author: THOMPSON, Judge. LILES, WOODIE A. (Retired), Associate Judge,

text:
    GORE NEWSPAPERS CO. and Zurich Insurance Co., Appellants, v. Lilia LOVETT, Appellee.
    No. TT-247.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Rehearing Denied March 3, 1981.

      Joseph H. Lowe of Marlow, Shofi, Ort-mayer, Smith, Connell & Valeriusl, Miami, for appellants.
    Dennis M. Usban of Nolan & Usban, Ft. Lauderdale, for appellee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending that the claimant’s accident did not arise out of her employment. We agree and reverse.

The claimant, while working one evening, suffered from a headache and experienced nausea. She decided to go to a.nearby bathroom to lie down for a few minutes, and on the way to the bathroom, she fainted and fell to a linoleum-covered concrete floor, thereby injuring her back. A claim was filed, and subsequently the Deputy Commissioner (“the Deputy”) entered his Order, finding in part that the claimant suffered an injury by accident arising out of and in the course of her employment.

The appellants urge reversal, relying in part upon Southern Bell Tel. & Tel. Co. v. McCook, 355 So.2d 1166 (Fla.1977), and Market Food Distrib., Inc. v. Levenson, 383 So.2d 726 (Fla. 1st DCA 1980). But those cases are clearly distinguishable, insofar as in both cases, there were no significant events, other than the manifestation of the idiopathic conditions themselves, which contributed to the injuries sustained. In the present case, however, the claimant’s injuries did not result solely from the manifestation of fainting, but from falling against the floor. Thus, the legal significance of this fact must be determined.

In order to receive compensation, the claimant must have suffered an injury, which necessarily occurs “by accident arising out of and in the course of employment....” Section 440.02(6), Fla.Stat. Here, the facts clearly reveal that the claimant suffered an injury by accident while in the course of employment. The issue is whether the accident arose out of employment.

The words “arising out of” refer to the origin or cause of an accident. McCook, 355 So.2d at 1168. Elaborating on this requirement, the supreme court has essentially noted that an accident arises out of employment when the employment in some way contributes to the risk of the accident occurring. See McCook, 355 So.2d at 1168-69. Florida cases, which have implicitly utilized this standard, have awarded compensation for injuries resulting from idiopathic falls when the work environment contributed to the risk of the falls occurring. For example, in Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944), the claimant fainted, fell, and struck his head against the floor. The court found that compensation should be awarded, noting that

[t]he chances are he might have fallen and sustained a fatal injury in his home, yet, it is less likely had he remained in the quiet of his own home, for without the physical exertion encountered in his work by a man of his age and physical condition, the chances of his failing were less likely.

Id. at 343 (emphasis supplied). See also Legakis v. Sultan & Sons, 383 So.2d 938 (Fla. 1st DCA 1980); Cheney v. F. E. C. News Distribution Co., 382 So.2d 1291 (Fla. 1st DCA 1980).

The claimant argues that her fall was attributable to her employment conditions. However, the record does not support this argument. One doctor basically testified that under the facts of this case, the claimant’s employment did not contribute to her fainting episode. While another doctor did testify as to a probable causal connection, this testimony has no probative value because it was not based on facts supported by the evidence. See Geiger Distributors, Inc. v. Snow, 186 So.2d 507, 509 (Fla.1966).

There is another basis for recovery which must be examined, insofar as an idiopathic fall which results in injury to the worker is deemed to arise out of employment if the employment aggravates the injury. See McCook, 355 So.2d at 1168. As observed in Foxworth v. Florida Industrial Commission, 86 So.2d 147, 151 (Fla.1955), “there is a basis for recovery for injuries resulting from a fall caused by personal physical conditions where the injuries from the fall can be attributed to some increased hazard attendant to the job such as where the fall is onto dangerous objects. ... ” The basic rationale for awarding compensation in such instances is that “the employment places the employee in a position increasing the dangerous effects of such a fall.... ” 1 Larson, The Law of Workmen’s Compensation § 12.11 at 3-256 (1978). As stated in McCook, the employment “aggravates the injury.” 355 So.2d at 1168 (emphasis supplied; footnote omitted).

In this case, we are not concerned with a fall onto what is ordinarily considered to be a dangerous object. Nor did the claimant’s employment pose any special hazards which would increase the effects of her fall. See Foxworth, 86 So.2d at 151. Instead, we are concerned with an idiopathic fall onto a level floor, and accordingly, “compensation for [the] effects of the fall is extremely difficult to justify....” Id. Although the supreme court in Foxworth stated that in this area, it “has favored the more liberal view allowing recovery ...,” id., this statement must be examined in context. The Foxworth decision relied upon Cline, noting that there,

we upheld recovery for [the] effects of a fall caused by the heart attack of the claimant who as a result fractured his skull on the concrete floor. This decision is justified on the basis that the hardness of the floor was an increased hazard attributable to the employment, but that case represents the outer limits of the doctrine.

86 So.2d at 151 (emphasis supplied).

In Foxworth, the court followed its own admonition, and pointed out that the claimant’s employment did not serve to increase the hazards of his fall, whereby he fell onto an upholstered chair.

An upholstered chair is not a dangerous object. And the presence of such a chair .. . was not ... a special hazard peculiar to the claimant’s employment. Nor in an idiopathic fall against the stuffed arm of such a chair ... can there be found exposure to a hazard peculiar to the employment and beyond what is ordinarily experienced by the public as a whole.

86 So.2d at 151-52. See also Federal Electric Corp. v. Best, 274 So.2d 886 (Fla.1973).

Foxworth was followed in Southern Convalescent Home v. Wilson, 285 So.2d 404 (Fla.1973), where the claimant suffered an epileptic seizure unrelated to work, fell to the floor, and sustained injuries. The court found that “there was not any hazard of employment that contributed in any degree to the claimant’s injuries and it was solely the force of the non-occupational seizure that caused the injury....” Id. at 408. Likewise, in Honeywell, Inc. v. Scully, 289 So.2d 393, 394 (Fla.1974), the claimant collapsed at work and sustained injuries when “she fell to a level floor surface consisting of concrete covered with tile.” The Judge of Industrial Claims found that the fall was idiopathic, and that “the injury was not aggravated in any manner by any hazard of employment.” Id. Compensation was denied, and this denial was upheld by the supreme court.

In the present case, the Deputy found that “the hard concrete floor covered with tile served as a special and increased hazard . ... ” The appellants argue that there is no competent substantial evidence to support this finding, and we agree. There is nothing in the record which indicates that the floor aggravated the injuries that the claimant would have otherwise suffered had her fall taken place while she was not so employed. See Scully, 289 So.2d at 395; Wilson, 285 So.2d at 406. Simply put, the work environment in this case did not pose a hazard, beyond that ordinarily experienced by the public as a whole, which increased the effects of the claimant’s idiopathic fall. See Foxworth, 86 So.2d at 152. While we recognize that the Florida Supreme Court has indicated that a bare concrete floor may constitute an increased hazard of employment if it aggravates injuries that would have been otherwise suffered, see Scully, 289 So.2d at 395; Foxworth, 86 So.2d at 151, we also note that this situation “represents the outer limits of the doctrine.” Foxworth, 86 So.2d at 151. The facts of this case go beyond those limits.

The workers’ compensation law cannot be converted “into a mandatory general health insurance policy which does not limit the burden on industry to those ailments produced even remotely by the hazards of industry.” McCook, 355 So.2d at 1169. In this case, the claimant has suffered an injury which resulted by accident; i. e., fainting and falling to a floor. However, the law requires that the accident must not only be in the course of employment, but it must also arise out of employment. Section 440.-02(6), Fla.Stat. The evidence herein plainly shows that the claimant has not suffered a compensable accident arising out of her employment, nor did any condition of her employment pose a hazard, beyond that ordinarily experienced by the public as a whole, which increased the effects of the claimant’s fall. Accordingly, the Deputy’s Order is reversed.

ROBERT P. SMITH, Jr., J., concurs.

WOODIE A. LILES (Ret.), Associate Judge, dissents with opinion.

LILES, WOODIE A. (Retired), Associate Judge,

dissenting.

I must respectfully dissent. The claimant in this case is a 58-year-old woman who suffers from scoliosis. Scoliosis is a painful congenital condition of the spine which usually comes on in young girls, ages eleven to fifteen. Persons so afflicted develop a very marked curvature of the spine which, as they get older, becomes very arthritic and increasingly debilitating. This lady’s did. In his order, the Deputy Commissioner chose to rely on the competent medical testimony of the claimant’s treating physician, Dr. Rahilly, wherein he testified that the hard concrete floor covered with linoleum served as a special and increased hazard to claimant’s pre-existing back condition, which was permanently aggravated by her fall on it. Thus, I believe that a compensa-ble injury was suffered. Foxworth, supra, states:

“It is well settled that injuries which arise out of risks or conditions personal to the claimant do not arise out of the employment unless the employment contributes to the risk or aggravates the injury. Id., at 151.

This factual situation is clearly within the purview of Foxworth and is supported by specific language, with an ample evidentia-ry basis in the record, contained in the Deputy Commissioner’s order.

Since I feel that the order should be affirmed, I would also award the claimant attorney’s fees on appeal.

      . Although both claimants were engaged in physical movement when their idiopathic conditions became symptomatic, these movements were not legally significant because they did not involve “an exertion greater than that normally performed by the employeefs] during [their] non-employment life.” Levenson, 383 So.2d at 727. The movements were normal ones that could occur at any time, thereby causing the idiopathic conditions to become symptomatic at any time. Id.; McCook, 355 So.2d at 1167. The movements fortuitously occurred at work, and thus, the idiopathic conditions became symptomatic for reasons entirely extraneous to the claimants’ job conditions or duties. Accordingly, the claimants did not suffer an injury by accident arising out of employment.

