upon representing himself, but, nevertheless, the court appointed counsel with whom he could consult during trial. Petitioner admitted his guilt and requested that he be given the death sentence. It was in this light that appellate counsel sought reversal. In our opinion affirming the judgment and sentence we said:

The jury recommended the death sentence despite their being instructed to consider defendant’s mental state as a mitigating circumstance.
Even though defendant admits his guilt and even though he expressed a desire to be executed, this Court must, nevertheless, examine the record to be sure that the imposition of the death sentence complies with all of the standards set by the Constitution, the Legislature and the courts. The questions raised by the attorney to assist defendant on appeal have been considered and are without merit.
The request of the defendant to dismiss the appeal is denied. The Legislature has imposed a duty upon this court to examine every case in which the death sentence is imposed. Section 921.141(4), Florida Statutes (1975).

365 So.2d 384.

At the sentencing hearing, attorney Smith, the former attorney for petitioner, argued that petitioner should have been given life imprisonment. In his statement to the court Smith said:

To impose the death penalty on Mr. Goode would be merely a symbolic sentence which might appease the passions of those which are extremely outraged or offended by Mr. Goode’s actions, and it certainly might appease the passions of those that have been so severely injured by Mr. Goode’s actions, but other than an immediate remedial salving of feelings what good is going to be done by the execution of Arthur Goode?
I think to answer that question the Court would have to ask what good or what benefit can be derived from a life sentence as opposed to the death penalty?

The trial judge made specific findings as to the aggravating and mitigating circumstances before sentencing petitioner “to the penalty of death.” After ordering that appropriate appellate proceedings be instituted, the trial judge said:

In closing I want to address myself to Counsel Smith’s remarks for just a moment. The question of why should this man be executed for what he has done is a question that the Court has wrestled with for several days and has carefully considered the circumstances, but I have to be able to answer to myself why should I invoke the awesome punishment of death. Could not something be learned from Arthur? Am I not doing as I have seen and heard many do and merely so outraged by the activities that he has done that possibly my reason and judgment are blurred? I believe not.
If organized society is to exist with the compassion and love that we all espouse, there comes a point when we must terminate that, and there are certain cases and certain times when we can no longer help, we can no longer rehabilitate and there are certain people, and Arthur Goode is one of them, that’s actions demand that society respond and all we can do is exterminate.
Philosophically I believe that in certain limited instances we should do that. In this particular case that is my opinion, and that is my order, and the only answer I know that will once and for all guarantee society, at least as far as it relates to this man, is that he will never again kill, maim, torture or harm another human being, and as you said in trial, Arthur, maybe I don’t know who we blame. God forgive you of those desires or something in your environment that has made you have them, and whoever is to blame is beyond the power of this Court.
You have violated the laws, you have had your trial and I am convinced that the punishment is just and proper, and truthfully, may God have mercy on your soul.

Petitioner argues that his appellate counsel failed to raise as error the consideration by the trial judge that petitioner might commit further acts of violence in the future and that he might be released at some future date. Petitioner relies upon Miller v. State, 373 So.2d 882 (Fla.1979), where the same trial judge, while imposing a death sentence, made the following statement:

Thus, in weighing the aggravating and mitigating factors, I have to conclude that the aggravating factors are such that the reality of Florida law wherein life imprisonment is not, in fact, life imprisonment; and, in fact, the defendant would be subject to be released into society — In other words, it doesn’t mean life imprisonment and there is a substantial chance he could be released into society. And the testimony overwhelmingly establishes that the mental sickness or illness that he suffers from is such that he will never recover from it, it will only be repressed by the use of drugs.
Thus, in light of that fact, in light of the aggravating factors here, I have to conclude the only certain punishment and the only assurance society can receive that this man never again commits to another human being what he did to that lady, is that the ultimate sentence of death be imposed.
If the law in Florida were such that life imprisonment meant the ability to live in a prison environment for the entire, remainder of one’s life, I would have the conclusion that there would be sufficient mitigating factors to offset the aggravating factors, and allow him to live in prison.
But since that is not the case, the reality is that life imprisonment does not mean that, I conclude in this case that the aggravating factors heavily outweigh the mitigating factors.
The heinousness of the crime, the way in which it was committed speaks for itself. Now I, as the Judge, must therefore impose the sentence of death and do so. [Emphasis added.]

373 So.2d at 885.

In Miller it is apparent that the likelihood of the defendant committing further acts of violence in the future was considered as an aggravating factor and that, in the absence of the uncertainty of a life sentence, the judge would not have imposed the sentence of death. It is apparent on the face of the sentence that this was a part of the weighing process.

Goode is different. In this case, the trial judge imposed the sentence and, in reply to statements made by attorney Smith, explained why the result of his weighing process was proper. It does not appear that the trial judge committed reversible error, so appellate counsel was not ineffective when he failed to raise this question on appeal.

Also, appellate counsel did not have the benefit of Miller, as this decision was rendered after the decision in Goode. In any event, the record fails to show that the trial judge improperly considered non-statutory aggravating circumstances.

On appeal from the judgment and sentence, appellate counsel argued that the trial judge erred in not finding and weighing the following mitigating circumstances: (1) that Goode committed the capital felony while under the influence of extreme mental and emotional disturbance and (2) that Goode’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired, in view of the psychiatric testimony that such circumstances existed. The record discloses that the above question was raised by appellate counsel, so petitioner’s second ground for relief is without merit.

