author: NESBITT, Judge.

text:
    Frances GROBARD, Appellant, v. Alexander GROBARD, Appellee.
    No. 79-1594.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Nelson & Feldman and Theodore R. Nelson, Miami, for appellant.
    Eugene J. Weiss and David Feldman, Miami Beach, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   NESBITT, Judge.

The wife appeals from a final judgment of dissolution denying her lump sum alimony. To ensure the wife’s continued receipt of an award of periodic alimony, the court reserved jurisdiction to impose a charging lien against the husband’s estate upon his demise. We find that the charging lien will not become effective and therefore determine that this deficiency requires the judgment be reversed and the case be remanded to the trial court for determination of lump sum alimony in favor of the wife.

The husband has not cross-appealed from any of the provisions of the final judgment.

This was a childless marriage of some eighteen years. The husband was seventy-four years of age and in good health at the time of the final dissolution. He had an annual income of $25,000 in addition to social security benefits. His net worth is approximately $400,000.

The wife is in her mid-fifties and is employed as a legal secretary on a part-time basis from which she realizes about $4,000 annually. Additionally, she earns $156 per week from rental income. Her net worth is relatively insignificant.

The final judgment awarded the wife a life estate in the marital home and $50 per week in permanent periodic alimony together with the reservation to determine and award her counsel fees and taxable costs. Recognizing the need of the wife to continue to receive payments for her support, the trial court, in its final judgment, retained jurisdiction to determine whether permanent periodic payments should become a charging lien against the husband’s estate in the event of his demise. The trial court based such a reservation upon the case of Ford v. First National Bank in St. Petersburg, 260 So.2d 876 (Fla. 2d DCA 1972), cert. discharged 283 So.2d 342 (Fla.1973).

In Ford v. First National Bank in St. Petersburg, supra, the charging lien was imposed against the husband’s estate at the time of the entry of the final judgment. There are several reasons why the provision purporting to create a charging lien in this case is ineffective. In the first instance, the husband may divest himself of his interests prior to imposition of the charging lien which would not take effect until the time of his death. Secondly, by statute, title to his property, both real and personal, will vest, either testate or intestate, upon the husband’s death, in his heirs or devisees. The effect of this is that the intention of the court and the purpose in reserving jurisdiction will be defeated in that there will be no property titled in the husband’s name against which a charging lien may be imposed.

Section 61.08, Florida Statutes (1979) authorizes alimony in the form of lump sum or periodic or both, the award of which rests within the sound discretion of the trial court. Linares v. Linares, 292 So.2d 63 (Fla. 3d DCA 1974). In this case, an award of lump sum alimony will not impair the husband’s economic status. Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976).

We consider the wife’s appeal from the denial of lump sum alimony meritorious because we are persuaded that it was the intention of the trial court to protect the wife’s future needs through a charging lien which, in this case, is ineffective. An award of lump sum alimony will provide an effective substitute for a charging lien.

Accordingly, the judgment appealed from is affirmed except as it denied the wife’s .lump sum alimony. On remand, the trial court is authorized to determine the amount, time and mode of payment of lump sum alimony to which the wife is entitled.

Affirmed in part, reversed in part.

      . Section 732.514, Florida Statutes (1979) provides that:
      “The death of the testator is the event that vests the right to devises unless the testator in his will has provided that some other event must happen before a devise shall vest.” Section 731.201(8), Florida Statutes (1979) defines the term “devise” to mean “a testamentary disposition of real or personal property . .

      . Section 732.101(2), Florida Statutes • (1979) provides that:
      “The decedent’s death is the event that vests the heirs’ right to intestate property.” Section 731.201(28), Florida Statutes (1979) defines the term “property” to mean “both real and personal property or any interest in it and anything that may be the subject of ownership.”


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Andre Dole BELL, Appellee.
    No. 79-1613.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    No appearance for appellee.
    Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   NESBITT, Judge.

The state appeals from an order suppressing tangible evidence. We find that the questioned evidence was improvidently suppressed and reverse.

The testimony before the trial court was uncontradicted and unrefuted. It showed that police officers of the City of Miami observed the defendant at 4:30 a. m. peering into the first floor window of an apartment from an alley. The residential neighborhood in which he was observed was known by the police officers as a high crime area. No other persons were present in the area. The police left their vehicle and approached the defendant. No verbal communication passed. The defendant turned and ran. The officers pursued and ultimately found him hiding behind some trash containers. Officers detained the defendant and asked him his name. He complied and, with the identification obtained, the officers learned by radio that there was an outstanding bench warrant for his arrest. The defendant was then taken to police headquarters where he was arrested. A search of his person produced cocaine. This is the tangible evidence ordered suppressed by the trial court.

The state contends the officers had articulable founded suspicion to stop and detain the defendant. Some of the factors enumerated by the court in State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978) which may be evaluated by police officers to reasonably suggest a suspect’s possible commission, the existence, or imminence, of a crime are:

The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.

354 So.2d at 1247. To this list may be added, the factor of flight. Flight from police evidences guilt. Gibson v. State, 368 So.2d 667 (Pla. 3d DCA 1979); Monnette v. United States, 299 F.2d 847 (5th Cir. 1962). “Plight invites pursuit and colors conduct which hitherto has appeared innocent.” United States v. Pope, 561 F.2d 663, 668 (6th Cir. 1977).

In this case, the conduct of the defendant at the time and place, an area known for its high crime rate, coupled with his flight, afforded the officers their articu-lable founded suspicion necessary to stop and detain him as contemplated under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The police officers were authorized during the stop and detention of the defendant to ascertain if there was an outstanding warrant for his arrest. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Coney v. State, 341 So.2d 238 (Fla. 3d DCA 1976). The disclosure of a bench warrant authorized the police to arrest the defendant. Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975). Based on a valid arrest, a search of his person was lawful. § 901.21, Fla.Stat. (1979). Contraband seized from a search of his person at police headquarters is clearly admissible in evidence. Dolan v. State, 185 So.2d 185 (Fla. 3d DCA 1966).

Reversed and remanded for further proceedings.


author: PER CURIAM. NESBITT, Judge

text:
    Norman H. MARCUS, Appellant, v. Charlotte C. MARCUS, Appellee.
    No. 79-1783.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Rehearing Denied April 28, 1980.
    Adele T. Weaver, Miami Beach, for appellant.
    Baskin & Sears and Paula S. Gold, Palm Beach, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

We find no abuse of discretion in the special master’s awards, adopted by the court, of permanent alimony and attorney’s fees to the appellee-wife. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla. 1979), adopting dissenting opinion, 352 So.2d 867 (Fla. 3d DCA 1977); Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); Creel v. Creel, 378 So.2d 1251, 1252-53 (Fla. 3d DCA 1979); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979); Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979).

Affirmed.

NESBITT, Judge

(concurring in part and dissenting in part).

I concur in affirming the award of permanent periodic alimony to the wife.

I depart from the majority which requires the husband to pay the wife’s counsel fees. The purpose of Section 61.16, Florida Statutes (1979) is to ensure that both parties have equal ability to employ competent counsel. Cummings v. Cummings, 330 So.2d 134 (Fla. 1976); Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). It is not necessary that one spouse be completely unable to pay attorney’s fees in order to require the other spouse to pay for representation. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). In Canakaris, the husband had an admitted net worth of $3,749,930 while the wife’s net worth prior to dissolution was less than $292,000. In requiring the husband to pay the wife’s attorney’s fees, the court noted the husband’s superior financial ability and the inequitable diminution of the wife’s award which would occur otherwise. In this case, the disparity in the financial ability and the inequities found in Canakaris are not present.

In Cummings v. Cummings, supra; Scattergood v. Scattergood, 363 So.2d 601 (Fla. 4th DCA 1978); and Mertz v. Mertz, supra, the courts recognized that where the parties stand on equal footing and the parties have ability to pay for the services of their own attorneys, it is improper to require the other party to pay for those services even though that party may have the ability to do so.

