author: DAUKSCH, Chief Judge. DAUKSCH, Chief Judge.

text:
    Joseph Gerald HOLMES, Petitioner, v. The Honorable Kenneth M. LEFFLER, Circuit Judge of the Eighteenth Judicial Circuit in and for Seminole County, Florida, Respondent.
    No. 81-1020.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 1982.
    Rehearing Denied March 17, 1982.

      James Russo, Public Defender, Titusville and Robert B. Fisher and Donald R. West, Asst. Public Defenders, Sanford, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   DAUKSCH, Chief Judge.

Petitioner seeks a writ of prohibition to prevent the Circuit Court for Seminole County from proceeding with any further criminal prosecution of him because he was not tried within 180 days of his arrest as required by Florida Rule of Criminal Procedure 3.191. We grant the writ.

On September 8,1980, Petitioner was arrested and taken into custody in Seminole County on charges of burglary of a dwelling. At both the first and second scheduled arraignments, the state requested one week continuances which were granted. On September 24, 1980, the state filed a Notice of No Information and, consequently, Petitioner was discharged at the third scheduled arraignment on September 30, 1980.

On February 4, 1981, the state filed an information for burglary of a dwelling and a Petition for Writ of Habeas Corpus Ad Prosequendum was issued to direct the Sheriff of Orange County to deliver Petitioner to Seminole County for arraignment. That writ was issued because Petitioner was in custody in Orange County, Florida, on Orange County charges. On February 11,1981, a capias was issued for Petitioner’s arrest on the Seminole County burglary charges.

On March 7, 1981, 180 days had passed since Petitioner’s arrest on September 8, 1980. On June 1, 1981 Petitioner was released from the Orange County jail and the capias of February 11, 1981 was served upon him on June 5, 1981.

On June 30, 1981, Petitioner filed a Motion to Dismiss and Discharge the Seminole County charges because the speedy trial time had run. Petitioner’s Motion was denied on July 15, 1981 and the court ruled that pursuant to Florida Rule of Criminal Procedure 3.191(b)(1), Petitioner was “unavailable” for trial from February 8, 1981 through June 1, 1981.

Petitioner asserts that the court’s reliance on Rule 3.191(b)(1) was misplaced. We agree. Rule 3.191(b)(1) clearly applies only to prisoners “outside the jurisdiction of this State or a subdivision thereof.” We interpret this to mean that neither the state nor any county or city has jurisdiction over the prisoner. Therefore, Petitioner’s incarceration in the Orange County jail during part of the speedy trial period does not classify him as a prisoner outside the jurisdiction and should not preclude him from asserting his speedy trial rights.

On appeal, Respondent also contends that Petitioner was not entitled to discharge because he was not continuously available for trial under Rule 3.191(e), Florida Rules of Criminal Procedure (1981). Respondent asserts that Petitioner was unavailable for trial because he was incarcerated in the Orange County jail during some of the applicable speedy trial period. However, Rule 3.191(e) provides:

(e) Availability for Trial. A person is unavailable for trial if (1) the person or his counsel fails to attend a proceeding where their presence is required by these Rules, or (2) the person or his counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for herein is not entitled to be discharged. No presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish availability during the term.

Petitioner did not fail to attend a proceeding where his presence was required and there was no showing that he was not ready for the scheduled trial on June 27,1981. In addition, it has been held that an accused is entitled to discharge when he is not brought to trial within the speedy trial period even though in the interim he was incarcerated in another county. State v. Yero, 377 So.2d 45 (Fla. 3d DCA 1979); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972).

In their arguments, both Petitioner and Respondent have relied on newly amended Rule 3.191. However, the operative event in the instant case which began the running of the speedy trial time was the taking of the Petitioner into custody on September 8, 1980. This event occurred prior to the effective date (January 1, 1981) of the 1980 amendment to the speedy trial time. “Florida Rules of Court have prospective effect only, unless expressly provided otherwise.” Jackson v. Green, 402 So.2d 553 (Fla. 1st DCA 1981). The 1980 amendments to the speedy trial rule are not expressly retroactive. Thus, the issue is whether Petitioner falls within the definition of a prisoner in Florida and whether he must be brought to trial within 180 days of arrest under former Rule 3.191(a)(1) or within one year of arrest under former Rule 3.191(b)(1).

In order for former Rule 3.191(b)(1) to apply, Petitioner must have been a “prisoner” within the meaning of that rule. Specific attention should be drawn to the following crucial phrase of the former rule:

. . . the period of time established by this rule shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, whether or not such period may commence to run before such person began to serve his term of imprisonment. .. . (emphasis added).

The Florida Supreme Court has held and this court has recognized that former Rule 3.191(b)(1) “applies only to those defendants imprisoned in a state or county penal or correctional institution pursuant to a criminal judgment of guilt and does not apply to those defendants being held in jail while awaiting trial.” Lewis v. State, 357 So.2d 725, 728 (Fla.1978). Petitioner was merely a pretrial detainee while being held by Orange County. He was not serving a term of imprisonment, therefore, he was not a prisoner in Florida within the meaning of former Rule 3.191(b)(1). Consequently, former Rule 3.191(a)(1) must apply. Therefore, Petitioner should have been brought to trial within 180 days of his being taken into custody and, upon the state’s failure to do so, he was entitled to be discharged. Prohibition is a proper remedy to bar further prosecution when a discharge has been erroneously denied after a violation of speedy trial rule rights. Ballard v. Kaney, 397 So.2d 1042 (Fla. 5th DCA 1981).

