text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. UNIVERSAL ATLAS CEMENT COMPANY, United States Steel Corporation, LMV Leasing, Inc., William Henry Parker and Geri Dietrichs, Appellees.
    No. YY-68.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Rehearing Denied Jan. 7, 1982.

      Ronald L. Palmer and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Go-belman & Cobb, Jacksonville, for appellant.
    Charles Cook Howell, III, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellees.
   JOANOS, Judge.

State Farm Mutual Automobile Insurance Company appeals from an order entered in a dispute concerning insurance coverage. Appellant contends that it was error for the trial court to hold that appellant’s policy provided “primary” insurance coverage and to award attorney’s fees to an appellee for the prosecution of an indemnity action against appellant. We find no error and affirm the judgment appealed from.

LMV Leasing, Inc., leased an automobile to the United States Steel Corporation for use by its subsidiary company, Universal Atlas Cement. Universal designated its employee, William Henry Parker, as the driver. Parker, in turn, allowed a friend, Geri Dietrichs, to drive the vehicle. While driving the auto, Dietrichs was involved in a collision with a motorcyclist. The motorcyclist filed suit against all of the parties that are appellees in this proceeding.

Appellee Dietrichs is insured by appellant State Farm Mutual with policy limits of $15,000. The State Farm policy provided primary coverage, but set out a number of conditions or exceptions to that primary liability. One of the exceptions provides that in the event an insured drives a non-owned automobile, State Farm’s liability becomes that of an excess carrier, if “other collectible insurance” is available.

Appellee U.S. Steel is insured by the Insurance Company of North America (INA), which is not a party to this case. Our review of the policy indicates that it is a deductible form of umbrella-type excess insurance. The policy coverage has a $1 million deductible. U.S. Steel is self-insured for the $1 million deductible, the self-insurance program being administered by an INA subsidiary.

U.S. Steel, and the other appellees filed a third party complaint against State Farm, contending that State Farm was primarily liable due to the active negligence of its insured, Dietrichs. State Farm affirmatively defended, arguing that either the INA policy or U.S. Steel’s self-insurance was “other collectible insurance,” the effect of which would be to cause State Farm’s coverage to be in the nature of excess insurance.

U.S. Steel successfully negotiated a settlement with the motorcyclist in favor of all of the defendants/third party plaintiffs, including State Farm’s insured, Dietrichs. U.S. Steel and the other third party plaintiffs moved for summary judgment. In the order appealed from, the lower court granted the summary judgment, holding there was no “other collectible insurance” and awarded U.S. Steel the $15,000 proceeds from the State Farm policy, costs, attorney fees for defending State Farm’s insured against the motorcyclist, prejudgment interest, and fees for prosecution of the third party action against State Farm.

State Farm has argued that U.S. Steel’s self-insurance constitutes “other collectible insurance,” within the meaning of its policy’s exception. In State Farm Mutual Insurance Co. v. Vines, 193 So.2d 180, 182 (Fla. 1st DCA 1966) this court construed the term “collectible insurance” to refer to an insurance policy, the proceeds of which are collectible as distinguished from uncollecti-ble due to the insurance company’s insolvency. In Southeast Title and Insurance Co. v. Collins, 226 So.2d 247, 248 (Fla. 4th DCA 1969), cert. denied, 232 So.2d 180 (Fla.), “other valid and collectible insurance” was defined as a contract whereby one party indemnifies another against loss from certain specified contingencies or perils. Self-insurance, even though administered by someone else, does not fall within this definition and, therefore, is not “other collectible insurance.” 8A Appleman, Insurance Law and Practice § 4912 (1981). Thus, the State Farm policy is not excess over U.S. Steel’s self-insurance.

Alternatively, State Farm has argued that the INA excess insurance policy constitutes “other collectible insurance,” and that this makes the State Farm coverage excess over the INA coverage. We disagree with this view, because the INA policy is an umbrella-type of excess insurance, the key purpose of which is to give extended coverage at a comparatively modest cost where primary coverage or self-insurance ends. The INA umbrella coverage is a vehicle by which increased protection and security is extended to the insured. The language utilized in the respective policies indicates that the INA policy was intended to be true excess coverage over and above the State Farm coverage.

Aetna Casualty and Surety Co. v. Beane, 385 So.2d 1087 (Fla. 4th DCA 1980), reh. denied, supports our view. In Aetna Casualty, Aetna attempted to equate its excess insurance clause, which is virtually identical to State Farm’s excess insurance clause, to the umbrella-type excess insurance clause of American States Insurance, which is virtually identical to the INA clause herein. In holding the American States policy excess over Aetna’s policy, that court rejected Aetna’s contention by noting that the American States policy provided not only “coverage in excess of other available insurance coverage, but also that the coverage ‘shall not contribute with such other insurance.’ ” Id. at 1090. The State Farm and INA policy clauses before us dovetail in the same fashion, indicating State Farm’s coverage is not excess over the INA policy. Clearly, State Farm is responsible for primary coverage in this case.

With reference to appellant’s challenge of the award of attorney’s fees, we note that attorney’s fees are available to an insured, the insured’s estate, specifically named policy beneficiaries, or third parties claiming coverage through assignment under Section 627.428(1), Florida Statutes. Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977). In citing an example of a third party claiming coverage through assignment, the Supreme Court in Roberts, supra, at 79 n.7, noted its previous decision in All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla.1972).

In defending the award of attorney’s fees U.S. Steel relies heavily on All Ways Reliable, wherein an agent of an insurance company authorized repair work in adjustment of a fire loss to Mrs. Moore’s house which was completed by All Ways Reliable. The insurance company refused to pay the claim, and All Ways Reliable filed suit. In deciding the case in favor of All Ways Reliable, the Supreme Court found that “an implied contract existed in favor of All Ways Reliable which logically included an assignment of Elsie Moore’s fire claim loss against her insurance company to All Ways Reliable.” All Ways Reliable, supra, at 132. The case seems to us heavily grounded on the implied contract between the insurance company and All Ways Reliable.

As noted in Tipper v. Great Lakes Chemical Co., 281 So.2d 10 (Fla.1973), there are two types of implied contracts. Implied-in-fact contracts require the assent of the parties.

[C]ontracts implied in law, commonly referred to as quasi-contracts, are obligations imposed by law on grounds of justice an equity, and do not rely upon the assent of the contracting parties. This legal fiction was adopted by the law to provide a remedy in instances where one of the contracting parties is unjustly enriched.

Id. at 13.

In Florida it has been recognized that it is the duty of the insurer to defend its insured. C. A. Fielland, Inc. v. Fidelity & Casualty Co. of New York, 297 So.2d 122 (Fla. 2d DCA 1974), cert. denied, 309 So.2d 6 (Fla.1975); 18A Fla.Jur. Insurance, § 812 (1971). The duty is generated by reviewing the complaint filed against the insured to determine, if the allegations could bring the insured within the policy provisions of coverage. National Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla. 3d DCA 1977), reh. denied, (1978); see also Florida Farm Bureau Mutual Insurance Co. v. Rice, 393 So.2d 552, 555 n.4 (Fla. 1st DCA 1980), reh. denied, (allegation in third party complaint may be reviewed).

Reviewing either the original complaint, filed by the motorcyclist; or the third party complaint, filed by appellees against State Farm, we find that the allegations were sufficient to bring Dietrichs within the coverage provisions of the State Farm policy. We also note that by its contract of insurance State Farm had obligated itself to defend its insured. Even though State Farm may argue that it is not liable to its insured, this is irrelevant, because the duty to defend is far broader than the duty to pay. Florida Farm Bureau Mutual, supra, at 555 n.4.

“Thus, while an insurance company is within its rights in making a thorough investigation to determine whether the accident in question comes within the coverage of its policy, the company acts as its peril in refusing to defend its insured and will be held responsible for the consequences.” Id. at 555-556. In State Farm’s case in refusing to defend its insured, it acted in a perilous manner, because as it turns out, it is the primary insurer. Had it not been for the defense afforded by U.S. Steel, State Farm’s insured would have been left either to flounder in a sea of hostile litigation or to hire counsel.

Since State Farm has been determined to be the primary insurer in this case, it would be unjustly enriched if we did not hold it accountable for its unjustified refusal to defend. This unjust enrichment forms the foundation of the implied or quasi-contract between State Farm and U.S. Steel which logically includes an assignment of Geri Dietrichs’ claim against State Farm to U.S. Steel. All Ways Reliable, supra. U.S. Steel falls within the category of a third party claiming coverage by assignment and is entitled to attorney’s fees under Section 627.428(1), Florida Statutes, for prosecution of the indemnification action against State Farm.

The order of the trial court is therefore AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and THOMPSON, J., concur.

      . The relevant excerpts as they appear in the State Farm policy are as follows (policy emphasis omitted; emphasis that appears is supplied by court):
      9. Other insurance.

      (b) The insurance with respect to
      (i) a temporary substitute automobile
      (ii) a trailer, or
      (iii) a non-owned automobile, owned by any person or organization engaged in the automobile business, shall not apply to any liability or loss against which the insured or the owner of such vehicle has other collectible insurance applicable thereto in whole or in part.
      (c) Subject to the foregoing paragraph (b), the insurance with respect to any other temporary substitute automobile, trailer, or non-owned automobile shall be excess over other collectible insurance.

      . The policy when taken as a whole indicates that it is pure or umbrella-type excess insurance. The policy is not only entitled “EXCESS LIABILITY POLICY . . . (Deductible Form),” but a number of policy provisions support our view. One provision that is particularly relevant states:
      [Condition] K Other Insurance.
      If other valid and collectible insurance with any other insurer is available to the insured covering a loss also covered by this policy, other than insurance that is in excess of the insurance afforded by this policy, the insurance afforded by this policy shall be in excess of and shall not contribute with other insurance . . . (emphasis added).