In this case, before the final hearing, the wife filed a financial statement in connection with a loan application representing her total assets to be $232,000. Whatever the wife’s net worth actually was, it is undisputed that she had liquid assets of $118,500. The final judgment awarded her personalty, formerly held as tenants by the entirety, worth a minimum of $40,000. The husband’s net worth was $279,240.43. His net annual income was $60,000, of which more than one-third was awarded to the wife as permanent periodic alimony. Under the test, the wife was financially able to employ counsel of equal calibre to that of her husband’s.


author: PER CURIAM.

text:
    Ira HAND, Appellant, v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC., a Foreign Corporation, Appellee.
    No. 79-1809.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    William H. Roundtree, Cocoa, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellee. ‘
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The plaintiff appeals from an order dismissing, for improper venue, an action on an insurance policy issued by the defendant-appellee. The record shows, and the carrier admits, that it is a foreign corporation which is not doing business in Florida. Since this is the case, the defendant has no venue privilege, and a transitory action like this one may therefore be maintained against it in any county in the state. § 47.011, Fla.Stat. (1977); Hollywood Memorial Park, Inc. v. Rosart, 124 So.2d 712 (Fla. 3d DCA 1960); cf. § 47.051, Fla.Stat. (1977). Accordingly, we reverse the order below, without prejudice to the consideration by the trial court of any appropriate defense motion to transfer the cause under the “forum non conveniens” statute. § 47.-122, Fla.Stat. (1979).

Reversed and remanded.


author: PER CURIAM. BOOTH, Judge,

text:
    Michael R. FESTA, Appellant, v. TELEFLEX, INC. and Reliance Insurance Company, Appellees.
    No. QQ-431.
    District Court of Appeal of Florida, First District.
    April 2, 1980.
    Rehearing Denied May 28, 1980.
    Jim D. Syprett, of Crabtree, Butler, Sy-prett & Meshad, Sarasota, for appellant.
    Richard R. Crooke, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   PER CURIAM.

Festa seeks review of an order from the judge of industrial claims finding that he did not suffer an occupational disease or a compensable accident. We reverse.

Festa began working for Teleflex, Inc. in January or February 1978. He made plastic plugs by first releasing molten plastic into a mold and then removing the excess plastic from the plug be pulling it off with pliers. This required a twisting and turning action of the wrist while exerting 30-40 lbs. of pressure, and Festa made from 500-900 plugs per workshift. The job was ordinarily performed by two persons, but Festa worked alone for approximately 45 days before he began experiencing difficulties with his hands.

Around June 2, 1978, the fingers of Fes-ta’s right hand began to get numb; he switched to using his left hand, and the fingers of his left hand became numb. He reported this to his employer and saw Dr. Grindal, a neurologist, on June 26, 1978.

Dr. Grindal testified that Festa’s underlying diabetic condition could have weakened the wrist area, making Festa more susceptible to damage from the repeated trauma, but the primary factor in the development of the carpal tunnel syndrome was Festa’s work.

The judge of industrial claims held there was no competent, substantial evidence upon which to award benefits for disability arising out of an occupational disease and that Festa had not suffered an accident within the meaning of the Act. Because we hold that claimant did suffer an accident, we do not rule on the question of occupational disease.

Florida has a long, well established history of awarding compensation benefits to workers who are injured by exposure to deleterious substances. Orr v. Florida Industrial Commission, 129 Fla. 369, 176 So. 172 (1937) [intense heat]; Meehan v. Crowder, 158 Fla. 361, 28 So.2d 435 (1946) [exposure to mercury]; Czepial v. Krohne Roofing Co., 93 So.2d 84 (Fla.1957) [exposure to dust and fumes]. However, benefits have almost routinely been denied to workers whose injuries resulted from repeated minor traumas. S.H. Kress & Co. v. Burkes, 153 Fla. 868, 16 So.2d 106 (1944) [tenosynovitis caused by constant and repeated strain]; Tyler v. Homestead Canning Co., 5 FCR 58 (1962) [tenosynovitis from peeling tomatoes].

In Keller Building Products of St. Petersburg v. Shirley, IRC Order 2-3263, cert. denied 362 So.2d 1054 (Fla.1978), the IRC resolved this disparate treatment by classifying repeated trauma as a facet of exposure, thereby bringing repeated trauma cases within the ambit of the exposure rationale. In Keller, the Commission implicitly overruled the previous cases holding that injuries resulting from repeated trauma were not compensable, e. g., Dependable Air Conditioning and Appliances, Inc. v. Topper, IRC Order 2-2927, cert. denied 341 So.2d 293 (Fla.1976); Wanczak v. Winn Dixie Stores, Inc., 6 FCR 77 (1966) when it stated, “We can find no reason in logic for distinguishing this type of case from one where the employee is exposed to a deleterious substance associated with his employment.” 2-3263 at 6. Keller, therefore, provides us with a new and more realistic method for analyzing repeated trauma cases; a method which is logically consistent with the purpose of workers’ compensation: to compensate workers who suffer job related injuries.

In order to bring together and clarify the exposure rationale, we here review the principles established.

The initial Florida case involving injury by exposure was Orr, supra, wherein the claimant suffered heat exhaustion and died. In awarding benefits to the widow, the court stated:

If the heat exhaustion arose out of the employment, as well as in its course, we think it is clear that any harmful effect upon the physical structure of the body of the employee, which was a proximate result of it, is an accident under our statute. ... In connection with the sort of accident here involved, the principle to which most authorities give assent is that the harmful condition does arise out of the employment, if, in the performance of the duties for which he was engaged, in the manner required or contemplated by the employer, it is necessary for the employee to expose himself to a danger, materially in excess of that to which people commonly in that locality are exposed, . . . and that such excessive exposure may be found to have been the direct cause of the injury, though operating upon other conditions of common exposure. . . .

Id. at 173.

Subsequently, in Czepial, supra, compensation was awarded to a worker whose preexisting tuberculosis was exacerbated by the constant inhalation of dust and fumes from his work. The court noting that the inhalation was a hazard to which the public was not ordinarily exposed, found a direct causal connection between the injury and the exposure and stated:

The fundamentally accidental nature of the injury is not altered by the fact that, instead of a single occurrence, it is the cumulative effect of the inhalation of dust and fumes to which a claimant is peculiarly susceptible that accelerates a claimant’s pre-existing disability.

Id. at 86.

In Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581, 588 (Fla.1962), the court reviewed the law in this area pointing out the exposure claimant must show he was “subjected to more than the ordinary hazards confronting people generally” but no cases required “that the ill effects of the exposure must occur suddenly and be immediately related to an identifiable incident.” See also, Brito v. Advance Metal Products, Inc., 244 So.2d 428, 429 (Fla.1971).

In Worden v. Pratt and Whitney Aircraft, 256 So.2d 209 (Fla.1971), the court took a different approach. Worden developed cataracts from looking into a high intensity furnace over a period of several years. The court ruled that the cataracts were the result of repeated accidents arising out of and in the course of his employment.

In summary, for a claimant to recover under the exposure theory of accident, he must show 1) prolonged exposure, 2) the cumulative effect of which is injury or aggravation of a pre-existing condition and 3) that he has been subjected to a hazard greater than that to which the general public is exposed. Alternatively, he must demonstrate a series of occurrences, the cumulative effect of which is injury. Worden, supra. These same theories should be applied in cases involving injuries resulting from repeated trauma.

Here, Festa was daily subjected to repeated trauma; the twisting and turning action of the wrists over a prolonged period, which produced the disability. The medical testimony established the requisite causal connection, and the nature of the work exposed Festa to more than the ordinary hazard confronting people generally. His injury was compensable.

Reversed and remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla.1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Randall Charles WHEELUS, etc., et al., Appellees.
    No. 77-2263/NT4-78.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.

      Janis M. Halker of Gurney, Gurney & Handley, P. A., Orlando, for appellant.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   PER CURIAM.

This case is no stranger to the Court. It is here today because of its dismissal for lack of prosecution. We affirm.

The relevant history centers on the time frame between July 15, 1976 and August 5, 1977. On the former date GEICO filed its response to a request to produce. There is a void in record activity until August 5, 1977 when, the defendants Floyd and Florida Coca Cola Bottling Company filed their motion to dismiss for lack of prosecution. GEICO responded by filing a notice for trial on September 6, 1977. Defendants’ motion for dismissal was heard and granted on September 7, 1977 and thereafter the trial court denied a petition for rehearing.

Appellant’s sole contention on appeal is that the trial court abused its discretion by not considering GEICO’s notice for trial which was filed after the motion to dismiss. We disagree. This very issue was considered by the Supreme Court in Chrysler Leasing Corporation v. Passacantilli, 259 So.2d 1, 4 (Fla.1972) where the court said:

(N)either the statute nor the rule contemplates that a party may show “prosecution” by filing a pleading after a motion to dismiss is made by the other side. The underlying purpose of the rule, (as of its predecessor, Fla.Stat. § 45.19, F.S.A.), is to expedite the course of litigation and keep dockets as nearly current as possible by penalizing those who would allow litigation to become stagnant. To permit a party to show “action” by filing a pleading subsequent to a motion to dismiss for want of prosecution would effectively emasculate the rule by eliminating its penalty aspect. A party could delay the progress of the action for an indefinite period of time in the knowledge that when his adversary moved to dismiss under the rule, he could prevent dismissal merely by filing some pleading, motion or affidavit. That is, a party could avoid dismissal in every case by acting after the motion was made, whether or not he had prosecuted the action during the previous year, or could show good cause for his failure to do so. The threat of dismissal would cease to have any real deterrent effect in terms of requiring a party to keep a case moving. (Citations omitted.)