Petitioner’s writ of prohibition is granted and the petitioner is ordered discharged.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

DAUKSCH, Chief Judge.

It is ordered that the Motion for Rehearing and Motion for Rehearing En Banc filed by Respondent are denied. The instant case and Cameron v. State, 376 So.2d 248 (Fla. 5th DCA 1979), are clearly not in conflict. In the instant case the time for speedy trial began running at the time of Petitioner’s arrest in Seminole County, which was before he was detained by Orange County. In Cameron, this court held, properly, that a detainer request filed in another county jail does not constitute an arrest for speedy trial purposes.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . (b)(1) Prisoners Outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this State or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this State, is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of this fact is filed with the court and served upon the prosecutor....

      . Marrero v. State, 381 So.2d 274, 275 (Fla. 5th DCA 1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rolland A. SCHULTZ, Appellant, v. STATE of Florida, Appellee.
    No. 80-2212.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Rehearing Denied April 1, 1982.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant pled guilty to burglary with intent to commit assault and attempted sexual battery. He was adjudicated guilty, placed on probation for life for the burglary charge, and sentenced to two years in prison for the attempted sexual battery, to run concurrently. Appellant was sixteen years old at the time he committed these offenses. The trial judge signed an order stating that defendant was to be “treated as a youthful offender for all purposes, especially, but not limited to, those of location and condition of imprisonment.”

Subsequently, appellant was found guilty of violating a condition of his probation. The trial judge sentenced him to 99 years in prison on the burglary charge. Appellant was eighteen years old at the time his probation was revoked.

Appellant contends on appeal that his 99 year sentence for burglary should be vacated with instructions that he be resentenced as a youthful offender. This argument is without merit. State v. Goodson, 403 So.2d 1337 (Fla.1981).

The written order revoking appellant’s probation recited that appellant had violated conditions (3) and (5), enlarging upon the trial judge’s oral pronouncement that appellant was guilty of violating only condition (5). Accordingly, violation of condition (3) is stricken from the record. Chester v. State, 355 So.2d 509 (Fla.2d DCA 1978).

The lower court retained jurisdiction for one-third of appellant’s 99 year sentence, pursuant to section 947.16(3), Florida Statutes (1979). However, the trial judge failed to note any justification for his retention of jurisdiction on the sentencing order. Accordingly, this cause is remanded to the lower court with instructions to either relinquish the retention of jurisdiction over the one-third of appellant’s sentence or to make findings of fact and justification as required by section 947.16(3)(a), Florida Statutes (1979), to justify the retention of jurisdiction. Sanders v. State, 400 So.2d 1015 (Fla.2d DCA 1981).

RYDER, A. C. J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Michael H. DEIS, Appellant, v. Mary Kay DEIS, Appellee.
    No. 81-1848.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Rehearing Denied March 19, 1982.
    Theodore Zelman of Jones & Batchelor, P.A., Naples, for appellant.
    Ronald C. Hogue of Hogue & Grogan, Naples, for appellee.
   PER CURIAM.

The trial court’s final judgment of dissolution, among other things, makes a lump sum alimony award of the appellant’s special equity in the marital premises to appel-lee. We construe this as an obligation which shall not materialize until the marital home is either partitioned or sold following termination of the appellee’s entitlement to exclusive possession of the premises. As so construed, we affirm the final judgment.

SCHEB, C. J., and RYDER and SCHOONOVER, JJ., concur.


author: RYDER, Judge. GRIMES, Judge,

text:
    Daniel L. WIGGINS, Sr. and Gloria H. Wiggins, Appellants, v. John DOJCSAN and Veronica Dojcsan, Appellees.
    No. 81-533.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 1982.
    Rehearing Denied March 29, 1982.

      Louis X. Amato of MacLean, Amato & Arlen, Naples, for appellants.
    Louis S. Erickson, Naples, for appellees.
   RYDER, Judge.

Daniel and Gloria Wiggins appeal the order denying their motion to quash service of process and to strike the lis pendens. We affirm.

Appellees’ first amended complaint stated that it was an action quasi in rem directed against real property in Collier County. Appellees alleged that appellants were not Florida residents and could not be personally served. Appellees stated a claim for damages against appellants for guarantee of a defaulted promissory note, and demanded sale of the real property to satisfy the claim. Appellees then filed a notice of lis pendens against the property.

Appellants moved to dismiss the complaint, quash service of process by publication, and strike the lis pendens. They appeal from the denial of those motions, arguing that a court order must precede the filing of a lis pendens and that quasi in rem jurisdiction requires seizure or attachment of the property at the institution of the proceedings. We hold that neither act is necessary.

Section 48.23(3), Florida Statutes (1979), provides:

When the initial proceeding does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

We held in Kirk v. Baumann, 336 So.2d 125 (Fla. 2d DCA 1976), that the statute required an order of court before filing of notice of lis pendens unless the action was founded on a recorded instrument or mechanic’s lien. At least one other district court has reached the opposite result. Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA 1981). We are persuaded by the logic expressed in Cacaro that a notice of lis pen-dens has only indirect effect on the aliena-bility of the property, that the statute does not expressly require a hearing before filing of the notice, and that the legislature could have expressly provided for a hearing requirement had one been intended. We therefore depart from our holding in Kirk v. Baumann, supra, and herein hold that an order of court need not precede the filing of a valid notice of lis pendens.