      . See also Zinke-Smith, Inc. v. Florida Ins. Guaranty Ass’n, Inc., 304 So.2d 507, 509 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 469 (Fla.1975) (state approved program of self-insurance under workmen’s compensation act does not convert self-insurer into an insurer as that term is defined in Section 624.03, Florida Statutes); Friedfield v. Royal Indemnity Co., 167 So.2d 586 (Fla. 3d DCA 1964), cert. denied, 174 So.2d 30 (Fla.1965); Carolina Casualty Ins. Co. v. Insurance Co. of North America, 595 F.2d 128, 143 n.53 (3d Cir. 1979); Universal Underwriters Ins. Co. v. Marriott Homes, Inc., 286 Ala. 231, 238 So.2d 730, 732 (1970) (state approved workmen’s compensation program of employer’s self-insurance is not “other insur-anee,” because that term means a policy of insurance issued by an insurance company); Home Indemnity Co. v. Humble Oil & Refining Co., 314 S.W.2d 861, 865 (Tex.Civ.App.1958) reh. denied (state approved auto self-insurance does not constitute “other valid and collectible insurance”); 18A Fla.Jur. Insurance § 937 (1971); contra Southern Home Ins. Co. v. Burdette’s Leasing Service, Inc., 268 S.C. 472, 234 S.E.2d 870, 872 (1977) (auto leasing company’s state approved self-insurance constitutes “other valid and collectible insurance”).

      . Compare State Farm provision in Note 1 with INA provision in Note 2.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DELTA AIRLINES and Employers Insurance of Wausau, Appellants, v. Darlene UNDERWOOD, Appellee.
    No. ZZ-66.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 23, 1981.

      Ivan Matusek of Matusek, Ogden, McKnight & Hudson, St. Petersburg, for appellants.
    Stephen L. Rosen of Morris & Rosen, Tampa, and Thomas D. Masterson of Mas-terson, Rogers, Patterson, Masterson & Lowe, St. Petersburg, for appellee.
   PER CURIAM.

We reverse the deputy’s award of temporary total disability benefits from March 27, 1980 through July 21, 1980. See Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Lehigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981); Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981); McDonnell Douglas v. Holliday, 397 So.2d 366 (Fla. 1st DCA 1981).

We affirm the point on cross-appeal; the deputy was correct in concluding that the employer/carrier was not responsible for the unauthorized treatment of Dr. Wallace. Here, the claimant, absent a medical emergency, arbitrarily changed physicians while alternate treatment was still being provided by the employer/carrier and without seeking prior approval by the deputy commissioner. Therefore, the claimant did not properly comply with the procedures specified in Section 440.13(2), Florida Statutes (1979). See Redwing Carriers, Inc. v. Pinto, IRC Order 2-3089 (January 6, 1977); Schult Mobile Home Corp. v. Walling, 384 So.2d 251 (Fla. 1st DCA 1980).

Reversed in part, and affirmed in part.

ERVIN, WENTWORTH and JOANOS, JJ., concur.

      . Fla.Stat. § 440.13(2) provides:
      If an injured employee objects to the medical attendance furnished by the employer, it shall be the duty of the employer to select another physician to treat the injured employee unless a deputy commissioner determines that a change in medical attendance is not for the best interests of the injured employee; however, a deputy commissioner may at any time, for good cause shown, in the deputy commissioner’s discretion, order a change in such remedial attention, care, or attendance.


text:
    M. Douglas DAVIS, Appellant, v. BUREAU OF CRIMES COMPENSATION, Division of Workers’ Compensation, Department of Labor & Employment Security, Appellee.
    No. ZZ-377.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 18, 1981.

      Lawrence M. Kopelman, Fort Lauderdale, for appellant.
    George W. Butler, Jr., Tampa, for appel-lee.
   PER CURIAM.

Davis, the appellant, filed a claim under Chapter 960, Florida Statutes (1979), seeking compensation for injuries he received in his capacity as a pedestrian when struck by an automobile driven by a “hit and run” motorist. The deputy commissioner denied the appellant’s claim, finding that the “hit and run” incident alone without proof of intent to inflict injury is insufficient to constitute a “crime” for the purposes of Chapter 960.03(3); Florida Statutes (1979). We approve the deputy’s interpretation of the statute and accordingly affirm his order.

Davis concedes that there was no evidence that the hit and run driver intentionally struck him with his automobile; however he maintains that the driver’s act was a “crime” within the meaning of Section 960.03(3), inasmuch as the record establishes that the driver intentionally fled from the accident and by doing so presumably intended to inflict greater injury on the claimant. This argument is without merit. Section 960.03(3) provides in material part:

[N]o act involving the operation of a motor vehicle, boat or aircraft which results in injury or death shall constitute a crime for the purpose of this chapter unless the injury or death was intentionally inflicted through the use of such vehicle, boat, or aircraft, or unless such vehicle, boat, or aircraft is an implement of a crime to which this act applies, (e.s.)

Therefore, we agree that the above-quoted statute applies only to overt acts of a driver while using his automobile, and not to any subsequent intentional omission of the driver to render aid to another.

We agree also with the deputy’s finding that the automobile of the hit and run driver is not an “implement of a crime” because a “hit and run” violation is not “a crime to which [Chapter 960] applies.” Finally, inasmuch as the deputy has construed a statute in an area within his special expertise, his interpretation' will be accepted as correct by this court as the appellant has not shown it to be clearly erroneous. See Greyhound Lines, Inc. v. Yarborough, 275 So.2d 1 (Fla. 1973).

AFFIRMED.

ERVIN, WENTWORTH and JOANOS, JJ., concur.


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

text:
    SAN SOUCI CONSTRUCTION CO., and Florida Insurance Guaranty Ass’n, Appellants, v. Lois HEREFORD, Appellee.
    No. AB-497.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 23, 1981.
    Seth Abrams, of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellants.
    Jay M. Levy, of Silver, Levy & Hershoff, Miami, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The deputy commissioner awarded David Levine, Esquire, a fee of $22,500 for representing claimant on a controverted and ultimately successful petition to modify an earlier award which the same lawyer achieved and for which he was compensated. Mr. Levine’s handling of the modification petition consumed 123 hours of lawyer time and achieved additional benefits having a stipulated value of $85,000. The fee of approximately $185 per hour is explained by the deputy in this way:

I do ... find that the claimant is an extremely difficult individual to deal with because of her psychiatric condition. Since this condition was entwined to her ease it was necessary for Mr. Levine to deal with the claimant and this psychiatric condition which, I find, was and is an unusual circumstance necessitating additional expertise and the expenditure of additional periods of time to understand said psychiatric impairments and deal with the claimant and the case as it relates to same. Additionally I recognize and find that the quality of time spent by Mr. Levine with claimant was extremely difficult and trying upon him, and that, in equity, he should be appropriately compensated for same.
Attorneys of the skill and experience of Mr. Levine customarily charge and receive a non-contingent hourly fee of $150.00 in this community [Miami] for similar legal services not involving difficult clients such as the claimant herein. It is my determination a similarly skilled and seasoned attorney dealing with a noncontingent case would be justified and reasonable in charging an hourly fee of $200.00 to represent a bothersome and difficult client such as the claimant herein. (Emphasis added.)

The deputy also noted the significant benefits achieved, Mr. Levine’s considerable experience and skills, and that any fee was contingent upon the lawyer’s success in achieving compensation for his client.

With some reservations about the weight to be accorded the contingency factor — the deputy does not explicate and the record does not reveal the magnitude of fee risk actually encountered by Mr. Levine— we accept all the deputy’s findings except that finding which enhances the fee because a “bothersome and difficult client” rendered “the quality of time spent by Mr. Levine with claimant . . . extremely difficult and trying upon him . . . . ” We agree that a greater fee may reasonably be awarded under the Section 440.34(1) when a lawyer necessarily has devoted extraordinary time to his professional representation due to difficulties stemming from his client’s injury-related personality changes. That kind of professional service is not in-compensable “handholding.” Cf. Brevard County School Board v. Walters, 396 So.2d 1197 (Fla. 1st DCA 1981); Kelly Tractor Co. v. Jarrell, IRC Order 2-3018 (Aug. 19, 1976), cert. den., 348 So.2d 949 (Fla.1977). Accordingly, Mr. Levine is entitled to compensation for extra time and effort required by this representation, though he may have fulfilled the same duty with less time and effort for a less “difficult and bothersome” client. Yet it is inappropriate to add a further surcharge for the uncomfortable “quality of time” the lawyer spent working for a “bothersome and difficult” client, even assuming that discomfort afflicted Mr. Levine beyond the 18 hours or so he actually spent conferring with the client.

Considering all the deputy’s findings and the record evidence bearing on the time devoted to the case, the contingency of the fee, the difficulty of the issues presented, the results accomplished, and other factors enumerated in Section 440.34(1), we find a reasonable fee would be not more than $150 per hour devoted to the case, or $18,450.

REVERSED and REMANDED with directions to allow a fee of $18,450.

MILLS and SHIVERS, JJ., concur.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. William Mitchell ALEXANDER, Appellee.
    No. 80-1439.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 23, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellant.
    H. Dohn Williams, Jr., Hollywood, for appellee.
   MOORE, Judge.

The state appeals the trial court’s dismissal of a first degree murder indictment against the appellee, William Mitchell Alexander. We agree that the trial court imper-missibly determined the issue of premeditation and reverse.