Under Rule 1.420(e), Fla.R.Civ.P., the court is required to look back from the filing date of the motion to dismiss and first determine whether “ . . .it appears on the face of the record that no activity . . . has occurred for a period of one year '. ..” If a year-long void in record activity is found to exist, the cause shall be dismissed “ . . . unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending.” In the case at bar, the trial court was correct in directing its focus back from August 5, 1977, the filing date of defendants’ motion to dismiss, and in excluding GEI-CO’s subsequently filed notice for trial. Accordingly, the order of dismissal is affirmed.

DOWNEY, JAMES C., HERSEY, GEORGE W., and HURLEY, DANIEL T. K., Associate Judges, concur.

      . Government Employees Insurance Co. v. Wheelus, 270 So.2d 409 (Fla. 4th DCA 1972) and Government Employees Insurance Co. v. Wheelus, 319 So.2d 181 (Fla. 4th DCA 1975).


author: GLICKSTEIN, Judge.

text:
    DEVOE & RAYNOLDS COMPANY, INC., Appellant, v. KDS PAINT COMPANY, INC., and Larry E. Katz, Individually, Appellees.
    No. 79-1118.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    John L. Britton of Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz, Miami, for appellant.
    Peter S. Penrose of Bassett and Penrose, and J. David Lynch of Andrews & Lubbers, Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

This is a timely interlocutory appeal from a non-final order dissolving a pre-judgment writ of replevin which had been obtained pursuant to Section 78.068, Florida Statutes (1977). The sole issue to be considered at this time is whether the procedure followed by the trial court in dissolving the writ was proper.

The record reflects that appellant filed a verified complaint and motion for pre-judgment writ of replevin, posted a replevin bond in the sum of $150,000, obtained an order directing the clerk to issue the writ as well as the writ for “All DEVOE PAINT inventory presently in possession of the Defendant,” and had the subject paint replev-ied and delivered to it.

On May 14, 1979, the same day on which appellant acquired possession of the Devoe paint, appellees served, by mail, upon appellant their motion for dissolution of the prejudgment writ and appeared before the trial court to argue the motion. Appellees concede that the only notice appellant was given of appellees’ intention to argue their motion on May 14th was a telephone call. The record on appeal is devoid of any evidence that written notice of the hearing was given.

Section 78.068(6), Florida Statutes (1977), provides:

The defendant, by contradictory motion filed with the court within 10 days after service of the writ, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued. The court shall set down such motion for an immediate hearing. This motion shall be in lieu of the provisions of subsection (4).

Telephoning opposing counsel to inform him of an intention to argue a motion served on opposing counsel by mail on the same day as the intended argument was surely not the procedure contemplated by subsection (6), supra. Moreover, the procedure here was in direct violation of Rule 1.090(d), Florida Rules of Civil Procedure, constituted a denial of due process and was, for all practical purposes, an ex parte consideration of appellees’ motion. Absent extraordinary circumstances, proper notice should include written notice served a reasonable time before the time specified for the hearing. The appellees have failed to demonstrate the existence of any such extraordinary circumstances here.

Accordingly, the subject order is reversed and the cause remanded for consideration of appellees’ motion for dissolution of the pre-judgment writ of replevin upon the giving of proper notice to appellant.

REVERSED and REMANDED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . 78.068 Prejudgment writ of replevin

      (1) A prejudgment writ of replevin may be issued and the property seized delivered forthwith to the petitioners when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition or by separate affidavit of the petitioner.
      (2) This prejudgment writ of replevin may issue if the court finds, pursuant to subsection (1), that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action or that the defendant has failed to make payment as agreed.
      (3) The petitioner must post bond in the amount of twice the value of the goods subject to the writ or twice the balance remaining due and owing, whichever is lesser as determined by the court, as security for the payment of damages the defendant may sustain when the writ is obtained wrongfully.
      (4) The defendant may obtain release of the property seized under a prejudgment writ of replevin by posting bond within 5 days after serving of the writ in the amount of one and one-fourth the amount due and owing on the agreement for the satisfaction of any judgment which may be rendered against him.
      (5) A prejudgment writ of replevin shall issue only upon the signed order of a circuit court judge or a county court judge.
      (6) The defendant, by contradictory motion filed with the court within 10 days after service of the writ, may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued. The court shall set down such motion for an immediate hearing. This motion shall be in lieu of the provisions of subsection (4).

      .The constitutional sufficiency of the procedures required by Section 78.068, Fla.Stat. (1977), was upheld in Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978).

      . Fla.R.Civ.P. 1.090(d) .provides: “A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.”

      . Brooker v. Smith, 101 So.2d 607 (Fla. 2nd DCA 1958); State, Dept. of Transportation v. Plunske, 267 So.2d 337 (Fla. 4th DCA 1972).

      . Hilton v. Florio, 317 So.2d 83 (Fla. 3rd DCA 1975); Lieberman v. Marshall, 236 So.2d 120 (Fla. 1970).

      . See Polland v. Visual Graphics Corp., 240 So.2d 835 (Fla. 3rd DCA 1970).


text:
    Jeffrey Scott GADDIS a/k/a Crosby Roy Crawford, Appellant, v. STATE of Florida, Appellee.
    No. 79-1278.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    Rehearing Denied April 23, 1980.
    Howard M. Zeidwig and Richard Shan-kweiller, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehrie, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Town v. State ex rel. Reno, 377 So.2d 648 (Fla.1979).

ANSTEAD, MOORE and HERSEY, JJ., concur.


text:
    Hazel Lee MILLER, Appellant, v. Louis Smart MILLER, Appellee.
    No. 78-1026/T4-107.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    Walter Komanski of Legal Aid Society of Orange County Bar Association, Inc., Orlando, for appellant.
   PER CURIAM.

The order of the trial court denying the appellant’s motion for attorneys’ fees is reversed on the basis of this court’s recent ruling in Butler v. Butler, 376 So.2d 287 (Fla. 5th DCA 1979). This cause is remanded for further proceedings consistent with the views expressed in Butler, supra.

REVERSED AND REMANDED.

CROSS, UPCHURCH and SHARP, JJ., concur.


author: UPCHURCH, Judge. COBB, Judge,

text:
    In the Interest of G. G. P., a child.
    No. 78-1095/T4-115.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.

      Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, and Denise Banjavic, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPCHURCH, Judge.

This is a consolidated appeal from two orders of adjudication of delinquency and two orders of disposition whereby appellant was committed to the Department of Health and Rehabilitative Services for an indeterminate period of time not to go beyond his twenty-first birthday.

We REVERSE.

A single question is presented by this appeal: should the trial court have granted a motion to suppress a confession induced by an implied promise of immunity?

To be admissible in evidence, a confession and statements in the nature thereof must be freely and voluntarily made. At the time of the confession, the mind of the defendant must be free to act uninfluenced by either hope or fear. Frazier v. State, 107 So.2d 16 (Fla.1958). In determining the voluntariness of a statement, the court must consider the “totality of the circumstances”. Reddish v. State, 167 So.2d 858 (Fla.1964); Williams v. State, 156 Fla. 300, 22 So.2d 821 (1945). If the totality of the circumstances were calculated to delude the accused or to exert undue influence over him, the confession must be excluded; if the actions of the interrogator were such that they induced the accused to confess by threat or by promises of a benefit, thus rendering the confession untrustworthy, then the statement should be excluded. See Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977). Upon review, the appellate court will not usually disturb the decision of a trial judge on admission of the confession if there is evidence to support its admission. If it appears prima facie that the confession was freely and voluntarily made, then the burden is upon the defendant to show that it was in fact not a voluntary confession. Cochran v State, 117 So.2d 544 (Fla. 3d DCA 1960).