Traditionally, the exercise of quasi in rem jurisdiction required seizure or attachment of the property at the outset of the proceeding. See Pennington v. Fourth National Bank, 243 U.S. 269, 37 S.Ct. 282, 61 L.Ed. 713 (1917), Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877); Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872 (1941); F. James, Civil Procedure, Section 12.7 (1965). But as we noted in Griffin v. Zinn, 318 So.2d 151 (Fla. 2d DCA 1975), discussing Pennoyer v. Neff, supra:

In the ninety-eight years since that decision, however, while it still seems to be the general rule as well as the rule in Florida, serious doubt has arisen as to whether prejudgment seizure, as a prerequisite to jurisdiction, can survive serious analysis in the light of modern concepts. It would seem that, given authority over the plaintiff and over the subject matter of the action, and having territorial power over the property itself, the right in the forum to exercise that power over the property would depend only upon the due process requirements of giving sufficient notice to the defendant that his property was in jeopardy and affording him a reasonable opportunity to appear and defend. Moreover, since conceptually it is essentially a proceeding against the property, notwithstanding that it is predicated on an in personam, transitory claim against the non-resident defendant, there seems to be no greater reason to require seizure in an action quasi in rem than in one strictly in rem in which it was never required.

318 So.2d at 153.

We hold that an attachment or seizure of the real property below need not have been effected at the outset of the action. The description of property in the complaint, characterization therein of the action as quasi in rem, prayer for relief demanding sale of the property, and lis pendens give clear notice that the property is in jeopardy. Appellants do not contend that they had inadequate notice to appear and defend the action. Thus, requirements of due process have been met. See Griffin v. Zinn, supra.

The order below denying the motion is AFFIRMED.

BOARDMAN, A. C. J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

I do not believe that appellees have yet obtained jurisdiction over either appellants or their property.

In the early case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), the United States Supreme Court declared that the sole criterion for jurisdiction was the presence of persons or property within the forum state. Pennoyer held that in the case of in rem or quasi in rem actions, a state court could obtain jurisdiction over a nonresident’s property within its borders by means of attachment at the commencement of the action. Subsequently, exceptions to the “presence” theory of jurisdiction were developed in order that plaintiffs might obtain in personam jurisdiction over certain nonresident defendants who had a special connection with the forum state such as motorists who had caused tortious injury there or persons doing business within the state. E.g., Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927); International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479 (1914).

For purposes of acquiring in personam jurisdiction, the Supreme Court totally replaced the territorial restrictions of Pennoyer in 1945 with a standard which permitted plaintiffs to obtain jurisdiction over nonresident defendants who maintained minimum contacts with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Significantly, International Shoe did not repudiate the doctrine that a state could continue to assert quasi in rem jurisdiction over a nonresident property owner and thereby obtain a binding judgment against him to the extent of his property interests, notwithstanding the fact that the nonresident did not have sufficient contacts with the state to subject him to in personam jurisdiction. However, in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the Court rejected the Pennoyer rationale that the presence of property in the forum state automatically conferred jurisdiction over the owner’s interest in the property and held that the minimum contacts test of International Shoe should be applied uniformly without regard to the nature of the action. The Court reasoned that while ownership of property could in some cases be a factor in determining a nonresident’s minimum contacts with the state, ownership of property unconnected with the cause of action would not, by itself, provide a basis for a quasi in rem action.

The practical effect of the Court’s ruling in Shaffer has been to render jurisdictional attachment largely obsolete in states such as Florida which have comprehensive long arm statutes that encompass most types of minimum contacts. Thus, a plaintiff will usually obtain jurisdiction over a nonresident by means of the applicable long arm statute. Should it be desirable to tie up the nonresident’s property within the state pri- or to judgment, the plaintiff may also resort to the state’s statutory attachment remedies, but under those circumstances, jurisdiction will still not be obtained through the attachment. Yet, the Supreme Court did not hold attachment for purposes of obtaining jurisdiction to be unconstitutional where minimum contacts exist. Shaffer v. Heitner, 433 U.S. at 213 n. 40, 97 S.Ct. at 2584 n. 40. See Intermeat, Inc. v. American Poultry, Inc., 575 F.2d 1017 (2d Cir. 1978). Moreover, if the dictum from Griffin v. Zinn, 318 So.2d at 153, quoted by the majority, accurately reflects current law, there is no need for any kind of prejudgment seizure so long as the complaint is clearly directed against specific property within the state for the purpose of enforcing the plaintiff’s claim and the defendant receives adequate notice of the action.

Turning to the present case, even under the liberal rationale of Griffin v. Zinn, ap-pellees have not obtained jurisdiction because they have fallen short on the notice requirements. The record does not reflect an attempt to effect personal service of their amended complaint, and there is no need to decide whether constructive service would suffice because they did not attempt constructive service. They did allege in the amended complaint that they had never perfected personal service because appellants appeared to be avoiding the deputy when he sought to serve them with the original complaint at their most recent address in Indiana. However, the original complaint neither described the property nor purported to claim quasi in rem jurisdiction. In the final analysis, without some kind of service which would give appellees notice of the action, quasi in rem jurisdiction could not be asserted. See Gribbel v. Henderson, 151 Fla. 712, 10 So.2d 734 (1942). Actual knowledge obtained by way of special appearance will not suffice. Griffin v. Zinn.