The appellee was indicted for first degree murder. Pursuant to Fla.R.Crim.P. 3.190(c)(4) the appellee moved to dismiss the charges against him claiming that the death was actually the result of an accident. In support of his motion to dismiss the appel-lee filed an affidavit which stated:

On the evening of April 1, 1980, I was informed by Betty DeClue’s son, Toby, that he had received a threatening telephone call while Betty and I were away from the house. Toby said the caller threatened to come to the house and kill Betty and me. Toby was extremely upset and it took quite awhile to calm him down. He told us that he was so afraid that after getting the call he left the house and did not return until Betty and I came home.
Prior to the shooting of Glenn Richert, I was aware of Richert’s reputation for violence. I considered him to be a violent person.
Early in the morning of April 2, 1980, Betty came to my bedroom. She was upset and said that Richert had barged into the house and was ranting and raving about money and about being ripped off. She said she was scared and ask (sic) me to go out and talk with him.
I went to the livingroom. Richert appeared to be drunk and high on drugs. He kept stating that he wanted his money, that he was tired of getting ripped off, and that someone was going to get hurt if he did not get his money. I tried to calm him down. I told he (sic) to sit down we would talk.
He sat on the couch in the livingroom still ranting and raving. At that time I saw that he had a small caliber gun in his hand. He said that someone was going to get hurt if he did not get his money.
I had previously placed a .38 cal. pistol under a cushion on the couch within inches of where Richert sat. I was afraid for Betty’s, Toby’s, and my safety because he was armed, angry, was making threatening remarks, and was drunk and/or high on drugs.
I moved toward the coffee table as if to get some cigarettes with the intent of getting the gun under the cushion, I obtained the gun, and Richert saw it as it was being pulled from under the cushion. He immediately grabbed the gun. When he grabbed the gun and attempted to take it from my hand, it discharged. It happened so quickly I do not know whether the gun was cocked or uncocked.
I did not intend to shoot Glenn Richert. I was merely attempting to arm myself because he had come into my residence armed, he was angry, he was acting irrationally, and I was concerned about his threats.
Within moments of the shot, I checked Glenn Richert to see where he had been shot in an attempt to aid him. I checked for vital signs and found no pulse or breathing. Feeling that he was dead, I became afraid and did not call for emergency help and/or the police. I was afraid that because I was on probation for possession of marijuana that my probation would be revoked and I would be sent to prison.
Knowing he was dead, a decision was made to dispose of the body. Betty and I moved the body to the kitchen in order that Toby would not see it when he left for school.
The decision to cut the throat of Ric-hert was made after he was dead. The throat was cut in an attempt to recover the bullet so that it could not be traced to the gun.
The decision to burn the body was made hours after Glenn Richert was dead.
Richert’s gun and the gun which fired the shot were removed from Betty’s residence.

The state demurred to the motion and the parties further stipulated at the hearing on the motion as follows:

(1) The body of the deceased was in a Ford Thunderbird on April 4, 1980 in Collier County, about 10 miles west of the Broward County line along Alligator Alley, wherein the deceased was found burned beyond recognition. The car apparently had been set afire,
(2) the prosecutor admitted, based on the medical examiner’s report, that the knife wound to the throat of the deceased may have occurred within a short time after the shooting and prior to death, but that this possibility was only speculative, and
(3) the deposition testimony of Betty De-Clue and her son George Elmer Ellis a/k/a Toby, generally corroborated the sworn affidavit of the defendant, these being the only persons present in the home when the shooting occurred.

Based on the above, the appellee maintains that there is no evidence from which it can be established that he had a “premeditated design to effect the death of the person killed.” Section 782.04(l)(a), F.S. (1979). Without commenting upon this assertion, with which we do not necessarily agree, the order of the trial court must be reversed.

Since the crux of the appellee’s argument rests upon the alleged absence of evidence capable of demonstrating premeditation, it was improper to dismiss the charge against him. Intent is almost always inferred from circumstantial evidence. As such it is not an issue to be decided on a motion to dismiss. See State v. Rogers, 386 So.2d 278 (Fla.2d DCA 1980) and State v. J. T. S., 373 So.2d 418 (Fla.3d DCA 1979). The trier of fact has the duty of weighing the evidence, judging the credibility of the witnesses, and ultimately determining a defendant’s state of mind.

We find that the trial court was premature in granting the appellee’s motion where facts exist from which premeditation can be reasonably determined. If such a determination is to be made, it is for the jury to make.

REVERSED AND REMANDED.

LETTS, C. J., and HURLEY, J., concur.


text:
    LEE MYLES TRANSMISSION, INC., Appellant, v. Alan FRANKE and Mary Franke, Appellees.
    No. 81-34.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 22, 1981.
    Richard W. Wasserman, Miami Beach, for appellant.

      No appearance on behalf of appellees.
   PER CURIAM.

This matter has been filed as an appeal from a decision of the Circuit Court acting in its appellate capacity. The appeal is considered as a petition for common law certiorari. We conclude that no departure from the essential requirements of law has been demonstrated and deny the petition.

CERTIORARI DENIED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


text:
    The CITY OF OAKLAND PARK, Appellant, v. STATE of Florida, ex rel., PLAYPEN SOUTH, INC., a Florida corporation, and Chateau Madrid, Inc., d/b/a The Rooftop, Appellees.
    No. 81-1546.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 22, 1981.
    Lewis D. Haines, II, City Atty., and Gordon G. Cooper, Asst. City Atty., Oakland Park, for appellant.
    Sam C. Caliendo, Fort Lauderdale, for appellee Chateau Madrid, Inc., d/b/a The Rooftop.
    Stanley M. Sacks, Fort Lauderdale, for appellee Playpen South, Inc.
   PER CURIAM.

Reversed. We have reviewed the record and the briefs of the parties and are of the view that the trial court erred in granting a writ of prohibition enjoining the appellant from taking legislative action. See State ex rel. Swearingen v. Railroad Commissioners of Florida, 79 Fla. 526, 84 So. 444 (1920).

ANSTEAD, MOORE and HERSEY, JJ., concur.


text:
    Terry Lamont WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1990.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a sentence and order of probation entered upon defendant’s plea of nolo contendere. Defendant reserved his right to appeal the trial court’s refusal to apply the sentencing procedures of Section 39.111, Florida Statutes (1979). The trial court’s refusal to sentence the defendant as a juvenile was based upon the fact that defendant was indicted, rather than being transferred from the Juvenile Division. See Postell v. State, 383 So.2d 1169 (Fla.3d DCA 1980). This constituted error under the recent case of State v. Goodson, 403 So.2d 1337 (Fla. 1981), wherein the Supreme Court held that a child charged by indictment should be considered “transferred for prosecution to the Criminal Division of the Circuit Court pursuant to Chapter 39.” The defendant’s sentence is therefore vacated and the matter remanded for further sentencing procedures in accordance with State v. Goodson, supra.

In view of the necessity for resentencing, all other issues are found to be moot.

REVERSED FOR RESENTENCING.

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


text:
    MILLER, COWHERD & KERVER, INC., a Florida Corporation, Appellant, v. Consuelo DE MONTEJO and Patrick A. Baratta, Appellees.
    No. 80-818.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.

      Thomas E. Brandt, Fort Lauderdale, for appellant.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellee-De Montejo.
    Martin J. Sperry, Fort Lauderdale, for appellee-Baratta.
   PER CURIAM.

Miller, Cowherd & Kerver, Inc. (hereinafter referred to as the broker) appeals a summary judgment denying a brokerage commission pursuant to an exclusive right of sale listing contract and denying damages for tortious interference with the exclusive right of sale.

The broker contends that the execution of a joint venture agreement between corporations controlled by the owner of the subject property, Consuelo De Mon-tejo, and a developer, Mr. Baratta, constituted a “sale” under the listing contract, thereby entitling the broker to a commission. The broker also alleges that Baratta’s actions in procuring the joint venture agreement constituted tortious interference with the listing agreement between the owner and the broker. We hold that the joint venture agreement did not constitute a “sale” pursuant to the listing contract and, therefore, the broker was not entitled to a commission. Consequently, the absence of entitlement to commission precludes recovery for tortious interference with the listing contract.

In November, 1976, the owner entered into a six month exclusive right of sale contract with the broker for the sale of vacant land owned by her on the Galt Ocean Mile. The parties subsequently extended this contract for another six months ending November 15, 1977. The broker’s commission was ten percent (10%) of the selling price. The exclusive right of sale agreement provided:

3(B) The professional service fee is to be paid whether the purchaser be secured by you or me, or by another person, at the price and upon the terms mentioned or at any other price or terms acceptable to me. You shall also be entitled to your professional service fee if said property is sold within 90 days from the expiration date hereof to any person, or anyone acting on such person’s behalf with whom you have negotiated relative to the sale of said property and have given written notice thereof to the undersigned during the term of this contract.

This agreement did not provide for a commission for putting together a joint venture.

In August 1977, Baratta contacted the broker in response to its multiple listing on the property and stated that he might be interested in the property for development of condominium apartments. After some discussion regarding price and construction costs, Baratta closed the discussion by saying that he was not interested in the property because the price was too high.

The owner was introduced to Baratta for the purpose of discussing financing for her to develop the property herself. On October 27, 1977, prior to the expiration of the listing contract, the owner and Baratta entered into a joint venture agreement to develop the property.

The agreement obligated the owner to contribute her equity in the land to the joint venture. The agreement provided that T. M. S. Corporation, with Baratta and a party named Charles P. Ferrise as principals, would develop the property into a profitable condominium project. The agreement further provided that title of the land would be taken by Top of the Mile South, a joint venture consisting of Caribbean Development and Investment Corporation, a Florida corporation, and T. M. S. Development Corporation, a Florida corporation to be formed. The owner, her husband and children were stockholders of the Caribbean Development and Investment Corporation. The agreement further provided that the parties would share equally in all profits and losses after repayment of contributions.