In the appeal from the judgment and sentence, the record discloses that appellate counsel argued that the trial court erred in permitting the prosecutor to state that mitigating circumstances do not have to be proven beyond a reasonable doubt but by a preponderance of the evidence. He also argued that the court may have improperly required evidence in mitigation to be proven by a preponderance of the evidence before considering it in sentencing. Therefore, petitioner’s third ground for relief is without merit.

The facts of the present case do not support petitioner’s claim. He had effective assistance of counsel during his appeal. Therefore, the petition for writ of habeas corpus is dismissed and the motion for stay of execution is denied.

Motion for Rehearing will not be considered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Timothy ERVIN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1763.
    District Court of Appeal of Florida, Second District.
    May 22, 1981.
    Rehearing Denied July 8, 1981.
    Jerry Hill, Public Defender, Bartow, Karal B. Rushing and Allyn Giambalvo, Asst. Public Defenders, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Timothy Ervin appeals his conviction and sentence for attempted dealing in stolen property, contending that the conviction is void as there is no such crime under Florida law. We agree and reverse.

Appellant was charged with dealing in stolen property in violation of section 812.-019, Florida Statutes (1979). Section 812.-019 provides: “(1) Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree . . .. ” (Emphasis added.)

The trial court instructed the jury that an attempt to commit the crime charged constituted a lesser included offense of dealing in stolen property, defined the “lesser included crime,” instructed on the penalties for the “crime,” and included a verdict form for this “crime” in the prepared verdict forms submitted to the jury. When the jury subsequently indicated confusion as to the difference between the charged offense and an attempt to commit that offense, the trial court reinstructed them on the elements of both “crimes.” The jury ultimately returned a verdict finding appellant guilty of “attempted dealing in stolen property,” and appellant was adjudicated guilty of the “offense” and sentenced to five years in prison.

This court held in Miles v. State, 374 So.2d 1167 (Fla. 2d DCA 1979), that the legislature’s use of the word “endeavors” in the theft statute, section 812.014(1), Florida Statutes (Supp.1978), was equivalent to the use of the word “attempts” and that to endeavor to do something means to make an attempt to do it.

When the definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt. State v. Thomas, 362 So.2d 1348 (Fla.1978); Miles v. State, supra; McAbee v. State, 391 So.2d 373 (Fla. 2d DCA 1980).

Although at trial appellant failed to object to the instruction on attempted dealing in stolen property, he is nonetheless entitled to raise the issue on appeal because it constitutes fundamental error. Fundamental error is defined as error which goes to the foundation of the case or to the merits of the cause of action. Vogel v. State, 365 So.2d 1079 (Fla. 1st DCA 1979); McAbee v. State, supra. That doctrine applies to the instant case because there is no such crime as attempted dealing in stolen property.

For the above reasons, appellant’s judgment and sentence are REVERSED and the cause REMANDED with directions to discharge appellant.

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

ON MOTION FOR REHEARING, CLARIFICATION, AND CERTIFICATION OF DECISION

PER CURIAM.

Rehearing and clarification are denied. However, in view of the First District’s certification to the Florida Supreme Court in Sykes v. State, 397 So.2d 911, No. UU-123 (Fla. 1st DCA, 1981), of the identical issue before us here, we hereby certify the same question:

When a trial court, following what it believes to be the requirements of the law, charges the jury on attempted grand theft under Sections 777.04(1) and 812.-014, Florida Statutes, without objection, and the jury returns a verdict of guilty of attempted grand theft based upon evidence supporting a conviction for that offense, notwithstanding that the evidence would also support a conviction of grand theft, is the defendant entitled to be discharged?

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


author: HURLEY, Judge. LETTS, Chief Justice,

text:
    CAUSEWAY LUMBER COMPANY, INC., Appellant, v. Gerald LEWIS, as Comptroller, and Department of Revenue, Appellees.
    No. 79-522.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied March 29, 1982.

      Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, and Richard W. Roe, Chattaroy, Wash., for appellant.
    Jim Smith, Atty. Gen. and Linda C. Proc-ta, Asst. Atty. Gen., Tallahassee, for appel-lees.
   HURLEY, Judge.

Causeway Lumber Company appeals from an order of the Comptroller of the State of Florida determining that Section 212.17(3), Florida Statutes (1977), precludes Causeway from obtaining a refund for certain taxes paid in 1975 and 1976. We affirm.

Section 212.17(3), Florida Statutes, (1977) provides:

A dealer who has paid the tax imposed by this chapter on tangible personal property may take credit in any return filed under the provisions of this chapter for the tax paid by him on the unpaid balance due on accounts which during the period covered by the current return have been found to be worthless and are actually charged off for federal income tax purposes; provided, that if any accounts so charged off are thereafter in whole or in part paid to the dealer, the amount so paid shall be included in the first return filed after such collection and the tax paid accordingly.

In 1974, 1975 and 1976, Causeway wrote off certain accounts as bad debts, but did not take advantage of the credit provision of Section 212.17(3). In September of 1976, Causeway unsuccessfully attempted to take credit for the sales tax paid on all accounts written off during this three year period. In 1978, Causeway applied for a refund of the excess taxes relying on Section 215.26, Florida Statutes, (1977), which allows a refund of overpaid or erroneously paid taxes. The hearing officer who originally heard the claim recommended approval of the application, but the Comptroller determined that there was no overpayment of taxes as contemplated by Section 215.26 and, therefore, that Section 212.17(3) was Causeway’s exclusive remedy.