      . The decision in Cline was also justified on the independent basis that the employment conditions contributed to the risk of the fall occurring. See 16 So.2d at 343.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    Lawrence COE, Appellant, v. KENTUCKY FRIED CHICKEN and St. Paul Fire & Marine Insurance Co., Appellees.
    No. TT-248.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Rehearing Denied March 3, 1981.
    Frank E. Maloney, Ft. Lauderdale, for appellant.
    Eugene N. Betts, Ft. Lauderdale, for ap-pellees.
   THOMPSON, Judge.

The claimant challenges a workers' compensation Order, contending that the Deputy Commissioner (“the Deputy”) erred by failing to rule on the issue of whether the claimant’s loss of wage-earning capacity exceeded the extent of his physical impairment. We agree and reverse on this point.

Within a one-month period in 1976, the claimant was injured in two work-related accidents. He has not returned to work since then, although he unsuccessfully attempted to work in two different positions during April 1979. One physician testified that anatomically, the claimant experienced a 25% permanent partial disability (“PPD”). The Deputy later entered his Order, finding that the claimant “has an anatomical disability of 25% of the body as a whole.... ” However, the Deputy also reserved jurisdiction to rule on the issue of the claimant’s loss of wage-earning capacity, because “the claimant has not fully tested his capabilities at job employment ..., and in addition, rehabilitation ... has not been fully utilized.”

Insofar as this case involves unscheduled injuries, § 440.15(3)(u), Fla.Stat. (1977), provides that disability “means either physical impairment or diminution of wage-earning capacity, whichever is greater.” Here, the Deputy found that the claimant suffered a 25% physical impairment, and he ordered that compensation be paid based on this finding. However, he should have also ruled on the issue of whether the claimant’s loss of wage-earning capacity exceeded a 25% anatomical PPD. The Deputy had no authority to reserve jurisdiction to rule on this issue. See Maffitt v. Henderson’s Portion-Pak, Inc., 132 So.2d 410, 411-12 (Fla. 1961). See also Sanz v. Eden Roc Hotel, 140 So.2d 104 (Fla.1962).

Accordingly, we reverse the Deputy’s Order, but only to the extent that jurisdiction was retained to rule on the issue of loss of wage-earning capacity. AH other portions of the Order are affirmed. In this respect, the Deputy found that the claimant’s work search was inadequate, and there is competent substantial evidence to support this finding. Thus, the claimant was not entitled to PPD compensation based on loss of wage-earning capacity, see Brevard Bd. of Cty. Com’rs v. Caldwell, 379 So.2d 1031 (Fla. 1st DCA 1980), and his claim for such compensation must now be denied nunc pro tunc as of the date of the Deputy’s Order.

We recognize that the claimant also argues that he is permanently and totally disabled. But after carefully reviewing the record, we find that the Deputy’s determination of a 25% anatomical PPD is fully supported by competent substantial evidence. Finally, we note that if the claimant should maintain that his loss of wage-earning cápacity subsequently exceeds a 25% PPD based on his physical impairment, the proper method for raising this point is via a petition for modification pursuant to § 440.28, Fla.Stat. See Maffitt, 132 So.2d at 412.

ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Ret.) Associate Judge, concur.


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

text:
    F. W. WOOLWORTH and Travelers Insurance Company, Appellants, v. Martha PEREZ, Appellee.
    No. UU-336.
    District Court of Appeal of Florida, First District.
    Feb. 6, 1981.
    Guy A. Gladson, Jr. of Gladson & Sullivan, Miami, for appellants.
    Scott V. Berglund of Abrams & Suskin, North Miami Beach, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The deputy commissioner erred in failing to rule on the issue of disability attributable to loss of wage earning capacity and in purporting to reserve ruling on that issue “until proof is submitted that adequate job search and attempted rehabilitation has ended in failure.” Coe v. Kentucky Fried Chicken et al., 393 So.2d 1156 (Fla. 1st DCA 1981). The claim for permanent disability benefits greater than for the adjudicated anatomic disability was therefore not sustained and must now be denied nunc pro tunc the date of the deputy’s order, March 10, 1980, without prejudice to a proper application based on changed circumstances. The order is not otherwise in error.

AFFIRMED in part, REVERSED in part, and REMANDED.

MILLS, C. J., and WENTWORTH, J., concur.


author: PER CURIAM. LETTS, Chief Judge, concurring specially;

text:
    Paul C. MUELLER, Petitioner, v. Robert BUTTERWORTH, Sheriff, Broward County, Respondent.
    No. 81-17.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1981.
    Rehearing Denied March 9, 1981.
    Robert J. O’Toole, Fort Lauderdale, for petitioner.
    Bruce W. Jolly, of Shailer & Purdy, Fort Lauderdale, for respondent.
    Alan Jay Lewis of Jacobson, Schechter & Lewis, Hollywood, for intervenors, Beneficiaries of Estate of Mary Walsh.
   PER CURIAM.

Petitioner was the personal representative of the Estate of Mary A. Walsh, deceased. On September 17, 1980, the trial court removed petitioner and ordered him to deliver to the successor personal representative within thirty days of August 21, 1980, the sum of $76,166.79, which sum represented the minimum amount petitioner had paid to himself as personal representative and the sum of $6,858.00, which amount had been paid by petitioner to an attorney. On October 13, 1980, a further order was issued to comply with the earlier order.

On December 15, 1980, the trial court, pursuant to Florida Rule of Probate and Guardianship 5.440(d) directed the Sheriff of Broward County to incarcerate the petitioner until he complied with the order of September 17, 1980.

Petitioner was incarcerated on December 31,1980, and filed an application for writ of habeas corpus. The Sheriff filed a reply admitting the incarceration and attached the order of December 15, 1980.

The beneficiaries of the estate moved to intervene and filed an answer to this court’s order. We granted the motion to intervene.

Neither order of the trial court recites an affirmative finding that petitioner has the ability to comply with the orders and wil-fully refuses to do so, or that petitioner previously had the ability to comply but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976).

As stated by Judge Smith in his dissent in Faircloth v. Faircloth, 321 So.2d 87, 93 (Fla. 1st DCA 1975):

We do not imprison for debt. Art. I, § 11, Fla.Const. Therefore, a finding that the debtor ordered to pay is able to pay and willfully refuses to do so is the touchstone of the proceeding: the essential fact, found to be a fact, which validates the process....

Florida Rule of Probate and Guardianship 5.440(d) provides:

(d) If a removed personal representative fails or refuses to file an accurate complete and final account of his administration, or fails to turn over to his successor all of the property of the decedent and his estate and all records concerning the estate, the court shall order the removed personal representative to comply within ten days after service of a copy of the order. If he fails or neglects to comply within the time required, the court may commit such removed personal representative until he complies. If sufficient cause is shown for the default, the court shall prescribe a reasonable time within which to comply and upon failure of the removed personal representative to comply with this or any subsequent like order, the court may commit him until he does comply.

By its terms the rule provides for commitment if the removed personal representative fails or refuses to file an accounting or fails to turn over property or records to his successor. Petitioner stands accused of failing to deliver $83,024.79; he is not committed for failure or refusal to file an accounting or turn over records.

While other proceedings leading to incarceration may be warranted because of petitioner’s disbursement of the foregoing sum, as to these proceedings there cannot be commitment in the absence of finding that petitioner has the ability to deliver $83,-024.79 and wilfully refuses to do so or having been so ordered to deliver, petitioner divested himself of that ability.

Accordingly, the Writ shall issue, the prisoner shall be released and this cause remanded for further proceedings to determine if the petitioner has the ability to deliver the missing funds or if he has divested himself of that ability subsequent to being ordered to do so.

GLICKSTEIN and HURLEY, JJ., concur.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge, concurring specially;

I wish I could dissent, but I must reluctantly concur with the majority. Having studied the pleadings, it occurs to me that the petitioner belongs exactly where Judge Reasbeck has put him — in jail. However, if the petitioner is to be sent to jail, he must have a criminal trial, be convicted and sentenced. Until then, whether we like it or not, the Constitution prohibits him from being imprisoned for debt.

It is true that a trial judge may incarcerate someone for contempt, but that is not what has occurred here. Instead the petitioner has been imprisoned for failing to turn over $83,024.79 and he is to stay there until he produces same. Assuming that the petitioner may have stolen this sum and then dissipated his ill gotten gains, he still cannot remain in jail forever without a trial.


author: RUDD, Associate Judge.

text:
    The RED CARPET CORPORATION OF PANAMA CITY BEACH, A Florida Corporation, and Jimmy Hatcher, Appellants, v. CALVERT FIRE INSURANCE COMPANY, A Maryland Corporation, Appellee.
    No. NN-414.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Rehearing Denied March 6, 1981.
    R. Vinson Barrett, Jr., and C. Howard Hunter of Barrett & Bajoczky, Tallahassee, for appellants.
    Jon D. White, Pensacola, for appellee.
   RUDD, Associate Judge.

Two of appellant’s motels were completely destroyed when Hurricane Eloise hit Panama City Beach, in 1975. The motels were insured by appellee/Calvert under “special multi peril” insurance policies. The parties reached a settlement under the policies for damage and destruction to the buildings and their contents. However, appellants sued Calvert under the Loss of Earnings Endorsements contained in the policies, when Calvert declined to pay any amount beyond a $30,000 advance which it had made under these endorsements. Pursuant to a jury verdict, final judgment was entered in favor of Calvert. Appellants have presented three points for review. We find merit in appellants’ first point, and accordingly reverse.

At trial, appellants offered the testimony of an expert witness regarding insurance adjusting, policy provisions, and trade custom in the insurance industry. The witness was highly qualified as an expert in the field of insurance. However, his testimony was excluded by the trial court on the ground that it invaded the province of the jury.