By warranty deed dated March 28, 1978, the owner conveyed the property to “Top of the Mile South,” a joint venture consisting of Caribbean Development Corporation, a Florida corporation, and T. M. S. Corporation, a Florida corporation.

Then the broker filed this action. The trial court granted summary judgment in favor of the owner and Baratta. The order stated:

The pleadings and depositions show that the Plaintiff was not the procuring cause of any sale of the subject property and therefore is not entitled to any commission. If the Plaintiff wanted a commission in the event the owner entered into a joint venture with other parties regarding the property, it should have spelled that out in the contract. Further, since the Plaintiff is not entitled to recover a commission, there is no advantageous business relationship between Plaintiff and Defendant, De Montejo, that could have been interfered with by the Defendant, Baratta. There can be no prima facie evidence of a conspiracy to deprive Plaintiff of that to which it had no lawful claim.

Although the matter of procuring cause is irrelevant to the broker’s entitlement to a commission in this case, we otherwise agree with the trial court. We, therefore, affirm.

The brokerage contract provided for a commission upon the sale of the property. This exclusive right of sale contract, however, did not define the term “sale.” We agree with the trial court that a sale did not occur because the owner retained an ownership interest in the property. Rather than assuming the risk of a seller, the owner assumed the risk of a participant in a joint venture with the potential for losses as well as profits. As such, the owner decided to develop the property herself.

The exclusive right of sale contract did not address the situation where the owner develops the property herself in the form of a joint venture. The exclusive right of sale contract should be construed against the broker as drafter of the document. Nicholas v. Bursley, 119 So.2d 722 (Fla. 2d DCA 1960), Lindquist v. Burklew, 123 So.2d 261 (Fla. 2d DCA 1960). Consequently, if the broker wanted a commission in the event the owner entered into a joint venture with other parties regarding the property, the broker should have spelled that out in the contract.

The rationale of McElhinney v. Belsky, 165 Pa.Super. 546, 69 A.2d 178 (1949) supports this conclusion. McElhinney involved a transfer to a partnership of a business where a broker had an exclusive listing on the business. The broker sought a commission on the transfer of the business to a partnership. The court held:

The question is thus resolved into a reasonably simple proposition. Belsky wanted to sell his business. He hired a broker as exclusive agent to sell it for him. He promised to pay a commission to the broker even if he sold the business through his own personal efforts. Instead of making a sale and getting out of the business, he found that he had to involve himself even more by forming a partnership. If McElhinney wanted a commission on the formation of a partnership, he should have spelled that out in the contract.

The analogy of the McElhinney case to the present case is strengthened by the fact that rights, duties and liabilities of a joint venture are governed generally by principles of partnership law. See Harrell and Sumner Contracting Company v. Peabody Petersen Company, 546 F.2d 1227 (5th Cir. 1977).

Accordingly, we affirm the trial court’s summary judgment denying a brokerage commission and precluding recovery for tor-tious interference with the brokerage contract.

AFFIRMED.

ANSTEAD, MOORE and GLICKSTEIN, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Dale Dean GOINS, Appellant, v. STATE of Florida, Appellee.
    No. 80-587.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 1981.
    Rehearing Denied Dec. 23, 1981.
    Jerry Hill, Public Defender, and Richard N. Staten, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Dale Dean Goins appeals his convictions and sentences for second-degree murder, kidnapping, robbery with a firearm, and attempted involuntary sexual battery. He raises six points on appeal, one of which merits discussion: whether Count II of the indictment sufficiently alleged the crime with which appellant was charged. Our first impression was to affirm; however, based on Jones v. State, 385 So.2d 1042 (Fla. 1st DCA 1980), we reverse.

Count II of the indictment states, in pertinent part, that appellant

did, without lawful authority, forcibly, secretly, or by threat, kidnap, confine, abduct, or imprison Stephanie Michelle Hawkins, against the will of the said Stephanie Michelle Hawkins, with the intent to commit or facilitate commission of any felony, contrary to Chapter 787.01, Florida Statutes. . . . (Emphasis added.)

The trial court erred in not dismissing this count against appellant because the indictment does not identify or describe the felony that appellant allegedly intended to commit or facilitate, which is an essential element of the crime of kidnapping. Fla.R. Crim.P. 3.140(d)(1). The omission of such a material element rendered the indictment so vague and indefinite as to mislead appellant, prejudicing the preparation of his defense. Jones v. State, supra.

Although appellant was charged with other felonies in the same indictment, allegations in a multiple-count information or indictment must stand separately. State v. Dye, 346 So.2d 538 (Fla. 1977). The state filed a statement of particulars, but it does not cure the fundamental defect of failure to give appellant adequate notice of the charges. State v. Black, 385 So.2d 1372 (Fla. 1980).

We note that appellant was given consecutive life sentences on the second-degree murder, kidnapping, and robbery charges and fifteen years on the attempted sexual battery charge, also to run consecutively. Our reversal of the kidnapping count will merely eliminate one life sentence.

The remaining points argued by appellant have been considered and rejected. Accordingly, the judgment and sentence for kidnapping are reversed and the cause remanded with directions to dismiss the kidnapping charge.

AFFIRMED in part, REVERSED in part, and REMANDED.

RYDER and DANAHY, JJ., concur.


author: PER CURIAM. SCHWARTZ, Judge

text:
    Ruby M. LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1919.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 1981.
    Rehearing Denied Jan. 6, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. Tresvant v. State, 396 So.2d 733 (Fla.3d DCA 1981); State v. Freber, 366 So.2d 426 (Fla.1978); Jones v. State, 360 So.2d 1293 (Fla.3d DCA 1978).

ON REHEARING

SCHWARTZ, Judge

(specially concurring on denial of rehearing).

I concur in the denial of the motion for rehearing on the ground that the rulings of which the defendant complains constituted, at most, harmless error.


text:
    J. H. WEISER, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 80-1485.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Jack H. Weiser, pro se.
    James R. Parks and Richard S. Córtese, Tallahassee, for appellees.
   MOORE, Judge.

This is an appeal from an order of The Florida Unemployment Appeals Commission which reversed an order of the appeals referee. The sole issue on appeal is whether the appellant had the requisite number of work weeks to entitle him to a trade readjustment allowance. We find that he did and we reverse.

The Trade Act of 1974 provides financial assistance to American workers for injury caused by import competition. The pertinent provisions of the Act, Title 19 U.S.C.A. § 2291, provide as follows:

Payment of a trade readjustment allowance shall be made to an adversely affected worker covered by a certification under subpart A of this part who files an application for such • allowance for any week of unemployment which begins after the date specified in such certification pursuant to Section 2273(a) of this title, if the following conditions are met:
(2) Such worker had, in the 52 weeks immediately preceding such total or partial separation, at least 26 weeks of employment at wages of $30 or more a week in adversely affected employment with a single firm or subdivision of a firm, or, if data with respect to weeks of employment are not available, equivalent amounts of employment computed under regulations prescribed by the Secretary.

It is undisputed that both appellant and the firm he worked for are covered by the provisions of this Act. The only question before us is whether appellant satisfied the Act’s requirement of “26 weeks of employment.”

Appellant’s employment began September 5, 1979, and continued until February 29, 1980. Accordingly, it is not disputed that appellant had worked for twenty-six (26) weeks. This would seem to qualify him for the trade readjustment allowance provided for by the Act. However, the Unemployment Appeals Commission ruled otherwise. Their decision was based upon Federal regulations enacted by the Department of Labor pursuant to the Trade Act. The order of the Commission states:

29 CFR § 91.3(23) defines qualifying period as “the 52 calendar weeks preceding an individual’s appropriate week.” The law also defines appropriate week as the week in which the individual’s most recent total separation occurred.

The Commission ruled that the week of February 24, appellant’s last week of employment, was when total separation occurred. It went on to conclude:

Consequently, that week, pursuant to 29 CFR § 91.3(23), must be construed as the claimant’s appropriate week and cannot therefore be considered as a week of employment for determining the claimant’s entitlement to an allowance. It therefore follows that the claimant can only be credited with 25 weeks in adversely affected employment.

The obvious flaw in this analysis is that it requires a worker (under these facts) to be employed for twenty-seven (27) weeks in order to get credit for twenty-six. Such a construction cannot stand in light of Congress’ clear intent, as demonstrated by the terms of the Trade Act itself, that twenty-six weeks of employment be sufficient to qualify for the readjustment allowance.

As we view the regulations, appellant’s “appropriate week” began March 3, 1980. This was the week in which “total separation occurred.” During the prior week, of February 24, there was no separation at all. Appellant worked all of that week just as he had the previous twenty-five. It simply does not comport with logic to find “separation” in a week where there has not been any. Appellant’s twenty-six weeks of employment qualify him for the benefits provided by the Trade Act.

Therefore, the order of the Unemployment Appeals Commission is reversed and this case is remanded for proceedings consistent with this opinion.

HERSEY and HURLEY, JJ., concur.

      . We limit our decision only to those situations where a claimant’s last week of employment was a full one. No opinion is expressed for “separations” occurring mid-week.


author: ANSTEAD, Judge.

text:
    Gertrude E. RIGGS, Appellant, v. Ronald J. CAIN, Appellee.
    No. 81-162.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    George F. Bovie, III, of Crary, Buchanan & Meginniss, Chtd., Stuart, for appellant.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P. A., Orlando, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment entered against the appellant on her claim of defamation against her former employer, appellee. The trial court ruled in essence that the appellee was entitled to judgment on the basis of an affirmative defense of qualified privilege. We reverse.

The appellant, several years after leaving the employ of appellee, secured a job with a savings and loan association. The association made inquiries of appellee, both directly and through a credit bureau, as to appellant’s job performance with appellee. Among other things, the appellee informed the association that after appellant left his employ he discovered that she had been stealing from him. As a result of this disclosure the appellant was promptly discharged by the association. This action followed.