Subsequent to the filing of this action, the legislature amended Section 212.-17(3), effective May 8, 1978, to provide that a dealer could take a credit or obtain a refund within twelve (12) months after the bad debt was charged off. The title of the bill amending this section states, in part, “An act ... extending the time period during which a dealer may take a credit for taxes paid on worthless accounts and allowing a refund for such payments.’’ Applying the rule of statutory construction that a court may look to the title of an act to interpret the intent of the legislature, Carter v. Government Employees Insurance Company, 377 So.2d 242 (Fla. 1st DCA 1979), cert. denied, 389 So.2d 1108 (Fla.1980), it appears that the legislature, by extending to 12 months the time for obtaining a credit, interpreted the prior statute as allowing a credit only for taxes paid on accounts charged off during the period covered by the return, and, by providing for refunds, determined that refunds had not previously been allowed. This conclusion is buttressed by the presumption that the legislature, by amending a statute, intends it to have a meaning different from that accorded it before the amendment. See Reino v. State, 352 So.2d 853 (Fla.1977).

In National Brands Tire Co. v. Department of Revenue, 383 So.2d 257 (Fla. 3d DCA), petition for review denied, 388 So.2d 1116 (Fla.1980), our sister court analyzed the pre-amendment version of Section 212.-17(3). There the court characterized the statute as “an embodiment of legislative grace which must be strictly construed against the taxpayer and in favor of the taxing authority,” id. at 259, and, consequently, held that a credit could be claimed only in the single period of the current return in which (1) the debt was found to be worthless, and (2) the debt was actually charged off for federal income tax purposes. We agree with the rationale of National Brands and further conclude that the Legislature intended the credit provisions of Section 212.17(3) to be the exclusive method for recovering taxes paid on accounts subsequently written off as bad debts.

Section 215.26, Florida Statutes, is not applicable in this case. This is so because Section 212.06(1), Florida Statutes, provides that the full sales tax on credit, installment, or other deferred payment sales is due at the moment of the transaction. Thus, the tax paid by Causeway was neither overpaid, paid where no tax is due, or erroneously paid, as contemplated by Section 215.26.

Without the provisions of Section 212.-17(3), the amount of tax paid at sale would remain proper even after the account had been charged off, and a dealer would not be entitled to a recovery. For this reason, the credit provision of 212.17(3) cannot be used to invoke the general refund statute when, without 212.17(3), there would not be a method to recover any taxes paid on accounts subsequently charged off.

Affirmed.

DOWNEY, J., concurs.

LETTS, C. J., dissents with opinion.

LETTS, Chief Justice,

dissenting:

I dissent.

It is obvious that the amendment to Section 212.17(3) of the Florida Statutes (1979) was enacted in response to the case of Estate of W. T. Grant Company v. Lewis, 358 So.2d 76 (Fla. 1st DCA 1978) which case is ignored in the majority opinion. In support of this contention I point to the most significant language added to that amendment which was the phrase “or obtain a refund.”

I also do not agree that Section 212.17(3) is the exclusive remedy and that Section 215.26 is not applicable. In support of this view I began to expand on my dissents, but in so doing concluded that I cannot express my point of view as well as appellant’s counsel has done in his supplemental brief filed in this cause. Accordingly, I have commandeered his language in part and do hereby incorporate it in my dissent as follows:

WHAT RULE OR RULES OF CONSTRUCTION ARE APPROPRIATE TO BE APPLIED, IF ANY, IN CONSTRUING FLORIDA STATUTE § 215.26.

ARGUMENT

IF ANY RULE OF CONSTRUCTION IS NECESSARY IN THIS CASE, THAT RULE MUST REQUIRE A LIBERAL CONSTRUCTION IN FAVOR OF THE TAXPAYER.

I. Introduction.

The statute under consideration by this Court, Florida Statute § 215.26, provides for a refund for taxpayers when there has been an overpayment, a payment where no tax is due, or any payment made in error. The precise issue before this Court is the interaction between this statute and Florida Statute 212.17(3) dealing with bad debt credits. The sales tax statute nowhere states that § 215.26 cannot be applied in an appropriate situation, and does not by its terms state that a credit, otherwise strictly authorized by § 212.17(3), is forever lost if not claimed in the month that a bad debt is written off. Compare Fla.Stat. § 192.062 (now Fla.Stat. § 196.011) with Fla.Stat. § 192.16 (now Fla.Stat. § 196.131); Jasper v. St. Petersberg Episcopal Community, Inc., 222 So.2d 479 (Fla. 2d DCA 1969). (Legislature is capable of and has in certain statutes stated that the failure to comply with a credit or exemption filing requirement waives that right for all time). See also Exxon Corp. v. Lewis, 371 So.2d 129 (Fla. 1st DCA 1978).

Notwithstanding the complete absence of any language drafted by the Legislature into Fla.Stat. § 212.17(3) which states that the credit remedy is exclusive or that the refund remedy is not available, the COMPTROLLER suggests that some constructive gloss should be added to the statute which would compel the “mutually exclusive” interpretation that it has advanced in this case.

II. Preliminary Test: Is the Statute Ambiguous?

As in the case of contracts, a statute is not subjected to the various rules of construction unless and until it is determined that there is some lack of clarity or some ambiguity in the statute or in its application to a particular set of facts. Although the appropriate rule of construction in this case is favorable to the taxpayer (see Part III, infra) the Court need not and should not proceed to construction of § 215.26 unless this initial question is first answered in the affirmative.