Appellant offered to provide information about some burglaries to a St. Cloud police officer. The officer proposed an arrangement whereby appellant, who had worked with, the officer on other cases, would be granted immunity if he gave information about the burglaries. After several interviews, the St. Cloud officer asked appellant to talk to an Osceola County deputy. Unknown to appellant or to his mother, who had been present at some of the interviews, the St. Cloud officer had given to the Osceola Sheriff’s Office the information provided by appellant. Appellant admits that the Osceola deputy advised him that any promises made by the St. Cloud officer would not be binding on Osceola County.

The evidence considered by the trial court on the motion to suppress consisted of two taped interviews. In the first interview, appellant was given and stated that he understood, his Miranda rights. He was then questioned and confessed to involvement in several burglaries. In the second interview, appellant was asked whether anyone had promised or threatened him in any fashion. Appellant answered that the St. Cloud officer had promised he would talk to the judge and the “cops,” including those in other counties, so that appellant would definitely not have to go to Youth Hall. He also stated that his mother and an Officer Jolly were present at the time the promises were made. The tape clearly shows that appellant believed that the promise of immunity made by the St. Cloud officer covered all the burglaries. If such a belief were reasonable under the circumstances, then appellant’s confession must be excluded.

Appellee contends that appellant understood that the Osceola deputy would not be bound by the promises of the St. Cloud officer; however the disclaimer was not recorded. This omission is surprising because the purpose of the question regarding promises or threats is to insure that the statement is not later excluded as being coerced. Recording the disclaimer should have been mandated because appellant’s belief that a promise had been made was on tape. Appellant’s belief that immunity extended to all crimes was reasonable in view of the attendant circumstances, especially the fact that the St. Cloud officer transmitted the information to the Osceola Sheriff’s Office without the knowledge or consent of appellant or his mother. Without that information, the Osceola deputy would not have directed his investigation toward appellant. While promising immunity on the one hand, the St. Cloud officer became the initiating force of appellant’s prosecution in another jurisdiction.

It is unreasonable to expect one of appellant’s age and position to fully comprehend the jurisdictional limits of the various officers. Unless it could be effectively and clearly demonstrated that appellant understood that the Osceola deputy would not cooperate with the St. Cloud officer and would not be bound by that officer’s promises or any other promises, the disclaimer would not be sufficient to attentuate the “taint” of the original promise. Such was not the quality of the disclaimer in this instance. Appellant’s belief in the promise of immunity was reasonable under the circumstances and the statements which resulted should have been suppressed.

The orders of adjudication of delinquency and the orders of disposition of the lower court are REVERSED.

SHARP, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

The defendant, G.G.P., was seventeen years of age when he discussed with a St. Cloud police officer burglaries committed within that city. Immunity was promised in regard to those offenses.

The subsequent interviews with the officer of the Sheriff’s Department related to burglaries committed outside the municipality of St. Cloud. These interviews, which resulted in the taped confessions sought to be suppressed, admittedly were preceded by Miranda warnings to the defendant and an express admonition that any promises made by the St. Cloud policeman were not binding in regard to the interviews being conducted by the county officer. Indeed, it was the uncontroverted testimony of the county officer that, prior to the taped interviews, he expressly warned defendant “that we couldn’t honor promises made by another agency; if the agency indeed made promises, they had no right to do so. They were wrong in doing so, if indeed they had.”

At the hearing on the motion to suppress, the defendant admitted the Osceola deputy had warned him that promises made by the St. Cloud officer would not be binding on Osceola County. Nevertheless, the defendant “figured” that the St. Cloud officer would talk to the county deputy later. This is not sufficient to render a confession involuntary.

The fact that the “disclaimer” was not recorded on the tape may have been poor judgment by the officer, but since the warning was admitted by the defendant in open court at the suppression hearing, that omission is of no significance.

The defendant was no stranger to the juvenile court system, and it did not require a sophisticated criminal of mature years to comprehend the warnings of jeopardy in regard to the county interviews. The fact that the defendant may have hoped for an extension of the immunity granted by the city does not support suppression of the confessions, which the trial court found to be knowing and voluntary after a due process hearing. The record here reveals no threats, coercion, express or implied promises by the interrogating county officer in regard to these offenses, nor other improper inducement.

In Fillinger v. State, 349 So.2d 714 (Fla. 2d DCA 1977), relied upon by the majority, the investigating police officer, as an inducement to the defendant to confess, told her he would advise the State Attorney of her cooperation and that it would be a consideration favorable to her in establishing the amount of her bond. This was held to be a promise of benefit that rendered the confession untrustworthy. In other words, the defendant was promised that her confession would expedite her release from custody. In the instant case, the defendant was promised absolutely nothing in return .for his confessions relating to burglaries outside of St. Cloud; indeed, he was expressly warned that any immunity deal he had made with the municipal officer did not carry over. His hope that the St. Cloud officer would help him later was not wrongfully induced or coerced by the interrogator; it was an independent strategical judgment on the defendant’s part as to his ultimate best interests, as are almost all custodial confessions.

The true test as to voluntariness of confessions was lucidly spelled out by the Florida Supreme Court in Frazier v. State, 107 So.2d 16 (Fla.1958). In that case, a deputy suggested to a defendant that he should confess and that it would be best for him to do so. There was no threat or specific promise of reward. In affirming the trial court’s denial of the motion to suppress, the Supreme Court adopted its earlier statement from Thomas v. State, 92 So.2d 621, 623 (Fla.1957), certiorari denied, 354 U.S. 925, 77 S.Ct. 1389, 1 L.Ed.2d 1440, where a confession was made to an assistant state attorney after an hour of questioning at the jail:

Exhortations to tell the truth, while under arrest, absent duress, threats, compulsion, hope of reward or benefit, do not render a statement involuntary. .

The Frazier opinion then clarifies the reference to “hope of reward or benefit” by observing that this must arise from the specific language used by the interrogator, and also depends on warrantable inferences drawn from the language and circumstances. The test is whether “the confession may be untrustworthy because it hás been associated with an attraction too strong to resist.” Citing from III Wigmore on Evidence, Section 831, the Florida Supreme Court quoted:

The current rules or tests, for determining what kind of inducement suffices to exclude, are three . :
(1) the first is, was the inducement of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity?
It has been seen (ante, § 824) that the first test is the only rational and correct one.

In Burch v. State, 343 So.2d 831 (Fla. 1977), the Florida Supreme Court considered the admissibility vel non of a murder confession given by an accused, after Miranda warnings, who was given a pretended polygraph test and told that it was inculpatory, and who was advised by the interrogating officer to consider the difference between a capital crime and a seven-to-twenty year sentence in determining whether to confess and explain the circumstances. In holding that this confession was not the product of coercive circumstances, the Court primarily relied upon Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

It is difficult, if not impossible, to reconcile Burch and Fillinger; it is unnecessary to attempt to do so since the former is a Florida Supreme Court case and the latter is not.

The circumstances in the instant case are far less coercive than in Burch, and, indeed, no false representations were made to the minor defendant herein. The record does not indicate that false confessions were extracted from him by attractions too strong to resist. Moreover, the finding by the trial court of voluntariness is presumably correct for purposes of appellate review. Davis v. State, 90 Fla. 317, 105 So. 843 (1925). An appellate court should not substitute its evaluation of the evidence for the factual determinations made by the trial court.

I would affirm.


author: PER CURIAM. BOOTH, J.,

text:
    George BLAINE, Appellant, v. PAKS FOOD STORE, a Self-Insured and Corporate Group Service, Appellees.
    No. QQ-77.
    District Court of Appeal of Florida, First District.
    April 3, 1980.
    Ira J. Druckman, P. A., Miami, for appellant.
    George A. O’Brien, Miami Shores, for ap-pellees.
   ON PETITION FOR REHEARING

PER CURIAM.

This court’s opinion issued 1/30/80 is withdrawn.

Blaine requests review of the order of the judge of industrial claims which denied him benefits. We reverse.

Blaine slipped on a wet floor and fell injuring his lower back while removing beer from a cooler during his employment at Paks Food Store. The injury resulted in a 5% permanent partial disability rating.

When Blaine completed his pre-employment application, he failed to complete the answer to the question of whether he had any chronic ailments or defects. Subsequently, the workers’ compensation carrier asked the employer to obtain a new form from employees, and Blaine did not complete this form until after the accident. On this form, he did not respond to a question involving job-connected disabilities or injuries. In fact, Blaine had suffered two previous job-connected injuries: a fractured skull resulting in a 25% disability rating; and a cervical injury resulting in a 10-15% disability rating. The employer argues that Blaine’s misrepresentation on his employment applications precludes his receipt of workers’ compensation benefits.