The appellant concedes that the appellee made the statements in question under circumstances that would normally give rise to a qualified privilege, but claims that the statements were made with malice and in bad faith. In addition to claiming that the statements made by the appellee were false and that appellee knew they were false, the appellant relies on conflicts in the record as to the contents of the statements made by appellee to the association, and also on the fact that appellee had previously been informed of the outcome of an earlier investigation into appellee’s allegations by the state unemployment compensation office finding no misconduct by the appellant.

We have previously recognized that the defense of qualified privilege may be claimed by an employer under circumstances similar to those invoked herein, but we have been wary of approving of summary dispositions of cases predicated on such a defense, especially where the truth of the statements made is at issue. Frank Coulson, Inc.-Buick v. Trummbull, 828 So.2d 271 (Fla. 4th DCA 1976); Moseley v. City Gas Company of Florida, 310 So.2d 390 (Fla. 4th DCA 1975). We believe an employer may claim a qualified privilege in communicating information about a former employee to a prospective employer but he is obligated to act reasonably and prudently in doing so. He cannot, for instance, deliberately lie about the employee’s conduct. On the other hand he is pretty much free to communicate his honest opinions about the employee’s job performance, and any information so long as it is relevant to the inquiry being made. Our views on this issue generally coincide with those expressed by Prosser:

Finally, since there is no social advantage in the publication of a deliberate lie, the privilege is lost if the defendant does not believe what he says. Many courts have gone further, and have said that it is lost if the defamer does not have reasonable grounds, or “probable cause” to believe it to be true, while others have insisted that good faith, no matter how unreasonable the basis, is all that is required. Neither position seems tenable in all cases. Certainly no reasons of policy can be found for conferring immunity upon the foolish and reckless defamer who blasts an innocent reputation without making any attempt to verify his statements; but on the other hand there are occasions on which it may be entirely proper to give information of a rumor or a mere suspicion, as such, without any belief or any reason to believe that it represents the truth. Probably the best statement of the rule is that the defendant is required to act as a reasonable man under the circumstances, with due regard to the strength of his belief, the grounds that he has to support it, and the importance of conveying the information. (Footnotes omitted.)

Prosser Law of Torts § 115 (4th Ed.1971) at 795, 796.

When the truth of the statements is in sharp dispute it may be very difficult to determine whether or not the defendant was justified in making the statements. The very fact that the information conveyed is false, may in some instances give rise to an inference of bad faith and remove the protection otherwise available to the communication. Mays v. Stratton, 183 So.2d 43 (Fla. 1st DCA 1966), cert. denied 188 So.2d 817 (Fla.1966). Under such circumstances the cases will be rare in which it can be said that the defendant acted reasonably as a matter of law. In this regard we agree with the following statement by Judge Sharp in the case of Glynn v. City of Kissimmee, 383 So.2d 774 (Fla. 5th DCA 1980):

Rarely is summary judgment appropriate in a defendant’s favor where the existence of a qualified privilege for a defamatory statement is controverted. “Qualified privilege” is a defense and the burden of proving it rests with the defendant. Prosser Law of Torts, § 115 (4th Ed.1971); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906). Whether the privilege exists or has been exceeded in some manner creates a mixed question of law and fact which should be determined by the trier of fact. Hartley & Parker v. Copeland, 51 So.2d 789 (Fla.1951); Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1968); Frank Coulson, Inc.-Buick v. Trummbull, 328 So.2d 271 (Fla. 4th DCA 1976).

At 776. Also see Lewis v. Evans, 406 So.2d 489 (Fla. 2d DCA 1981) and Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978).

The truth of the statements allegedly made and the adequacy of the grounds asserted in support of such statements are both in dispute here. Given that dispute, and considering the difficulties that are involved in determining whether someone has acted in good or bad faith under the circumstances, we believe the qualified privilege issue should generally be resolved by the trier of fact. The concept of qualified privilege as applied in this case represents a delicate balance between society’s concerns for the rights of individuals to be protected from false and defamatory statements which may seriously affect an individual’s reputation and ability to secure employment, and the rights of employers to freely comment upon and receive relevant information as to an employee’s past work performance. In the case at hand we believe that balance can best be maintained if the trier of fact resolves the issue.

Accordingly, the summary final judgment is reversed and this cause is remanded to the trial court with directions for further proceedings in accord with this opinion.

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


text:
    Barbara J. BILLINGS, Appellant, v. James M. BILLINGS, Appellee.
    No. 81-187.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Charles A. Sullivan, Jr., of Sullivan & Cobb, Vero Beach, for appellant.
    G. Russell Petersen of Petersen & Pegg, Vero Beach, for appellee.
   PER CURIAM.

This appeal from a final order in a dissolution of marriage proceeding raises only one issue that we deem meritorious. The marital domicile was titled in joint names. Neither party was deemed to have acquired a special equity in that property. Under familiar principles the parties became tenants in common with equal interests in the real property or the proceeds of its sale. Section 689.15, Florida Statutes (1979); Meridith v. Meridith, 366 So.2d 425 (Fla. 1978). The lower tribunal ordered the wife to sell her one-half interest to the husband for a fixed amount within a certain period of time. The proceeds are then characterized by the court as lump sum alimony to the wife. This was error. If the wife is entitled to lump sum alimony then it may not be satisfied by giving her what is already hers.

Accordingly we affirm the final judgment in all other respects but reverse those provisions dealing with lump sum alimony and requiring the wife to convey her interest to the husband for a fixed amount. On remand the trial court should make a determination as to whether lump sum alimony is appropriate and, if so, in what amount. Further, if either party is required to convey an interest in the real property to the other party then the interest to be transferred should be valued at present fair market value. Negron v. State, 306 So.2d 104 (Fla. 1974).

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


text:
    In the Interest of R. J. A., a child.
    No. 81-381.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Richard L. Jorandby, Public Defender and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on authority of State v. G. B. P., 399 So.2d 1123 (Fla. 4th DCA 1981).

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


text:
    In re ESTATE OF Rose MILLER, Deceased.
    No. 81-588.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Edward S. Polk of Becker, Poliakoff & Streitfeld, P. A., Fort Lauderdale, for appellant.
    Fred J. Ward of Fred J. Ward, P. A., Hallandale, for appellee.
   PER CURIAM.

Reversed on the authority of Tillman v. Baskin, 260 So.2d 509 (Fla.1972) and Panet v. Rexod Corp., 345 So.2d 825 (Fla. 4th DCA 1977).

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


author: HERSEY, Judge.

text:
    Graham K. HINNANT, Appellant, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF FT. LAUDERDALE, a national banking association, Appellee.
    No. 81-615.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Peter Kneski of Stern & Kneski, Miami, for appellant.
    Keith J. Kanouse of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   HERSEY, Judge.

By this appeal from a final judgment on the pleadings, appellant questions the trial court’s determination that his affirmative defense did not avoid his obligation to ap-pellee bank. We affirm the trial court’s decision.

Appellant borrowed certain sums of money from appellee bank over a period of years and eventually defaulted on his obligation to repay. Suit was instituted by the bank which ultimately resulted in a summary judgment in its favor. While the matter reposed in the appellate court it was agreed by the parties that an affirmative defense raised by appellant should be revisited by the trial court in view of certain developments. Jurisdiction was relinquished for the limited purpose of reconsideration of the affirmative defense. Subsequently the appeal was dismissed.

Again by stipulation of the parties the trial court vacated the judgment which had been appealed “being specifically advised in the premises and specifically being advised in the terms and conditions of the stipulation filed in the District Court of Appeal.” The order vacating the summary judgment and final judgment continued by expressly providing that the .cause was to continue “for a consideration of the remaining factual questions concerning the effect and application” of a regulation which formed the basis for appellant’s affirmative defense.

Subsequently the trial court, determining that the affirmative defense did not avoid the original obligation, entered judgment on the pleadings in favor of appellee, bank. The final judgment which followed is the subject of this appeal.

Initially we are confronted with the procedural question of whether judgment on the pleadings was appropriate in view of appellant’s affirmative defense. We think it was not. However, it appears that vacation of the Summary Judgment and Final Judgment was either partial or conditional or both. In any event the appropriate procedural device would have been reinstatement of the summary judgment to be followed, as here, by a final judgment. On remand this housekeeping chore should pose no particular problem.

We turn, then, to a consideration of appellant’s affirmative defense.

It is appellant’s contention that the promissory notes evidencing his obligation are rendered unenforceable by the fact that some part of the indebtedness was incurred in a transaction which constituted a violation of a federal regulation establishing margin requirements for loans which like appellants, are secured by securities. A brief explanation of the regulation, its background, purpose and judicial interpretation is essential to an understanding of the issue thus presented.

To prevent the excessive use of credit for the purchase or carrying of securities, Congress directed the Federal Reserve Board to “prescribe rules and regulations with respect to the amount of credit that may be initially extended and subsequently maintained on any security (other than an exempted security).” 15 U.S.C. § 78g(a) (§ 7, Securities Exchange Act of 1934). In compliance with this legislative mandate, the Federal Reserve Board issued Regulation T (which controls the amount of credit that may be extended by brokers and dealers) and Regulation U (which controls the amount of credit that may be extended by banks). 12 C.F.R. §§ 220.1-220.8 and §§ 221.1-221.4. Under these regulations, a level of margin requirements was established so that a lender could extend credit only up to a “maximum loan value” of the securities being used to secure the loan. Thus, the “margin” is the difference between the “maximum loan value” and the market value of the securities.