As CAUSEWAY has suggested to this Court from the outset, the refund statute is by its terms clear and unambiguous. That clarity is perhaps nowhere better demonstrated than in subpart (c) of the statute which calls for a refund when “any payment (is) made into the State Treasury in error.” There are no limiting terms to that refund provisions and no provision elsewhere in the Florida Statutes that precludes the Court giving those words their logical and all encompassing effect.

One recent case has examined the clarity of Fla.Stat. § 215.26 and has found it, under different circumstances, to be unambiguous and unmodified by other statutes.

In Exxon Corp., supra, the First District was called upon to determine whether the general refund statute, § 215.26, could be used in the face of a more specific statute containing a shorter claim period. The specific controversy focused on Fla.Stat. § 211.06(2), which on its face required that applications for severance tax refunds had to be filed with the Department of Revenue within one year from the date of the payment of such taxes. Exxon, the taxpayer, had requested a refund, but had not filed its application within the one year period presumably required by § 211.06(2). Exxon argued that the three year period of time allowed by § 215.26 (the statute at issue in our case) was available to it and enabled it to file a refund within three years of the date when the tax was paid. Faced with an argument analogous to the COMPTROLLER’S argument in our case (that the shorter filing requirement in § 212.17(3) implicitly excludes the longer filing time allowed under the refund statute) the First District rejected the State’s argument and stated:

We hold that § 215.26 controls and allows three years after accrual of the right to a refund within which the taxpayer can file application with the Comptroller for the refund ....
No language in § 211.06 puts the taxpayer on notice that, as claimed by DOR, severance tax refunds can only be claimed within the one year following payment, and we reject that strained construction in favor of the clear language of § 215.26 allowing a three year period for tax refunds. 371 So.2d at 130.

Thus, consistent with the widely recognized rule in Florida that you do not employ rules of construction unless there is an ambiguity or uncertainty, it is respectfully suggested to this Court that the statutes in question are clear, unambiguous, not mutually exclusive, and operate independently of the other. See Estate of W. T. Grant v. Lewis, 358 So.2d 76 (Fla. 1st DCA 1978). Accordingly, the refund statute is available to CAUSEWAY for tax years 1975 and 1976, and the refund recommended by the hearing officer in his Recommended Order should be reinstated by this Court.

III. Proper Construction of Florida Statute § 215.26 — Liberal Construction in Favor of the Taxpayer.

Should this Court for any reason in its deliberations feel that it is necessary to apply some constructive gloss to Fla.Stat. § 215.26, then it is clear from the law in Florida, as well as elsewhere, that the refund statute is to be liberally construed in favor of the taxpayer claiming the refund remedy.

A. Florida law construing § 215.26.

As set forth in CAUSEWAY’S initial brief at page 19, and in CAUSEWAY’S reply brief at page 3, and contrary to the suggestion of the COMPTROLLER, the Supreme Court of Florida has specifically addressed the rule of construction that is to be applied, when necessary and appropriate, to the refund statute, § 215.26. In the case of Walgreen Drug Stores Co. v. Lee, 158 Fla. 260, 28 So.2d 535 (1946), the Court had an opportunity to discuss both the purpose behind the refund statute and the appropriate rule of construction. In discussing the reason for the existence of the refund statute, the Court stated 28 So.2d at page 536:

A reading of the quoted acts [particularly § 215.26] in full declares a policy to make complete restitution to any citizen who (1) overpays any tax, license, or account, or (2) pays when no tax or license is due, and (3) pays any tax or account into the State Treasury in error.

The Supreme Court was able to reach this logical construction from a simple reading of the text to the statute. Notwithstanding that, however, the Court also noted that its decision in the Walgreen case was supported by the rule of construction it applied to § 215.26, which was:

If the text of the act does not reveal with certainty the intent of the Legislature, and it is susceptible of two meanings, that meaning most favorable to the taxpayer should be adopted. Id.

The Walgreen case is a clear, express, and direct statement by the Supreme Court of Florida, that the refund statute is to be construed, when necessary, in favor of the taxpayer. This case has never been modified or receded from in any way and, as will be set forth below, is fully consistent with other policy considerations in the State of Florida and with the bulk of the reported decisions in the United States.

The Exxon case discussed in detail above also speaks tangentially to the appropriate rule of construction to be utilized in evaluating the application of § 215.26. The First District in Exxon stated that, unless there is clear and explicit language to the contrary in some other statute preventing the employment of the general refund statute, the clear language of § 215.26 is to be employed in giving a refund.

Finally, the Attorney General of the State of Florida has addressed the question of § 215.26 and has specifically considered its application to the precise statute at issue in this case, § 212.17(3). While Attorney General opinions are not legally binding on courts in the State of Florida, this Court has recognized that such opinions are persuasive and are entitled to be given weight in considering Florida statutes. See Richey v. Town of Indian River Shores, 337 So.2d 410 (Fla. 4th DCA 1976).

The particular Attorney General’s Opinion is 069-65, rendered on August 8, 1969, following the creation of the bad debt credit in § 212.17(3). The specific question addressed by the Attorney General was “Are tax credits or refunds authorized under § 212.17(2) and (3), F.S. controlled by § 215.26(2), F.S.?” In a brief but dispositive opinion, the Attorney General adopted the same rule of construction employed by the First District in the Exxon case and stated:

I find no language in § 212.17, F.S., which prevents application of the general non-claims statute, § 215.26(2), F.S., and therefore conclude that its provisions control claims under § 212.17(2) and (3) for refunds, including credit allowances. (Emphasis added.)