It has long been recognized that the testimony of qualified experts is helpful, if not necessary, in cases presenting questions of fact not within the ordinary experience of the jury. For example, in Aetna Insurance Company v. Loxahatchee Marina, Inc., 286 So.2d 12 (Fla. 4th DCA 1970), a case also involving the testimony of an insurance expert, the Fourth District Court of Appeal noted:

The purpose of an expert witness is to aid the trier of fact in the quest for truth in those areas which are not of common knowledge. Obscure connotations of an insurance policy can be greatly illuminated by knowledge of custom and usage in the industry as well as the expert’s knowledge of terms which take on a different hue in the specialized field than in the field of general knowledge.

Id. at 14.

We feel that had the expert testimony been allowed in the present case, the jury would have been better informed as to the meaning of the policy terms and the usual method of handling claims under such policies; and, therefore, better equipped to properly resolve the issues of fact. Of course, there would have been no obligation on the part of the jury to accept the testimony of the expert as proof of the ultimate facts of the case. The witness would have been subject to cross-examination by Calvert, and to rebuttal testimony by equally competent experts in the insurance field. Millar v. Tropical Gables Corporation, 99 So.2d 589 (Fla. 3rd DCA 1958).

Since this case essentially turned on an interpretation of the parties’ rights and obligations under the Loss of Earnings Endorsements, we find that it was reversible error to exclude the expert testimony in that regard. We have considered appellants’ remaining points and find them to be without merit.

REVERSED and REMANDED for new trial.

SHAW, J., concurs.

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


text:
    Richard A. CORREIA, Appellant/Cross-Appellee, v. SEABOARD COAST LINE RAILROAD COMPANY, a Corporation, Appellee/Cross-Appellant.
    No. TT-221.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1981.
    Rehearing Denied March 3, 1981.

      Jeffrey G. Wood, of Beckham, McAliley & Proenza, P. A., Jacksonville, for appellant/cross-appellee.
    Joseph P. Milton, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellee/cross-appellant.
    Bill Wagner, of Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, for amicus curiae, Bay Area Trial Lawyers, Inc.
   LILES, WOODIE A. (Retired), Associate Judge.

Plaintiff, Correia, brought this action against Defendant, Seaboard Coast Line Railroad Company, in a six-count complaint pursuant to 45 U.S.C. §§ 2, 5 and 51, the Federal Employers’ Liability Act (FELA). He alleged a series of accidents, the first of which occurred on August 9, 1976. As a result of that accident, he was treated by Defendant’s doctors who diagnosed his symptoms as low back strain or sprain and temporary in nature. He continued to have pain and finally was seen by a neurosurgeon in February, 1977. Dr. Edward Sullivan performed a myelogram at this time and discovered that Plaintiff had a herniated disc, and he successfully performed a laminectomy.

Prior to the February examination and operation, to-wit: on November 1, 1976, Plaintiff and Defendant’s claim agent agreed upon and entered into “a full and complete release” based upon Plaintiff’s injuries characterized as temporary in nature and either a strain or a sprain as a result of the August 9 accident.

Following the filing of Plaintiff’s complaint, Defendant sought and was granted a partial summary judgment as to Counts I and V of the complaint, based upon the finding by the trial judge that the causes of action concerning the accident of August 9 were barred by the written release executed in November, 1976. Defendant also sought payment of attorney’s fees pursuant to Section 57.105, Florida Statutes (Supp. 1978). The trial judge denied Defendant attorney’s fees, and it has cross-appealed that denial.

The validity of a release attacked in a FELA case is determined under federal law. Dice v. Akron, C. & Y. R.R., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). Federal law recognizes mutual mistake as a ground for voiding a release. See Taylor v. Chesapeake & O. Ry., 518 F.2d 536 (4th Cir. 1975); Robertson v. Douglas Steamship Co., 510 F.2d 829 (5th Cir. 1975); Wooten v. Skibs A/S Samuel Bakke, 431 F.2d 821 (4th Cir. 1969); Chicago & N.W. Ry. v. Curl, 178 F.2d 497 (8th Cir. 1949); Graham v. Atchison, T. & S. F. Ry., 176 F.2d 819 (9th Cir. 1949); Thompson v. Camp, 163 F.2d 396 (6th Cir. 1947), cert. denied, 333 U.S. 831, 68 S.Ct. 458, 92 L.Ed. 1116 (1948); Stuart v. Alcoa S.S. Co., 143 F.2d 178 (2d Cir. 1944); Bonici v. Standard Oil Co., 103 F.2d 437 (2d Cir.), cert. denied, 308 U.S. 560, 60 S.Ct. 106, 84 L.Ed. 471 (1939). Here, although we do not pass upon the factual correctness of whether the August 9 accident resulted in the herniated disc, we find that a mutual mistake or misrepresentation could have occurred. The inference could be drawn by a jury that either Dr. Dyer, Dr. Atkinson, or Dr. Todd was mistaken in his diagnosis of Plaintiff's injuries. This does not mean that all mutual mistakes of fact can void a release, as the Fifth Circuit has noted in Robertson v. Douglas Steamship Co., supra:

“Douglas points out that a panel of this Court has recently refused to set aside a longshoreman’s release under similar facts in Strange v. Gulf & South American S. S. Co., 5 Cir. 1974, 495 F.2d 1235. We think that Strange must be distinguished. In that case, the Court said:
The record facts and the applicable authorities do not sustain the challenge based on mutual mistake. There would be little security in the settlement of a personal injury claim if the binding effect of such a settlement depended upon the certainty of the extent and the outcome of the injuries involved. It is the very consequences of these uncertainties which the parties seek to foreclose by settlement and to take their chances on their outcome.
495 F.2d 1235, 1237. While it is true that a release should not be set aside for mutual mistake concerning the extent and outcome of injuries, which are necessarily future rather than present facts, it does not follow that a release should not be set aside for mutual mistake concerning the nature of the injuries, which is a present fact. The legal distinction must rest on the medical difference between diagnosis and prognosis.” Id., at 836. [Emphasis added]

In this case there was present the possibility that a mutual mistake occurred as a result of Drs. Dyer, Atkinson and Todd’s diagnoses of Plaintiff’s injury as back sprain or strain and Dr. Sullivan’s diagnosis of herniated disc. Therefore, the mutual mistake occurred as a result of the diagnosis, if at all, and does not rest upon prognosis.

It is axiomatic that summary judgments will not be upheld where there exists a genuine issue of material fact. The material fact in this case is whether the release was based upon a mutual mistake or misrepresentation between the Plaintiff and the Defendant’s claim agent as a result of the August 9, 1976, accident.

For the above reasons, the summary judgment is reversed and remanded for further proceedings consistent with this opinion.

In view of this ruling, it is unnecessary to consider Defendant’s contention that attorney’s fees were improperly denied.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Ambrose GILMORE, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-1075.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.

      Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Appellant was charged with the crime of aggravated battery. He pled a defense of temporary insanity. He was found guilty as charged, convicted and sentenced.

On appeal, the appellant argues that the only evidence in the record was that he was insane at the time the criminal incident occurred and, therefore, he was entitled to a judgment of acquittal or a directed verdict, citing Blocker v. State, 87 Fla. 128, 99 So. 250 (1924); Farrell v. State, 101 So.2d 130 (Fla.1958).

The above cited authorities are found not to be applicable in the instant case, because there were lay eye witnesses who described the demeanor, circumstances, and actions of the defendant and it was within the province of the jury to believe lay testimony over expert testimony. Brady v. State, 190 So.2d 607 (Fla.3d DCA 1966); French v. State, 266 So.2d 51 (Fla.3d DCA 1972); Byrd v. State, 297 So.2d 22 (Fla.1974); State v. Ward, 374 So.2d 1128 (Fla.1st DCA 1979). The matter was properly submitted to the jury. We therefore find no error and affirm.

Affirmed.


author: FERGUSON, Judge.

text:
    Frank WARMBLE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2102.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Bennett H. Brummer, Public Defender and Harold Mendelow, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant was convicted of second degree murder, unlawful possession of a firearm while committing a felony, and possession of a short-barrelled shotgun. For the murder conviction appellant was adjudicated guilty, placed on probation for a period of twenty (20) years with the special condition that he serve fifteen (15) years in the state prison. Appellant alleges that the trial court erred in, (1) refusing to give written requested instruction on the question of insanity and intoxication and (2) imposing a long jail sentence as a condition of probation.

We find the first argument to be without merit and will address only the second point of this appeal.

The Supreme Court has ruled, subsequent to the sentence herein, that incarceration as a condition of probation which exceeds one year is unlawful. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980). Villery is expressly made retroactive.

The State urges here, as it did in Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981), that if defendant is to be relieved of the illegal sentence, relief should come from the trial court on a motion under Rule 3.850, Fla.R.Crim.P. We agree that it is more expeditious and less expensive to present sentencing questions to the trial court under Rule 3.850 and we have encouraged defendants to adopt such a course. Gonzalez v. State, supra; Ruiz v. State, 384 So.2d 723 (Fla. 3d DCA 1980); Abraham v. State, 382 So.2d 382 (Fla. 3d DCA 1980). However, appellate courts are obligated to consider appeals based on fundamental error even where the issue was not raised in the trial court. Absent legislative authority, the imposition of a long mandatory jail term which precludes the potential for parole is fundamental error. Gonzalez, supra; Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980); Hamm v. State, 380 So.2d 1101 (Fla. 2d DCA 1980).

We affirm in part, reverse in part, and remand for resentencing in accordance with Villery, supra.


author: BARKDULL, Judge. SCHWARTZ, Judge

text:
    Allen BRAVERMAN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 79-888, 80-715.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.

      Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

Subsequent to our earlier opinion in this cause [see: State v. Braverman, 348 So.2d 1183 (Fla. 3d DCA 1977)], the cause reoccurred in the trial court for sentencing, at which time the appellant was sentenced to a term of 15 years on each of the two counts to run concurrently. An appeal of this sentence was lodged in this court under Clerk’s File No. 79-888. During the pendency of this appeal, counsel for the defendant requested a relinquishment of jurisdiction for the trial court to consider a Rule 3.850 R.Cr.P. motion which was granted. Thereafter, the trial court conducted an eviden-tiary hearing and concluded that he would grant the motion because the plea was not freely and voluntarily made under all the circumstances. However, he felt that he was bound by the law of the case as set forth in our earlier opinion, and he denied the Rule 3.850 R.Cr.P. motion. An appeal from this order was taken in this court and lodged under Clerk’s File No. 80-715. The cases were subsequently consolidated and have now been briefed and orally argued.