The Securities Exchange Act contains no provision for a private cause of action for violation of margin requirements. However, the Act does state:

Every contract made in violation of any provision of this chapter or of any rule or regulation thereunder, and every contract (including any contract for listing a security on an exchange) heretofore or hereafter made, the performance of which involves the violation of, or the continuance of any relationship or practice in violation of, any provision of this chapter or any rule or regulation thereunder, shall be void (1) as regards the rights of any person who, in violation of any such provision, rule, or regulation, shall have made or engaged in the performance of any such contract.15 U.S.C. § 78cc(b).

In the late sixties and early seventies, several courts concluded that a private cause of action for violation of margin regulations is implied in this and other sections of the Act. Serzysko v. Chase Manhattan Bank, 290 F.Supp. 74 (S.D.N.Y.1968), aff’d. 409 F.2d 1360 (2d Cir.1969), cert. denied 96 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180 (1969); Pearlstein v. Scudder & German, 429 F.2d 1136 (2d Cir.1970), cert. denied 401 U.S. 1013, 91 S.Ct. 1250, 28 L.Ed.2d 550 (1971). This right of action included the assertion of margin violations as an affirmative defense since a violator may not enforce its claimed contractual rights nor recover any claimed indebtedness. See Goldenberg v. Bache and Co., 270 F.2d 675 (5th Cir.1959) and Stonehill v. Security National Bank, 68 F.R.D. 24 (S.D.N.Y.1975).

In Pearlstein v. Scudder & German, supra, (Pearlstein I), the court reasoned that the primary purpose of Section 7 (15 U.S.C. §§ 78g) was protection of the economy and that “private actions by market investors are a highly effective means of protecting the economy as a whole from margin violations by [lenders]. . . . ” Pearlstein I, supra at 1140. The court further stated that the danger of permitting a windfall gain to an unscrupulous investor was far outweighed by the deterrent effect that the threat of a damage suit might have. Many cases in this area have relied on Pearlstein I or its reasoning. See e.g. Spoon v. Walston & Co., 478 F.2d 246 (6th Cir.1973); McCormick v. Esposito, 500 F.2d 620 (5th Cir.1974) cert. denied 420 U.S. 912, 95 S.Ct. 834, 42 L.Ed.2d 842 (1975).

Subsequent to Pearlstein I, Section 7 was amended to add subsection (f) (15 U.S.C. § 78g(f)), making it illegal for any person to obtain, receive or enjoy an unlawful extension of credit. The amendment was implemented by Regulation X which prohibits any person from obtaining credit when to do so would cause the lender to violate Regulations T. and U. 12 C.F.R. §§ 224.1-224.6. This regulation and the 1970 statutory amendment occurred after the transactions in the instant case and therefore are not directly applicable. However, the amendment prompted widespread reanalysis of Pearlstein I principles.

On remand; the Pearlstein court noted that in its first opinion emphasis was placed on the fact that the federally imposed margin requirements forbade the extension of undue credit but did not forbid the acceptance of such credit. The court then stated that the effect of the 1970 amendment was to cast doubt on the continued viability of the rationale of its prior holding. Pearlstein v. Scudder & German, 527 F.2d 1141 (2d Cir. 1975) (Pearlstein II). As stated in Schy v. Federal Deposit Insurance Corp., 465 F.Supp. 766, 772-773 (E.D.N.Y.1977):

True, all of the transactions involved here antedated the addition of subsection (f). Thus, any denial of an implied right of action cannot turn on Congress’ latest pronouncement. Freeman v. Marine Midland Bank-New York, supra, [494 F.2d 1334] at 1337 n. 4. However, a fair reading of the amendment is a reaffir-mance by the Congress of its refusal to extend protection to investors through a grant of a right of action against lenders violating the margin requirements. (Footnote omitted).

The Schy court also explored the effect of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), on the rationale of Pearl-stein I. In Cort four factors relevant to the determination of whether a private remedy is implicit in a statute were enumerated as follows:

(1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted;

(2) whether there is any indication, either explicit or implicit, of a legislative intent to create or deny such a remedy;

(3) whether judicial implication is consistent with the underlying purposes of the legislative scheme; and

(4) whether the cause of action is one traditionally relegated to state law.

Applying these guidelines, the Schy court concluded that Section 7 was expressly enacted for macroeconomic objectives and not for the “especial” benefit of the investing public; that Congress considered the need to protect the small investor but failed to provide a right of action, thereby implying an intent to deny such relief; and that a private right of action to enforce the margin regulations is both inconsistent with legislative goals and unnecessary to ensure Congress’ purposes in adopting credit limitations. Thus, under Schy, there is no implied right of action for violation of margin requirements. We agree with Schy.

Accordingly we affirm the judgment in favor of appellee but remand to permit the trial court to enter the judgment in appropriate form.

AFFIRMED.

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


author: DOWNEY, Judge.

text:
    PALM BEACH COUNTY CLASSROOM TEACHERS ASSOCIATION, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Appellee.
    No. 81-639.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.

      Richard H. Frank and John J. Chamblee, Jr., and Mark F. Kelly of Law Offices of Frank, Chamblee & Kelly, Tampa, for appellant.
    Richard L. Oftedal, West Palm Beach, for appellee, School Bd. of Palm Beach County.
   DOWNEY, Judge.

Palm Beach County Classroom Teachers Association (hereafter referred to as CTA) has perfected this appeal from an order of the School Board of Palm Beach County denying CTA’s request for a hearing pursuant to Section 120.57, Florida Statutes (1980).

In 1980 the Florida Legislature passed a Supplemental Appropriations Act, Chapter' 80-411 § 1 Item 52, Laws of Florida (hereinafter referred to as SAA), in which additional funds were furnished to the various county school boards in Florida. The act specifically provided that:

In the expenditure of the above supplemental appropriation for the FEFP (Florida Educational Funding Program) priority shall be given to salary increases for instructional personnel.

CTA, as the certified bargaining representative of a unit of instructional employees employed by the Palm Beach County School Board, requested the Board to reopen negotiations for the purpose of negotiating salary increases for teachers. At that time a collective bargaining agreement already existed between CTA and the School Board. The Board refused the request, whereupon the CTA filed an unfair labor practice charge with the Public Employees Relations Commission. That charge was dismissed by the Commission and CTA appealed to this court. In due course the Commission order was affirmed.

While the unfair labor practice charge was pending before the Commission, CTA requested the School Board to hold an administrative hearing pursuant to Section 120.57, Florida Statutes (1980), to determine the priority for allocation of the funds appropriated in SAA. On January 21, 1981, the Board entered a “Final Order” denying the CTA request for a hearing. In said order the Board found, among other things, that budgetary hearings had been held and a budget adopted on October 1, 1980, which included the allocation and distribution of the supplementary appropriation in question. Further, the Board noted the fact that the modification of agency budgets is exempt from the rule procedures involving rule making and final agency orders under Chapter 120, Florida Statutes. Finally, the order stated that the School Board is governed by the procedures set forth in Chapter 447, Florida Statutes, in allocating the funds received in the SAA.

From the foregoing order CTA has appealed, contending that it was entitled to an administrative hearing pursuant to Section 120.57, Florida Statutes (1980).

We have considered all of appellant’s arguments in support of its contention and find that CTA fails to demonstrate reversible error. We have no difficulty with appellant’s argument that it is the certified bargaining representative of classroom teachers and that in a proper case it is entitled to represent the teachers in matters where their interests are substantially determined. However, we hold that the allocation and disbursement of the funds received through the SAA involves the modification of the agency’s budget which entails neither rule making nor an order within the meaning of those terms as set forth in Section 120.52, Florida Statutes (1980). There was, therefore, no necessity for the Board to provide CTA with a hearing required by Section 120.57.

Accordingly, the order appealed from is affirmed.

BERANEK and HURLEY, JJ., concur.


text:
    C. W. COBB, Appellant, v. LANDMARK FIRST NATIONAL BANK OF FORT LAUDERDALE and Gail Traendly, individually, Appellees.
    No. 81-1007.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    James K. Pedley, Fort Lauderdale, for appellant.
    Robert A. Ware of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee— Landmark First National Bank of Fort Lauderdale.
   PER CURIAM.

Affirmed on the authority of Lamb v. Schmitt, 285 U.S. 222, 52 S.Ct. 317, 76 L.Ed. 720 (1932) and Chauvin v. Dayon, 14 A.D.2d 146, 217 N.Y.S.2d 795 (1961).

DOWNEY, ANSTEAD, and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Leonard Paul HEBB and Charles Ronald Tolliver, Appellees.
    No. 81-1501.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    William T. Laswell of William T. Laswell, P. A., Fort Lauderdale, for appellees.
   PER CURIAM.

This case is hereby reversed and remanded for further proceedings in accord with the decision rendered in State v. Benitez, 395 So.2d 514 (Fla.1981).

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


author: SHARP, Judge.

text:
    Hilmar KRISTENSEN, Petitioner, v. Baerbel KRISTENSEN, Respondent.
    No. 81-946.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    Rehearing Denied Dec. 18, 1981.

      Henry J. Martocci, Cocoa, for petitioner.
    W. Ford Duane of Robertson, Williams, Duane, Lewis & Ranson, P. A., Orlando, for respondent.
   SHARP, Judge.

The petitioner, Hilmar Kristensen, seeks review by certiorari of the trial court’s requirement that both Hilmar and his wife, Baerbel, submit to compulsory, jnental and physical examinations pursuant to Florida Rule of Civil Procedure 1.360. We grant the writ and quash the lower court’s order because the mental and/or physical health of the parties to this dissolution action was not in controversy, and good cause for the examinations was not shown.