Thus, determining that no legislative intent was expressed to make these statutes mutually exclusive, the Attorney General agreed with the First District in Exxon and Grant that the sections are independent of each other and not limited in their application by each other. In fact, the Attorney General continued his opinion and specifically addressed bad debt credits as follows:

Section 212.17(3) requires, in addition, that the credit allowed under its terms shall be claimed only for bad debts charged off “... during the period covered by the current return. ... ” Although the limitations of § 215.26(2) are restricted to “... refunds as provided by this section....” it covers overpayment of any tax and would therefore encompass claims under other specific statutory provisions such as § 212.17 by which overpayment or right to refund may be defined. (Emphasis added.)

Therefore, the limitation contained in § 212.17(3) to the effect that a bad debt credit can only be claimed against current sales tax obligations, is not construed as a statute of limitations or a non-claim statute which would preclude the application of the general refund statute, § 215.26.

For these reasons, it is respectfully suggested to this Court that there have been definitive interpretations of the refund statute in question which compelled this Court to apply a liberal construction in favor of the taxpayer, should it be necessary in deciding the issues raised in this case.

B. Section 215.26 — a remedial statute to be construed liberally to effectuate the remedy.

In the absence of a statute dealing with refunds for taxes paid in error, overpay-ments of taxes which result from mistake or error are not generally recoverable from a state. See Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953); Mayor and City Council of Baltimore v. Home Credit Co., 165 Md. 57, 166 A. 604 (1933).

To remedy this unjust result, various states have enacted refund provisions which allow a taxpayer to recover monies paid to the state to which the state would otherwise not be entitled. See Mayor and City Council of Baltimore, supra; Orpheum Circuit v. Los Angeles County, 12 Cal.App. 257, 55 P.2d 901 (1936); Commonwealth of Virginia v. Cross, 196 Va. 375, 83 S.E.2d 722 (1954). These refund statutes, which require states to repay money that is not technically theirs, are thus remedial statutes and construed accordingly. Id.

It is self-evident from the language of § 215.26 that the motivation behind the enactment of the general refund statute was to give the taxpayers in the State of Florida the vehicle, or the remedy, to recover from the State these monies which properly belong to the taxpayer and not to the State. Thus, as the statute itself reflects, the only monies recoverable by taxpayers under § 215.26 are those to which the State has no entitlement but which the State presently happens to have.

The general refund statute is clearly a remedial statute, as recognized by the cases cited above. The rule of construction in Florida and elsewhere is widely recognized and parallels identically that expressed by the Supreme Court of Florida in Walgreen. That rule is perhaps nowhere better stated than in this Court’s decision of Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967):

Consistent with the intent of the Legislature, laws which are penal in nature should be strictly construed while laws that are remedial in nature should be construed liberally.... [A] statute relating to procedure is remedial in nature in that it gives a remedy and intends to abridge some defect or superfluities of the common law. 197 So.2d at 318.

This rule of construction for remedial statutes — a liberal construction which will broadly effectuate the remedy created — has been consistently recognized in Florida as being the appropriate rule for remedial statutes. See Becker v. Amos, 105 Fla. 231, 141 So. 136 (1932); Canada Dry Bottling Co. v. Meekins, Inc., 219 So.2d 439 (Fla. 3d DCA 1969).

[END OF QUOTE FROM APPELLANT’S BRIEF]

It is therefore my view that, as recommended by the hearing officer, a refund is available to the appellant for the tax years 1975 and 1976 and that the majority opinion is in conflict with both the First District and the Supreme Court.

Moreover and finally, it is fundamentally unfair to deprive a merchant of a refund of a sales tax on goods on which he fails to conclude a sale. How far the amendment to Section 212.17(3) seeks to alleviate this unfairness is of little consequence in this case. The events here complained of took place before the amendment and it is thus doubtful if the majority has the right to rely so heavily on it.

      . In view of this Attorney General’s opinion it is indeed ironic that it is the Attorney General who now successfully represents the Comptroller before this court and obtains a result contrary to his own opinion.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Lois FEINBERG, Appellant, v. Arthur I. FEINBERG, Appellee.
    No. 80-1087.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 1981.
    Rehearing Denied March 24, 1982.
    Paul Morris, Miami, for appellant.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Harry A. Gaines, Miami, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order denying a motion to vacate a final judgment filed pursuant to Rule of Civil Procedure 1.540(b). Final judgment was entered in a dissolution of marriage proceeding on November 15,1979. An untimely motion for new trial was filed, along with an unauthorized motion to extend the time for the filing of the motion. In a prior decision, this court dismissed an appeal from the final judgment due to the untimeliness of the motion for new trial and an unauthorized order extending the time for the filing of the post-trial motion. Feinberg v. Feinberg, 384 So.2d 1304 (Fla. 4th DCA 1980). After the appeal was dismissed, appellant/wife filed a motion pursuant to Rule of Civil Procedure 1.540(b) asserting that the failure to file a timely motion for new trial was the result of mistake, inadvertence or excusable neglect. The motion requested reissuance of the final judgment with a fresh date so that an appeal could be taken. The trial court denied the motion and the present appeal results.

