author: ROBERT P. SMITH, Judge.

text:
    BREVARD COUNTY SCHOOL BOARD and the Hartford Insurance Group, Appellants, v. Robert C. WALTERS, Appellee.
    No. WW-217.
    District Court of Appeal of Florida, First District.
    April 21, 1981.

      Richard H. Weisberg of Cooper & Riss-man, Orlando, for appellants.
    Frank R. Pound, Jr. of Lovering, Pound & Lober, Cocoa, for appellee.
   ROBERT P. SMITH, Judge.

The employer and carrier appeal from a commissioner’s order awarding a $37,000 fee to a lawyer who achieved a $50,000 lump sum settlement for his claimant client. The fee is equal to 74 percent of the compensation award. After a complete review of the record we find the award excessive on its face and unsubstantiated under the criteria set forth in Lee Engineering & Constr. Co. v. Fellows, 209 So.2d 454 (Fla.1968). We reduce the fee award to $25,000.

The fee payable to claimant’s counsel in this case is properly assessed at an amount greater than the $8,250 indicated by the percentage-of-benefits formula enacted in Section 440.34, Florida Statutes (1979). By Lee Engineering standards the significant elements of a reasonable fee in this case are the time and labor required; the novelty and difficulty of the questions presented, and the skill required; the contingency of the fee; and the benefits achieved.

Claimant’s lead counsel estimated the amount of lawyer time devoted to claimant’s representation at 300 hours. Of that total, 138 hours were recorded by an associate who, at the time she did that work, had been admitted to practice for as few as 15 months and as many as 32 months. The remaining 162 work hours are estimated only, not recorded. Nor are those 300 hours adequately explained in terms of effective work on the workmen’s compensation claim. In light of claimant’s emotional problems, much of the time spent by claimant’s lawyers looks very much like the “handhold-■ing” which, though inevitable to some extent in any representation, was held not compensable in Kelly Tractor Co. v. Jarrell, IRC Order 2-3018 (Aug. 19, 1976), cert. den., 348 So.2d 949 (Fla.1977). The absence of reliable time and work records makes it impossible to identify any extraordinary personal counseling and to differentiate between that and necessary legal services. It should not be considered beneath the dignity of fine lawyers to keep time records if, as is the case under Chapter 440, they aim for someone other than their client to pay the fee. Because of legitimate questions not answered on this record, the fee awarded of more than $100 for every hour claimed cannot be sustained.

This representation required a moderately high degree of lawyerly skill and perseverance. The nature of the claim itself was unusual. Due to high noise levels associated with his work as a band director in a public school, claimant suffered a hearing loss which entirely and permanently destroyed his ability to continue in that work, and in consequence he suffered a psychological reaction which was further disabling. The employer and carrier made no concession of compensability until it initiated settlement negotiations in December 1979, while appealing the deputy’s October 1979 order awarding permanent total disability benefits. Due to the nature of the claim and the employer/carrier’s resistance virtually throughout, the element of contingency enhances the fee payable in this case. The contingency lessened, however, in 1978, when the deputy commissioner found the claim compensable either as an industrial injury or as an occupational illness.

The vastly experienced deputy stated in his fee order that this was “one of the most complex and challenging cases I have observed.” While we find that statement somewhat surprising, considering the variety of complex but compensable claims we on this court have encountered in our brief experience with Chapter 440, we must and do yield some deference to the deputy’s assessment of the case. It does not follow, however, that in workmen’s compensation cases lawyerly skill has become so rare, and the likelihood of payment for professional services has become so remote, as to justify a 74 percent contingent fee.

It appears that the deputy’s fee award was heavily weighted by his consideration of the benefits achieved for claimant by his lawyer’s representation. In this the deputy erroneously considered the $50,000 lump sum settlement, approved on joint petition by the deputy in February 1980, as equivalent or even superior to the compensation award made by the deputy’s order of October 1979, which likewise awarded an identical fee of $37,000. That earlier $37,000 fee award was based largely on the award of past and future benefits having a stipulated present value, “depending on various contingencies,” of between $124,000 as estimated by the carrier’s counsel, and $137,000, including $78,550.11 in future permanent total disability benefits, reduced to present value, as estimated by claimant’s counsel. That compensation order of October 1979 was on appeal to this court, raising all antecedent issues including compensability, when the parties agreed to a lump sum settlement of $50,000, subject to approval by the deputy commissioner.

In reawarding a $37,000 fee by the order now on review, the deputy commissioner gave enhanced value to the $50,000 paid in hand, comparing it to the present value of the periodic future payments awarded in October 1979, because he felt that the settlement fund could be invested to produce income greater than the earlier periodic award, while leaving the $50,000 corpus to pass intact through claimant’s estate at his death. Thus, the deputy stated:

I also find that because of the prevailing economic conditions, the claimant will probably receive more cash benefits from the $50,000.00 lump sum settlement, than he would have received with the “payout” at his $105.00 a week compensation rate.

The deputy explained how in his judgment the $50,000 cash settlement had greater value than the benefits payable under the October 1979 compensation order:

I take judicial notice of the economic conditions and the money market as of February 5, 1980, the date the claimant received the $50,000.00 lump sum. Investment of the lump sum could provide the claimant interest income (at 15%) of $144 a week, leaving the principal of $50,-000.00 intact. An interest rate of only 11% would produce more than $105.00 a week. I also take judicial notice of the Statutory provisions providing for the termination of compensation at the death of the claimant, which could have eliminated any benefits to claimant, absent the lump sum settlement.
I find that with the prevailing money market at the date of settlement, and assuming a normal life span for the claimant, he could receive $144.00 weekly for 22 years, totaling $170,000.00 in interest on the $50,000.00 settlement. Such an investment would leave the $50,000.00 intact, and the claimant would have enjoyed total benefits of $220,000.00. Had the claimant not accepted the lump sum settlement, he would have been relegated to a $105.00 a week compensation rate and again assuming a normal life span, would have received in benefits, $120,-000.00 in weekly payments, with no principal for his estate at death....

The deputy added a cautionary word against accepting his income projections as “certain or absolute,” but his reservations concerned the difficulty of estimating an exact rate of return, not the legitimacy of the method used to find that $50,000 ordered paid in cash in February 1980 was more valuable than the stipulated present value, amounting to between $124,000 and $137,000, of past and future benefits ordered in October 1979. And while the deputy thus undertook to show the future earning power of the $50,000 paid in hand pursuant to the February 1980 order, the deputy neglected to project similar future earnings for the $16,620.79 cash awarded by the October 1979 order for past due benefits and penalties.

Assuming testimony by witnesses could lawfully support this method of bolstering the $37,000 fee reawarded, no testimony in this record supports the manner in which the fee was calculated and justified. Based on the earlier award of between $124,000 and $137,000 in present value to claimant, four lawyer witnesses then vouched for a fee of between $20,000 and $38,000. Based on the final award of $50,000, two of those witnesses lowered their estimates to a range of $10,000 to $12,000; and claimant’s only independent lawyer witness, who actually increased his prior estimate from $38,-000 to $39,200, said “it doesn’t make any difference what the settlement figure was,” whether $25,000 or $250,000.

We are of the opinion that the “money market” earning capacity of the $50,000 settlement has no place either in the deputy’s approval of such a settlement, Section 440.20(10), or in assessing the value of that settlement for purposes of fixing a fee for claimant’s attorney. Considering such an element as a “benefit” factor builds into the attorney’s fee, payable now and in cash, a future inflation factor which the “money market” anticipates and recognizes by high interest rates payable for the future use of. money. It is one thing, and a proper thing, to value a lawyer’s services in the light of inflationary factors directly bearing now on the amount of a reasonable fee; but it is another thing, in our view impermissible, to factor into the fee, as an enhancing “benefit” achieved for the client, the earning power of the settlement fund over the next 20 years.

This Court in Court of Flags v. Outland, 382 So.2d 443 (Fla. 1st DCA 1980), disapproved a lump-sum advancement ordered on the claimant’s petition, and over the carrier’s objection, which was justified as enabling claimant to make more money on the same “money market” whose interest rates influenced the fee in this case. We held that “estate planning or money market considerations” are not among the relevant factors authorizing a Section 440.20(10) advancement. The separate concurring opinion in Court of Flags elaborated, 382 So.2d at 445:

If the capacity of money to earn more in passive investment than the discount rate were reason enough to commute the periodic payments which are characteristic of the compensation system, then all awards to financially prudent claimants would be commuted in inflationary times. This cannot be. We do not permit an ill octogenarian to “beat the actuarial tables” by lump-summing an award of lengthy period payments. 3 Larson, The Law of Workmen’s Compensation, Section 82.72 at p. 15-580 (1976). Neither is it sufficient for lump-summing that, when credit is expensive, the claimant as lender can beat the statutory discount rate. (Robert Smith, J., concurring)

In the case now before us the claimant and his attorney did not represent to the deputy in the joint petition for lump sum settlement that they considered the $50,000 settlement had a benefit to claimant equal to or greater than the periodic benefits to be commuted. Nothing was said in that petition about the benefit to claimant of “economic conditions and the money market as of February 5, 1980.” On the contrary, claimant and his counsel represented that the employer/carrier had appealed the October 1979 compensation order and:

The claimant has been advised of his right to allow the Deputy Commissioner’s rulings to be considered by the appellate tribunal, and that if the orders were upheld he could receive more benefits than those provided herein ....

The joint petition for lump sum settlement represented that the parties desired to settle the claim on the basis of 40 percent of the permanent total disability rate, the other 60 percent of claimant’s disability being “due to medical causes unrelated to his alleged industrial injury.” We do not wish to press this seeming concession too far, recognizing that some kind of acceptable Section 440.20(10) rationale was necessary for a settlement that was desirable on other grounds but which could not be simply bargained for and effectuated. Yet that representation surely must be held to militate against the later argument that claimant was benefited as well or better by the February 1980 order as by the October 1979 order.