We reject respondent’s argument that the mental health of any parent seeking custody of his or her child is in controversy simply because there are allegations that one or the other would be the better parent to have custody. In this case there was no allegation that either Hilmar or Baerbel was unfit to have custody, or that either had any kind of mental or physical illness or condition which would adversely affect his or her ability to be the custodial parent. Under these circumstances, although the “mental and physical health of the parents” is a factor the court should consider in resolving the issue of custody, it is not in controversy until raised by one of the parties in his or her pleadings, or by a proper motion.

Further, Rule 1.360 requires a showing of “good cause” why the forced examination is necessary. No such showing was made here by the respondent. Her motion for the examination of her husband merely asserts in a conclusory way that Hilmar’s mental condition is in issue. The trial judge sua sponte ordered the examination of the wife without any request by the husband. It justified the ordered examination of the husband because he failed to follow the court’s orders and pay it more respect. We are sympathetic to the trial court’s position, but we conclude that behavior which may be appropriate for contempt proceedings does not necessarily translate into “irrational” behavior. We find no basis here to sustain the lower court’s conclusion there was good cause to order either of the examinations.

We agree with our sister court in Gasparino v. Murphy, 352 So.2d 933 (Fla.2d DCA 1977), which quoted the landmark case of Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), that the two requirements of “good cause” and being “in controversy”: *

... are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the ease — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering such particular examination. 379 U.S. at 118, 85 S.Ct. at 242-43.

352 So.2d at 935. Unless the record posits a basis to support these two requirements, the order requiring the examination cannot stand under the Rules, and it constitutes a departure from the essential requirements of law. See City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980); Colonial Penn Insurance Co. v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980); Smith v. Smith, 118 So.2d 792 (Fla. 1st DCA 1960). Accordingly we grant the writ of certiorari and quash the order.

WRIT OF CERTIORARI GRANTED; ORDER QUASHED.

DAUKSCH, C. J. and COBB, J., concur.

      . § 61.13(3)(g), Fla.Stat. (1979).

      . See Paul v. Paul, 366 So.2d 853 (Fla.3d DCA 1979); Roper v. Roper, 336 So.2d 654 (Fla. 4th DCA 1976), cert. denied, 345 So.2d 426 (Fla.1977).

      .The court was apparently upset by various hearsay statements that Hilmar told Baerbel he had bribed this judge and fixed this case.

      . Schottenstein v. Schottenstein, 384 So.2d 933 (Fla.3d DCA), review denied, 392 So.2d 1378 (Fla.1980).


text:
    Anthony C. HANNAH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1638.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Appeal dismissed. Bretti v. Wainwright, 225 So.2d 516 (Fla.1969), as modified, 255 So.2d 266 (Fla.1971); Jones v. State, 362 So.2d 149 (Fla.3d DCA 1978).


text:
    Johnny C. FULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2297.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.

      Bennett H. Brummer, Public Defender and Thomas Trompeter, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Defendant raises five points on appeal; (1) the prosecution’s cross-examination of defendant inquiring whether he was on parole at the time of trial was error, (2) the out-of-court identification of defendant was impermissibly suggestive, (3) the suggestion that defendant’s place of residence was a nearby low-income project was prejudicial error, (4) the evidence was insufficient to support a guilty verdict and, (5) imposing consecutive sentences for burglary and grand theft was error.

As to the first three points on appeal the record is devoid of any specific contemporaneous objection at trial sufficient to preserve the issue for review. An appellate court will not review issues raised on appeal which have never been presented to the trial court except where the error is so fundamental as to amount to a denial of due process. None of the first three points are the kind which may be heard for the first time on appeal. Trushin v. State (Fla.1981) (Case No. 59,378, opinion filed July 30, 1981); Castor v. State, 365 So.2d 701 (Fla.1978); State v. Barber, 301 So.2d 7 (Fla.1974).

We find the remaining points without merit.

Affirmed.


author: BASKIN, Judge. BARKDULL, Judge,

text:
    Antonio FERNANDEZ and Marta Fernandez, his wife, Appellants, v. HENDRY TRACTOR COMPANY, etc., Appellee.
    No. 80-2325.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.

      Horton, Perse & Ginsberg, Lawrence B. Rodgers, Miami, for appellants.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

After Antonio Fernandez was injured in a construction accident, he and his wife sued to recover damages under theories of negligence and breach of warranty. They recovered $101,600 under the negligence count but failed to recover under the count alleging breach of warranty.

The trial court awarded each party his costs pursuant to the counts upon which he prevailed. Appellants contend that they alone were entitled to recover costs, citing section 57.041, Florida Statutes (1979). We agree and reverse.

Section 57.041 provides:

(1) The party recovering judgment shall recover all his legal costs ....

Under that section, only a prevailing party is entitled to recover costs: Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla.1980). In Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754 (1908), the court established the principle that costs should be taxed “as the statutes and rules direct” but reached a different result by virtue of facts which are distinguishable from those presented in the case before us. In Marian-na the prevailing party’s judgment recovered less than the amount sought, and the court perceived the opposing party as having prevailed. In the case before us, however, Antonio and Marta Fernandez clearly prevailed and were thus entitled to recover their costs.

For these reasons, we reverse the costs’ judgment entered in favor of appellee and remand for the entry of a judgment for costs in favor of the prevailing parties, Antonio and Marta Fernandez.

BARKDULL, Judge,

dissenting.

The plaintiffs’ third amended complaint contained four counts. It sought relief against Hendry Tractor and its insurors upon a count of “negligence and a count of breach of warranty and strict liability. Its third count sought recovery against International Harvester and its insurance carriers under a claim for negligence and, in the final count, sought recovery against International Harvester upon a theory of strict liability or implied warranty. Upon a special interrogatory verdict, both International Harvester and Hendry Tractor were exonerated on the breach of warranty counts and, in fact, final judgment was rendered in favor of International Harvester on this verdict. And undoubtedly, if Hendry Tractor had sought a final judgment in accordance with the verdict on the breach of warranty counts it would also have been entitled to a final judgment.

I therefore would affirm the action of the trial judge in permitting Hendry Tractor to, in effect, recover the amount of the cost it expended in successfully defending against the breach of warranty counts. It appears to me that this case is clearly controlled by Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754 (1908), wherein the Supreme Court of Florida held that where a jury found in favor of a plaintiff on one count of the complaint without mentioning the other count its silence was an effectual finding in favor of the defendant and therefore approved apportioning the cost in accordance with the prevailing party as to each count,


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Christina TERRELL, Appellee.
    No. 80-2430.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender, and Robin Greene, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

The defendant-appellee was charged with possession of a fire bomb in violation of Section 806.111, Florida Statutes (1979). The trial court granted her sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) and the state appeals. The order is manifestly erroneous and is reversed.

The motion stated only that the state would not call any expert witness at the trial who could testify that the object carried by Terrell was in fact a fire bomb. It did not even claim, much less demonstrate, that, as the rule requires, “the undisputed facts do not establish a prima facie case of guilt against the defendant.” The motion was therefore clearly insufficient and should have been summarily denied on its face. State v. Pena-Salazar, 405 So.2d 254 (Fla. 3d DCA 1981); State v. Sedlmayer, 375 So.2d 887 (Fla. 3d DCA 1979), and cases cited. Moreover, even the insufficient allegations of the motion were directly contradicted by the state’s traverse, which specifically stated that an appropriate expert witness was indeed available and would appear; Hence, the motion could not properly have been granted for this reason as well. State v. Johnson, 398 So.2d 500 (Fla. 3d DCA 1981), and cases cited; Fla.R.Crim.P. 3.190(d).

We had thought that our countless recent reversals of orders granting “(c)(4)” motions would have impressed — upon trial counsel and trial courts alike — the very limited extent to which these motions are appropriate. Apparently that view was much too sanguine. Therefore we are once again required to and do reverse the order under review and remand the cause for reinstatement of the information and further consistent proceedings.

Reversed.

      . We would have expected, also, appellate counsel to have recognized the requirements of our decisions and the rule, as they plainly apply to this case, by candidly confessing error before us.


text:
    Marcelline BRENNAN, et al., Appellants, v. METROPOLITAN DADE COUNTY, Appellee.
    Nos. 80-2510, 80-2512.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    William Huggett, Greene & Cooper and Joan M. Bolotin, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Susan Trench, Asst. County Atty., for ap-pellee.
    Before SCHWARTZ and NESBITT, JJ. and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of Pinakatt v. Mercy Hospital, Inc., 394 So.2d 441 (Fla. 3d DCA 1981); Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980); Neida’s Boutique, Inc. v. Gabor & Co., 348 So.2d 1196 (Fla. 3d DCA 1977).


text:
    Hazel A. HENDERSON, etc., Appellant, v. Gregory Neal HARSIN, et al., Appellees.
    No. 80-2539.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellant.
    Vernis, Bowling, West, Montalto & Goodman and Richard N. Blank, Miami, for ap-pellees.
    Before NESBITT and JORGENSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of Martinez v. State, 76 Fla. 159, 79 So. 751 (1918); Wall v. Little, 102 Fla. 1015, 136 So. 676 (1931); Lambert v. Higgins, 63 So.2d 631 (Fla.1953); and Riley v. Jackson, 246 So.2d 625 (Fla. 3d DCA 1971).


text:
    Antoinette LaBELLA and Donna LaBella, as parent and natural guardian of Vincent Michael LaBella, a minor, Appellants, v. FOOD FAIR, INC., a foreign corporation, and the State of Florida, Appellees.
    No. 81-537.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.

      Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & DeCastro and Richard A. Sicking, Miami, for appellants.
    Adams, Kelley & Kronenberg and Steven P. Kronenberg, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

In 1973,. Michael LaBella, who is now 85 years of age, was seriously injured in an industrial accident while employed by Food Fair, Inc. He has received permanent total disability workers’ compensation payments ever since. In 1980, alleging they were his dependents and therefore the potential recipients of any compensation benefits payable for his death, LaBella’s wife, daughter and grandson brought an action in the circuit court for a declaratory judgment that the blanket five-year limitation in Section 440.16(1), Florida Statutes (1979) is unconstitutional. The provision states:

440.16 Compensation for death.
(1) If death results from the accident within 1 year thereafter or follows continuous disability and results from the accident within 5 years thereafter, the employer shall pay . . . (emphasis supplied)

The trial court dismissed the complaint and we affirm that decision.