This is not a situation as presented in Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980), where a party was not notified of the entry of a final judgment. Under such circumstances, courts have allowed a party to be relieved of the effect of the judgment to the extent of reissuing the judgment to allow the timely filing of an appeal. In Woldarsky v. Woldarsky, 243 So.2d 629 (Fla. 1st DCA 1971), similar relief was granted, but it- was carefully pointed out that the “inadvertence” upon which vacation of the final judgment was based was the rendition of the judgment without notice or knowledge of the party. In the present situation, the issue was simply whether appellant’s counsel demonstrated that his failure to file a timely motion for new trial was the result of his own excusable neglect. Resort to the prior Feinberg opinion discloses that the reason for the untimely appeal was the filing of a prohibited motion to extend the time for the filing of the motion for new trial. This was the mistake which eventually resulted in a late notice of appeal. The trial court here concluded, on the basis of conflicting facts and argument that counsel’s conduct was not the result of his own excusable neglect. We cannot fault the trial court in this conclusion and the order appealed from is thus affirmed.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I think the appellant established sufficient grounds to entitle her to relief under the provisions of Rule of Civil Procedure 1.540(b). See County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981).

      . We do not adopt the holding of Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980) but merely conclude it is inapplicable to the case now under consideration. We note the Gibson opinion does not comment upon the effect of Rule of Civil Procedure 1.080(h)(3).


author: OTT, Judge.

text:
    LARGO HOSPITAL OWNERS, LTD., Chanen Construction Company and Fireman's Fund Insurance Co., Appellants, v. INTERNATIONAL GLASS AND MANUFACTURING CO., INC., and Environmental Glass, a Division of Shatterproof Glass, Inc., Appellees.
    No. 81-12.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    As Modified on Denial of Rehearings Feb. 10, 1982.

      Mark P. Buell of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellants.
    Walt Logan, St. Petersburg, for appellee David Gorman, Trustee in Bankruptcy for International Glass and Manufacturing Co., Inc.
    John R. Newcomer, Jr., of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, P. A., Tampa, for appellee Environmental Glass, a Division of Shatterproof Glass, Inc.
   OTT, Judge.

International Glass, as subcontractor on the Largo Medical Center, brought this action (1) against the hospital owners and their surety, Fireman’s Fund, which had bonded the release of mechanics’ liens on the project, to foreclose its mechanic’s lien, and (2) against the general contractor (Chanen) for breach of contract. Chanen cross-complained against International Glass for breach of contract. A glass supplier, Environmental Glass, filed a cross-complaint to foreclose either its mechanic’s or equitable lien for glass furnished International Glass. One Tifton, who had supplied aluminum window frames to International Glass, intervened and filed a claim against International Glass, Chanen and owners for some $42,000.

(1) On Tifton’s claim, the trial court granted summary judgment in Tifton’s favor against Chanen for some $17,000 upon uncontroverted evidence that in order to obtain or retain Tifton’s continued cooperation in furnishing materials to the project, Chanen had promised in writing to pay that much of the sums then due Tifton from International Glass, and to deduct it from sums Chanen then owed International Glass. The final summary judgment expressly provided that it would be credited in favor of Chanen and set off against any recovery or judgment obtained by International Glass in this action. The propriety of the summary judgment in favor of Tifton is not attacked on this appeal and the failure to allow the agreed credit as a set-off against the International Glass judgment is being corrected by our mandate, infra, in connection therewith.

(2) On International Glass's claim, the trial court ruled that its mechanic’s lien was valid. Judgment was therefore entered in favor of International Glass and against the owners and their surety for the amount of its claim, plus prejudgment interest and attorneys’ fees. We vacate that judgment and remand the matter to the trial court for entry of a proper judgment (1) crediting appellants with the Tifton judgment and (2) withholding prejudgment interest.

(3) On the claim and counterclaim between International Glass and Chanen for breach of contract, International Glass voluntarily dismissed its action against Chanen during trial when it elected to pursue its mechanic’s lien. After trial, the court entered judgment against Chanen on its counterclaim against International Glass. We affirm that judgment, but remand it to the trial court for consideration of the rights of the respective parties to attorneys’ fees.

(4) On Environmental Glass’s claim, the trial court ruled that it had failed to comply with the statutory noticing requirements and therefore was not entitled to a mechanic’s lien, but that it did have an “equitable lien” for the amount of its bill. Accordingly, judgment was entered in favor of Environmental Glass and against the owners and their surety for its claim, plus prejudgment interest and attorneys’ fees. We reverse that judgment for a new trial, with instructions.

PERTINENT BACKGROUND

Construction of the medical center began in 1974 and still had not been completed when this case went to trial in 1978. We are concerned here with only the first year of construction, from the spring of 1974 until May 30,1975, when Chanen shut down the job, gave written notice to all subcontractors and suppliers that the owners were unable to obtain further financing, and advised each of them to “mitigate their damages” where and as possible.

Upon receipt of that notice, International Glass cleared its materials from the project, laid off all special help hired just for that particular job and sent its supervisory personnel to other jobs. At that time, Chanen owed International Glass some $96,500 and International Glass owed Environmental Glass some $69,000. International Glass proceeded to properly notice and perfect its mechanic’s lien. Environmental Glass failed to give notice of its claim to the owners, but timely filed a claim of mechanic’s lien.

A week or so after May 30, 1975, Chanen resumed operations and tried to persuade International Glass to return to the job. International Glass declined to do so because (1) it had not been paid and (2) it had made other arrangements for its personnel and equipment, pursuant to Chanen’s notice to “mitigate its damages.” Construction eventually resumed with a new glass subcontractor, only to have the project shut down again in 1976, again because of financial problems.