Thus we disregard any hypothetical “benefit” to claimant of having received a lump sum settlement during inflationary times. That eliminated as a fee factor, we are left with a record in which claimant’s counsel devoted a very substantial but undocumented amount of time to a professional undertaking having a contingency, requiring first-rate lawyerly skills, and ending in a good result. Considering all the evidence, we think the highest fee that can be justified for producing the $50,000 lump sum settlement is $25,000. We therefore reduce the fee to $25,000.

REVERSED.

MILLS, C. J., and WILLIAM C. OWEN, Jr., (Retired), Associate Judge, concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Edward HETER, Appellant, v. BUNING THE FLORIST and Gulf Insurance Company, Appellee.
    No. WW-364.
    District Court of Appeal of Florida, First District.
    April 21, 1981.
    Richard A. Barnett and Kevin A. Malone of Krupnick & Campbell, Fort Lauderdale, for appellant.
    Charles Desmond Crowley, Fort Lauder-dale, for appellee.
   WENTWORTH, Judge.

Heter, claimant in workers’ compensation actions arising from two accidents, appeals the deputy commissioner’s order which denied Heter’s claim for payment by appellee Gulf of medical benefits in excess of the 60% share of such benefits awarded against Gulf by an order entered in 1977 after the second accident. We affirm because the 1977 order is res judicata in this case and because the deputy did not err when he found Heter did not present sufficient evidence at the hearing below to support modification of the 1977 order.

In 1973, Heter suffered a compensable back injury from which he reached maximum medical improvement in 1975 and was paid 5% permanent partial disability compensation by stipulation. While working for the same employer in 1976 he was involved in a compensable auto accident which, the deputy ruled, resulted in temporary total disability. The second accident aggravated the earlier back injury and it created a neck condition which was unrelated to the first injury. In 1973, the employer was insured by Unigard; Gulf Insurance was the carrier in 1976. The deputy found Heter’s temporary total disability following the second accident was 40% attributable to the first accident, and 60% to the second, and he ordered the carriers to divide such disability and medical payments accordingly for the back injury dating from the second accident to the time of the order. Gulf was found to be wholly responsible for whatever medical expenses might arise relating solely to the neck condition caused by the second accident.

Gulf appealed, the Industrial Relations Commission affirmed and the Supreme Court denied certiorari. Buning The Florist, et al. v. Heter, Claim No. [ XXX-XX-XXXX ] (August 17, 1978) (unpublished opinion), cert. denied, 374 So.2d 98 (Fla.1979). The two issues on appeal at that time concerned notice to the employer and the award of payments to an allegedly unauthorized doctor. Then came the incidents giving rise to this appeal.

Heter filed a motion for hearing to determine that Gulf should be responsible for paying all medical expenses. Before hearing, he agreed with Unigard to a lump-sum settlement of $58,000. The settlement petition stated this represented $57,000 in compensation benefits and $1,000 for future medical benefits and expenses. At hearing and in this appeal, Heter argued that the 1977 apportionment was contrary to both law and fact, and he contends the award should not be considered res judicata because in 1977 he lacked standing to challenge the division of responsibility for payment. He contends that because the 1977 order awarded him full benefits, there was no reason for him to appeal and the apportionment was simply a matter for the carriers to argue.

We do not decide the propriety of either the 1977 apportionment or the 1979 settlement of medical and other benefits from Unigard. Assuming, as Heter now asserts, that the 1977 award was improper and that the deputy should have found Gulf liable for all medical expenses, Heter had the right to appeal the 40% apportionment of such costs to the first accident and its carrier. At that time he was on notice that his rights were determined as against each of the two carriers for temporary disability and medical benefits for the back condition attributed to both accidents. The 1977 award was an adjudication that Gulf was not liable for the full amount of Heter’s medical expenses for his back injury attributed to both accidents. The doctrine of res judicata forecloses the parties in this case from relitigating the 1977 order.

Under the Workers’ Compensation Act, modification pursuant to the terms of § 440.28, Florida Statutes, is the prescribed relief from the doctrine of res judicata. The Fruit Bowl, Inc., et al. v. Cheathem, 155 So.2d 865, 867 (Fla.1963). Here, the deputy properly treated Heter’s motion as a petition for modification. We agree with the deputy that the record does not demonstrate a change of condition or mistake of fact so as to warrant modification.

Accordingly, the order of the deputy commissioner is affirmed.

SHIVERS and LILES, JJ., concur.

      . Section 440.20(12)(a), Florida Statutes (1979 amendment).

        . Cf. The Seasons from Sarasota v. O’Day, 379 So.2d 1024 (Fla. 1st DCA 1980), for illustration of the necessary standard for such apportionment.


text:
    Bobby KIRVIN, Appellant, v. Charles Watson CLARK, Appellee.
    No. WW-473.
    District Court of Appeal of Florida, First District.
    April 21, 1981.
    J. Ben Watkins, of Watkins & Watkins, Apalachicola, for appellant.
    Jean Laramore, of Oertel & Laramore, Tallahassee, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Appellee sued Appellant for damages, alleging that the latter had committed an assault and battery upon him. Appellant’s amended counterclaim, seeking damages for alleged defamatory remarks uttered by Ap-pellee, was dismissed with prejudice. It is from the order of dismissal that Appellant has taken this appeal.

Looking solely to the allegations of the amended counterclaim, and accepting as true all well pleaded facts as well as all reasonable inferences arising therefrom. Poulos v. Vordermeier, 327 So.2d 245 (Fla. 4th DCA 1976), we conclude that the amended counterclaim alleges, perhaps marginally, a cause of action for defamation per se in that it alleges that Appellee falsely published of and concerning Appellant words imputing a crime to Appellant. See Campbell v. Jacksonville Kennel Club, Inc., 66 So.2d 495 (Fla.1953).

The particular allegations which we believe sufficient to state a cause of action for defamation per se are quoted as follows:

“[Clark], on repeated occasions, has falsely told persons that [Kirvin] has threatened to do bodily harm or injury to [Clark] or his property and that such threats were made for the purpose of prohibiting and preventing [Clark] from asserting his rights and privileges against [Kirvin] in the courts ... of Franklin County.”

These words, if true, would imply that Kir-vin, by such conduct, was guilty of a violation of Section 836.05, Florida Statutes (1979), a felony of the second degree.

Appellee urges that the alleged defamatory words were absolutely privileged because published in the course of judicial proceedings. If the alleged defamatory words are indeed subject to an absolute privilege (a matter which we do not here need to decide), such privilege is not disclosed by the allegations of the amended counterclaim and therefore may not be asserted in a motion to dismiss, but rather must be pleaded as a defense.

The order dismissing the amended counterclaim is reversed. Upon remand, Appel-lee should be afforded reasonable opportunity to file such defenses thereto as he may be advised.

REVERSED AND REMANDED.

MILLS, C. J., concurs.

ROBERT P. SMITH, J., dissents, without opinion.


author: BASKIN, Judge.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. Josephine CLASSIE, Appellee.
    No. 80-139.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Carl B. Schwait, Miami, for appellant.
    Samuel J. Hannon and C. J. Van Delin-der, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Only the court may determine issues concerning the existence of uninsured motorist coverage, Vigilant Insurance Co. v. Kelps, 372 So.2d 207 (Fla. 3d DCA 1979), that is, the insurance status of the allegedly negligent motorist. Arbitrators may determine whether the facts of the case disclose a “right or basis for recovery under the coverage provided for in the policy”, Ebens v. State Farm Mutual Automobile Insurance Co., 278 So.2d 674, 675 (Fla. 3d DCA 1973), that is, the factual merit of the claim. Government Employees Insurance Co. v. Mirth, 333 So.2d 545 (Fla. 3d DCA 1976); see also Allstate Insurance Co. v. Langston, 358 So.2d 1387 (Fla. 3d DCA 1978). The trial court correctly ruled in accordance with these principles; we therefore affirm the Final Judgment which established uninsured motorist coverage and ordered arbitration proceedings as to proximate cause of the injury.

Affirmed.


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. James Leo DODD, Appellee. James Leo DODD, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-322, 80-499.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for James Leo Dodd.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for the State.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

Dodd was on probation on four separate third-degree felonies when he was charged with the second degree murder of Arthur Griffin. After a combined hearing on the merits of both the alleged probation violation and a defense motion to suppress in the substantive murder case, the trial judge ruled that Dodd’s confession, which was the only evidence against him, had been secured as a result of a fourth amendment violation like the one involved in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); the confession was therefore suppressed as to the murder trial. The court also ruled, however, that the exclusionary rule does not apply in probation revocation proceedings; accordingly, the defendant’s probationary terms were revoked and he was given four consecutive five-year sentences on the original charges. The state appeals from the order of suppression in the murder case and the defendant has filed a subsequently-consolidated cross-appeal from his convictions on the probation violations. We reverse on both the appeal and cross-appeal and remand for further proceedings as to all the pending cases.

Confession Erroneously Suppressed

As the trial judge noted, the facts of this case bear a strong superficial resemblance to those in Dunaway. As there, the defendant confessed shortly after he was brought to the police station for questioning about the murder by officers who went to his home to get him and who admittedly had no probable cause to believe him guilty of the crime. But the basis of the result in Duna-way, as well as in the similar case of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), was the existence of an unbroken causal chain between the confession and an involuntary, constitutionally-unjustified “seizure” of the defendant. Decisively unlike Dunaway, the present record does not contain any evidence to establish the fundamental determination that such a seizure — as opposed to voluntary acquiescence by the defendant — had in fact taken place. In Dunaway, this indispensable element was established by the facts, among others, that the lead detective had ordered Dunaway to be “picked up” and “brought in” and that he “would have been physically restrained if he had attempted to leave.” 442 U.S. at 203, 99 S.Ct. at 2251, 60 L.Ed.2d at 830. The Supreme Court flatly stated at 442 U.S. 207, 99 S.Ct. 2250, 60 L.Ed.2d 832, that Dunaway had been “taken involuntarily to the police station.”