In Martin Co. v. Carpenter, 132 So.2d 400, 406 (Fla.1961), the Supreme Court established the standards by which misrepresentations in employment applications are to be judged:

[A] false representation as to physical condition or health made by an employee in procuring employment will preclude the benefits of the Workmen’s Compensation Act for an otherwise compensable injury if there is shown to be a causal relationship between the injury and the false representation and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation and (3) such reliance resulted in consequent injury to the employer.

In Martin, the falsification was clearly knowledgeable, and a causal link existed between the prior and current injuries. However, the court found the employee was entitled to benefits because the employer did not show reliance. Under Martin, all elements must be present before benefits are precluded. See also Georgetown Manor Furniture Co. v. Smith, 281 So.2d 18 (Fla. 1973). Here, the record does hot contain competent, substantial evidence of a causal relationship between the injuries and the false representations, nor does it support that the prior injuries contributed to or were aggravated by this accident.

The petition for rehearing is granted; the order is reversed and remanded for proceedings consistent with this opinion.

MILLS, C. J., and McCORD, J., concur.

BOOTH, J., dissents with opinion.

BOOTH, J.,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author:
PER CURIAM.
      BOOTH, Judge,

text:
    SUPER FOOD SERVICES, INC. and Fireman’s Fund Insurance Company, Appellants, v. Roger Lee BARNES, Appellee.
    No. QQ-255.
    District Court of Appeal of Florida, First District.
    April 3, 1980.
    Thomas M. Burke, of Rumberger, Kirk & Caldwell, Orlando, for appellants.
    Robert E. Buckmaster and Donna L. Berg, of Walker & Buckmaster, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: MILLS, Chief Judge.

text:
    Quincy HILTON, Appellant, v. GUERDON INDUSTRIES, INC., and Gab Business Services, Inc., Appellee.
    No. QQ-333.
    District Court of Appeal of Florida, First District.
    April 3, 1980.
    Johnnie W. Chalkley, III, Ocala, for appellant.
    Barry D. Graves, Gainesville, for appellee.
   MILLS, Chief Judge.

Claimant in a workers’ compensation proceeding appeals the determination by the Judge of Industrial Claims that he “failed to show by competent substantial evidence that any of his permanent disability is caused by an employment related accident.” We reverse.

The record reveals and the JIC found that Quincy Hilton, the claimant, had contracted emphysema, that the emphysema had been caused by his thirty-three years of smoking cigarettes, and that the pre-exist-ing emphysema had been aggravated by his inhaling of masonite dust at his employment. Furthermore, the order stated that Hilton had a 75 percent permanent partial disability as a whole because of the emphysema and that though the doctor whose opinion was accepted by the JIC had declined to assign any of the disability to the inhalation of the masonite dust, that doctor was of the opinion that the masonite dust was a contributing factor to the disability along with other irritating agents.

The findings of fact set forth in the preceding paragraph lead inexorably to the conclusion that Hilton did establish that some of his permanent disability was caused by an employment related accident as accident was defined by the Florida Supreme Court in Czepial v. Krohne Roofing Company, 93 So.2d 84 (Fla.1957). There the court specifically ruled that where the constant inhalation of dust and fumes directly contributes to the acceleration or aggravation of a pre-existing disease, the claimant has suffered an injury “by accident” for which compensation is due even though the inhalation of dust and fumes was not the sole cause of his disability. Specifically agreeing with cases from other jurisdictions, the Supreme Court held that:

. . the fundamentally accidental nature of the injury is not altered by the fact that, instead of a single occurrence, it is the cumulative effect of the inhalation of dust and fumes to which a claimant is peculiarly susceptible that accelerates a claimant’s pre-existing disability.”

We hold that the claimant here, Quincy Hilton, is entitled to an award of compensation for that proportion of the aggravation of his emphysema that is reasonably attributable to his inhalation of masonite dust in the course of his employment. Accordingly, we reverse and remand with directions that the Deputy Commissioner enter an appropriate compensation order consistent with this opinion, taking additional testimony or other evidence if necessary. In addition, the denial of attorney’s fees by the JIC is reversed and remanded for reconsideration in light of this opinion.

ERVIN and SHIVERS, JJ., concur.


text:
    Maxie SINGLETON, Appellant, v. RTM MASONRY COMPANY and Federal Insurance Company, Appellees.
    No. QQ-394.
    District Court of Appeal of Florida, First District.
    April 3, 1980.
    George E. Loomis and Eilon Krugman-Kadi of Barton & Cox, Gainesville, for appellant.
    Bruce R. Raster of Pattillo, MacKay & McKeeever, Gainesville, for appellees.
   PER CURIAM.

AFFIRMED.

ROBERT P. SMITH, Jr. and SHAW, JJ., concur.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: BOOTH, Judge.

text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Edward DUNCAN, Appellee.
    No. LL-192.
    District Court of Appeal of Florida, First District.
    April 8, 1980.

      Earl H. Archer, III, Tallahassee, for appellant.
    Augustus D. Aikens, Jr., Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal by the Department of Corrections (DOC) from the order of the Career Service Commission (CSC) which reinstated the employee, appel-lee herein, with full back pay, less a credit for a one month suspension.

The facts are that the employee was hired July IT, 1973, as a correctional counselor by the predecessor of the agency now titled “Department of Corrections.” On October 6 and 10 of 1977, the employee committed the acts which led to his suspension and ultimate dismissal from employment. On October 18, 1977, Edward T. Bosman, Correctional Counselor Chief I, wrote the employee a letter which notified him of the following: (1) that the employee was suspended without pay due to the incidents of October 6 and 10; (2) that Bosman was recommending to the superintendent that the employee be terminated due in part to the incidents of October 6 and 10, and (3) that “you [employee] will be advised — by registered letter — of the disposition of this matter.”

Thereafter, by letter dated October 26, 1977, from L. D. Jerrell, Acting Superintendent, the employee was advised that his employment was terminated and the reasons therefor. This letter also advised him of his right to appeal to CSC.

The employee appealed to CSC and on August 10, 1978, that agency entered its opinion and order setting out findings of fact with regard to the charges against the employee, concluding that the charges were true, affirming the suspension period but reversing the dismissal, stating:

This Commission has consistently held that an agency lacks the authority to discipline an employee twice for a single offense and, further, that to do so is fundamentally unfair. ... It, therefore, is the opinion of this Commission that the Agency had good and just cause to take disciplinary action against the Appellant. However, the Agency elected to suspend the Appellant and then upon further reflection, decided to impose an additional punishment. Accordingly, we are of the opinion that this action placed the Appellant twice in jeopardy for the same offense.

On appeal to this court the CSC relies on the prior opinion of this court in DOT v. Career Service Commission, 366 So.2d 473 (Fla. 1st DCA 1979), wherein this court held:

The same offense may be a proper ground for either a suspension or a dismissal but the statute and rules contemplate that these are mutually exclusive disciplinary alternatives. Otherwise, an agency could repeatedly punish an employee and the employee would never be secure in his employment. By this, we do not mean that an agency in an appropriate case, with proper notice to an employee, may not temporarily suspend an employee for the purpose of concluding its investigation of misconduct and for the purpose of arriving at just disciplinary action. Nevertheless, having concluded its investigation and reached its decision as to the disciplinary action it will administer to an employee, the disciplinary action administered may not be increased at a later date nor may an agency discipline an employee twice for the same offense.

In the instant case, the letter of October 18, 1977, was notice to the employee that his suspension was for the purpose of determining the disposition of Mr. Bosnian's recommendation of dismissal. An agency may suspend an employee for a period of time necessary for the agency’s investigation, deliberation and disposition of the charges against him. The public interest would be ill-served by a rule requiring the employing agency either keep the employee on the job pending investigation and determination of disciplinary charges or discharge him outright in a precipitous fashion. It is only where suspension is used as a disciplinary measure in itself and followed by discharge, or other separate discipline, based on the same incident that the prohibition of DOT v. Career Service Commission, supra, applies.

Accordingly, the order sought to be reviewed is quashed and the cause remanded for further proceedings consistent herewith.

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

      . CSC Opinion and Order: “This Commission finds that the Appellant failed to follow the oral instructions of his Supervisor, K. D. Nelms on October 10, 1977, when he failed to administer the sober-meter test. The Commission further finds the Appellant failed to advise his coworker to be on the lookout for the inmate to insure he fully complied with the order. It is the Commission’s finding that the Appellant improperly prepared his time sheet on October 6, 1977.”