The principal thrust of the appellant’s argument is that the original trial judge having found:

“One of the other reasons I granted a new trial — and I was of a mind all the way to grant it — I think the defendant was laboring under the apprehension originally that there was a deal made in this case and I don’t think that was fully overcome, notwithstanding his answers on voir dire, the information before I accepted the plea.”

and the trial judge who conducted the Rule 3.850 R.Cr.P. hearing having found:

“The Defendant, Allen Braverman, did enter a nolo plea upon a misunderstanding of fact concerning his possible sentence. Braverman was operating under a misunderstanding when he entered his plea as to the amount of sentence he would receive. This Court finds that Braverman believed he was promised by the State (a lesser sentence) something that he never received.”

the appellant should be permitted to withdraw his plea and that the earlier opinion did not constitute the law of the case.

It is true that when the appellant, as defendant in the trial court, filed his initial motion to withdraw the plea it was a motion based on three grounds, to wit:

“(1) The discovery of new evidence obtained since the nolo pleas establishing among other things that the defendant was physically unable to have committed the assault with intent to commit murder, which evidence if known at the time of the nolo pleas would have caused the defendant not to have entered the nolo pleas; (2) The state failed to supply the defendant with certain pre-trial discovery; and (3) The defendant entered his nolo pleas upon an honest misunderstanding as to the expected sentence.” State v. Braverman, supra.

As reflected in the earlier opinion, the matter was principally presented to the trial court on the ground of newly discovered evidence, and the order of the trial judge permitting the withdrawal of the plea was quashed and the matter was returned to the trial court for sentencing. It is the position of the State that this opinion estopped the defendant from filing a Rule 3.850 R.Cr.P. motion on any ground that was contained in the earlier motion to withdraw. Under the facts of this case as it developed, we do not concur with the State. The third ground of the motion to withdraw, supra, was not originally before the trial court and it was not an issue involved in the prior ruling of this court nor a point upon which the prior appeal was decided. Giblin v. State, 158 Fla. 490, 29 So.2d 18 (1947); Myers v. Atlantic Coast Line Railroad Company, 112 So.2d 263 (Fla.1959); 3 Fla.Jur.2d, Appellate Review, §§ 422, 423. Further, Rule 3.850 R.Cr.P. specifically permits such an attack as to the voluntariness of the plea to be made post-conviction and sentence and, even though it was a matter that could have been considered under the earlier motion to withdraw the plea, we do not think that the mere availability of this ground prior to adjudication and sentence would bar the opportunity to raise it again upon a Rule 3.850 R.Cr.P. motion. It appears inherently unfair for two different trial judges, one the original judge who accepted the plea and another who heard the evidence in relation to the circumstances surrounding the plea on a Rule 3.850 R.Cr.P. hearing, to both conclude that the plea was not freely and voluntarily made and, because of legal legerdemain, deprive a person of a right to withdraw the plea.

Therefore, the order under review is reversed and the cause is remanded with directions to permit the appellant to withdraw his plea of nolo contendere and for further proceedings consistent therewith.

Reversed and remanded, with directions.

SCHWARTZ, Judge

(specially concurring).

I concur in the court’s opinion and judgment of reversal. I would add only that, in my view, the result is not contrary to the rule that issues “actually raised” and considered in prior proceedings may not again be presented in a motion under Fla.R. Crim.P. 3.850. Whitney v. State, 184 So.2d 207, 209 (Fla. 3d DCA 1966), cert. denied, 192 So.2d 490 (Fla.1966); see, Jones v. Wainwright, 252 So.2d 570 (Fla.1971); Kendrick v. State, 353 So.2d 1273 (Fla. 1st DCA 1978) (precluding 3.850 claim that plea was involuntary when issue had been determined in previous appeal). This is the case because our earlier decision did not consider the issue before the trial court in the 3.850 proceeding, that is, the merits of Braver-man’s contention that his plea was involuntary; we held only that no evidence had been introduced in support of that allegation of the motion to withdraw the plea. State v. Braverman, 348 So.2d 1183, 1188 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 128 (Fla.1978). Indeed, as the opinion itself clearly shows, Braverman never “actually” litigated the involuntariness claim at any time prior to the 3.850 motion. The fact that he could have done so but did not does not affect his right to post-conviction relief on that ground. Whitney v. State, supra; see, Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); 2 Wright, Federal Practice and Procedure (Criminal), § 602 (1969).

      . As stated in the earlier opinion at page 1186:
      “On July 30, 1976, the motion came on for hearing before the trial court. The hearing centered entirely on the first ground of the motion relating to newly discovered evidence. No testimony or proofs were offered in support of the other two grounds.”

      . Emphasis, the court’s in Whitney v. State, 184 So.2d 207, 209 (Fla. 3d DCA 1966).

      . Judge Barkdull’s opinion in Whitney, supra, 184 So.2d at 209, clearly points out the difference between the res judicata rule in civil cases, which prevents relitigation of all issues which “actually were, should have or could have been raised,” and that in 3.850 proceedings which precludes only questions actually raised.


text:
    The STATE of Florida, Appellant, v. Robert ASHLEY, Appellee.
    No. 79-1317.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Janet Reno, State Atty. and Ira N. Loe-wy, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

By this appeal, we are asked to review a trial court order dismissing an information in a criminal case for failure of the state to produce, pursuant to court order, certain out-of-state witnesses for the defendant for the purpose of taking their discovery deposition after said witnesses had been listed by the state as potential state witnesses in the case. We have jurisdiction to entertain this appeal. § 924.07(1), Fla.Stat. (1979).

We reverse the order under review and remand the cause to the trial court with directions to reinstate the information in this cause upon a holding that: (1) the state may not be compelled by court order to produce out-of-state witnesses for the defendant to take their discovery deposition when such witnesses are listed by the state as potential witnesses in a criminal case; (2) it is reversible error for a trial court to dismiss a criminal case for failure of the state to produce such witnesses pursuant to court order; and (3) no showing was made in this case that the state intentionally or negligently suppressed any evidence in this cause, or, indeed, that the evidence claimed to be suppressed was in any way favorable to the defendant. State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla.3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla.3d DCA 1974); see State v. Herrera, 365 So.2d 399, 401 (Fla.3d DCA), cert. denied, 373 So.2d 459 (Fla.1978).

Reversed and remanded.


author: NESBITT, Judge.

text:
    Bart M. BEHAR, Appellant, v. Beverly ROOT, f/k/a Beverly A. Goldstein, Appellee.
    No. 80-155.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    John H. Lipinski, Miami, for appellant.
    No appearance for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Behar, an attorney, appeals a final judgment non obstante veredicto entered in favor of his former client after a jury had awarded him $1,875 as attorney’s fees and costs. Finding that the entry of the judgment n. o. v. was error, we reverse with directions to reinstate the verdict and enter judgment in favor of the appellant.

Ms. Root retained Behar to represent her in a dissolution of marriage proceeding and entered into a written contract with him for the agreed fee of $2,500 plus costs. The agreement expressly provided:

It is understood that attempts will be made to have my spouse pay said legal fees, but, in any event I will be responsible for the payment thereof.

Behar negotiated a property settlement agreement on behalf of his client with opposing counsel. Ms. Root then discharged Behar. Utilizing the product of her attorney’s labor, Ms. Root ultimately entered into a written agreement with her husband which substantially incorporated the terms in the agreement Behar had negotiated except that it provided that each spouse would bear his or her own attorney’s fees. Prior to final hearing in the dissolution proceeding, Behar filed a written motion to assess fees which the trial court properly refused to hear in that a trial court, in a dissolution proceeding, has no jurisdiction to determine the amount due by a party to an attorney absent a charging lien. Barranco, Darlson, Daniel & Blue-stein, P. A. v. Winner, 386 So.2d 1277 (Fla. 3d DCA 1980); Herold, P. A. v. Hunt, 327 So.2d 240 (Fla. 4th DCA 1976). The determination of rights of an attorney under his contract with a client is a matter to be tried in a separate action at law. Barranco, Darlson, Daniel & Bluestein, P. A. v. Winner, supra; Cristiani v. Cristiani, 114 So.2d 726 (Fla. 2d DCA 1959).

Behar then commenced this action for breach of contract and quantum meruit. After the jury returned a verdict favorable to Behar, the trial court, on its own initiative, entered a motion for directed verdict on behalf of Ms. Root, who had represented herself at trial.

If the trial court entered the judgment n. o. v. because it was of the view that Behar had failed to perform conditions precedent in failing to pursue the client’s former husband, it was in error. Ms. Root, having agreed to bear her own attorney’s fees, by way of stipulation, which was incorporated in the final judgment of dissolution, obviated the requirement that her former attorney pursue her former husband under the doctrine of frustration of purpose. 11 Fla.Jur.2d Contracts §§ 211, 212.

If the trial court was of the view that Behar’s testimony, standing alone, was insufficient to support the award, Flournoy v. Smith, 84 Fla. 553, 94 So. 503 (1922); Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA), cert. denied, 172 So.2d 601 (Fla.1964), it was nonetheless in error. At trial, the agreement between Behar and his former client was properly admitted into evidence as to the value of the agreed fee. Moreover, it was admissible in evidence under a quantum meruit theory. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928). Since the agreed fee was $2,500 and the jury verdict included costs and fees in the sum of $1,875, it is apparent that the jury did compensate Be-har on a quantum meruit basis.