The error has been compounded because the notice of lis pendens remains intact. Even if I am wrong about jurisdiction, the court should have stricken the notice of lis pendens. Any suggestion that it enhances quasi in rem jurisdiction was set at rest by Griffin v. Zinn since Griffin held that a proper complaint and notice obviate the need for any kind of prejudgment seizure. While I agree with the majority opinion that a party may file a notice of lis pendens without first obtaining a court order, this is not the type of complaint which will support a notice of lis pendens. Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla. 3d DCA), cert. denied, 374 So.2d 99 (Fla.1979). Though it is true that if appellees obtain a judgment they will be entitled to look to the property in issue for satisfaction, the same result would obtain in the case of any other judgment against appellants because the judgment would become a lien on their property. With respect to their cause of action against appellants, appellees are in the same posture as any other general creditor. They do not have a claim against the specific property which would provide a basis for tying it up by the filing of a notice of lis pendens. De Pass v. Chitty, 90 Fla. 77, 105 So. 148 (1925); Hallmark Manufacturing, Inc. v. Lujack Construction Co., 372 So.2d 520 (Fla. 4th DCA 1979).

Appellees make their claim against the property only for the purpose of acquiring quasi in rem jurisdiction. To permit them to acquire jurisdiction in this manner and also to allow the notice of lis pendens to remain intact puts them in a better position than they would have been if they had obtained personal jurisdiction under the long arm statute. By virtue of their notice of lis pendens, they, as appellants’ general creditors, will obtain lien priority over subsequent purchasers without ever having to go through the bonding requirements of attachment. Cf. Sunrise Point, Inc. v. Foss which held that a notice of lis pendens not predicated upon a duly recorded instrument or mechanic’s lien could not be maintained except upon the posting of a bond.

I respectfully dissent.

      . We note that the lower court may require a bond from appellees to maintain the lis pen-dens at issue. See Sunrise Point, Inc. v. Foss, 373 So.2d 438 (Fla. 3d DCA), cert. denied, 374 So.2d 99 (Fla.1979).

      . We note that appellants allegedly executed the promissory note in Florida, were officers of a defendant Florida corporation also signing the note, and that the note was payable in Florida. There is no question that appellants had sufficient minimum contact with Florida to justify personal jurisdiction, and thus quasi in rem jurisdiction. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).

      . For a further discussion of the decision, see 35 Wash. & Lee L.Rev. 131 (1978).


text:
    METAL FORM CORPORATION OF AMERICA, Appellant, v. Lewis CAIN and Sandra Cain, his wife, Appellees.
    No. 81-1134.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1982.
    Rehearing Denied March 17, 1982.
    David J. Kadyk and Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Philip J. Rogers of Masterson, Rogers, Patterson & Masterson, P.A., St. Peters-burg, for appellees.
   PER CURIAM.

We set aside the award to appellees of $437.00 for costs of air travel for counsel to attend depositions. Without authorization by contract or statute, taxable costs do not include personal expenses of counsel in obtaining depositions for trial. Professional Computer Management, Inc. v. Tampa Wholesale Liquor Co., Inc., 374 So.2d 626 (Fla. 2d DCA 1979); Aetna Life Insurance Co. v. Sievert, 361 So.2d 747 (Fla. 1st DCA 1978). The award to appellees of costs below is hereby reduced to $1,945.43. The judgment below is AFFIRMED as to all other issues.

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


author: BOARDMAN, Judge.

text:
    Blondine T. POPE, Don Pope, James Turbeville, Gladys Turbeville, Shannon D. Campbell, Philip H. Campbell, Glenda Gail Campbell, Troy L. Winget, and Lovaline Winget, Appellants, v. CARL HANKINS, INC. and Maryland Casualty Company, Appellees.
    No. 81-988.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 1982.
    Rehearing Denied March 30, 1982.

      R. Kent Lilly of Frost, Purcell & Lilly, Bartow, for appellants Blondine T. and Don Pope.
    Marvin B. Woods of Woods & Roach, Lakeland, for appellants James and Gladys Turbeville.
    Michael D. Martin of Martin & Martin, Lakeland, for appellants Shannon D., Philip H., and Glenda Gail Campbell.
    John F. McCue, Jr., of Mulholland, Anderson & McCue, Tampa, for appellants Troy L. and Lovaline Winget.
    H. Vance Smith of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   BOARDMAN, Judge.

This is an appeal of a final summary judgment in favor of defendants Carl Han-kins, Inc. (Hankins) and Maryland Casualty Company, Hankins’ insurance carrier. The lawsuit arose out of an intersection collision between a northbound van in which appellants were passengers and an eastbound automobile driven by Maxine Risley. Appellants alleged that Hankins failed to maintain its property, which was on the southwest corner of the intersection, in a safe condition in that a wooden barrier bordering the edge of the property obstructed the view to the west of northbound drivers and the view to the south of eastbound drivers, and that appellants’ injuries were a direct and proximate result of this negligence on Hankins’ part. Appellees moved for summary judgment on the ground that the negligence of one or both drivers was the sole proximate cause of the accident, which motion was granted.