      . After appeal was filed in this court more than nine months were consumed with various motions filed by the parties, a rule to show cause issued by this court and interim briefing on a motion seeking remand for further agency action, which motion was ultimately denied.


text:
    Georgette QUIGLEY, Appellant, v. LAVENTHOL & HOWARTH, a Florida Partnership, Appellee.
    No. PP-217.
    District Court of Appeal of Florida, First District.
    April 8, 1980.
    William M. Mason, III, of Blalock, Hol-brook, Akel & Poitevent, Jacksonville, for appellant.
    Chester Bedell of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellee.
   MILLS, Chief Judge.

Appellant Georgette Quigley, plaintiff below, urges on appeal that the entry of a summary judgment by the trial court was error. We affirm.

Appellant was offered employment by appellee accounting firm at a salary of $17,-500 payable biweekly, such employment to begin in September upon a mutual determination of an acceptable date by the parties. The employment was offered on 8 September 1978 and accepted on 16 September 1978. Subsequently, the accounting firm decided to close its office and Quigley never performed any duties.

She filed a complaint for breach of employment contract, asking for damages. Appellee filed a motion to dismiss for failure to state a cause of action, which was denied, and then filed an answer. Subsequently, it filed a motion for summary judgment on the grounds that since the contract did not provide any specific period of duration of employment it was terminable at will. An affidavit of John W. Che-noweth, manager of the firm’s Jacksonville office, asserted that on 27 September before any decision was made as to what date Quigley was to begin working and before she did begin working, he informed her that the services would not be needed. The affidavit asserted, “I made it clear to her on September 27, 1978, that the offer of employment was withdrawn.” A second affidavit, by a partner of the firm, stated that on 23 October 1978 he addressed and mailed a letter to the plaintiff which informed her of the decision to close the Jacksonville office. The motion for summary judgment was granted and a motion for rehearing was denied.

The contract at issue here was, as appellee urged in its motion for summary judgment, terminable at will because there was no provision for the duration of employment. Where there is no such provision, either party may terminate at any time. Savannah, F. & W. Ry. Co. v. Willett, 43 Fla. 311, 31 So. 246 (1901).

In Knudsen v. Green, 116 Fla. 47, 156 So. 240 (1934), the duration of the employment was unspecified, the salary was set at $200 per month, the former employee quit one job to take the new one, and the employment contract went into effect. Some months after the contract had taken effect and the employee had “stood by” ready to begin the work he had been hired to do, the employer repudiated the contract and hired someone else. In that case the court ruled that there was a breach of contract and the employee was due compensation for the time the contract was in effect.

Applying that rule to the facts of this case, we find that there was no breach of contract and Quigley was due no compensation because the contract never went into effect. Contrary to the assertion in appellant’s brief, there was no agreed upon starting date, only an agreement to set a starting date in the future.

Accordingly, the final summary judgment entered by the trial court is AFFIRMED.

ERVIN and SHIVERS, JJ., concur.


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

text:
    DECONNA ICE CREAM CO., Appellant, v. Norman W. DESOURDY, Appellee.
    No. QQ-365.
    District Court of Appeal of Florida, First District.
    April 8, 1980.

      Jerry V. Wilkey and Ronnie K. Witlin, Coral Gables, for appellant.
    Harry W. Spisak, Homestead, for appel-lee.
   ROBERT P. SMITH, Jr., Judge.

Substantial competent evidence supports the decision of the Judge of Industrial Claims that claimant was temporarily totally disabled, by reason of a compensable subendocardial infarction. The compensation order is deficient, however, in its failure to record findings which conceivably may excuse the failure of those rendering medical services to provide timely reports to the employer and carrier. Section 440.-13(1), Florida Statutes (1979). The order is also deficient in awarding an attorney’s fee which inappropriately takes into consideration professional services rendered claimant in proceedings before the Industrial Relations Commission where claimant did not prevail. The order will therefore be vacated and the cause remanded.

REVERSED.

SHAW, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265, 1979 (Fla. 1st DCA).

On the merits, I would concur in the majority’s opinion.


text:
    CITY OF TAMARAC, a Municipal Corporation in Broward County, Florida, Appellant, v. SABAL PALM GOLF CLUB, INC., a Florida Corporation, Appellee.
    No. 77-1993.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.

      Alan P. Ruf, Asst. City Atty., Tamarac, for appellant.
    Davis W. Duke Jr., of McCune, Hiaasen, Crum, Perris & Gardner, Fort Lauderdale, for appellee/cross-appellant.
   PER CURIAM.

This is an appeal by the City of Tamarac to review a final decree declaring a provision of Tamarac’s City Charter unconstitutional. It also ordered a portion of certain properties leased by the appellee (plaintiff below) to be entitled to zoning no more restrictive than R-4A (multiple family dwelling). That provision of the City Charter declared unconstitutional required a mandatory referendum before recreationally-zoned lands could be zoned for any other purpose. The zoning ordinance under attack imposed more restrictive zoning upon the lands of the appellee than had existed prior to the enactment of the ordinance.

Upon careful examination of the record and the briefs submitted on this appeal, we find that neither the appellant nor the cross-appellant has demonstrated any reversible error. We therefore affirm the final decree.

MOORE, J., and DAUKSCH, JAMES C., Jr., Associate Judge, concur.

ANSTEAD, J., concurs in conclusion only.


author: DOWNEY, Chief Judge.

text:
    Russell FREEMAN, Appellant, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, Appellee.
    No. 78-1482.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Donald J. Vestal, Pembroke Pines, for appellant.
    Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   DOWNEY, Chief Judge.

Appellant seeks review of a final judgment dismissing his complaint for lack of subject matter jurisdiction.

By complaint for declaratory judgment, injunctive relief and damages, appellant alleged that the appellee School Board had improperly demoted him “financially and professionally” by abolishing his position as a coordinator of special education for physically handicapped students. In pertinent part appellant’s complaint alleges that a) he is a party to a continuing contract with appellee as a coordinator within the Exceptional Student Department of the School Board, b) under the guise of “reorganization” or “consolidation” the appellee abolished four coordinator positions based upon specialized areas within the Exceptional Student Education Program and divided said positions up with new coordinators on a geographical basis, c) said action was taken without compliance with Sections 120.53 and 120.54, Florida Statutes (1975), d) ap-pellee’s action was arbitrary and unreasonable in derogation of the appellant’s rights under his contract, e) appellant had previously filed suit in the Circuit Court of Bro-ward County but the suit was dismissed on the grounds that relief, if any, was available under the Administrative Procedure Act. Finally, appellant alleges that thereafter he filed a petition pursuant to Section 120.57, Florida Statutes (1975), requesting a hearing to determine the validity of appel-lee’s action. However, appellee refused to take any action thereon, neither granting nor denying the petition.

In his brief appellant contends that ap-pellee did not give him notice of its impending action to reorganize the department and eliminate him as a supervisor. It is appellant’s position that he was entitled to notice and an opportunity to be heard, pursuant to Sections 120.53, 54 and 57. After dismissal of his first suit, appellant petitioned appel-lee for a hearing and he received no response. Thus, there does not appear to be any basis for judicial review pursuant to Section 120.68, Florida Statutes (1975).

Appellant’s complaint, among other things, requests the circuit court to require the appellee to grant him a hearing on his petition. It appears to us that, given the allegations of his complaint, appellant is entitled to an opportunity to prove those allegations concerning the violations of Chapter 120 and the agency’s refusal to rule on his petition for a hearing. Should appellant be successful in proving said allegations, the circuit court should require the appellee to hold a hearing on appellant’s petition, after which appellant will have an avenue for judicial review under Chapter 120, Florida Statutes.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED with directions.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: ANSTEAD, Judge.

text:
    Charlie REESE, Appellant, v. STATE of Florida, Appellee.
    No. 78-1527.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, 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.
   ANSTEAD, Judge.

On appeal, appellant, Charlie Reese, contends that the trial court erred in making certain remarks to a witness concerning perjury and that these remarks resulted in the witness changing her testimony to the prejudice of appellant.

Reese was convicted of the second degree murder of James Brown. Brown’s body, bearing five stab wounds, was found in Reese’s ear. In a statement given to police and admitted into evidence, Reese characterized Brown as his “buddy” and stated that they had been drinking together on the day of Brown’s death. Reese stated that Brown, while riding as a passenger in Reese’s car, instructed Reese to pull off the road when Brown saw two men he knew in a parked car. When they stopped, according to Reese, the men beat both him and Brown and took Reese’s clothes and wallet. Someone told Reese to run and he did.

Nicki Carter testified that Reese came to her rooming house, dressed only in undershorts, and asked if someone would take him to the police station. Carter drove Reese back to his car where she saw Reese reach into the car and put something silver in his shorts.