Upon discharge without cause, an attorney employed for a specified purpose at a definite fee who substantially carries out his agreement is entitled to receive the agreed fee. However, he may, in the alternative, seek recovery on a quantum meruit basis for the services rendered up to the date of discharge. Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538 (1938); Levin v. Rosenberg, 372 So.2d 956 (Fla. 3d DCA 1979). In any event, he cannot recover more for services than the maximum fee agreed upon. Hazen v. Cobb, supra; Levin v. Rosenberg, supra.

A trial court is not authorized to grant a judgment in accordance with a motion for directed verdict if there is any evidence or reasonable inference to support the opposing position. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st DCA 1977).

For the foregoing reasons, we find that the trial court erroneously entered a judgment non obstante veredicto or a judgment in accordance with the motion for directed verdict. Consequently, the judgment is reversed and remanded for reinstatement of the verdict and entry of the judgment on behalf of Behar.

Reversed and remanded.


text:
    PARKWAY GENERAL HOSPITAL, INC., Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 80-541.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Atkinson, Golden, Bacen and Diner and Stephen F. Bacen, Hollywood, for appellant.
    Spencer and Taylor and Arthur H. Taylor, Miami, for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Parkway General Hospital appeals a final order dismissing with prejudice its complaint against Allstate Insurance Company for payment of hospital bills. We reverse.

Paul Dowd, was injured while a passenger in a vehicle insured by Allstate. Dowd was admitted to Parkway on April 23,1978, and incurred bills in excess of $65,000. At the time of his admission to the hospital, Dowd and a female companion who gave her name as Debi Dowd, purportedly signed an Agreement of Payment and Assignment of Insurance and Claim Benefits. The assignment authorized the insurer to make direct payment to the hospital of any benefits arising from the insurance policy. Allstate made payment for the hospital bills directly to Paul Dowd through his attorney, Michael Grossman, Esquire. Parkway brought suit against Dowd, his female friend Debi Dowd, Dowd’s attorney and Allstate seeking direct payment of the hospital bill.

The complaint, under two separate theories, alleges that Allstate should have made payment directly to Parkway. In Count V Parkway alleges that the hospital is a third party beneficiary under the subject insurance policy. In Count VI Parkway alleges that by virtue of an assignment of insurance benefits the hospital is an assignee in interest of insurance benefits owed the insured.

Allstate was heard on its seven paragraph motion to dismiss Parkway’s complaint. In paragraph one of the motion Allstate contends that a provider of medical services does not have a direct cause of action against the insurer of a patient for benefits payable to the patient under no-fault law or under an automobile liability insurance policy. This argument has no application where there is an assignment of benefits by the insured to a third party. Nationwide Mutual Insurance Company v. McNulty, 229 So.2d 585 (Fla.1969); W. Fla. Groc. Co. and H. T. Reddick v. Teutina Fire Ins. Co., 74 Fla. 220, 224, 77 So. 209, 210-11 (1917); Henry v. Halifax Hospital District, 368 So.2d 432 (Fla. 1st DCA 1979).

Allstate’s second argument in support of its motion to dismiss is that no copy of the insurance policy was appended to the complaint as required by Fla.R.Civ.P. 1.130. In Count V of its complaint, however, Parkway alleges that the policy in question is in the sole and exclusive possession of one or more of the defendants and will be produced through discovery. Such an allegation precludes dismissal with prejudice. Sachse v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972). Even without that allegation in the complaint, a prejudicial dismissal would have been improper. See, e. g., Conklin v. Cohen, 287 So.2d 56, 60 (Fla. 1973); Winn-Dixie Stores, Inc. v. Sams, 281 So.2d 47 (Fla. 3d DCA 1973).

Allstate’s third argument is that the third party beneficiary theory asserted by plaintiff in Count V of the complaint cannot be extended to create some separate cause of action on behalf of the hospital or physician. Plaintiff concedes the correctness of that argument.

Allstate’s arguments four, five and six all go to evidentiary matters extrinsic to the face of the complaint and should not have been considered in a motion to dismiss. Paragraph four refers to stipulations and orders of dismissal entered in companion cases. Paragraph five pertains to a hold-harmless agreement between defendants Dowd and his attorney and plaintiffs Allstate and Allstate’s insureds. Paragraph six refers to releases signed by the defendant Dowd to Allstate and the owner and the operator of the vehicle in which Dowd was a passenger when injured. Paragraph seven argues that plaintiff’s cause of action should be against Dowd and not against Allstate.

The purpose of a motion to dismiss is to ascertain if plaintiff has alleged a good cause of action, and the court must confine itself strictly to allegations within the four corners of the complaint. Consideration of defendant’s affirmative defenses or sufficiency of evidence which plaintiff will likely produce on the merits is wholly irrelevant and immaterial to deciding a motion to dismiss. Pizzi v. Central Bank & Trust Co., 250 So.2d 895, 897 (Fla.1971); Kest v. Nathanson, 216 So.2d 233, 235 (Fla. 4th DCA 1968); Stone v. Stone, 97 So.2d 352 (Fla. 3d DCA 1957). Parkway’s allegation of assignment in Count VI of its complaint is sufficient to state a cause of action against Allstate as required by Fla.R.Civ.P. 1.110.

Accordingly the final order appealed, to the extent that it dismisses the complaint as to Allstate Insurance Company, is reversed except as to the third party beneficiary claim in Count V.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


author: PER CURIAM. NESBITT, Judge

text:
    William A. FREEMAN, Jr., Appellant, v. Joseph A. VALDEZ, Jr., and Jeffrey Berman et al., Appellees.
    Nos. 80-768, 80-769.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.
    Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    Edward Worton, Key West, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

These consolidated appeals are from orders of the Circuit Court for Monroe County denying appellant’s motion for attorneys fees pursuant to Section 57.105, Florida Statutes (Supp.1978).

Appellant contends that there was no jus-ticiable issue of fact or law presented to the court by the appellees’ complaints, which were dismissed; he argues, therefore, that trial court abused its discretion in refusing to award appellant attorney’s fees in accordance with the provisions of Section 57.-105, Florida Statutes (Supp.1978).

We have considered appellant’s contention in the light of the record and briefs and have concluded that no reversible error has been demonstrated. Accordingly, the orders appealed are affirmed.

Affirmed.

NESBITT, Judge

(dissenting):

I dissent. I would reverse and remand with directions to the trial court to assess a fee in favor of the defendant.

Berman and Valdez brought an action against the Sheriff of Monroe County for defamation. The complaint and exhibits showed that the alleged defamatory statements were published by the sheriff in the discharge of his official duties. It is settled in this jurisdiction that an executive officer such as Sheriff Freeman enjoys an absolute privilege as to any statements made in relation to his official duties. Hauser v. Urchisin, 231 So.2d 6 (Fla.1970); McNayr v. Kelly, 184 So.2d 428 (Fla.1966); Danford v. City of Rockledge, 387 So.2d 967 (Fla. 5th DCA 1980); Cobb’s Auto Sales, Inc. v. Coleman, 353 So.2d 922 (Fla. 4th DCA 1978); and Knight v. Starr, 275 So.2d 37 (Fla 4th DCA 1973). In granting the defendant-sheriff’s motion to dismiss, the trial court found:

[I]t is clear from the face of the Complaint and all exhibits attached thereto that any remarks made by the Defendant Freeman herein were made in his official capacity as Sheriff of Monroe County and in connection with the discharge of his official duties in that regard. It is clear, therefore, that even if such remarks were in fact defamatory, the Defendant Freeman enjoys an absolute privilege and is immune from liability for such remarks. [emphasis supplied] [citations omitted]

Upon dismissal of the complaint, the sheriff presented a motion to assess attorney’s fees pursuant to Section 57.105, Florida Statutes (1979) which was denied without any findings of fact or assignment of reasons. In this case, the trial judge’s order dismissing the action shows on its face that there was neither a justiciable issue of law or fact. Under the statute, there is no exception made for governmental entities. City of Miami Beach v. Town of Bay Harbor Islands, 380 So.2d 1112 (Fla. 3d DCA 1980).

In denying the motion for attorney’s fees pursuant to Section 57.105, supra, the trial court is not required to make any finding. In this case, the finding that there was a justiciable issue in the underlying dispute could not be supported by the record because the order of dismissal of the action shows on its face that there was no justicia-ble issue. It is clearly the rule that the court may not make a finding which is not supported by the record. Hill v. Parks, 373 So.2d 376 (Fla. 2d DCA 1979); Leonard v. Leonard, 259 So.2d 529 (Fla. 3d DCA 1972); Heath v. First National Bank in Milton, 213 So.2d 883 (Fla. 1st DCA 1968).

Normally, the foundation facts to support an award of attorney’s fees under Section 57.105, supra, will arise from the reason the action was terminated. The termination of an action alone will not support the award of attorney’s fees under Section 57.105, supra. Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). However, when an action is terminated by an order which shows that there is no justiciable issue, the trial court has only limited discretion in the denial of attorney’s fees pursuant to the statute. Had the plaintiff attempted in the instant case to assert, as a basis for the maintenance of an action, a position based on federal, organic, or statutory law (notwithstanding the clarity of Florida decisional law), the trial court would nonetheless be entitled to deny attorney’s fees. The purpose of the statute is not to have a chilling effect upon litigation. It is to prevent frivolous litigation. Hernandez v. Leiva, supra; Allen v. Estate of Dutton, supra. When an action or defense is non-justiciable to the point of frivolity and there is not some useful purpose to be served as, for example, the testing of a new theory, Section 57.105, supra, mandates that the trial court “shall” award attorney’s fees.

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


author: PEARSON, TILLMAN, Associate Judge.

text:
    A. R., a juvenile and F. M., a juvenile, Appellants, v. The STATE of Florida, Appellee.
    Nos. 80-981, 80-982.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.

      Bennett H. Brummer, Public Defender and Donald M. Middlebrooks, Sp. Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN, Associate Judge.