The showing made below is entirely different as to this key point. None of the three officers sent to retrieve Dodd, nor Dodd himself, testified at the hearing. On the seizure issue, the only one who did was the lead detective, Tommy Gergen, who dispatched the officers to Dodd’s home and interrogated him after he arrived but was not present when the actual encounter with the policemen took place. Gergen stated that he had sent the officers to “ask” if Dodd would “come along” or “accompany” them to the station. If Dodd had refused to go, Gergen said that, since there was no warrant for his arrest, “I certainly couldn’t have dragged him out of there. He would have been left there.” Furthermore, even after Dodd got to the station, he was free to leave at any time until he confessed to the murder and was therefore placed under arrest. The defendant’s statement itself substantiates this version of the actual events:

Q. When the police arrived at the house, did you voluntarily go with them?
A. Yeah, I volunteered to go with them. Only at the time, I didn’t know what was going on, really until I got down to the station.
Q. You agreed to go with them at the time?
A. I agreed to go with them, yeah.

Thus, the only evidence in this record shows not that a seizure had taken place so as to invoke Dunaway, but rather that Dodd had willingly, upon request, and without coercion gone to the police station in the company of the officers. Such a voluntary act does not constitute a fourth amendment seizure so as to taint any properly-secured confession which is given thereafter. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Dunaway v. New York, supra (Rehnquist, J., dissenting); United States v. Chaffen, 587 F.2d 920 (8th Cir. 1978); United States v. Brunson, 549 F.2d 348 (5th Cir. 1977), cert. denied, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977); United States v. Bailey, 447 F.2d 735 (5th Cir. 1971); Doran v. United States, 421 F.2d 865 (9th Cir. 1970); Hicks v. United States, 382 F.2d 158 (D.C.Cir. 1967); Bridges v. United States, 392 A.2d 1053 (D.C. 1978), cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979); State v. Morgan, 299 N.C. 151,261 S.E.2d 827 (1980), cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844, (1980); see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Login v. State, 394 So.2d 183 (Fla.3d DCA 1981), and cases cited.

Dodd contends that it was the state’s burden to show that Dodd had voluntarily gone to the station and that, by failing to call the officers who actually picked him up or to present any other direct evidence as to the manner in which that occurred, it has necessarily failed in that burden. We reject this analysis of the legal situation. The defendant’s entire position is based on the claim that the confession was the product of a fourth amendment seizure of his person. On such threshold questions as the very existence of a search or seizure, the defendant, and not the state, bears the initial burden of proof under both Fla.R.Crim.P. 3.190(h) and 3.190(i), which deals specifically with confessions. See State v. Lyons, 293 So.2d 391 (Fla. 2d DCA 1974). It is true that a showing that such a seizure, once established, was effected without a warrant raises a presumption of illegality which then shifts the burden to the prosecution to show otherwise, State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975). The proof adduced below, however, never got nearly to that stage. The defendant retained the burden on his motion to suppress and did not carry it.

In view, therefore, of the defendant’s failure to establish a “seizure,” (and the affirmative showing to the contrary), the order of suppression cannot be upheld. We do not, however, direct that, after remand, the motion simply be denied. This is because, after the conclusion of the hearing, the public defender sought leave to reopen Dodd’s case to present additional testimony “relevant [to Dodd’s] being taken into custody.” This was not done only because the trial judge broadly hinted that it was unnecessary in the light of the ruling in the defendant’s favor which he was about to make and which he in fact announced immediately thereafter. Now that we have found error in that ruling, it is obvious that the defendant must be given the opportunity to present the proposed testimony; the state may also present additional evidence to rebut it. Accordingly, the case shall be remanded for a new hearing to be conducted and determined in the light of the views expressed in this opinion.

Error to Hold Exclusionary Rule Inapplicable to Probation Revocation

The proceedings on remand which have already been ordered may result in a finding that Dodd’s confession was not unconstitutionally secured. It may therefore be premature to rule at this time on the issue raised on cross-appeal challenging the lower court’s ruling that the exclusionary rule is inapplicable to probation proceedings. Nevertheless, because, if we agreed with that determination, we would be compelled now to affirm the revocations, and in the interests of a full adjudication of the case, we proceed to a resolution of that issue. In our view, the recent supreme court decision in Grubbs v. State, 373 So.2d 905 (Fla.1979) compels the conclusion that the exclusionary rule does apply in Florida revocation proceedings; we therefore disapprove the contrary conclusion below. The reasons for this interpretation of the Grubbs decision in the light of the prior Florida law on the subject were ably and exhaustively explored in both the majority and specially concurring opinions in Ray v. State, 387 So.2d 995 (Fla. 4th DCA 1980), with both of which we agree and to which we could add very little. The state contends that the explicit language in Grubbs, upon which we and the Ray court have relied, is merely dictum, since the only actual issue in Grubbs was the propriety of a condition of probation requiring submission to improper searches. This argument proves too much. The court’s holding that it is constitutionally impermissible even to pre-condition an act of judicial grace like probation upon a waiver of one’s fourth amendment rights applies a fortiori to a situation in which those rights are violated and no such condition has been previously imposed.

We acknowledge that, if it were not for Grubbs, and on the basis of Croteau v. State, 334 So.2d 577 (Fla.1976) and the federal cases and authorities cited both in Cro-teau and Grubbs itself, we would hold the exclusionary rule inapplicable to probation cases. See also, e. g., State v. Alfaro, 623 P.2d 8 (Ariz.1980). Moreover, while we feel ourselves required to follow that decision, Grubbs and therefore this opinion as well appear to be contrary to Croteau, which Grubbs cites but does not overrule, and to the appellate decisions which followed Cro-teau prior to Grubbs. Shipp v. State, 349 So.2d 690 (Fla. 4th DCA 1977) and Latham v. State, 360 So.2d 127 (Fla. 1st DCA 1978). Therefore, to permit employment of the supreme court’s discretionary jurisdiction under Fla.R.App.P. 9.030(a)(2)(A)(iv), we “expressly” state that this opinion, while in accord with Grubbs, directly conflicts with the Croteau decision on the same point of law. Furthermore, pursuant to Fla.R. App.P. 9.030(a)(2)(A)(vi), we certify that this decision is also in direct conflict with Shipp v. State, 349 So.2d 690 (Fla. 4th DCA 1977) and Latham v. State, 360 So.2d 127 (Fla. 1st DCA 1978).

Conclusion

The order of suppression and the judgments of conviction upon the revocations of probation are reversed, and the causes remanded for further proceedings consistent herewith.

Reversed and remanded.

      . The lower court rejected the defendant’s additional claim that he did not understandingly waive his fifth amendment rights after he had been given Miranda warnings. Dodd makes no appellate challenge to that ruling.

      . The defendant claims that the contents of a challenged confession may not be employed to establish the circumstances under which that statement came to be made. Particularly since there is no present contention that the statement was coerced or otherwise subject to a likelihood of objective unreliability, we do not agree with this contention. See, Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977). Even if we did, however, the ultimate result would not be different since there would still remain no evidence of the “seizure” which is required to support the determination below and which, as we hold, infra, it was the burden of the defendant to provide.

      . The defendant points to the unlikelihood of a purely voluntary submission to a “request” by three officers to “accompany” them to the station. While there is force to this argument, see United States v. Tucker, 610 F.2d 1007 (2d Cir.1979); People v. Dowdell, 81 Ill.App.3d 266, 36 Ill.Dec. 614, 401 N.E.2d 295 (1980), this set of circumstances, standing along, is insufficient to justify a finding that a “seizure” has occurred. Bridges v. United States, 392 A.2d 1053 (D.C. 1978), cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979); State v. Morgan, 299 N.C. 151, 261 S.E.2d 827 (1980), cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844 (1980); see Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981).

      . The state claims that this occurred because it was somehow misled below into the belief that the defendant was raising no Dunaway-like issue, and therefore had no way of knowing the officers’ testimony was necessary. In fact, however, the record shows that defense counsel clearly articulated this contention early on in the hearing and that the prosecution nevertheless made no attempt to secure the officers, or continue or reopen his case in order to do so, even after the court had announced its ruling on the explicit ground that Dunaway controlled. While the state will get another bite at this apple on remand because of our determinations concerning the contents of the record and the applicable burden of proof, the state is, in a sense, fortunate that this has occurred. If we had ruled otherwise on these points, we would not have reversed simply in order to give the state another chance to do what it should have done the first time.

      .It is undisputed that there was no probable cause (or even founded suspicion) to support a seizure of Dodd’s person. In this connection, there is no indication that the fact that Dodd was on probation was even considered by the officers or is otherwise pertinent in determining whether any seizure of Dodd was a “reasonable” one. See State v. Grubbs, infra; Ray v. State, infra. The sole issue, therefore, involves the resolution of the “seizure v. voluntary action” question.

      . See note 4, supra.

      . Article V, § 3(b)(3) Fla.Const. (1981) provides for a certifícate of direct conflict only with decisions of other district courts of appeal, and not with those of the supreme court.


author: PER CURIAM.

text:
    John P. GREEN et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS, METROPOLITAN DADE COUNTY, State of Florida, Appellees.
    No. 80-773.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Robert E. Metzker and Gene Zenobi, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Murray A. Greenberg, Asst. County Atty., for appellees.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the judgment of the trial court which declared that the plaintiffs, appellants herein, during the period of time (1970-1976) pertinent to this litigation, were neither Official Court Reporters nor Special Court Reporters as defined in Chapter 29, Florida Statutes, and were, accordingly, not entitled to the pay or the Court’s annual supplement from Dade County to which Official and Special Court Reporters were entitled.