Reese’s girlfriend, Mary Footman, when deposed testified that on the day of the murder she saw Reese carrying a knife she had previously given to him. However, at trial, Ms. Footman denied ever giving Reese a knife or that Reese had a knife on the day of the murder.

The prosecutor questioned Ms. Footman about her changed testimony whereupon the following colloquy ensued out of the presence of the jury:

Q That’s not what you told us here today is it?
A No.
Q Would you tell us why you changed your mind?
A Cause that was a lie.
Q That was a lie?
THE COURT: Now, let me interrupt you here. And advise this witness. Now, Ms. Footman, it is the crime of perjury under the laws of this state for a witness to tell a lie after being placed under oath and sworn to tell the truth. There are different kinds of perjury. If you lie in an official proceeding. And a court trial is an official proceeding. And also if you lie when you gave your deposition to the states attorney and assistant public defender that was also an official proceeding. And if you lie in an official proceeding after you’ve been placed under oath, you have committed the crime of perjury in an official proceeding. And if that is done, you can be charged, tried and if you’re found guilty of that perjury you can be sentenced to 5 years in the state prison of this state. Do you understand what I’m telling you?
THE WITNESS: Yes.
THE COURT: I just want to be sure that you were well and fully aware of the law as it regards perjury. And I’m instructing you that you’re to tell the truth here today. If you don’t tell the truth here today, I’m going to have the state attorney after this trial is over to file an information against you for the crime of perjury in an official proceeding. I’m going to have you arrested and put in jail and a bond in your case will be set in the amount of $10,000. And you’ll be tried for that crime of perjury here in this courtroom, and if you’re found guilty, I can assure you I’m going to send you off to state prison for 5 years. So, if you want to sit here and lie to us here today, you can start packing your bags to go to Raiford or some other prison in this state. I’m telling you to tell the truth, here today under oath. Do you understand what I’m saying?
THE WITNESS: Yes.
THE COURT: All right, Mr. Kanarek, you want to cross examine on the witness’s testimony?
CROSS EXAMINATION BY MR. KANAREK:
Q Ms. Footman, now that the Judge has advised you what the law is in Florida, is it your testimony now that Charlie Reese had a knife the day of this homicide or did not have a knife?
A He had one.

Defense counsel objected to the court’s admonition to Footman and moved for a mistrial, which was denied.

In Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), the defendant, on trial for burglary, called his only witness, a prison inmate. The trial court on its own initiative, and outside the presence of the jury, addressed the following remarks to the witness:

Now you have been called down as a witness in this case by the Defendant. It is the Court’s duty to admonish you that you don’t have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you’re up for parole and the Court wants you to thoroughly understand the chances you’re taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You don’t owe anybody anything to testify and it must be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking. 93 S.Ct. at 352.

The witness thereafter refused to testify for any purpose. The Supreme Court concluded that the judge’s

threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment. Id. at 353.

In Davis v. State, 334 So.2d 823 (Fla. 1st DCA 1976), cert. denied 345 So.2d 427 (Fla. 1977), a prosecutor interviewed a material prosecution witness shortly before trial. When the witness indicated that she would testify in favor of the defendant and contrary to deposition testimony, the prosecutor advised her that if she committed perjury, he would have a duty to prosecute for perjury, which carried a penalty of 15 years. Another state attorney told the woman he would personally see that she received a 15 year sentence. The court held that the prosecutor had improperly coerced the witness:

While it is true that the assistant state attorneys admonished the witness to tell the truth, it must have been obvious to the witness that the “truth” was that which she had testified to at an earlier deposition. Rules of evidence and procedure exist which are designed to assist prosecution and defense alike in eliciting the truth from balky witnesses. Coercion and threats are not among these rules. Id. at 826.

In Nazworth v. State, 352 So.2d 916 (Fla. 1st DCA 1978), the court considered a witness’ testimony to be “tainted with the same infirmities as we found present in Davis v. State,” when a state investigator told a witness that he would get 15 years for perjury if he didn’t testify in accordance with his former statements against the defendant.

While the remarks of the trial court here were not as forceful as those involved in the Webb case, supra, and did not drive the witness from the stand, we believe the remarks, when considered together with the immediate change in testimony by the witness, constituted prejudicial error under the holdings in Davis v. State, supra, and Naz-worth v. State, supra. It is apparent that Ms. Footman believed that if she continued to testify contrary to her deposition testimony, she was going to be sent to jail. Being so convinced, she then contradicted the testimony she had given a few minutes earlier and affirmed her deposition testimony. Unfortunately, as with any witness whose memory is suddenly refreshed when confronted with the prospect of jail, one cannot be certain which version of the facts is indeed the “truth.”

The proper procedure to follow when a witness deviates from prior sworn testimony, to the surprise of the party calling such witness, is to declare such witness hostile and allow the party to cross-examine and impeach the witness. The trier of fact can then decide which version of the “truth” presented by the witness is to be believed, and the issue of perjury is left for a separate proceeding. Davis v. State, supra.

In accordance with the above opinion the judgment and conviction of the trial court is hereby reversed, and this cause is remanded for a new trial.

BERANEK and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    Anne NARUS, Appellant, Cross-Appellee, v. Donald J. NARUS and Marcia L. Wolf, Appellees, Cross-Appellants.
    No. 78-1883.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.

      William L. Ranaghan of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Pompano Beach, for appellant, cross-appellee.
    Donald Gorenberg, Fort Lauderdale, for appellees, cross-appellants.
   HERSEY, Judge.

This is an appeal from a final judgment entered in the Probate Division of the Circuit Court granting specific performance of portions of a written agreement between the parties. We reverse.

Appellant is the widow of Marion S. Na-rus and appellees are the children of the deceased by a former wife.

Decedent’s last will and testament left his entire estate to appellant. Within two or three days of becoming apprised of the contents of the will, appellees drafted an agreement concerning future ownership of the marital residence. The agreement, which follows, was executed by all parties: Mrs. Marion S. Narus Re: Narus Residence

5641 NE 22nd Avenue,

Imperial Point,

Ft. Lauderdale, Florida Dear Anne:

In order to avoid any of several possible legal difficulties, we, as the children of Marion S. Narus, will agree to your sole occupancy and use of this property and the contents thereof during you lifetime. Such agreement, is based upon the following:

(a)In the event you should not want to occupy the property, the property and contents will be sold and the net proceeds distributed Vs to you, Vs to the undersigned, Donald J. Narus or his heirs, and Vs to the undersigned, Marcia Narus Wolf or her heirs.
(b) In' the event you should remarry, the property and contents will be sold and the net proceeds distributed V3 to you, Vs to the undersigned, Donald J. Narus or his heirs, and Vs to the undersigned, Marcia Narus Wolf or hers [sic] heirs.
(c) In the event you should die, the property and contents will be sold and the net proceeds distributed Vs to your heirs, Vs to the undersigned, Donald J. Narus or his heirs, and Vs to the undersigned, Marcia Narus Wolf or her heirs.

If you agree to the above, which we believe will save considerable time and expense, kindly sign and date the enclosed copies of this letter and hand the same to us. It is understood that this agreement might require the preparation and execution of further instruments which we will sign.

Sincerely,
s/ Donald J. Narus '
Donald J. Narus
s/ Marcia Narus Wolf
Marcia Narus Wolf
AGREED: s/ Anne K. Narus
Anne K. Narus DATE: Jan. 19. 1977

Some months after execution of the agreement appellees filed a petition for revocation of probate consisting of four counts. The first count was based upon undue influence; the second was based upon mistake and fraud; the third sought specific performance of an oral agreement between the decedent and appellees; and the fourth sought specific performance of the written agreement, previously quoted at length. The case proceeded to nonjury trial and a final judgment was rendered granting ap-pellees’ request for specific performance of the previously quoted written agreement, except for paragraph (c) which was found to be unenforceable. This appeal ensued.

Appellant first argues that initiation of this litigation caused total failure of consideration. We agree. Where a promise to pay a sum of money is given in exchange for a promise to perform a service, the consideration fails if the services are not performed. Binz v. Helvetia Florida Enterprises, Inc., 156 So.2d 703 (Fla. 3d DCA 1963), appeal dismissed 379 U.S. 12, 85 S.Ct. 117, 13 L.Ed.2d 24 (1964). The sole consideration for appellant’s agreement to relinquish part of her legal entitlement to the marital residence was appellees’ promise not to seek legal recourse against her, that is, “. . .to avoid any of several possible legal difficulties . . . ” Filing of the petition for revocation of probate which attempted to deprive appellant of the entire estate of her deceased husband clearly constituted a total failure of consideration. At that point the written agreement became nudum pactum.