These consolidated appeals are by the designated juveniles (A.R. and F.M.) from their respective adjudications as delinquents. The findings by the trial judge arose from a joint trial and the evidence as to each appellant is the same. We reverse upon a holding that a prima facie case was not here presented. See Fisk v. State, 138 Fla. 815, 190 So. 10 (1939); State v. Graham, 238 So.2d 618 (Fla.1970); Gilbert v. State, 270 So.2d 750 (Fla. 3d DCA 1972); J. O. and R. G. v. State, 384 So.2d 966 (Fla. 3d DCA 1980).

The State urges that the adjudications ought to be affirmed upon a holding that the circumstances were such that the possession of recently stolen property was not satisfactorily explained. See Section 812.022(2), Florida Statutes (1979). This determination must initially be made by the trier of fact and will only be reversed upon appeal where clearly erroneous. However, where the unrefuted explanation is such that the circumstantial evidence of guilt by reason of possession is also susceptible to the hypothesis of innocence, we must reverse. See Fisk v. State, supra.

Our reading of this record brings these cases clearly within the cited rule of law. The law does not deal in probabilities, but in proof of guilt beyond reasonable doubt. See Davis v. State, 90 So.2d 629 (Fla.1956); Fisk v. State, supra.

Accordingly, the adjudications appealed are reversed with directions to discharge the defendants.

Reversed with directions.


author: BARKDULL, Judge.

text:
    Charles Henry PEEK, Petitioner, v. Louie L. WAINWRIGHT, as Secretary, Department of Corrections, State of Florida, Respondent.
    No. 80-2271.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1981.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for respondent.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

Petitioner, in his petition for habeas corpus, contends he is being illegally incarcerated in that he has been sentenced and is serving a sentence for a crime of which he was never charged or convicted.

Petitioner has been sentenced to five years in the State penitentiary, pursuant to Section 812.014(2)(c), Florida Statutes (1980), for felony petit theft. He was originally charged with strong-armed robbery. The charging document did not allege any prior petit theft convictions. However, the State did notify petitioner before trial that it would seek enhancement of his sentence pursuant to Section 775.084, Florida Statutes (1980), whether his conviction was a misdemeanor or a felony based upon his record of eleven prior felony convictions and three misdemeanor convictions. At trial on the robbery charge, the petitioner requested a jury charge on the lesser included offense of petit theft. He was convicted of petit theft. In all, three sentencing hearings were held. At the second hearing, the State announced its intention to seek enhancement of his conviction for petit theft, pursuant to Section 812.-014(2)(c), Florida Statutes (1980), enhancing the crime to a felony in the third degree. After the third hearing, he was sentenced for felony petit theft.

Petitioner contends that felony petit theft is not a lesser included offense of the crime of strong-armed robbery and thus, under the holding of State v. Harris, 356 So.2d 315 (Fla.1978), unless he is charged with the substantive offense of felony petit larceny and convicted thereof he cannot be sentenced for that offense.

A careful reading of State v. Harris, supra, does not support that rationale. In State v. Harris, supra, the defendant was charged with the substantive offense of felony petit larceny (which charge was necessary to activate the jurisdiction of the circuit court, so as to permit sentencing in excess of one year), and the question to be decided was whether or not the jury should be made aware of the defendant’s prior convictions and be permitted to make a specific finding thereon. The supreme court held it was not and that upon the third conviction for petit larceny the trial court would determine the historical fact of prior convictions and questions regarding identity following the procedures employed under Section 775.084, Florida Statutes.

Clearly, in enacting Section 812.-014(2)(c), Florida Statutes (1980) and its predecessor, Section 812.021(3), Florida Statutes (1977), the Legislature intended that a three-time offender of the petit theft statute should have his sentence enhanced to that of felony petit larceny and that he should be sentenced therefor. In the instant case, the petitioner was properly charged with a felony which activated the jurisdiction of the circuit court; he was advised of the State’s intent to seek an enhanced sentence if he was convicted. Now having been convicted of the lesser offense of petit larceny, he now hopes to frustrate the legislative intent by taking the position that not having been formally charged with the offense of petit larceny he cannot now be sentenced for that offense. He does not allege he has been denied due process by not having notice or a proper hearing and proof of his prior convictions, as mandated by State v. Harris, supra. To accept the petitioner’s contention would totally frustrate the Legislature in its attempt to enhance the penalty of the chronic offender.

The petitioner’s record in this case shows, beyond a question of a doubt, that he is the type of individual the Legislature intended to punish by an enhanced penalty. If we accept the petitioner’s position it would appear that in order to effectuate clear legislative intent it would be necessary for the State to charge, in the alternative, the crime of felony petit larceny in those situations where a jury might properly find guilt of the lesser offense of petit larceny to merit sentencing for felony petit larceny. To require the State to so speculate in its charging document would appear not to be advisable.

Therefore, finding no basis for relief, we deny this petition for writ of habeas corpus.

Habeas corpus denied.


text:
    ANHEUSER-BUSCH, INC., Appellant, v. DEPARTMENT OF BUSINESS REGULATION, Division of Alcoholic Beverages and Tobacco, Appellee.
    No. SS-38.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1981.

      T. Paine Kelly, Jr., MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Harold F. X. Purnell and Dennis E. La-Rosa, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Anheuser-Busch appeals from an order of the Division of Alcoholic Beverages and Tobacco finding that the brewer’s promotional “bar spending” for vacationing collegians at Daytona Beach violated Section 561.42(1), Florida Statutes (1979), the “Tied House Evil” law. The Division assessed a monetary penalty equal to appellant’s payments for beer and its tips for service. We reverse the order because of its substantial deficiencies as a policymaking instrument under Chapter 120, Florida Statutes (1979).

Anheuser-Busch, licensed in Florida as a beer manufacturer, sells its products to distributors who in turn sell to retail vendors. To promote its products, the manufacturer sponsored free beer parties in 16 Daytona Beach bars and taverns during the college Spring break in 1978. Anheuser-Busch paid the vendors their usual retail price for An-heuser-Busch beer consumed by the vendors’ customers during those parties and paid conventional tips to the vendors’ employees who served that beer. Appropriately enough, this is called manufacturer’s “bar spending.” For beer and service An-heuser-Busch paid approximately $7,000 to selected Daytona Beach vendors and their employees during a four-day period in March 1978.

The Division charged that the manufacturer’s bar spending constituted “the giving of a gift, loan of money or property or ... the giving of a rebate” to retail vendors, in violation of Section 561.42(1), which provides:

(1) No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the Beverage Law, nor shall such licensed manufacturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever....

Exercising its power to “establish rules ... to enforce the herein established limitation upon credits and other forms of assistance,” Section 561.42(8), the Division has promulgated Rules 7A-1.09 and 7A-1.10, Fla.Admin.Code, amplifying the terms “rebate” and “gift” as used in the statute:

7A-1.09 Rebate. The term “rebate” (often referred to as accumulative promotion or retroactive discount) shall include any refund or discount made or allowed other than such discounts as are permitted under Section 561.42, Florida Statutes [allowing trade discounts in the usual course of business, Section 561.42(6)]; and as such they are prohibited.
7A-1.10 Gift. The term “gift” shall apply to the giving of free goods or things of value as a discount not otherwise permitted by law or reward for purchasing any given quantity of alcoholic beverages either at one time or over a period of time; and as such they are prohibited.

The Division and Anheuser-Busch presented the present licensee discipline complaint to a hearing officer of the Division of Administrative Hearings on a bare-bones stipulation of facts, substantially as recited above, which concluded:

Bar spending (i. e., the practice of a representative of a manufacturer or of a wholesaler of purchasing drinks for consumers at the premises of a retail licensee) has long been an industry marketing practice in Florida, albeit on a more limited scale than set forth above. The Florida Division of Alcoholic Beverages and Tobacco has known of the practice, but has never before brought any action against a licensee for such bar spending activities, or otherwise advised the brewing industry of its opposition to spending on any scale. The brewing industry has never sought such an opinion as to the legality of bar spending from the Division. This is the first activity known to the Division incorporating all of the features described in the foregoing statement.

The Division argued to the hearing officer that bar spending “incorporating all of the features” of this particular promotional campaign constituted a “rebate” or “gift” by the sponsoring manufacturer to the retail vendors in that the retailers received increased gross revenues as a result of the parties, or they received increased profits due to discounts allowed by distributors for their greater than ordinary purchases for the parties. The hearing officer rejected these propositions as a matter of fact because the Division’s abbreviated proof did not show that the vendors sold more beer at Anheuser-Busch’s expense than they would have sold at their customers’ own expense. The hearing officer concluded:

Having failed to establish the increased volume theory, the [Division] is unable to demonstrate increased profits due to increased volume, ergo there is no “rebate” or retroactive discount that has been shown by the [Division] in its proof. Moreover, the ordinary meaning of the word “rebate” does not lend itself to the establishment of a “rebate” by the evidential facts adduced in this hearing....
... [T]here is no showing that [An-heuser-Busch] was repaying, making restoration or returning money to the vendors as a form of restitution or repayment when it purchased the alcoholic beverages for the benefit of the patrons of the vendor .... There is no showing that the vendors paid any less than usual when they purchased the products which were subsequently given away to the general public and paid for by [Anheuser-Busch] at the usual prices.
The [Division] has also failed to prove that the “bar spending” constituted a “gift” within the meaning of Rule 7A-1.-10, Florida Administrative Code. The free goods that were given were goods given to the general public and, absent a showing that the volume of sales would have been increased due to [Anheuser-Busch’s] purchase of the alcoholic beverages, it cannot be shown that the vendors were extended free goods.... Finally, the [Division’s] assertion that the mere act of having the promotional staff of [Anheuser-Busch] put on the bar party constituted a “gift” or reward is not convincing for reason that the proof does not indicate that particular benefit.

The hearing officer recommended an order finding that the charges had not been sustained.