It is well settled that summary judgment should not be granted, especially in negligence cases, unless the moving party can demonstrate that there is no genuine issue of any material fact which, if taken in a light most favorable to the nohmoving party, would entitle the nonmoving party to relief. Holl v. Talcott, 191 So.2d 40 (Fla.1966). All reasonable inferences must be resolved against the movant. Booth v. Mary Carter Paint Co., 182 So.2d 292 (Fla. 2d DCA 1966). Appellees here have not met their burden. The depositions of the investigating police officer and other witnesses raise an issue of material fact concerning the wooden barrier’s effect on visibility at the intersection in question. See Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA), cert. denied, 339 So.2d 1170 (Fla.1976) (holding that an issue of material fact was raised concerning the effect of certain shrubbery located on defendant’s premises on visibility of someone leaving those premises).

Accordingly, the final summary judgment is REVERSED and the cause REMANDED for further proceedings.

HOBSON, A. C. J., and RYDER, J., concur.

      . Not a party to this appeal.


text:
    Johnnie B. CONNER and L. Ralph Smith, Appellants, v. Doyle Edward CONNER, Appellee.
    Nos. PP-228, TT-367.
    District Court of Appeal of Florida, First District.
    March 1, 1982.
    Rehearing Denied April 16, 1982.

      Tobias Simon and Judith A. Bass, of Simon, Schindler & Tripp, P. A., Miami, Sidney L. Matthew and Stephen Lindsey Gor-man, L. Ralph Smith, Jr. of Dearing & Smith, and Thomas J. Maida of Peeples, Earl, Smith, Moore & Blank, P. A., Tallahassee, for appellants.
    Gene D. Brown, Tallahassee, for appellee.
   PER CURIAM.

In this appeal from a dissolution between the parties, the wife challenges the trial court’s award of lump sum, periodic and rehabilitative alimony. Her former trial counsel also joins this appeal, arguing his fee awarded by the trial court was insufficient. The wife argues the awards of alimony and attorneys’ fees are insufficient to compensate her for her contribution to the marriage of over twenty years. We agree and reverse.

The Conners were married in 1953 in Starke, Florida. He was a recent graduate of the University of Florida, and co-owner of an insurance agency. She was twenty years old with no college education. During the first seven years of the marriage she worked at the insurance agency. Mr. Conner served in the Florida House of Representatives from 1953 until he was elected Commissioner of Agriculture in 1960. Mrs. Conner has not worked outside the home since that time.

It is undisputed that during the early years of this marriage the wife was a devoted mother and homemaker and assisted the husband greatly in the additional responsibilities required by his political office. In addition to caring for the children and maintaining the home, she traveled with her husband during campaigns and attended various political functions he was required to attend. In the latter years of the marriage, Mrs. Conner’s traveling lessened as a result of her declining health.

In 1957 and 1958 the couple jointly purchased a home and farm in Starke. In 1960, upon moving to Tallahassee, the parties jointly purchased another home. After the move to Tallahassee, the husband began a series of speculative investments, including the purchase of a farm in Jefferson County. These investments were titled in his name only. The wife testified that she thought these purchases were titled jointly. Money for these purchases came mostly from borrowed funds; however, the financial statement used to secure these funds listed both parties’ assets. At the hearing below various figures were introduced showing the parties’ net worth. It is not necessary to go into detail as to the amounts. Suffice it to say the husband’s net worth greatly exceeds that of the wife.

Following trial, the court divided the jointly held property and awarded the wife as partial alimony the husband’s interest in the marital home in Tallahassee and the furniture within. The husband was ordered to pay the remaining balance of the mortgage. The wife was also awarded $10,000 lump sum alimony, $250 per month permanent alimony, and rehabilitative alimony of $500 per month for 36 months, and thereafter $250 per month for 12 months. The court also ordered the husband to pay a portion of the wife’s attorney’s fees. Mr. Conner retained title to all land titled in his name only, as well as his share of all jointly owned property except as noted above.

In view of the parties’ long marriage and the admitted contributions the wife made to this marriage, we find that the wife has been “shortchanged.” Brown v. Brown, 300 So.2d 719, (Fla. 1st DCA 1974). Brown held that the contributions of the wife to the marital partnership as a mother and homemaker should be given recognition equal to the money-making activities of the husband and that these contributions may be recompensed by lump sum alimony. Brown, as all know now, was adopted by the Supreme Court in the landmark case of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

The husband argues that he alone should be awarded the speculative investments since they are titled in his name only. His rationale for this is that only he would suffer if the investments went sour. We are confident however that had the investments gone sour the wife and children would have suffered with him since he had no outside source of income other than his investments and his salary as Commissioner of Agriculture.

After Canakaris, trial courts now have the discretion to use lump sum alimony to insure an equitable distribution of property acquired during the marriage. We also note that awards of lump sum alimony have been approved which awarded the wife land titled in the husband’s name only. Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980). We recognize however, that the able trial judge below did not have the benefit of Canakaris since the final order in this case was rendered approximately four months before the Supreme Court’s decision.

Accordingly, we decline to determine ourselves to what extent the wife should receive additional alimony.