We adopt the findings and conclusions of the trial court, which, in pertinent part, state:

“Prior to 1978 none of the Plaintiffs were ‘appointed by the governor upon the recommendation of the circuit judge or judges of the circuit’ as Official Court Reporters pursuant to the then existing Section 29.01, Florida Statutes. They, therefore, cannot claim status as Official Court Reporters for any time prior to 1973. Nor can the Plaintiffs be considered Official Court Reporters in 1973 or subsequent years since none of the Plaintiffs were so appointed by ‘the chief judge with the approval of a majority of the circuit judges’ in the circuit. Section 29.01(2), Florida Statutes.
“Alternatively, the Plaintiffs claim they qualify as ‘Special Court Reporters’ pursuant to Section 29.07, Florida Statutes, which provides:
“ ‘In case any official reporter shall not have been appointed in any circuit, or where the official reporter is disqualified or unable to perform his duties, it shall be within the discretion of the judge to appoint a special reporter in any case, civil or criminal, hpon demand of any of the parties therefor; said special reporter shall perform the same services and receive the same pay in the same manner as the official reporter.’
“Prior to Section 29.07 becoming operative, one of two conditions precedent must occur. Either (1) an Official Court Reporter shall not have been appointed, or (2) the official reporter shall have been disqualified or unable to perform his duties. If neither of these contingencies occurs, Section 29.07 does not become operative. ...
“Since at all times in question, both prior to and subsequent to January, 1973, an official reporter had been appointed in the 11th Judicial Circuit pursuant to the provisions of Chapter 29, the appointment of a special court reporter could only have been made in the event the Official Court Reporter was disqualified or unable to perform his duties and a demand was made for a special court reporter by a party. The evidence presented does not establish that these conditions existed. In fact, the record reflects no evidence that any Official Court Reporter was ever disqualified or unable to perform his duties. Accordingly, Section 29.07 relating to Special Court Reporters does not become operative in this cause.”

Robbin v. Brewer, 236 So.2d 448 (Fla. 4th DCA 1970), does not, as appellants suggest, compel a different result. Instead, Robbin supports the result reached by the trial court in the present case. In Robbin, the Governor purported to appoint Robbin as the Official Court Reporter for the Eighteenth Judicial Circuit. This appointment, however, was not, as Section 29.01 required, made upon the recommendation of the circuit judges. The Governor’s appointment was therefore a nullity. There being no Official Court Reporter, Section 29.07 became operative. The circuit judges’ appointment of Brewer as a Special Court Reporter under Section 29.07 was thus sustained. In the present case, Official Court Reporters having been duly appointed, initially by the Governor pursuant to the recommendation of the circuit judges, and later by the chief judge with the approval of a majority of the circuit judges, and such Official Court Reporters neither being disqualified nor unable to perform their duties, the operation of Section 29.07 was never triggered.

The judgment of the trial court is

Affirmed.

      . By Ordinance No. 62-8, adopted February 20, 1962, Dade County provided a supplemental salary for each Official Court Reporter “duly appointed pursuant to the provisions of Chapter 29, Florida Statutes.” By Section 29.07, Florida Statutes, a “special reporter” is entitled to receive the same pay in the same manner as the Official Court Reporter.


text:
    The STATE of Florida, Appellant, v. Jorge CABALLERO, Appellee.
    Nos. 80-969, 80-970.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.

      Janet Reno, State Atty. and Stephen V. Rosin and Russell R. Killinger, Asst. State Attys., for appellant.
    Irwin F. Kosdan, Miami, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

In consolidated appeals, the State of Florida challenges an order of the trial court dismissing an information and an order suppressing physical evidence, photographic identification, and a confession. We reverse the order dismissing the information charging defendant with loitering and prowling (circuit court case number 80-2277); we reverse the suppression of the evidence, photographic identification and the confession in the robbery case (circuit court case number 80-2275).

At approximately 1:00 a. m. Officer Leis, on routine patrol for the Dade County Public Safety Department, saw defendant’s car parked with its motor running and its lights out at a gas station next to a Lums restaurant. Someone ran from the alleyway between the gas station and the closing restaurant and jumped into defendant Caballero’s car. The car proceeded to the highway, its lights still out. The driver then made a U-turn, simultaneously turning on the lights. The officer followed the car and at a well-lit area ordered the occupants to stop. Upon request, defendant produced his driver’s license and explained that he had gone to the gas station to make a U-turn. Since the explanation was inconsistent with the fact that someone had jumped into the car, Officer Leis asked the other occupant, Roy Thomas, to step out of the car for questioning. While arresting defendant Caballero for loitering and prowling, Officer Leis observed ammunition on the floor of the car, and in a subsequent search, found a .357 magnum under the front seat. Defendant was informed of his rights and taken to the police station where he was again advised of his constitutional rights.

At the police station, defendant noticed a twenty-dollar bill that had been taken from Thomas. He told Officer Leis the bill looked counterfeit and that he knew counterfeiting was a federal crime. When Officer Leis confirmed that counterfeiting was a federal crime, defendant related the circumstances preceding his arrest, despite his former disinclination to tell the officers what had occurred. He told the officers that he and Thomas had tried to “rob” Lums but had failed because the doors were locked. Detective Richardson, who had investigated an armed robbery at another Lums in North Dade, decided the description of the robbers matched the appearance of defendant Caballero and Roy Thomas. Detective Richardson asked defendant Caballero if he would like to make a statement concerning that robbery, and after again being advised of his rights, defendant Caballero confessed his role in the north Dade Lums’ robbery.

Following a hearing, the trial court ruled that no probable cause existed to justify an arrest for loitering and prowling. Accordingly, the court suppressed as “fruit of the poisonous tree” the physical evidence and photo identification by the victims. During the hearing on his Motion to Suppress, defendant Caballero testified that he had confessed only because he was afraid that the counterfeit bill would implicate him in a federal crime. The court suppressed defendant’s confession, finding that it was involuntary as well as the product of the illegal arrest.

First, we consider the state’s contention that the physical evidence, photographic identification, and confession should not have been suppressed. It argues that Officer Leis had probable cause to believe defendant was loitering and prowling, Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977); State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1970), justifying his arrest.

Section 856.021(1), Florida Statutes (1979) defines loitering and prowling: ■

It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

Defendant argues that even though someone had been observed running toward defendant’s car, and the motor was running but the lights were out, no probable cause existed to believe criminal activity had occurred. He asserts that the officer’s failure to detain the driver for driving without lights or for making a U-turn indicated that he did not suspect criminal activity had occurred. Furthermore, he contends, the officer did not ask the passenger to explain what he was doing outside the car.

Probable cause exists “where the facts and circumstances within the officer’s knowledge ... are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been committed.” Benefield v. State, 160 So.2d 706, 708 (Fla.1964); see Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). When surrounding circumstances suggest to a reasonable man threat or concern for public safety, law enforcement officials may act to avert a breach of the peace or a criminal threat. B. A. A. v. State, 356 So.2d 304 (Fla.1978); State v. Ecker, 311 So.2d 104 (Fla.1975). The officer must, however, afford a pre-arrest opportunity to the suspect to dispel alarm. Palmore v. State, 383 So.2d 309 (Fla. 2d DCA 1980); S. F. v. State, 354 So.2d 474 (Fla. 3d DCA 1978). Defendant Caballero’s explanation failed to dispel the officer’s alarm, and the totality of circumstances justified the officer’s conclusion that probable cause to believe criminal activity was taking place existed. Thus, neither the evidence nor the confession should have been suppressed.

Turning to the second ground for the trial court’s suppression of defendant’s confession, we address the premise for the court’s decision, the court’s finding that the confession resulted from an implied threat. The state cannot establish guilt through statements obtained as a result of psychological or physical coercion. Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Burch v. State, 343 So.2d 831 (Fla.1977); Coffee v. State, 25 Fla. 501, 6 So. 493 (1889). A coerced confession offends due process of law. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Brewer v. State, 386 So.2d 232 (Fla.1980). Although defendant argues that his confession was produced through fear of prosecution for the federal crime of counterfeiting, we cannot agree that under the circumstances suppression was required. Defendant was advised of his rights, Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Burch v. State, supra, both at the time of his arrest and at the police station where he executed the rights’ waiver form. It was defendant Caballero who initiated the conversation concerning the twenty-dollar bill and who admitted that he already knew counterfeiting was a federal crime. Officer Leis told defendant Caballero that instead of speaking to him, defendant should speak to Sergeant Dickson. When Sergeant Dickson and Detective Richardson asked defendant Caballero if he wanted to make any statement concerning the Lums’ robbery, defendant replied that he did, and he was again advised of his constitutional rights. He later testified that he was not threatened and was advised of his right to a lawyer but did not wish to be represented.

Although psychological coercion may vitiate a confession, Reddish v. State, 167 So.2d 858 (Fla.1964); McLaughlin v. State, 300 So.2d 38 (Fla. 3d DCA 1974), defendant was not deluded as to his true position. No improper or undue influence over his mind was exerted. Paulk v. State, 211 So.2d 591 (Fla. 2d DCA 1968). Confessions elicited from a defendant who is under mental distress not induced by outside sources, but which originates from defendant’s own apprehensions, should not be rejected. Ebert v. State, 140 So.2d 63 (Fla.1962); Cullaro v. State, 97 So.2d 40 (Fla. 2d DCA 1957).

Defendant argues that his earlier refusal to make a statement compels us to conclude that only an implied threat could have induced him to change his attitude and confess. Reviewing the totality of circumstances, however, we reach a different conclusion. Detective Dickson ceased his interrogation when defendant first indicated he did not wish to talk about the loitering and prowling arrest. Twenty-five minutes later, defendant was again warned of his Miranda rights before questioning regarding the unrelated robbery that had occurred earlier commenced. These factors lead us to reject defendant’s contention that his confession was psychologically coerced. We hold that the trial court erred in suppressing defendant’s confession on the ground that it was involuntary, see Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,46 L.Ed.2d 313 (1975), as well as on the ground that it followed an illegal arrest.