Appellees respond that anticipatory breach of the agreement by appellant justified filing the petition for revocation, however, there is no evidence in the record to support that contention.

Appellees further contend that since the pleadings did not raise the affirmative defense of failure of consideration, that defense is not available to avoid the agreement. We find this argument to be without merit. If affirmative defenses can be proved by the pleadings or the proof and if opposing counsel acquiesces to the introduction of that proof, then a defense, although not pleaded, is not waived. See Kersey v. City of Riviera Beach, 337 So.2d 995 (Fla. 4th DCA 1976). In the instant case there was such acquiescence. The following testimony was introduced without objection.

Cross-examination of appellee, Donald Narus:

Q — Did you ever give Anne anything like money in connection with your Exhibit One [the agreement]?
A — No. Of course not.

Direct examination of appellant, Anne Narus:

Q — [W]hen you signed this paper [the agreement] were you paid any money by anybody — Mr. Narus or Mrs. Wolf?
A — No, sir.
Q — Were you given anything of any kind by Mr. Narus or Mrs. Wolf?
A — No sir.

Additionally, in closing argument, appellant specifically argued that there was a failure of consideration. No objection was made to this argument.

We therefore find that, as a result of failure of consideration, the written agreement became unenforceable and the final judgment is erroneous in that regard.

Appellant also urges as error the taxing of costs. Taxation of costs in probate proceedings is discretionary. § 733.106(1), Fla. Stat. (1979). Costs were taxed in this case on the presumption that appellees were the prevailing parties. Since we have determined that the final judgment is erroneous and that appellant is the prevailing party, we reverse the award of costs and remand the cause for the entry of a final judgment declaring the written agreement nudum pactum and assessing costs as may be appropriate under these circumstances.

Appellees have "cross-appealed the trial court’s finding that paragraph C of the agreement was unenforceable. In view of our holding that the entire agreement became unenforceable we do not separately treat this issue.

REVERSED AND REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    Carl F. GERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1943.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.

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

Upon review we find no error by the trial court except in entering a single order of probation for two offenses contrary to this court’s holding in Pearson v. State, 371 So.2d 569 (Fla.4th DCA 1979). Accordingly, the judgments of conviction are affirmed but this cause is hereby remanded to the trial court with directions that separate orders of probation for each offense be entered in accordance with this opinion.

ANSTEAD, MOORE and HERSEY, JJ., concur.


text:
    Charles VAN de WATER and Arlene Van de Water, his wife, Appellants, v. Claude E. ECHOLS, Herschel E. Brantley, Refrigerated Transport Company, Inc., and the Midland Insurance Company, Appellees.
    No. 78-2022.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Ralph L. Evans of Collins, Brown, Ven de Voorde & Evans, Vero Beach, for appellants.
    Ronald C. Willis of Harrington & Willis, Miami, for appellees.
   HERSEY, Judge.

Appellants, Van de Water, seek reversal of a summary final judgment in a negligence case involving personal injuries.

As a result of a vehicular collision, appellant Charles Van de Water suffered lacerations in his ear, neck and face which required more than fifty stitches. Subsequently, he negotiated for and signed a release in favor of the parties defendant, which purported to include any and all claims “growing out of personal injuries known or unknown.” Van de Water later required an operation for removal of a sub-dural hematoma. Notwithstanding the release appellants filed this suit.

Following depositions and other discovery, motions for summary final judgment were filed respectively by appellees and appellants. After hearing, the trial court entered an order granting appellees’ motion for summary judgment on the basis that appellants' damages arose as an unexpected consequence of a known injury so that the release precluded any recovery.

It is settled that a release of a claim for personal injuries may not be avoided simply because injuries prove more serious than had been anticipated at the time of execution of the release. Stiff v. Newman, 134 So.2d 260 (Fla.2nd DCA 1961). On the other hand, a release executed pursuant to a mistake as to a past or present fact, such as the existence of injury, may be set aside under appropriate circumstances. For example, in Boole v. Florida Power and Light, 147 Fla. 589, 3 So.2d 335 (1941), appellant was involved in a truck collision but an x-ray of his chest disclosed no damage. He accepted $15.00 for the cost of actual medical expenses and executed a release as to “any and all injuries and damages to person or property arising from or which may in the future arise or develop out of, or out of the treatment of, an accident. . . .” Sixteen days after signing the release and twenty-five days after the accident Boole died, apparently from aggravation by the accident of a preexisting cardiac condition. The Supreme Court reversed a directed verdict for the defendant on the basis that the consideration paid for the release covered only actual expenses and that no amount was paid for personal injuries. The court apparently felt that the allegations were sufficient to permit proof of a mutual mistake of fact. It is interesting to note that this was a four to three decision, the dissent pointing out:

I find no mutual mistake of fact alleged or proven. Unexpected consequences resulted from the known facts. Such is frequently the case and is the prime reason to actuate compromise.

Similarly, in Ormsby v. Ginolfi, 107 So.2d 272 (Fla.3rd DCA 1958) the plaintiff in a personal injury suit arising from an automobile accident had executed a release for “known and unknown” personal injuries for $90.08, the exact amount of the estimated cost of repairs to her automobile. The court found that neither the insurance adjuster who paid the claim nor the plaintiff were aware of the fact that plaintiff had suffered personal injuries as a result of the accident. Reversing a summary judgment in favor of the defendant the court stated:

It [is] generally held that a contract of this nature may be set aside upon proof that it was executed pursuant to a mistake as to a past or present fact, and the proofs here are adequate to raise a genuine question of fact as to whether the release was executed under a bona fide mistake of fact. Our adherence thereto does not do violence to the companion rule that unknown or unexpected consequences of known injuries will not invalidate a release. Sutton v. Capetanidis, Fla.App., 97 So.2d 200; De Witt v. Miami Transit Company, Fla., 95 So.2d 898; Boole v. Florida Power & Light Co., 147 Fla. 589, 3 So.2d 335.

De Witt v. Miami Transit Company, 95 So.2d 898 (Fla.1957), involved a release from “any and all known and unknown personal injuries” arising out of the negligent operation of a bus on which the plaintiff was a passenger. The record disclosed that the $90.00 paid in consideration of the release was to liquidate medical expenses on the assumption that the injuries were minor. It turned out they were not. The court distinguished Boole, supra, pointing out that there the mistake was as to the injury itself rather than as to the extent of the injury. The court in effect held that a release was a release, succinctly summarizing the policy reasons for the rule in the following language:

While a release executed pursuant to a mistake as to a past or present fact may on proper showing be set aside, unknown or unexpected consequences of known injuries will not result in invalidating the release. An erroneous opinion or error of judgment respecting future conditions as a result of presently known facts will not justify setting the release aside. If the rule were otherwise no release could be safely accepted in personal injury matters. The end result would be that all such claims would be forced into litigation. Such a conclusion would be directly contrary to the policy of the law favoring amicable settlement of disputes and the avoidance of litigation. Id. at 901.

On the motions for summary judgment, appellants contended that the injury suffered by Charles Van de Water consisted of a damaged or ruptured blood vessel and that this injury was unknown at the time the release was executed. Appellees, on the other hand, argued that the damaged or ruptured vessel resulted from the blow on the head suffered in the vehicular collision and thus was an unknown or unexpected consequence of the known injury.

We recognize that if there are conflicting inferences that may reasonably be drawn from uncontradicted evidence, the issue should be submitted to the trier of fact. Professional Archers Association v. Community Promotions, Inc., 214 So.2d 21 (Fla.1st DCA 1968).

The record reveals, however, that the sole medical witness was of the opinion that the subdural hematoma was causally related to the vehicular collision. Further, the testimony of appellant Arlene Van de Water reflects that appellants not only knew of the existence of the injury, but also understood its seriousness, including the possibility of future complications. These uncontroverted facts lead to the inescapable conclusion that the subdural hematoma was a later result of the known head injury. That being so, the release precluded recovery.

We therefore conclude that there was no material issue of fact and that the trial court correctly stated the law applicable under the circumstances of this case.

Having reached this conclusion, it is unnecessary to consider the other points raised on appeal.

AFFIRMED.

MOORE, J., and LAMAR WARREN (Associate Judge), concur.


text:
    Gene PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-2162.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Mullins v. Trettis, 316 So.2d 617 (Fla.2d DCA 1975).

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.