Mr. LaBella has not yet died. There is therefore no way of knowing either (a) whether any of the plaintiffs will survive him or, (b) even more obviously, whether his death will be a result of the 1973 accident. Both of these contingencies must occur for any death benefits to be recovered even if the appellants’ position on the constitutional question were upheld. It is well-settled, however, that Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical “state of facts which have not arisen” and are only “contingent, uncertain, [and] rest in the future.” Williams v. Howard, 329 So.2d 277, 283 (Fla.1976) and cases cited; Robinson v. Town of Palm Beach Shores, 388 So.2d 314 (Fla. 4th DCA 1980); American Indemnity Co. v. Southern Credit Acceptance, Inc., 147 So.2d 10, 11 (Fla. 3d DCA 1962) (“[T]he courts may not be required to answer a hypothetical question or one based upon events which may or may not occur.”); Harris v. Harris, 138 So.2d 376 (Fla. 3d DCA 1962), cert. denied, 146 So.2d 374 (Fla.1962). The clear applicability of this principle to the present situation requires that the judgment under review be

Affirmed.

      . See Sec. 440.16(l)(b), Fla.Stat. (1979).


text:
    AMBASSADOR INSURANCE COMPANY, Appellant, v. Arnold OPER, M.D., Appellee.
    No. 81-1216.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    Anderson & Moss; Daniels & Hicks, Sam Daniels and Patrice A. Talisman, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

This appeal questions the validity of a summary judgment finding that the appellant afforded coverage to the appellee for professional malpractice.

We reverse because it appears from the record that there were material issues of fact relating, first, to whether or not the appellee was an insured and, secondly, to whether or not the claims against him arose out of the course and scope of his employment with the hospital which was the named insured under the policy. Yambo v. General American Life Insurance Company, 400 So.2d 770 (Fla. 3d DCA 1981); State Farm Mutual Insurance Company v. Zisook, 393 So.2d 1191 (Fla. 3d DCA 1981); Villa v. Nationwide Mutual Insurance Company, 354 So.2d 122 (Fla. 3d DCA 1978); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Therefore, for the reasons above stated, the matter is returned to the trial court to receive evidence on these issues.

Reversed and remanded, with directions.


text:
    Tyrone GLADON, Appellant, v. STATE of Florida, Appellee.
    No. 80-576.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellee.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court sentenced the appellant pursuant to the terms of a plea agreement and retained jurisdiction over the first twenty years of appellant’s sentence, pursuant to the terms of Section 947.16(3), Florida Statutes (1979). On appeal appellant challenges the constitutionality of Section 947.16(3), and also asserts that he should have been allowed to withdraw his guilty plea because the trial court did not advise him in advance of its intention to retain jurisdiction.

The supreme court has now upheld the constitutionality of Section 947.16(3). See Borden v. State, 402 So.2d 1176 (Fla. 1981). This disposes of appellant’s contention to the contrary.

The second basis of appeal, however, requires reversal. Appellant’s eligibility for parole was undoubtedly a major factor in his decision to enter a plea of guilty. It is conceded that' appellant was not informed that the trial court could or would retain veto authority over appellant’s parole for twenty years. Fundamental fairness requires that the appellant be allowed to withdraw his plea and the case proceed to trial. There should be no substantial surprises in plea agreements. The retention of jurisdiction was an integral part of the sentence and, in its effect, made the sentence actually imposed upon appellant more severe than the sentence contemplated by the plea agreement and hence the appellant should be entitled to an opportunity to withdraw his plea. Green v. State, 406 So.2d 1148 (Fla.1981). See also State v. Wilson, 395 So.2d 520 (Fla.1981); and Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979). The trial court may either modify the sentence, eliminating retention of jurisdiction or, in the alternative, afford appellant the opportunity to change his plea.

We therefore reverse and remand for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.

MOORE, J., dissents without opinion.


text:
    EDWARD L. NEZELEK, INC., Appellant, v. G. E. DRYWALL, INC., and Larry Leatherwood, Appellees.
    No. 80-1211.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Richard L. Polin, Fort Lauderdale, for appellant.
    Sheldon Golding of Golding & Wagen-heim, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

At the conclusion of a construction project appellee, G. E. Drywall, Inc., sued appellant, Edward L. Nezelek, Inc., the general contractor, to recover for extras which appellee had furnished as a subcontractor. From a judgment for $47,197.29, plus attorney’s fees of $10,000, and costs of $332.47, in favor of Drywall, Nezelek has perfected this appeal.

Four points have been posed by Nezelek for our consideration. We find merit, however, in only one point, concerning the allowance of attorney’s fees. The fee allowed was not determined by the jury which tried the case but by the court after the jury verdict had been rendered. Nezelek contends there was no contract entitling Drywall to attorney’s fees and, in any event, the amount of attorney’s fees was a jury question. We agree with both of those contentions.

The contract between Nezelek and Drywall, in pertinent part, provided:

“Any damage, cost, loss or expense, including counsel fees, suffered or incurred by the contractor [NEZELEK] by reason of or in consequence of the subcontractor’s failure to perform this contract shall be fully chargeable and shall be paid by the subcontractor.”

Obviously, this provision cannot be said to allow Drywall to recover fees in this case. At oral argument counsel for Drywall argued that it was only fair to have the contractual provision work both ways. While conceding the essential fairness of the argument, we must deal with the contract which the parties fashioned for themselves.

Although the allowance of attorney’s fees in a case of this nature would ordinarily require a jury determination, along with the claimant’s other damages (absent a stipulation otherwise), we need not treat that issue since Drywall cannot recover attorney’s fees in this case in any event.

Accordingly, the provision in the judgment allowing Drywall attorney’s fees is reversed and the cause is remanded to the trial court with directions to vacate the attorney’s fees. In all other respects the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

GLICKSTEIN and DELL, JJ., concur.


text:
    Phillip Anthony BRANDLE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1343.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 6, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Stewart J. Bellus and Trela J. White, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Designated a youthful offender, defendant was placed on probation for a period of three years. Subsequently, as a result of a probation violation, the trial court revoked probation and imposed a sentence of eight years.

The order revoking probation is affirmed on the authority of Watson v. State, 388 So.2d 15 (Fla. 4th DCA 1980). The eight year sentence, however, is reversed. Defendant’s designation as a youthful offender as defined by the Florida Youthful Offender Act, Sections 958.011-15, Florida Statutes (1979), requires that a subsequent period of incarceration be consistent with the limitations set forth in the act. See Section 958.05(2), Florida Statutes (1979); Greene v. State, 398 So.2d 1011 (Fla. 1st DCA 1981).

Therefore, the case is reversed and remanded for imposition of a new sentence consistent with this opinion.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


text:
    Adam YOUNG, Appellant, v. JOHN F. KENNEDY MEMORIAL HOSPITAL, Appellee.
    No. 80-1397.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    John R. Young of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    Stephen McAliley and Robert T. Bergin of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Aldana v. Holub, 381 So.2d 231 (Fla.1980); Hernandez v. Garwood, 390 So.2d 357 (Fla.1980) and Ruben v. Kelley, 402 So.2d 1165 (Fla.1981).

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


text:
    Raymond LEARY, Appellant, v. STATE of Florida, Appellee.
    No. 80-2177.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 1981.
    Rehearing Denied Dec. 23, 1981.
    Richard L. Jorandby, Public Defender, and Robert E. Adler, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Debra J. Koury was driving to work alone, in West Palm Beach, early one morning and stopped at a service station. She was approached by appellant, Raymond Leary, who told her that his car had broken down and he needed a ride. She obliged and a short time later Leary asked her to stop the car and let him out. She did so whereupon Leary began slapping her in the face. She ultimately succeeded in exiting the car and ran around to its rear while Leary demanded that she get back in the car. She approached a passerby who indicated the location of a telephone. As she proceeded in its direction Leary drove off in her automobile. Some time later the same day Leary was arrested while still in the automobile in Sebring, Florida.

After the presentation of evidence at Leary’s jury trial for robbery involving a motor vehicle, the court charged the jury on the applicable law, which included the instruction on robbery contained in the standard jury instructions.

Among other things, appellant Leary, argues on appeal that the standard jury instructions neglect to include and define “intent to deprive the owner of his property” as a necessary element of the crime of robbery. He further urges that this deficiency amounts to fundamental error, as he must since there was no proper objection to the charge in the trial court.

We agree that failing to charge on the element of intent is prejudicial error. Bell v. State, 394 So.2d 979 (Fla.1981). We do not agree, however, that it is necessarily error of fundamental proportions. Where, as here, the evidence is clear and undisputed that property is taken from another by the use of force and transported to another locality, the undeniable inference is that there was an intention to deprive the owner of that property. There was neither evidence nor argument raising specific intent as an issue in this case. Under such circumstances failure to instruct on intent does not amount to a deprivation of due process. State v. Smith, 240 So.2d 807 (Fla.1970). The error here was not “fundamental.” Williams v. State, 400 So.2d 542 (Fla.3d DCA 1981). Appellant having failed to preserve the error by appropriate objection we are not obligated to recognize it as an operative factor on appeal. Castor v. State, 365 So.2d 701 (Fla.1978).

The additional points urged for reversal are similarly unmeritorious.

Accordingly, we affirm.

AFFIRMED.

MOORE and HURLEY, JJ., concur.