Next, we find error in the trial court’s dismissal of the information. Section 856.021(1) states:

It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity, (emphasis supplied).

Count II of the information charged the defendant:

... did unlawfully loiter or prowl in a place ... at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable concern for the safety of the persons or property in the vicinity, to-wit: STAYING IN AREA OF CLOSED BUSINESS WITH AUTOMOBILE MOTOR RUNNING AND AUTOMOBILE LIGHTS OUT, in violation of 856.021, Florida Statutes, (emphasis supplied).

Defendant contends that “justifiable concern”, the language contained in the information, reduces the state’s burden of proving an “immediate concern” or “justifiable and reasonable alarm”. We disagree.

Section 856.021 was enacted as a replacement for the vagrancy statute after a Jacksonville ordinance patterned after that statute was held unconstitutional by the United States Supreme Court. By using terms such as “alarm” and “concern”, the legislature indicated its intent to limit the application of the statute so that constitutional rights of law-abiding citizens would not be infringed by the “unfettered discretion” of police, State v. Ecker, supra 311 So.2d at 107, who might use section 856.021 as a “catch-all criminal offense”. State v. Ecker, supra at 111.

We are aware that loitering and prowling charges must be carefully drawn. The information contains two elements: (1) loitering or prowling in a place at a time or in a manner not usual for law-abiding individuals, and (2) loitering or prowling under circumstances that threaten the public safety. The information left no doubt as to the charge. The term “justifiable concern”, as used in this information, advised defendant of the charge against him without reducing the state’s burden of proof.

For these reasons, we reverse the dismissal of the information. In addition, we reverse the suppression of evidence, photographic identification, and confession and remand for further proceedings.

      . Defendant was also charged with carrying a concealed firearm. The trial court’s dismissal of that count is not challenged on appeal.

      . § 856.02, Fla.Stat. (1971).

      . Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).


text:
    Rose Etta MAUGERI, as Personal Representative of the decedent, Thomas James Maugeri, Jr.; the Estate of said Thomas James Maugeri, Jr., deceased; Rose Etta Maugeri, as surviving spouse of said Thomas James Maugeri, Jr. and Thomas Maugeri, III and Melinda Marie Maugeri, both minors, by and through their next Mend, Rose Etta Maugeri, Appellants. v. John PLOURDE, Darlene Shipman and Allstate Insurance Company, Appellees.
    No. 80-1586.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    Schwartz, Klein & Steinhardt and Jay S. Weiss, Miami, for appellants.
    Adams & Ward and Robert C. Ward, Miami, for appellees.
    Before DANIEL PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

Plaintiff Rose Etta Maugeri, suing as an individual, as the personal representative of her husband’s estate and as the natural guardian of the two minor children of the marriage, brought an action against defendants John Plourde, Darlene Shipman and Allstate Insurance Company for the wrongful death of her husband. Because the subsequent settlement of the action— reached during trial — affected a minor survivor, the trial judge approved the settlement as provided in Section 768.25, Florida Statutes (1977), of the Wrongful Death Act. Thereafter, the plaintiff’ motion to set aside the settlement was denied and this appeal followed.

In her motion to set aside, the plaintiff argued that the settlement was not “. .. properly sanctioned and approved according to law by the appropriate courts...” In support of her position, the plaintiff has presented two points on appeal, urging (1) that a trial judge who is a member of the general jurisdiction division of the circuit court lacks the authority to approve the settlement of a minor’s wrongful death claim in excess of $5,000 without a guardianship proceeding and (2) that under such circumstances, approval must be by a circuit court judge who is a member of the probate division of the circuit court. We cannot agree with either argument and, accordingly, we affirm the appealed order.

Taking the plaintiff’s second point first, i. e., that only a circuit court judge who is a member of the probate division may approve such a settlement, we find that the plaintiff’s position is contrary to the plain language of the Wrongful Death Act. Section 768.25, Florida Statutes (1977), thereof provides:

Court approval of settlement. —While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.

Section 768.23, Florida Statutes (1977), provides:

Protection of minors and incompetents. —The court shall provide protection for any amount awarded for the benefit of a minor child or an incompetent pursuant to the Florida Guardianship Law.

In Section 744.387(3)(a), Florida Statutes (1977), of the Florida Guardianship Law, concerning the procedures for the settlement of a minor’s claim, it is stated:

No settlement after an action has been commenced by or on behalf of a minor or other incompetent shall be effective unless approved by the court having jurisdiction of the action.

It is clear from this language that the only court having jurisdiction to approve the settlement of a minor’s claim in a pending action is the court in which the action is pending. Although the plaintiff claims that a minor litigant may need protection from the estate or the natural guardian in the apportionment proceedings, nonetheless, the law provides for such protection through the appointment of a guardian ad litem when the court thinks such protection is advisable. See Fla.R. Civ.P. 1.210(b) and Smith v. Langford, 255 So.2d 294 (Fla.lst DCA 1971).

The plaintiff’s first point in effect claims that there must be a proceeding under the Florida Guardianship Law, Chapter 744, Florida Statutes (1977), before there can be an approval of the settlement of a minor’s claim, where the amount of the settlement is more than $5,000. In this case, the important statutory provisions are found in Section 744.301, Florida Statutes (1977), which states:

(2) The natural guardian or guardians may collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust or proceeds from a life insurance policy to the child during minority, or otherwise owed by the child during minority, when the amount involved in any instance does not exceed $5,000, without appointment, authority or bond.
(3) All instruments executed by a natural guardian under the powers provided for in subsection (2) shall be binding on the ward.

This statutory section obviously requires protection of the minor’s property after the settlement has been approved by the trial court. Cf. Tucker v. Shelby Mutual Insur- anee Co. of Shelby, Ohio, 343 So.2d 1357 (Fla.1st DCA 1977). This is reinforced by Section 744.387, Florida Statutes (1977), of the Florida Guardianship Law, which is quoted from above in our discussion of point two and which specifically provides for approval of settlements by “... the court having jurisdiction of the action.”

We think it appropriate to comment that every judge of the circuit court possesses the full jurisdiction of that court in his of her circuit and that the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits’ judicial business. See In the Interest of Wendy Dee Peterson, 364 So.2d 98 (Fla.4th DCA 1978); and Guardianship of Bentley, 342 So.2d 1045 (Fla.4th DCA 1977).

Affirmed.

      . §§ 768.16-.27, Fla.Stat. (1977).

      . Under the provisions of Fla.R.App.P. 9.130(a)(5), we have accepted jurisdiction in this matter—filed with us as a plenary appeal—upon a holding that the order sought to be reviewed is in the nature of a denial of a motion “... filed pursuant to Fla.R.Civ.P. 1.540..."


text:
    In re GUARDIANSHIP OF Amalia QUINDT. Wilhelmina Quindt THORPE, Appellant, v. Marguerite LARSEN, Appellee.
    No. 80-1636.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.
    A. N. Spence, Coral Gables, for appellant.
    Hendricks & Hendricks and Robert A. Hendricks, Coral Gables, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The appellant, Wilhelmina Quindt Thorpe, is the daughter of 97-year-old Amalia Quindt, who was declared an incompetent by the Dade County circuit court. She claims error in an order which denied her petition for appointment as Mrs. Quindt’s guardian and granted the competing petition of a neighbor of the ward, Marguerite Larsen. We find, however, that the court did not abuse its discretion in making the appointment under the controlling terms of Section 744.312, Florida Statutes (1979). While the next of kin are given first consideration by Section 744.312(2)(a), the statute does not mandatorily require that such an appointment be made. To the contrary, the statute specifically provides that “[t]he court may appoint any person who is qualified ... whether related to the ward or not.” The record in this case provides ample justification — including Mrs. Quindt’s personal enmity towards her daughter, her expressed wishes “as to who shall be appointed,” which must be considered under Sec. 744.312(3)(a), and Ms. Larsen’s longstanding favorable relationship with her— to support the determination that the ward’s best interests required that Ms. Larsen, and not Mrs. Thorpe, act as her guardian. See, Comerford v. Cherry, 100 So.2d 385 (Fla.1958); In re Guardianship of Davidson, 259 So.2d 762 (Fla. 1st DCA 1972). Compare, In re Castro, 344 So.2d 270 (Fla. 4th DCA 1977), cert. denied, 355 So.2d 513 (Fla.1978), in which the court found no legally cognizable reason for departing from the statutory order of preference.

The other points do not present harmful error.

Affirmed.

      . 744.312 Considerations in appointment of guardian.—
      (1) The court may appoint any person who is qualified to act as guardian, whether related to the ward or not.

        (2) The court shall give consideration to the appointment of:
      (a) One of the next of kin of the incompetent who is a fit and proper person and qualified to act.
      (b) Any person designated as guardian in any will in which the incompetent is a beneficiary.
      (3) The court shall also:
      (a) Consider the wishes expressed by the incompetent as to who shall be appointed guardian, and
      (b) Give weight to the appointment of an individual, or corporation as described in s. 744.102(11), nominated by the incompetent prior to the filing of the petition for a finding of incompetency, if at the time of nomination:
      1. The incompetent was 18 or more years of age and had sufficient mental capacity to make an intelligent choice, and
      2. The nomination is contained in a writing signed by him in the presence of at least two attesting witnesses present at the same time....


text:
    Laura D. DUKE, a/k/a Laura Manuel et al., Appellant, v. Lela B. REED, Appellee.
    No. 80-2382.
    District Court of Appeal of Florida, Third District.
    April 21, 1981.