The Division’s final order, while purporting to accept the hearing officer’s findings of fact, drew the different conclusion that “the entire party from beginning to end was a gift to the vendor” which had “substantial intrinsic if not precise worth to the vendor in the party’s effect on the vendor’s profit, overhead, cash flow, promotional value, competitive edge, advertising and good will.” The Department’s order concluded:

It is beyond reason to suggest that the vendors did not receive a financial benefit from the transaction outlined in the facts of this case. If the promotional activities of [Anheuser-Busch] in this case are not prohibited, then nothing would prevent manufacturers similarly situated from having 1, 5, 50, or 100 free parties per year at preferred or key vendors locations. Such would be an inducement for other vendors to carry the products of the promoting manufacturer, thus creating a Tied House effect heretofore condemned in this State.

Thus the Division’s order in this case equates the antitrust, antifavoritism and antipredator purposes of Section 561.42(1) with the perceived dangers of manufacturers’ bar spending. Through this order there begins to emerge a Division policy, rooted in the statute, which condemns manufacturers’ bar spending in a certain volume or when carried out with a certain sophistication and forethought (“The instant matter does not involve the situation in which a member of Respondent’s promotional staff went in to a vendor’s place of business unknown to the vendor and bought a round of the Respondent’s products for the patrons. Instead, it involves a promotional scheme ... ”).

On this record the Division cannot successfully dispute the hearing officer’s findings that there was no proof of a manufacturer’s “gift” or “rebate” in the sense of discounts realized by vendors in purchasing greater than usual quantities of Anheuser-Busch beer from distributors or in the sense of income or profits realized by serving greater than usual quantities of beer to their patrons. The record is not susceptible to the Division’s substituted finding that the bar spending had “substantial intrinsic if not precise worth to the vendor in the party’s effect on the vendor's profit, overhead, [and] cash flow .... ” Therefore no violation of Section 561.42(1) can be founded particularly on Rules 7A-1.09 and 7A-1.-10, whose terms emphasize the “gift” and “rebate” characteristics of direct financial rewards given by a seller to a buyer in return for purchases in the chain of distribution. The Division’s order finding a violation of Section 561.42(1) therefore depends less on the precise terms of Rules 7A-1.09 and 7A-1.10 than on the general purposes of the statute itself, whose reach the Division says is illustrated but not exhausted by the Rules:

The definitions [Rules 7A-1.09 and 7A-1.10] do not indicate that they are exclusive of any other commonly used meaning of the words [“gift” and “rebate”], nor should an agency interpretation of a statute by rule be used to frustrate the clear and unambiguous intent of the law.

The Division correctly suggests that having rules which particularly define one sort of conduct within the reach of a regulatory statute does not foreclose the Division’s application of the statute to other conduct through adjudication. If by promulgating a single set of interpretative rules an agency should lose power to further interpret the statute through adjudication, then not only the regulatory statute but APA processes as well would be frustrated. Agencies may expound statutes given in their charge by rules or by orders, or by both rules and orders. The model of responsible agency action under the APA is action faithful to statutory purposes and limitations, foretold to the public as fully as practicable by substantive rules, and refined and adapted to particular situations through orders in individual cases. See McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

Notwithstanding the continued availability of adjudication as a means of Section 561.42(1) policy development within the Division’s delegated authority, this plainly is a case of policymaking for which rules are preferable to orders. Florida Cities Water Co. v. Public Serv. Comm’n, 384 So.2d 1280, 1281 (Fla.1980); City of Plant City v. Mayo, 337 So.2d 966, 974-75 (Fla.1976); McDonald, supra; General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1209 (Fla. 1st DCA 1977). That is so, first, because “established industry-wide policy is being altered” by the imposition of new restraints on a heretofore common but unregulated industry practice, Florida Cities, supra, 384 So.2d at 1281; and second, because rules make policy prospectively after notice, whereas orders extract policy from events viewed retrospectively, and a licensee discipline order under Section 120.60 has the added potential of assessing severe and judicially unreviewable penalties for violation of a statutory norm made explicit only by the disciplinary order. Here, for example, while the Division may be entirely justified in construing the Tied House Evil statute to prohibit certain (or all) manufacturer’s bar spending, it surely is too much to claim, as the Division’s order seemingly does, that the statute’s prohibition of bar spending is “clear and unambiguous,” i. e., readily ascertainable by a licensee: reasonably susceptible to that construction, yes; clear and unambiguous, no.

This, then, is not a case in which licensee discipline is sought for violation of an explicit statute or rule, or for an act tainted by standards which are commonly understood though only generally expressed by statute. This is rather a case in which licensee discipline is imposed for violation of rather general, morally neutral, and somewhat technical statutory standards which the order makes explicit only retrospectively and only in terms of the discrete facts at hand. Federal administrative agencies are thus permitted to “proceed retroactively by adjudication to find past conduct illegal, even though such conduct has not been identified as illegal by an agency rule.” SEC v. Chenery, 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), characterized by Mayton, The Legislative Resolution of the Rule- making Versus Adjudication Problem in Agency Rulemaking, 1980 Duke L.J. 103, 116. In Florida, too, the choice between rulemaking and adjudication' is left largely to the agency. Florida Cities, supra, 384 So.2d at 1281. But when substantial private interests are to be determined entirely by retrospective policymaking through adjudication, and the conduct in question is such that the licensee likely would have conformed to any agency standard of which it had notice rather than incur the financial and other burdens of disciplinary action, Florida regulatory agencies may reasonably expect a reviewing court to ponder carefully whether agency rulemaking was reasonably practicable as well as desirable and, if so, whether the agency’s order meets all APA standards for policymaking orders issued in lieu of rules, and whether any error impaired “the fairness of the proceedings or the correctness of the action.” Section 120.68(8), Florida Statutes (1979).

In other words, a reviewing court may be expected to defer to the executive’s Chapter 120 privilege, wide in scope but not unlimited, to say when its emerging policy within statutory bounds has settled sufficiently for rulemaking. But though we will ordinarily “withhold judicial imperatives” for rule-making, in deference to a coordinate branch of government, we are bound to give full effect to the APA’s “self-enforcing” incentives for rulemaking — those requirements concerning orders by which “agencies will be pressed toward rulemaking by the necessity otherwise to explicate and defend policy repeatedly in Section 120.57 proceedings .... ” Hili v. School Board of Leon County, 351 So.2d 732, 733 (Fla. 1st DCA 1977).

From an agency’s point of view, the case-by-ease emergence of incipient policy through adjudication has certain understandably attractive features in comparison to rulemaking. Chief among those seeming advantages are retroactivity, particularity, and flexibility. To make a substantive rule an agency must think comprehensively, risk rebuff by the legislature’s administrative procedures committee, Section 120.545, and be willing to live with a basic policy choice, making refinements by adjudication, until that choice is changed by more rulemaking. But policymaking by adjudication has certain costs as well. Foremost among those costs to the agency is that the accuracy of every factual premise and the rationality of every policy choice which is identifiable and reasonably debatable must be shown by some kind of evidence undergirding the order which makes that policy choice on that factual premise.

In other words — by way of example drawn from the circumstances of this case — if by reason of the generality of the statute certain conduct is not predictably objectionable, but it may be proscribed or not depending on how the agency views the effect of that conduct and the objects of the statute, then, to the extent the agency’s reasoning can be isolated, identified, and demonstrated by evidence appropriate to the occasion, the agency must create a record foundation for its order that the conduct objected to has effects which the statute is construed to condemn. It is insufficient for an agency to prove only the empirical events which are the chosen vehicle for policymaking — that, say, Anheuser-Busch bought a lot of its beer from various Dayto-na Beach taverns in the Spring of 1978— and then to expound elegantly, but without a record foundation, that those purchases were forbidden by Section 561.42(1).

We find, therefore, that there is no evidentiary basis in the stipulation or elsewhere in the record for the Division’s factual premise that the bar spending complained of gave “promotional value, competitive edge, advertising and good will” to the host bars and taverns. The hearing officer rightly said “the proof does not indicate that particular benefit.” And even if that factual premise were shown, the Division’s proof does not show further why conferring such a “benefit” through manufacturers’ bar spending should be regarded under Section 561.42(1) as equivalent to giving a gift or rebate to, or acquiring a financial interest in, a vendor. We decline to accept these elements in the Division’s reasoning as a matter of common knowledge, economic logic, or abstract statutory interpretation, for both the Division’s factual premise and its reasoning from the statute are capable to being demonstrated by expert testimony, documentary opinion, or other evidence “appropriate in form [to the] nature of the issues involved”; and those elements in the Division’s reasoning are in need of testing by cross-examination, countervailing testimony or documentary proof, or in other ways appropriate to the form of the evidence. Section 120.58(l)(a); cf. Balino v. Dept. of Health & Rehab. Serv., 362 So.2d 21, 24 (Fla. 1st DCA 1978), cert. den., 370 So.2d 458 (Fla.1979) (rulemaking proceedings); DeLong, Informal Rulemaking and the Integration of Law and Policy, 65 U.Va. L.Rev. 257, 295 (1979). Lacking a record foundation for the policy it attempts to establish, the order of the Division assessing civil penalties against Anheuser-Busch must be vacated.

Our decision here was foretold by McDonald :

2. Sections 120.52(14) and .54 require that agency policy statements of general applicability be adopted as rules and Section 120.57 requires proof of incipient agency policy not expressed in rules and subjects it to countervailing evidence and argument, (emphasis in original, 346 So.2d at 579.)
To the extent the agency may intend in its final order to rely on or refer to emerging policy not recorded in rules or discoverable precedents, Section 120.53(2), that policy must be established and may be challenged by proof. (346 So.2d at 582.)

See also State Dept, of Administration v. Harvey, 356 So.2d 323, 326 (Fla.1977):

To the extent Division policy is not incorporated in regularly adopted rules, the Division may be required by any disappointed applicant to defend its policy in a Section 120.57 proceeding where the Division will be required to present evidence and argument and to “expose and elucidate its reasons for discretionary action.” McDonald, supra, 346 So.2d at 587.