This is so because it clearly appears that the trial judge, to whose discretion such a matter is initially entrusted, has not yet exercised that discretion in the light of the now-prevailing law. . . . When the able and conscientious chancellor made these decisions, he was bound by the pre-Canakaris rule that entitlement to lump sum was based either on “need,” like all alimony, or upon some economic contribution by the wife to the accumulation of property. (Cite omitted) He could not have been aware of the monumental change in the law effected by Canakaris (footnote omitted) that lump sum alimony may, and sometimes must, be employed so as equitably to compensate the wife for the domestic endeavors now regarded as equivalent to her husband’s wage earning ones.

Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981). We therefore join other cases which have remanded for reconsideration of the evidence in light of Canakaris. Cowart v. Cowart, 390 So.2d 193 (Fla. 1st DCA 1980); Colucci, supra; Neff v. Neff, 386 So.2d 318 (Fla. 2d DCA 1980); Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980); and Perez v. Perez, 383 So.2d 252 (Fla. 2d DCA 1980).

Since the remedies of the trial court are part of one overall scheme and should be reviewed by appellate courts as a whole, rather than independently, and since these aspects are interrelated, we have no alternative other than to reverse all financial aspects of the final judgment. Sangas v. Sangas, 407 So.2d 630 (Fla. 4th DCA 1981); Perez v. Perez, supra. We also hold that the trial court should reconsider the issue of attorneys’ fees in light of the changes in the awards of alimony.

Regarding the issue of appellate attorney’s fees, we direct, as permitted by Florida Rule of Appellate Procedure 9.400(b), that the trial court assess the amount of appellate fees to which the wife is entitled, to be paid by appellee.

Accordingly, except for the granting of the dissolution of the marriage between the parties, the final judgment is reversed and this cause is remanded for further proceedings.

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

OWEN, WILLIAM C., Associate Judge (Ret.), concurs.


author: SHARP, Judge. COWART, Judge,

text:
    Ward W. KELLY, Appellant, v. Grace B. WILLIAMS, as Personal Representative of the Estate of Larry Arthur Williams, Deceased, Grace B. Williams, individually and Allstate Insurance Company, Appellees.
    No. 79-162.
    District Court of Appeal of Florida, Fifth District.
    March 3, 1982.
    Rehearing Denied April 1, 1982.

      Richard A. Krause, Ormond Beach, for appellant.
    Christopher W. Wickersham, Daytona Beach, for appellee, Grace B. Williams.
    Robert K. Rouse, Jr., Daytona Beach, for appellee, Allstate Ins. Co.
   SHARP, Judge.

Kelly appeals an order entered after a pre-trial conference, which dismissed his cause with prejudice. The issues in the suit were comparative negligence and Kelly’s damages stemming from an automobile collision caused in part by the negligence of Williams’ deceased husband. We affirm the order because Kelly voluntarily agreed to accept a specific sum in settlement, and no justiciable issues remained for trial.

Before trial the parties entered into a stipulation , filed with the court, in which Allstate agreed to pay Kelly Fifty Thousand Dollars ($50,000), the liability limit of Williams’ policy. The Stipulation provided in pertinent part:

2. The Defendant ALLSTATE agrees to pay Plaintiff, WARD W. KELLY the sum of Fifty Thousand Dollars ($50,000) within five (5) days of the execution of this Stipulation/Agreement by counsel for all Defendants and counsel for Plaintiff.
3. In consideration of the said payment, and the other agreements contained herein, Plaintiff agrees and promises to execute a Satisfaction of Judgment with regard to any and all judgments which are entered against GRACE B. WILLIAMS, and to deliver said executed Satisfaction of Judgment to [Williams’ attorney] within sixty (60) days of the conclusion of the above-captioned cause (both in the Florida State Trial Courts and the Florida State Appellate Courts), unless a bad-faith action is commenced against ALLSTATE within that time. In the event that a bad-faith action is filed against ALLSTATE within that time, Plaintiff agrees and promises to execute a Satisfaction of Judgment with regard to any and all judgments which are entered against GRACE B. WILLIAMS, and to deliver said executed Satisfaction of Judgment to Christopher Wickersham, Esq. within ten (10) days of the conclusion of any bad-faith action against ALLSTATE arising out of or derived from the above-captioned law suit (both in the Florida State Trial Courts and the Florida State Appellate Courts). Said Satisfaction or Satisfactions of Judgment shall satisfy any and all judgments entered against GRACE B. WILLIAMS because of the above-styled litigation, and said Satisfaction shall be executed and delivered within the appropriate stated period of time, regardless of the outcome of any bad-faith action against ALLSTATE.
4. Additionally, and in further consideration of the said payment and other agreements contained herein, Plaintiff agrees and promises not to execute or to seek to execute or to cause execution upon any judgment entered in connection with or because of the above-styled action against the property or assets of GRACE B. WILLIAMS until at least twenty (20) days have elapsed after the conclusion of any bad-faith action commenced against ALLSTATE.
5. It is agreed and stipulated that in the above-styled cause, the liability of the Defendant, ALLSTATE, is limited to Fifty Thousand Dollars ($50,000), as to any judgment which may be entered at the conclusion of or as a result of the above-captioned cause and action, and that no judgment can or should be entered against ALLSTATE in excess of Fifty Thousand Dollars ($50,000) as a result of the above-styled action. In addition, it is agreed that the said Fifty Thousand Dollars ($50,000) paid to Plaintiff as agreed herein, should be set off from any judgment rendered as a result of the above-captioned cause against ALLSTATE, and before any such judgment be entered in connection with the above-syled [sic] cause. However, it is also stipulated and agreed that the payment of the Fifty Thousand Dollars ($50,000) to Plaintiff as agreed herein, and the agreement to satisfy judgment contained herein and the agreement not to execute as contained herein, will not operate to prevent or hinder GRACE B. WILLIAMS and/or Plaintiff from filing a legal action against ALLSTATE for alleged bad-faith. (Emphasis supplied.)