      Richard N. Friedman, Miami, for appellants.
    Manners, Amoon, Whatley & Tucker and Kenneth J. Duckworth, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

By this interlocutory appeal, we are asked to review a non-final trial court order which: (a) grants summary judgment as to liability only for the plaintiff on a mortgage foreclosure count in a multi-count complaint; and (b) makes various other interlocutory rulings. We have jurisdiction to review the grant of summary judgment to the plaintiff, but have no jurisdiction to review the other rulings made by the court below. Art. V. § 4(b)(1), Fla.Const.; Fla.R. App.P. 9.130(aXS)(C)(iv).

The trial court’s order granting summary judgment on the mortgage foreclosure count in this case is reversed and the cause is remanded for further proceedings as, in our view, the record reveals two genuine issues of material fact as to: (a) whether the defendants were in default of the subject mortgage or had, in fact, properly tendered the overdue mortgage payment herein to the plaintiff at a place which the parties had implicitly agreed upon within the thirty (30) day grace period allowed by the mortgage note; and (b) if not, whether the defendants were given proper notice that the plaintiff intended to exercise her option to declare the entire amount of the subject note due prior to the defendants’ tender of the above overdue mortgage payment. See e. g., Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); River Holding Co. v. Nickel, 62 So.2d 702 (Fla.1953). The appeal from the balance of the rulings made by the trial court in the order under review is dismissed for lack of jurisdiction.

Reversed in part; dismissed in part.


author: THOMPSON, Judge.

text:
    R. E. S., a child, and H. A. T., Jr., a child, Appellants, v. STATE of Florida, Appellee.
    Nos. UU-232, UU-233.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    Thomas Presnell, Jr., Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Carolyn Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

The appellants were charged with and convicted of burglary of an automobile. On .appeal, they contend that the act of siphoning gasoline from an automobile will not support a charge of or conviction for burglary, which is defined as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein” § 810.02(1), Fla.Stat. We agree and reverse.

The appellants were apprehended as they attempted to siphon gasoline from two (2) cars. They were charged with burglary of a conveyance under § 810.02, Fla.Stat., and petit theft under § 812.014(2)(c), Fla.Stat. After the trial court denied their motions to dismiss the burglary charges, the appellants entered pleas of no contest to the burglary and petit theft charges. They specifically reserved the right to appeal the Order denying their motions to dismiss the burglary charges.

Our research has not revealed the existence of any Florida decision which has held that siphoning gasoline from an automobile constitutes burglary of an automobile. We recognize that there are cases upholding convictions for the burglary of automobiles. However, each of those cases involved the entry into a compartment of a vehicle which can be entered either wholly or partially by a person; e. g., engine and passenger compartments, trunks, etc. Cf. State v. Hankins, 376 So.2d 285 (Fla. 5th DCA 1979) (where the court affirmed the trial court’s dismissal of burglary charge against a defendant who had stolen automobile hubcaps.) A more analogous case is Kirkland v. State, 142 Fla. 73,194 So. 624, 625 (1940), where the Florida Supreme Court reversed a burglary conviction for siphoning gasoline out of a large gasoline storage tank. The court stated that

The evidence showed that the offense, if any, was committed by drawing a few gallons of gasoline out of a storage tank.
The same offense would have been committed if the gasoline had been so drawout of an automobile gasoline tank.
The most that could have been warranted under the facts would have been a charge and conviction of petit larceny, (emphasis supplied)

We find Kirkland to be controlling in the present case, and therefore we reverse the trial court’s Order denying the appellants’ motions to dismiss the burglary charges pending against them.

LARRY G. SMITH, J., and OWEN, WILLIAM C., Assoc. Judge (Ret.), concur.


author: BERANEK, Judge.

text:
    Joseph J. CONLEY and Ruth C. Conley, his wife, Appellants, v. CORAL RIDGE PROPERTIES, INC., a corporation; Liberty Mutual Insurance Company, Realty Management Corporation, and Travelers Insurance Company, Appellees.
    No. 79-525.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.

      Norwood S. Wilner, Robert E. Cosby, Walter L. Robison and Robert F. Spohrer Zisser, Robison & Spohrer, P. A., Jacksonville, for appellants.
    Gordon James, III, Grimmett, Conrad, Scherer & James, P. A., Fort Lauderdale, for appellee, Realty Management Co., Inc.
    Paul R. Regensdorf, Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee, Coral Ridge Properties, Inc.
   BERANEK, Judge.

This is a plaintiffs’ appeal from a directed verdict entered in favor of defendants at the close of the plaintiffs’ case, which was tried before a jury. We affirm.

Plaintiffs, husband and wife, leased a condominium unit from a private owner. On the day in question, Mrs. Conley returned to the condominium unit and found a stranger seated in her living room. The intruder bound and gagged Mrs. Conley and stole various items. Mr. and Mrs. Conley sued Coral Ridge Properties, Inc., and Realty Management Corporation seeking damages for the loss. Coral Ridge was the original developer and builder of the condominium and Realty Management was a corporation which managed the building under a contract with the condominium association. Neither the owner of the apartment unit nor the condominium association which had taken over control of the building was a party to the litigation. At the trial, plaintiffs asserted a cause of action based on negligence and breach of warranty. Mrs. Conley was basically the only witness with actual knowledge of the facts. Her husband did not testify nor did the owner of the apartment. Mrs. Conley stated that the intruder told her he had entered the building by bribing a security guard. She also indicated an air conditioning grille had been kicked out of the wall of the apartment which was apparently the manner of entry into the unit itself.

At the conclusion of the plaintiffs’ case, the trial court directed a verdict in favor of both defendants. Plaintiffs appeal alleging that a prima facie case had been established under the negligence and breach of warranty theories. Plaintiffs further urge the court erred in excluding certain evidentiary items.

We affirm the trial court because the facts simply do not support liability as to either of the defendants which plaintiffs chose to sue. The condominium association had taken over the building from the developer and was actually operating it. The condominium association was in charge of security measures and the defendant, Realty Management, had responsibility for security only at the time when owners were moving into the building. The only evidence on the issue showed the intruder entered the building by bribing a security guard and there was simply no evidence that either defendant had any responsibility for the security guards. The condominium association hired and supervised the guards.

Plaintiffs also argue the intruder gained entry to their particular unit by removing an air conditioning grille. This is asserted as a basis for liability against the developer on the theory that the building was poorly designed in that the grille was accessible via an unlocked utility closet in a common hallway. The rule announced in Slavin v. Kay, 108 So.2d 462 (Fla.1958), relieves the contractor from liability to third persons for obvious defects when the work has been completed, turned over and accepted by the owner. See also Gross v. Asphalt Material and Paving Company, 382 So.2d 854 (Fla. 3d DCA 1980), and El Shorafa v. Ruprecht, 345 So.2d 763 (Fla. 4th DCA 1977). In the instant case the owner had taken possession of the unit and had leased it out. There was clear evidence that Mr. and Mrs. Conley were totally aware that the air conditioning grille was a possible point of entry into their apartment. They even took special precautions to prevent entry through the closet and grille. Clearly, the defect, if it existed, was patent and obvious. We conclude that plaintiffs did not establish a prima facie case under either the theory of negligence or warranty against either defendant. We also conclude that the plaintiffs’ evidentiary arguments are without merit and the final judgment is thus affirmed.

AFFIRMED.

DOWNEY and MOORE, JJ., concur.


text:
    Roland MURRAY and Barbara Murray, his wife, Appellants, v. Michael F. CHILLEMI t/a Chillemi & Associates, Appellee.
    No. 79-697.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Peter S. Penrose of Bassett & Penrose, Fort Lauderdale, for appellants.
    Bennett S. Cohn and Frank B. Kessler of Law Offices of Bennett S. Cohn, Lake Worth, for appellee.
   PER CURIAM.

Defendants appeal a $2,695 final judgment entered after a nonjury trial. The judgment was in favor of plaintiff, a real estate broker. We affirm.

The parties entered into a contract for the sale of real estate. Within this contract was a provision that seller would pay broker a seven per cent commission based upon the listed sale price if seller revoked the agreement before it expired. The trial court, based upon adequate evidence, found as a matter of fact that the seller did revoke the agreement prior to its expiration. The court entered judgment for a commission based on the listed sale price.

On appeal the sellers argue the contractual provision was unenforceable because it was excessive and constitutes a penalty. Unfortunately, appellants did not raise this point before the trial court and we, therefore, cannot consider the issue. Nicholas v. First Interstate Development Corporation, 315 So.2d 238 (Fla. 4th DCA 1975). Since appellants failed to preserve the point, we have no alternative other than to affirm. We conclude that all other issues raised are also without merit and the final judgment is therefore affirmed.

AFFIRMED.

MOORE, BERANEK and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    Clenard BRYANT, Appellant, v. FIRST REALTY INVESTMENT CORPORATION et al., Appellees.
    No. 79-2452.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Kocha, David & Houston and Larry Klein, West Palm Beach, for appellant.
    D. Culver Smith, III, Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellee-Brodade Const.
    Kent S. Pratt and Toby A. Turbyfill of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellee-Brodade Development, Inc.
   DOWNEY, Judge.

Appellant Clenard Bryant sued appellees Brodade Development, Inc., and Brodade Construction, Inc., for injuries which he suffered as a result of an accident on a construction site in Broward County. From a final judgment entered pursuant to a directed verdict at the close of appellant’s case in chief this appeal was perfected.

Brodade Development, the owner of a condominium project in Broward County known as Lauderdale Oaks, entered into a contract with Powell Forming Co., Inc., on March 24, 1971, by which Powell Forming was employed to do the vertical forming on buildings in the project. The contract, a standard AIA contract, contained the following provisions relative to the duties and responsibilities of Brodade Development and Powell Forming:

The Subcontractor shall take all reasonable safety precautions with respect to his work, shall comply with all safety measures initiated by the Contractor and with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or property in accordance with the requirements of the Contract Documents. The Subcontractor shall report within three days to the Contractor any injury to any of the Subcontractor’s employees at the site.
The Contractor shall not give instructions or orders directly to employees or workmen of the Subcontractor except to persons designated as authorized representatives of the Subcontractor.