Recently the Supreme Court endorsed the “record foundation” discipline for nonrule policymaking. Florida Cities, supra, 384 So.2d at 1281:

Nonetheless, when an agency elects to adopt incipient policy in a non-rule proceeding, there must be an adequate support for its decision in the record of the proceeding. McDonald at 583-84. In this case, there is absolutely no record foundation for the commission’s disallowance of CIAC and AIAC deductions.

To further illustrate the point: in McDonald we found that certain statutory criteria for the issuance of a bank charter— the bank’s “reasonable promise of success” and the skill of its proposed management, Sections 659.03(2)(b), (d) — were “ultimate facts ... infused by policy considerations for which the agency has special responsibility,” and so were subject to elaboration and decision by the Department of Banking and Finance notwithstanding contrary findings of the hearing officer. Nevertheless, we pointed out that

The hearing officer’s function creates agency incentives for rulemaking, which as far as it goes displaces proof and debate of policy in 120.57 proceedings; [and] encourages an agency to fully and skillfully expound its nonrule policies by conventional proof methods .... (346 So.2d at 583.)

Because the Department of Banking and Finance could show no record predicate for its preferred standards elaborating the subsections (b) and (d) criteria, we held the Department foreclosed from further consideration of those issues, though the case was remanded for discretionary action on issues on which the Department had created a satisfactory record.

The Supreme Court dealt similarly with a silent record in Florida Cities, a water/sewer rate case in which the Public Service Commission reversed its prior “industry-wide policy” and denied the utility the benefit of claiming, as an expense affecting rates, depreciation of the value of construction money or property advanced or contributed to the utility by customers and developers. Characterizing the Commission’s policymaking as more suitable for rulemak-ing than for adoption “in a non-rule proceeding,” the Court did not demand rule-making but allowed the APA’s discipline for policymaking orders to provide incentives for rulemaking: the Court vacated the Commission’s order for lack of a “record foundation,” that is, for lack of any “evidence presented to support the Commission’s change in policy .. .. ” Florida Cities, 384 So.2d at 1281 and (dissenting opinion) 1283. Plainly, the missing “record foundation” was a Commission showing, by some kind of evidence, that as a matter of statutory policy the value of advances and contributions in aid of construction should not be treated as depreciable.

Because the Division’s final order in this case undertook to establish and is based upon nonrule policy which we judge was susceptible of verification by evidence in the proceedings before the hearing officer, but which was not proved by the Division, the order finding violations of Section 561.-42(1) and assessing civil penalties lacks a record foundation and is therefore VACATED.

BOOTH and SHIVERS, JJ., concur.


author: PER CURIAM. HURLEY, Judge,

text:
    Kenneth F. LEONARD et al., Appellants, v. Cynthia Gay ROTH et al., Appellees.
    No. 80-258.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1981.
    Alan Eichenbaum of Weinsoff & Klaus-ner, Miami, for appellants.
    Robert L. Sellars of Jones & Foster, West Palm Beach, for appellees.
   PER CURIAM.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

specially concurring.

I join in the court’s affirmance of this case because the record discloses that trial counsel for appellants/third party defendants agreed in writing to settle the case for a specific sum and then stated:

We do believe that you are entitled to some attorney’s fees, but certainly not that exceeds the amount of the original claim. We will be happy to submit a check to you settling the original claim and let the court set your attorney’s fee if you still claim it.

Based on the foregoing, appellees/third party plaintiffs settled for the agreed sum and concurred in the dismissal of the third party complaint with the proviso that the trial court would retain jurisdiction and assess attorney’s fees at a later time. When appellees moved to tax attorney’s fees, appellants interposed the objection that attorney’s fees were not available as a matter of law. The trial court overruled the objection and granted attorney’s fees based on an indemnification theory. As I see it, on appeal we need not reach the issue of indemnification, for appellants/third party plaintiffs’ written offer to settle and their explicit agreement to allow the trial court to assess attorney’s fees, coupled with the later dismissal of the action, estops appellants from asserting the error, if any, on appeal. Florida Antilles Properties, N.V. v. Rose and Rose, Inc., 324 So.2d 129 (Fla. 3d DCA 1975). See also American Mortgage Corporation v. Lord, 253 So.2d 922 (Fla. 2d DCA 1971), cert. denied, 260 So.2d 514 (Fla. 1972); Martel v. Carlson, 118 So.2d 592 (Fla. 3d DCA), cert. denied, 123 So.2d 674 (Fla. 1960).


text:
    Daniel Eugene HOLLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1669.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1981.
    Jack 0. Johnson, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Daniel Eugene Holloway appeals his placement on probation (adjudication withheld) for loitering, grand theft, petit theft, and two counts of burglary. We affirm the order of probation, but remand for modification of the probationary term.

Only one of the points appellant raises has merit. He was given five years probation on the loitering count and one year probation on the petit theft count. However, both loitering, a violation of section 856.021, Florida Statutes (1979), and petit theft, a violation of section 812.014(2)(c), are second-degree misdemeanors, for which the maximum probationary term is six months. § 948.04(1); Alderman v. State, 356 So.2d 928 (Fla. 2d DCA 1978).

Accordingly, these parts of the order of probation setting forth the terms of probation on the loitering and petit theft counts are vacated and the cause remanded with directions to impose new probationary terms within the maximum allowable by statute. The order of probation is otherwise affirmed.

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


text:
    Willie Lee BURLEY, Appellant, v. SANTA FE COMMUNITY COLLEGE and Kemper Insurance Company, Appellees.
    No. UU-84.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.

      Steven H. Gray, of Green, Simmons, Green, Hightower & Gray, Ocala, for appellant.
    Jack A. Langdon, of Jones & Langdon, Gainesville, for appellees.
   PER CURIAM.

The employer and carrier failed for more than two years to take a setoff for social security benefits being paid Appellant and his dependents. Once they began taking the setoff, however, they also started deducting another $10.00 a week for the past excess workers’ compensation payments Appellant had received. By failing to order the employer/carrier to return the weekly $10.00 they had improperly recouped, the Deputy in effect approved the recoupment. To that extent the Deputy erred, because the right to setoff may not be exercised retroactively. The carrier may reduce compensation payments to account for social security benefits only prospectively, as of the date it exercises its right under Section 440.15(10), Florida Statutes (1977). Baker Products, Inc. v. Laria, 379 So.2d 1332 (Fla. 1st DCA 1980); Pensacola Buggy Works v. Jernigan, 377 So.2d 245 (Fla. 1st DCA 1979).

The order appealed is otherwise affirmed.

ROBERT P. SMITH, and THOMPSON, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Janet Rose MELICK, Appellant, v. Keith E. MELICK, Appellee.
    No. VV-167.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1981.

      Ferrin C. Campbell, Sr., and Daniel C. Campbell, Crestview, for appellant.
    Dale E. Rice, Crestview, for appellee.
   PER CURIAM.

The trial judge, on motion for rehearing, refused to consider Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), which was decided the day after final judgment in this case was rendered. Disposition of a case on appeal, however, must be founded on the law in effect when the appellate court reached its decision rather than the law in effect at the time the lower court reached its decision. Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978); Perez v. Perez, 383 So.2d 252 (Fla. 2nd DCA 1980). Without suggesting that his rulings on the merits were correct or incorrect, we remand to the trial judge for consideration of the issues in light of the principles set forth in Canakaris v. Canakaris, supra.

REMANDED.

ERVIN, BOOTH and JOANOS, JJ., concur.


text:
    Eric Nemiah INGRAM, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1825.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The defendant Eric N. Ingram appeals a judgment of conviction and sentence based on two counts of obtaining property in return for a worthless check in excess of $50, [§ 832.05(4), Fla.Stat. (1979)] entered against him upon a jury verdict after trial in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant contends that the trial court committed fundamental error in: (a) failing to give any instruction whatever to the jury relating to a material element of the crimes for which he was charged and convicted, namely, the obtaining through a worthless check of “any services, goods, wares, or other things of value.” [§ 832.05(4)(a), Fla.Stat. (1979)]; and (b) misreading the pertinent counts of the subject information to the jury so as to omit the above material element as it was alleged therein. We entirely agree.

It seems clear beyond dispute that the jury here was completely misled as to what the defendant was charged with and had no knowledge whatever as to a material element of the crime which made these offenses felonies as opposed to misdemeanors [compare § 832.05(2), Fla.Stat. (1979)], a matter which went directly to the circuit court’s jurisdiction to try this case. See § 26.012(2)(d), 34.01(1), Fla.Stat. (1979). It is, therefore, our view that the compounded error under consideration goes to the very foundation of this ease and is fundamental in nature. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). The judgment of conviction and sentence under review must be and is hereby reversed and the cause remanded for a new trial. See e. g. State v. Jones, 377 So.2d 1163 (Fla.1979); Croft v. State, 117 Fla. 832, 158 So. 454 (1935); Williams v. State, 366 So.2d 817 (Fla. 3d DCA), cert. denied, 375 So.2d 912 (Fla.1979).

Reversed and remanded for a new trial.


text:
    Andrew HODGE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-873.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender and David Kreider, Legal Intern, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The appellant’s robbery conviction is reversed for a new trial because the trial judge erroneously denied a requested instruction that intent to deprive is an essential element of the crime. Bell v. State, 394 So.2d 979 (Fla.1981).


author: BASKIN, Judge.

text:
    James M. NIELSEN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1051.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We affirm the trial court’s denial of defendant’s motion to suppress cocaine seized without a warrant. Appellant clearly appeared to be drunk when he entered his car and fumbled for his keys. The circumstances afforded the officer approaching the car a plain view of the contraband, State v. Ruiz, 360 So.2d 1320 (Fla. 2d DCA 1978), and probable cause to arrest. Smith v. State, 363 So.2d 21 (Fla. 3d DCA 1978); State v. Harris, 281 So.2d 405 (Fla. 4th DCA 1973).

Affirmed.


text:
    G. E., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1937.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. In the Interest of M. E., 370 So.2d 795 (Fla.1979); Williams v. State, 309 So.2d 630 (Fla. 3d DCA 1975).