Within five days after execution of the stipulation, the Fifty Thousand Dollars ($50,000) was paid to Kelly. The lower court ordered a supplemental pre-trial conference to determine the legal effect and consequences of the stipulation, and appel-lees moved to dismiss the cause with prejudice. The trial judge ruled that execution of the stipulation precluded “any actual or potential exposure to liability” on the part of Williams and therefore foreclosed any bad faith action against Allstate. The motion to dismiss was granted on the basis that no justiciable issues remained before the court.

Appellant contends that the stipulation clearly contemplated his future third-party action against the insurer for bad faith negotiations, an action which may be asserted after entry of final judgment in the original liability case. See, e.g., Cotton States Mutual Insurance Company v. Trevethan, 390 So.2d 724 (Fla. 5th DCA 1980). However, a cause of action for bad faith arises when the insured is legally obligated to pay a judgment that is in excess of his policy limits. Farmers Insurance Exchange v. Henderson, 82 Ariz. 335, 313 P.2d 404 (1957); 7C J. Appleman, Insurance Law and Practice, § 4712 (Berdal ed. 1979). Where the parties have stipulated, as they have in this case, that Williams’ and Allstate’s liability is limited to the fifty thousand dollars ($50,000) policy amount, then no cause of action for bad faith can exist. See Stubblefield v. St. Paul Fire & Marine Ins. Co., 267 Or. 397, 517 P.2d 262 (1973).

The essence of a “bad faith” insurance suit (whether it is brought by the insured or by the injured party standing in his place), is that the insurer breached its duty to its insured by failing to properly or promptly defend the claim (which may encompass its failure to make a good faith offer of settlement within the policy limits) —all of which results in the insured being exposed to an excess judgment. Under the arrangement stipulated to by the parties in this case, the insured could not be exposed to an excess judgment under any circumstances. If one was obtained, the insured was entitled to a complete satisfaction of it, as soon as the judgment became final or enforceable. The stipulation completely safeguarded the insured, and therefore it completely discharged the insurer’s duty to its insured.

We do not think Critz v. Farmers’ Ins. Group, 230 Cal.App.2d 788, 41 Cal.Rptr. 401, 12 A.L.R.3d 1142 (3d Dist.Ct.App.1964), cited by the dissent, is applicable to this case. There the injured party was allowed to sue the insurer for the insured’s bad faith claim (having obtained that right by written assignment, which we realize is not necessary in Florida). To obtain the assignment, the injured party covenanted with the insured that he would not execute on the excess judgment, if he obtained one. The court ruled that this promise did not “blot out” the personal judgment against the insured. It would clearly be of record, and at least in Florida, it would affect the insured’s credit and title to real estate. Further, the arrangement in Critz was worked out between the insured and the injured party when the insurer refused to defend or participate. In this case, the insurance company participated in the stipulation, and was a party to the lawsuit. Kelly’s attempted reservation of his rights against the insurer were not effective, since in the body of the stipulation, the baby was thrown out with the bath water. See Stephen Bodzo Realty, Inc. v. Willit International Corp., 405 So.2d 269 (Fla. 4th DCA 1981).

It is apparent that a mistake was made, at least by Kelly, as to the legal effect of the stipulation. However, he did not make any showing at the trial court level sufficient to establish grounds to release him from the stipulation; nor did he file any motion before the trial court seeking to be relieved from it. Absent a basis to invalidate the stipulation, it is binding and enforceable, and we cannot relieve him from its legal consequences.