A similar contract was entered into between Brodade Development and Concre-forms Co., by which Concreforms was employed to do the horizontal form work at the project. Brodade Construction, Inc., was hired by Brodade Development as a successor to Adams Construction Co., to monitor or oversee the progress of the construction and was listed in the application for building permit as the building contractor; the certificate of competency held by Taxter Hill, the Vice-President of Brodade Construction and the project superintendent, was being used to qualify the project for a building permit from the City of Lauderdale Lakes. Hill testified that his responsibility was to maintain schedules and to oversee the subcontractors. In addition, although he testified that each subcontractor had its own supervisors and was to be responsible for the safety of its own employees, he acknowledged that it was his responsibility to see that the subcontractors did their work in a safe manner. Brodade Construction had no contractual relationship with Powell Forming and Concreforms because they had been hired by Brodade Development.

On September 7, 1971, Bryant, a carpenter employed by Powell Forming, was working on the fourth floor of Building 14. While he was standing on one of the plywood sheets extending out from the concrete slab stripping plywood forms from a column, an employee of Concreforms knocked out a support jack from underneath the slab upon which Bryant was standing, causing him to fall four floors to the ground.

Bryant contends that the record would justify the conclusion that both appellees had a duty to supervise the safety of the job site; but in any event the appellees, having undertaken to assure the safety of the project, were liable for doing so negligently.

Appellees, on the other hand, maintain that the record is devoid of competent evidence showing either a duty on their part or the assumption of the responsibility for the safety of subcontractors’ employees by either of them.

Our study of the briefs and record leads us to the conclusion that there is no substantial competent evidence upon which a jury could affix liability on appellee Bro-dade Development. However, keeping in mind the posture of the case in the trial court when the proceeding was terminated in appellees’ favor, we cannot say that, considering all reasonable inferences which the jury could draw from the evidence, the direction of a verdict for appellee, Brodade Construction, Inc., was proper. Hill, the construction company official, testified that his company had the responsibility, among other things, to assure that the subcontractors did their work in a safe manner. Moreover, Bryant adduced evidence by an expert in safety and accident prevention, that the accident in question occurred due to a lack of supervision and conditions on the job site. Thus, viewing the evidence in the light most favorable to the plaintiff, we conclude that the direction of a verdict in favor of Brodade Construction, Inc., was error and requires a new trial.

Accordingly, the judgment in favor of Brodade Improvement, Inc., is affirmed; the judgment in favor of Brodade Construction, Inc., is reversed; and the cause is remanded for a new trial on Bryant’s claim against Brodade Construction, Inc.

AFFIRMED IN PART; REVERSED IN PART, REMANDED, with directions.

BERANEK and HERSEY, JJ., concur.

      . At the outset we note that no question of workmen’s compensation is involved in this appeal.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Dan M. DURRANT, Attorney in Fact, Appellant, v. Joanne M. Kettles DAYTON and W. Alan Dayton, Appellees.
    No. 80-1095.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    H. Bryant Sims, Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant.
    Montgomery, Lytal, Reiter, Denney & Searcy and Edna L. Caruso, West Palm Beach, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

The appellant Durrant was the assignee of a contract for the purchase of realty from the appellees. Both the assignment and the resulting deed were made to Dur-rant, as “Trustee, with power and authority to protect, conserve, sell, lease, encumber or otherwise manage and dispose of the real property” in question. Durrant, suing in that representative capacity, brought the instant action claiming that the appellees had breached the contract by failing to convey the property in the condition represented.

Durrant’s deposition revealed that his principal in the transaction was an offshore trust of which the trustee was one Gonzalez, a Mexican national. The defendants then moved to dismiss the complaint for failure to join an indispensable party, Gonzales. Durrant then agreed to and did join Gonzales as an additional party-plaintiff. After Gonzales refused to appear for his deposition, the defendants again moved to dismiss. The trial judge granted the motion and dismissed the action with prejudice as to both party-plaintiffs. Gonzalez does not appeal, but Durrant does. We reverse.

It is obvious that the only basis upon which the case could have been dismissed as to Durrant was the determination that Gonzalez — who was himself properly dismissed — was an indispensable party to the action. But this is simply not the law. Florida Rule of Civil Procedure 1.210(a) speaks to the precise situation involved in this case, and provides directly to the contrary of the ruling below:

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another or a party expressly authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought .... [Emphasis supplied]

It is veiy clear that the rule means just what it says and that a nominal contracting party like Durrant is permitted, at his option, to bring an action in his own name, without joining the real party in interest. E.g., Jennings v. Pope, 101 Fla. 1476, 136 So. 471 (1931) (statutory predecessor of Rule 1.210(a) permissive); Holyoke Mutual Insurance Co. in Salem v. Concrete Equipment, Inc., 394 So.2d 193 (Fla.3d DCA 1981), and cases cited; cf. Rebozo v. Royal Indemnity Co., 369 So.2d 644 (Fla.3d DCA 1979) (real party in interest may also maintain action).

For these reasons, the judgment under review is reversed and the cause remanded with directions to deny the motion to dismiss as to the plaintiff Durrant, and for further proceedings consistent herewith.

Reversed and remanded.

BERANEK and HERSEY, JJ., concur.

      . The amended complaint also changed the designation of the capacity of Durrant to that of “attomey-in-fact,” which he indicated was the appropriate designation of his relationship to the trust.

      . We disagree with the appellees’ claim that Durrant’s action of joining Gonzalez in response to the initial motion to dismiss somehow amounted to a binding agreement that Gonzalez was in fact an indispensable party so as to preclude a subsequent argument to the contrary. See Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Holyoke Mutual Insurance Co. in Salem v. Concrete Equipment, Inc., 394 So.2d 193 (Fla.3d DCA 1981).

      . It plainly makes no difference that Durrant’s principal is itself a trust represented by its own fiduciary, the trustee Gonzalez. See Fla.R. Civ.P. 1.210(c).

      . The sequence of events below, in which the defendants first moved to require Gonzales to be added as a party plaintiff and then secured a dismissal of the entire case when he did not pursue the action, is very reminiscent of the Catch-22 or “gotcha!” situation involved in the Holyoke'Mutual case.


text:
    David BIAGETTI, a/k/a David Anthony Hart, Appellant, v. STATE of Florida, Appellee.
    No. 80-1147.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See United States v. Ferrara, 377 F.2d 16 (2d Cir.1967).

ANSTEAD, MOORE and HERSEY, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    June MALONEY, Appellant, v. Michael William MALONEY, Appellee.
    No. 80-917.
    District Court of Appeal of Florida, Second District.
    April 22, 1981.
    Howard B. Bischoff, Asst. State Atty., Sarasota, for appellant.
    No appearance for appellee.
   HOBSON, Acting Chief Judge.

The wife appeals an order of the lower court which conditions the first $20 payment of child support upon the husband being allowed visitation. We address the issue of whether the trial court erred by conditioning payment of child support on visitation.

The husband and wife were divorced in Sarasota County on February 20, 1979. In the final judgment of dissolution the husband was required to pay to the wife the sum of $20 per week for child support. Subsequently, the wife moved to Michigan and filed an action under the Uniform Reciprocal Enforcement of Support Act (URE-SA) against the husband. At the hearing the husband complained of difficulties with visitation. The final judgment of dissolution of marriage had granted the husband reasonable rights of visitation. The trial judge entered an order which conditioned the first $20 payment for child support on visitation rights.

Section 88.271, Florida Statutes (1979), states that “The determination or enforcement of a duty of support owed to one petitioner is unaffected by any interference by another petitioner with rights of custody or visitation granted by a court.” The only subject matter covered under this section and chapter appears to be the duty of support. Grosse v. Grosse, 347 So.2d 1099 (Fla. 2d DCA 1977); Vecellio v. Vecellio, 313 So.2d 61 (Fla. 4th DCA 1975); Davis v. Davis, 376 So.2d 430 (Fla. 1st DCA 1979).

Though URESA creates no duty of support, it does provide a means for enforcing the duty of support as that duty may exist under the law of the responding state. Ray v. Pentlicki, 375 So.2d 875 (Fla. 2d DCA 1979)). Thus, the husband can assert his reasonable right to visitation by applying for modification of his support obligation under the original dissolution judgment on the basis that the wife is interfering with visitation rights granted to him under the original dissolution judgment.

Accordingly, the order appealed is vacated and the case is remanded for further proceedings consistent with this opinion.

REMANDED.

BOARDMAN and DANAHY, JJi, concur.


author: GRIMES, Judge.

text:
    Josephine V. LUCA a/k/a Josephine V. Deluca a/k/a Josephine Victoria Costa a/k/a Victoria Luca, Appellant, v. LARGO DIVERSIFIED, INC., a Florida corporation, and Fortune Federal Savings and Loan Association of Clearwater f/k/a First Federal Savings and Loan Association of Clearwater, Appellees.
    No. 80-1441.
    District Court of Appeal of Florida, Second District.
    April 22, 1981.

      Clark A. Stillwell of Tucker, Hicks, Blanchard, Brannen & Stillwell, P. A., In-verness, for appellant.
    Herbert E. Langford, Jr. of Haworth, Langford & Turtzo, P. A., Clearwater, for appellee Largo Diversified, Inc.
   GRIMES, Judge.

This appeal challenges the trial court’s entry of a default judgment for failure to comply with the discovery rules.

On January 29, 1980, Largo Diversified, Inc., filed a suit against Josephine Luca, alleging that while she was its employee, she had converted money belonging to it to her own use. After Mrs. Luca answered the complaint, Largo noticed the taking of her deposition for March 4. When she failed to appear at that time, Largo filed a motion for sanctions and a motion to compel. It set a hearing on these motions for April 2 and then renoticed her for deposition thirty minutes earlier on the same day.