What caused the unfortunate state of affairs as of May 30, 1975, was the subject of extensive and conflicting evidence at trial. Suffice it to say here, in accordance with the familiar rule that appellate courts do not reweigh conflicting evidence, that there is substantial and credible evidence in the record to support a finding that the owners’ loss of financial backing was in no way related to or caused by any default on the part of International Glass or the other subcontractors, and that any failure to maintain the construction schedule for installation of glass was attributable to Chan-en’s failure to complete necessary preparatory work.

THE JUDGMENT FOR INTERNATIONAL GLASS

We find no merit in appellants’ attack on either International Glass’s entitlement to foreclose its mechanic’s lien or the sufficiency of the evidence to support the amount thereof. By and large, appellants simply ask us to reweigh the evidence and rule in their favor. We cannot do that.

Appellants assert that International Glass was not entitled to prejudgment interest because its contract was with Chan-en, and thus it was not in privity with the owners. We agree. Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754, 756 (Fla. 2d DCA 1978); Sharpe v. Ceco Corp., 242 So.2d 464 (Fla. 3d DCA 1970).

We also agree that appellants were entitled to a credit against their obligation to International Glass in the amount of the judgment in favor of Tifton. That judgment expressly so directs. The record does not exactly confirm appellants’ statement, at the hearing on their motion for a new trial, that International Glass’s attorney (at the time the Tifton judgment was entered) stipulated to the credit proviso, but it does disclose that all counsel in this case were served with copies of the Tifton judgment. Moreover, it surely is no more than equitable that Chanen should be credited with the judgment against it on a debt for which International Glass was originally and primarily responsible.

The judgment in favor of International Glass is VACATED and the court below is directed to enter a new judgment omitting prejudgment interest and reducing the principal by the amount of the Tifton judgment. In view of such substantial reductions, the court will probably wish to reconsider its order for attorneys’ fees, which is also VACATED.

THE CROSS-CLAIMS FOR BREACH OF CONTRACT

When International Glass dismissed its cause of action against Chanen for breach of contract, Chanen clearly was the prevailing party on the issues which had been raised in that claim. Under the contract between them, Chanen was entitled to attorneys’ fees for whatever services its attorneys may have rendered in defending against that claim.

It may be that the court was of the opinion that the obligations offset each other, but that is rather doubtful, since one claim actually went to trial and one didn’t. Perhaps the court felt that International Glass was entitled to a net award, but lumped it all into the fees allowed for the mechanic’s lien foreclosure. However, we can’t be sure, and are merely speculating.

Since the fees awarded International Glass are elsewhere set aside by this opinion, the question of entitlement to fees under the Chanen/International Glass contract should also be considered when making any new award of fees.

THE JUDGMENT FOR ENVIRONMENTAL GLASS

Obviously conscious of its failure to comply with the statutory prerequisites for a valid mechanic’s lien, Environmental Glass’s initial pleadings in this case sought foreclosure of its mechanic’s lien or, in the alternative, foreclosure of an equitable lien. The trial court, predictably, denied foreclosure of the mechanic’s lien, but ruled that Environmental Glass did have a valid “equitable” lien on the premises which the owners’ surety, Fireman’s Fund, had cleared of liens by bond. Accordingly, the court ruled that the owners and Fireman’s Fund were liable for the amount of Environmental Glass’s lien.

The trial court was correct with respect to the mechanic’s lien, but there was no evidence whatever to support the theory that Environmental Glass had an equitable lien on the medical center. Such a lien arises only upon proof of deception, misrepresentation, or similar fraud. Indiana Mortgage & Realty Investors v. Peacock Construction Co., 348 So.2d 59 (Fla. 2d DCA 1977).

At one juncture of this litigation Environmental Glass seemed to have a clear comprehension of the remedy possibly available to it. It sought and obtained leave to join the Bank of America of California as a party to this litigation. It filed a proposed cross-complaint setting up a cause of action based upon the type of equitable lien recognized by Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). That case holds that an unpaid materialman or subcontractor who fails to perfect a statutory mechanic’s lien may nevertheless be entitled to an equitable lien: against the real property if entitlement thereto, arising out of misrepresentation or fraud (Merritt v. Unkaefer, 223 So.2d 723 (Fla.1969)) can be demonstrated, or against unexpended construction money held in trust for those who furnish the labor or materials involved in such construction, if “a right of a special nature” can be shown. Environmental Glass went so far as to cite Crane in its motion, and alleged that Bank of America had supplied (and still had in its hands) the construction, money for the medical center.

The problem is that, according to the record, Environmental Glass never pursued that theory after its motion was granted. The casé went to trial on some novel theory that Environmental Glass had a “statutory nonpriority lien” on the real property pursuant to Crane and chapter 713 of the Florida Statutes. Just how that notion took root is not apparent, but it obviously arose from some misreading or misapprehension of the discussion in Crane. A close reading of that case clearly reveals that the “equitable lien” approved there was not a lien against the real property, but against the “hold-back” fund. 221 So.2d at 148.

Environmental Glass argues that, nevertheless, Fireman’s Fund is liable because the bond which transferred the liens from the land to other security was not confined to mechanics' liens, and consequently extended to any and all liens. We need not get involved in that theory, because even if it were true it would not help Environmental Glass, who had no lien of any sort against the real property.