On April 2, Mrs. Luca again failed to appear for her deposition. However, the court did hold the hearing set by Largo which resulted in an order dated April 15. That order granted Largo’s motions and directed that Mrs. Luca appear for deposition on or before April 22. It further provided that if she failed to appear, the court would strike her pleadings and enter a default against her. On April 10, Largo notice her for the April 22 deposition. As in the past, she did not appear on that date.

On April 23, the court, without a hearing, entered a default against Mrs. Luca on the issue of liability. On July 1, it held a trial on the issue of damages and awarded Largo a judgment of $16,392.10. Mrs. Luca now appeals from that judgment. She assails the court’s entry of a default arguing that her violation of the discovery rules did not merit such a harsh sanction and that, in any case, she was entitled to a hearing prior to the entry of the default. We will consider each of these contentions separately.

Florida Rule of Civil Procedure 1.380 provides that when a party fails to attend his own deposition or fails to obey an order to provide discovery, the court may, among other things, strike the party’s pleadings and enter a default judgment against him. Of course, in applying this rule, the severe sanction of default should be reserved for the most egregious and willful misconduct. E. g., Allstate Insurance Co. v. Biddy, 392 So.2d 938 (Fla.2d DCA 1980); Hurley v. Werly, 203 So.2d 530 (Fla.2d DCA 1967). When examined in this light, the present case is one in which the entry of a default judgment was proper. The record reflects no plausible justification or excuse for Mrs. Luca’s thrice occurring refusal to appear for her deposition or for her defiance of the court’s order. Thus, the court could have concluded that her failure to submit to deposition was willful and that the entry of a default was the appropriate sanction.

Mrs. Luca’s second argument for reversal is that the court erred in failing to follow the rationale of Owens-Illinois, Inc. v. Lewis, 260 So.2d 221 (Fla.lst DCA 1972), by not holding a hearing prior to the entry of the default in order to allow her an opportunity to be heard. We cannot quarrel with a rule which provides that ordinarily a default for failure to comply with discovery should be entered only after a hearing. Here, however, any error which occurred by reason of the omission of a hearing was rendered harmless by the fact that Mrs. Luca did nothing whatsoever to set aside the default during the sixty-nine days which transpired between its entry and the date of the final hearing. The order of April 15 left her with no doubt about what was going to happen if she again failed to appear for her deposition. If there was a legitimate reason why she was unable to be present on April 22, it would have been a simple matter for her to ask the court to set aside the default under Florida Rule of Civil Procedure 1.500(d). Thus, her failure to take action leaves her in no position to now complain that the court should have held a hearing before the entry of the default.

AFFIRMED.

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


text:
    CONTINENTAL MORTGAGE INVESTORS, a Massachusetts business trust, Appellant, v. SAILBOAT KEY, INC., a Florida Corporation, Appellee.
    No. 75-1686.
    District Court of Appeal of Florida, Third District.
    April 27, 1981.
    Glass, Schultz, Weinstein & Moss and Thomas G. Schultz, Coral Gables, for appellant.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on September 13, 1977 affirming the order of the Circuit Court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 395 So.2d 507 by its opinion and judgment filed February 12,1981 and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause February 10, 1978 is withdrawn, the judgment of this court filed September 13, 1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded to the trial court for determination and application of Massachusetts law, the proceedings not to be inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (9.400(a), Florida Rules of Appellate Procedure).


text:
    STATE of Florida, Appellant, v. Deborah H. JENNINGS and James V. Henderson, Appellees.
    No. 80-999.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Valentime Gabaldon, West Palm Beach, for appellee, Jennings.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee, Henderson.
   ON REHEARING

BERANEK, Judge.

The State appeals an order suppressing physical evidence and statements secured as a result of the arrest of the two defendants in their home without warrant. The trial court relied upon the recent United States Supreme Court decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), holding unconstitutional warrantless arrests in a person’s residence absent exigent circumstances. The State appeals asserting the trial court erred in applying the Payton decision and further asserting that consent was given by the defendants. We conclude that the trial court properly applied Payton and affirm.

Based upon probable cause, but without a warrant, a Palm Beach County detective went to the defendants’ trailer for the purpose of arresting them for robbery. Although there was time to secure a warrant, the detective acted on probable cause alone. We are not at all critical of the conduct of the police in this case, because the Florida Supreme Court had specifically held that Section 901.15, Florida Statutes (1979), validly authorized a warrantless arrest of a person at his home based upon probable cause alone. State v. Perez, 277 So.2d 778 (Fla.1973); cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468 (1973). The action of the police in making the arrest upon probable cause without a warrant was thus specifically authorized by Florida law. The validity of this view of the law was the subject of the United States Supreme Court’s decision in Payton v. New York, supra. The Court discussed the Florida Perez case and the New York court’s ruling. These were noted as the only two states which had specifically upheld warrantless arrests in private residences based upon probable cause without a warrant in the absence of exigent circumstances. Under Payton, the New York and Florida views were rejected and it was held that police may not carry out a routine felony arrest in a private residence absent exigent circumstances unless a warrant is secured.

Although the arrest of the instant defendants occurred prior to the Payton decision, the prosecution occurred afterward as did the hearing on defendants’ motion to suppress. The court concluded that Payton required suppression of the evidence seized by virtue of the arrest and we agree. Whether or not we prefer the approach of Perez, the law of the land has now been established by the United States Supreme Court. Police authorities of this State now know that absent exigent circumstances a routine arrest may not take place in a private residence without a warrant. Certainly, the decision has merit in its ease of application. In these days of increasingly complex legal rulings, this one is clear and hopefully simple.

The issue of retroactive application of Payton was presented in Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1980). There, the First District Court of Appeal applied the decision retroactively based upon specific wording in the Supreme Court’s remand. Busch, in fact, was pending in the United States Supreme Court at the time Payton was decided and the United States Supreme Court remanded Busch to the Florida court for reconsideration in light of Payton. We consider the Busch opinion indicative of a retroactive intent by the Supreme Court. Further, this case is not purely retroactive application but is, instead, an application of the United States Supreme Court decisional law in existence at the time of the initial presentation of the question on the trial level.

The trial court also found Section 901.15, Florida Statutes (1979), was unconstitutional as construed in Perez in that it allowed for the arrest of defendants in their home without a warrant and absent exigent circumstances. To the extent that this ruling of unconstitutionality goes to the application of the statute, we agree and affirm. To the extent that the ruling declared the statute unconstitutional in its entirety as written we disagree and modify the order by limiting it to the improper application of the statute as authorizing routine felony arrests in a person’s home without a warrant.

The State also asserts that the defendants consented to the seizure of the items in question and that the trial court erred in ruling to the contrary. We conclude this argument is without merit. The order of suppression below is thus affirmed.

AFFIRMED AS MODIFIED.

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    LEN HAZEN PAINTERS, INC., Appellant, v. WOOD-HOPKINS CONSTRUCTION CO., a Florida Corporation, and Federal Insurance Company, a corporation, Appellees.
    No. WW-488.
    District Court of Appeal First District, State of Florida.
    April 22, 1981.
    Lawrence C. Rice, South Miami, for appellant.
    A. Graham Allen, of Freeman, Richardson, Watson, Kelly & Livermore, Jacksonville, for appellees.
   THOMPSON, Judge.

This is an appeal from an Order that dismissed certain Counts of an Amended Complaint. We affirm in part and reverse in part.

The appellee (“Wood-Hopkins”) entered into a subcontract with the appellant (“Len Hazen”) whereby Len Hazen was to perform certain sandblasting and painting. The subcontract contained the following provision: “It is further mutually understood that no extras will be paid for unless extras are authorized in writing prior to the extra work performed.” A controversy developed between the parties and Len Hazen filed suit. Attached to its six-count amended complaint was a copy of the subcontract, along with various other documents.

In Len Hazen’s complaint, Count I alleged that a certain balance was due on the subcontract, as amended by authorized change orders. Count II alleged that Wood-Hopkins required Len Hazen to redo certain work and perform additional work that was not called for by the subcontract, for which work Len Hazen has not been paid. Count III alleged that Wood-Hopkins, by its act or conduct, required Len Hazen to provide additional labor and materials for which it has not been paid. Count IY alleged that Wood-Hopkins, by virtue of its conduct, “issued” change orders, and it was estopped from denying that it “issued” those orders. Count V alleged that there was an implied contract for the additional work that was performed, while Count VI was a claim in quantum meruit for that additional work.

Wood-Hopkins filed a motion to dismiss Counts II through VI for failure to state a cause of action, and the trial court entered an Order granting this motion.

Len Hazen argues that the trial court erroneously based its Order on the contractual provision that “no extras will be paid for unless extras are authorized in writing prior to the extra work performed.” Len Hazen contends that this provision was improperly considered by the court because it was not contained in the four corners of the complaint. However, Fla.R.Civ.P. 1.130(a) requires that a contract which is the basis for an action “shall be incorporated in or attached to the pleading.” While Len Hazen has complied with this Rule, it has overlooked the fact that Fla.R.Civ.P. 1.130(b) provides that “[a]ny exhibit attached to a pleading shall be considered a part thereof for all purposes.” (emphasis supplied) Therefore, the trial court, in granting Wood-Hopkins’ motion to dismiss, properly considered the language in the subcontract that was attached to Len Hazen’s complaint.

While we affirm the dismissal of Counts IV through VI, we find that Counts II and III contain some claims for damages which may not be barred by the contractual provision referred to above. Thus, these Counts were sufficient to withstand the motion to dismiss for failure to state a cause of action. Accordingly, the trial court’s Order is affirmed in part and reversed in part, and this cause is remanded for proceedings consistent with this opinion.

LARRY G. SMITH, J., and OWEN, WILLIAM C., Associate Judge (Ret.), concur.