We are not suggesting that Environmental Glass was or is foreclosed from proving an equitable lien against the premises by virtue of some misconduct of the owners, or from pursuing its mid-litigation idea of proceeding against unexpended construction money in someone’s hands. Entitlement to prejudgment interest in either of those situations is possible, depending upon the nature and timing of the owners’ wrongful act or the custodian’s wrongful refusal to pay a claim, but in no event could Fireman’s Fund be liable for any such claim, nor would attorneys’ fees be recoverable.

The judgment in favor of Environmental Glass is REVERSED with instructions for a new trial in accordance with this opinion. We express no opinion on the propriety of now adding new parties to this six-year-old litigation.

The case is REMANDED for further proceedings in accordance with this opinion.

HOBSON, A. C. J., and OTT and CAMPBELL, JJ., concur.

      . The briefs of the respective parties offer no insight into the perplexing question presented by Environmental’s failure to join International Glass as a cross-defendant and the consequent absence from the judgment of any indication whether Environmental’s recovery of the amount due it should operate as a credit on any amounts due International Glass. No one mentions the matter, although much ado is made over the relatively insignificant credit arising from the Tifton judgment. We can only assume that the parties have somehow made an arrangement between themselves, and are satisfied with it.


author: DANIEL S. PEARSON, Judge.

text:
    BRICKELL BAY CONDOMINIUM ASSOCIATION, INC., Appellant, v. John FORTE, Michael Forte and Brickell Bay Club, Inc., Appellees.
    No. 80-1878.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 22, 1982.

      Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul E. Gifford, Miami, for appellant.
    Hall & Hauser and Richard F. O’Brien III, Miami, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

The appellant, Brickell Bay Club Condominium Association, Inc. (the Association), whose members are the unit owners of the Brickell Bay Club Condominium, was denied the right to intervene in an action by the developers of the condominium against Aetna Dry wall Contractors, Inc. (Aetna), seeking damages because of Aetna’s negligent performance of construction of the condominium. The Association’s asserted interest in the pending litigation arises from an assignment from the developers, which provides in pertinent part:

“2. The Assignor does hereby assign, set over and transfer unto the Assignee, the benefit of all of Assignor’s right, title and interest in and to all bonds and warranties (express or implied) of every kind, character and description furnished to and running in favor of the Assignor by all of the contractors, sub-contractors and materialmen who furnished and/or performed work, labor, services and materials in connection with the construction of the Brickell Bay Club Condominium and all of its appurtenances, except as hereinafter provided.
“3. The Assignor has advised the As-signee of the following:
“(a) That there is presently pending in the Circuit Court of Dade County, Florida, certain litigation between Assignor and materialmen, suppliers and subcontractors who performed work, labor services on and/or furnished materials to the Brickell Bay Club Condominium.
“(b) That such litigation was initiated in each instance by the sub-contractors and materialmen.
“(c) That the Assignor has and/or will, in defending such actions, assert affirmative defenses and/or counterclaims against the claimants therein.
“(b) Any proceeds obtained as a result of such pending litigation will first be used to offset any claims within such litigation by any party against [the developers], or to satisfy any judgments which such party may have against [the developers] and the balance, after all such offsets, to the party against whom the judgment was entered or any other party to such litigation shall be remitted to Assignee, without claim by Assignor, except to the extent of attorneys’ fees and costs expended by Assignor to obtain such result.”

We hold that the trial court abused its discretion in denying intervention, see Coral Bay Property Owner’s Association v. City of Coral Gables, 305 So.2d 853 (Fla. 3d DCA 1975), because (1) the status of the Association as a partial and potentially substantial assignee of the cause of action being sued on by the developers is that of real party in interest in the pending litigation, a status clearly sufficient to justify intervention, see W. Klang & Son, Inc. v. Milar Galleries, Inc., 328 So.2d 510 (Fla. 3d DCA 1976); Blue Cross of Florida, Inc. v. O’Donnell, 230 So.2d 706 (Fla. 3d DCA 1970); compare Faircloth v. Mr. Boston Distiller Corporation, 245 So.2d 240 (Fla.1970); Oster v. Cay Construction Company, 204 So.2d 539 (Fla. 4th DCA 1967) (mere indirect interest not sufficient for intervention); (2) as is evident from the assignment, the developers’ only real interest in the outcome of their action against Aetna is to recover damages sufficient to offset a judgment obtained against them on a promissory note by Aet-na, whereas, by contrast, the interests of the Association, the entity which now bears the responsibility to repair the alleged defective construction, can only be adequately protected by as full and complete recovery against Aetna as is possible for it to obtain, Coral Bay Property Owner’s Association v. City of Coral Gables, supra (proposed inter-venor’s interest not adequately protected by party with limited interest); see Miracle House Corporation v. Haige, 96 So.2d 417 (Fla.1957) (proposed intervenor’s interest not adequately protected by disinterested party); (3) not only is the discrete interest of the developers in the outcome of the litigation inadequate to fully protect the rights of the Association, but the admitted prior litigious conflicts between the developers and the Association enhance the Association’s need for its own representation in the pending action; (4) the Association has abandoned any claim for relief distinct from that sought by the developers in the main action and concedes that its intervention must be subordinate to and in recognition of the main proceeding, the conduct of which can be presumably controlled by other orders of the trial court; and (5) while the motion to intervene was filed several years after the commencement of the main action, but only an approximate year after the assignment to the Association, the main action is still far from the eve of trial, and intervention will not disrupt the proceedings or disadvantage any party, as is apparently recognized by Aetna, which, although presumably the party most affected, has not opposed the Association’s intervention.

Reversed and remanded with directions to grant the Association’s motion to intervene.