AFFIRMED.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

While this case arises out of a simple automobile accident, the various legal issues and their relationships are complex. Among the three parties, appellant Kelly (the victim), appellee Williams (the insured tortfeasor’s estate), and appellee Allstate (the insurer), there are five potential causes of action. 1. The first is a cause of action in tort in Kelly against Williams for the alleged negligence of Williams’ deceased husband. 2. The second is a cause of action in contract in Williams against her insurance company, Allstate, on Allstate’s contractual duties under its policy of vehicular liability insurance which includes an agreement to promptly pay covered claims. 3. The third cause of action is in contract in Kelly and against Allstate because Allstate’s contractual duties to its insured, Williams, can now be directly enforced by Kelly under third party beneficiary concepts, this theory and cause of action being specifically recognized by our supreme court in Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969). 4. The fourth cause of action is in tort in Williams and against Allstate and arises out of any breach of Allstate’s duty to Williams to use good faith in conducting settlement negotiations with Kelly. Thus, it is an extension in tort for a bad faith breach of the contractual duties involved in cause two. This fourth cause of action is the traditional cause of action against an insurance company for bad faith settlement negotiations. See, e.g., American Fire and Casualty Company v. Davis, 146 So.2d 615 (Fla. 1st DCA 1962). This is a “bad faith-excess over” claim in favor of the insured. 5. Finally, the fifth cause of action is an action in tort in Kelly and against Allstate based on any bad faith in Allstate’s settlement negotiations with Kelly. As such, this cause of action is the logical extension of the previously discussed legal theories. Just as the third cause of action was derived from the second based on third party beneficiary concepts, Shingleton v. Bussey, the fifth cause of action is similarly derived from the fourth by applying the same third party beneficiary analysis, our supreme court having recognized this approach and established this as a separate cause of action. Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259 (Fla.1971). This is a “bad faith — excess over” claim in favor of the victim. A prior judgment in the basic tort-negligence case (cause 1 above) establishing damages in excess of the policy limits is an absolute necessary element of, or condition prerequisite to, this fifth tort bad faith cause of action by a victim against an insurer (cause 5 above) just as it is in the traditional tort bad faith cause of action by the insured against an insurer (cause 4 above). While these five causes of action are interrelated, they are separate and distinct causes of action and the failure of the trial judge and the majority to recognize and to distinguish them leads to the majority holding. The parties settled causes of actions 1 and 3 but not cause of action 5 and the majority’s opinion effectively precludes Kelly from ever establishing his tort bad faith cause of action against Allstate.

In the instant case, Kelly sued Williams for injuries received in a vehicle collision (cause 1 above) and joined Allstate (cause 3 above), with whom Williams had $50,000 of liability insurance. Kelly contended his damages far exceeded Williams’ policy limits but offered to settle for those limits. Allstate declined to settle. After long delay Allstate offered to settle for the policy limits. Kelly then contended that Allstate had acted in bad faith (by declining to settle for the policy limits when first offered and therefore having wrongfully delayed settlement) and asserted that he could recover a judgment in excess of the policy limits and that Allstate would be liable for the excess judgment (cause 5 above) because of its bad faith delay in settlement. Allstate did not admit that Kelly’s damages exceeded the policy limits or that it was guilty of bad faith but again offered, belatedly, to settle for the policy limits. Kelly refused to make an unqualified settlement of all three of his causes of action but the following agreement was negotiated: In exchange for the immediate payment of the $50,000 policy limits, Kelly would retain his right to prove his total amount of damages but would agree to release Williams from liability for any amount of the ultimate judgment that exceeded the policy coverage. This release provision related only to Kelly’s basic tort-negligence cause of action (cause 1 above). In the event the judgment did exceed the coverage, Kelly reserved his right to pursue Allstate in a separate bad faith settlement negotiation claim (cause 5 above) for any such excess amount; however, Kelly also agreed that Allstate’s liability would be limited to $50,000 as to cause 3 above, with the caveat that this did not affect Allstate’s possible future liability for bad faith (cause 5 above). This release provision related only to Kelly’s third party beneficiary (Shingleton v. Bussey) contract case against Allstate (cause 3 above). The stipulation clearly contemplated that Kelly’s damages in the instant case might ultimately be proved to exceed $50,000, and in that event, that Kelly might file a separate suit for bad faith settlement negotiations against Allstate (cause 5 above). The agreement even provided that if Kelly ultimately proved such bad faith, then Allstate would be given credit against the “excess over” judgment for the $50,000. Upon learning of this settlement agreement, the trial court considered that it mooted the issues in the case and, on motion, dismissed the action. Kelly appeals contending that the amount of his damages resulting from the vehicle collision was in controversy between the parties (which under comparative negligence theory also includes issues as to the relative negligence of Kelly and Williams’ decedent) and was not disposed of by the settlement agreement. Since his settlement reserved the right to pursue any excess over policy limits judgment against Allstate (cause 5 above), and in order to do that he must first recover judgment against Williams and Allstate in excess of the policy limits, the trial court’s dismissal denied him that right and thwarted the intent of his settlement agreement.

The majority’s interpretation of this settlement agreement is not only contrary to its obvious purposes and the intent of the parties but paves the way for unfair negotiation tactics in future cases. Assuming, for purposes of argument, that Kelly has a valid claim against Allstate for its bad faith refusal to promptly settle, the settlement agreement, as construed by the majority, is devastatingly deceptive and sets a trap for unwary plaintiffs’ counsel. The agreement repeatedly protects Kelly’s right to proceed in a separate action against Allstate on a bad faith claim. However, Kelly’s future claim is predicated on his ultimately proving in this action that his damages actually exceeded the insurance coverage. Thus, it was carefully provided by the agreement that Kelly did not have to execute his Satisfaction of Judgment to Williams until after the conclusion of the instant case (both at trial and appeal) or, if the subsequent bad faith action were pursued, until after the conclusion of the subsequent action. Kelly’s partial settlement specifically provided that “the agreement to satisfy judgment .. . will not operate to prevent or hinder [Kelly] from filing a legal action against Allstate for alleged bad faith.” Notwithstanding the clear wording of these various provisions, the majority holds that the agreement precluded any actual or potential exposure to liability on the part of Williams and precluded Kelly from obtaining the needed judgment. Therefore Kelly has lost his potential cause of action against Allstate for bad faith. Thus, merely because Kelly settled his negligence tort claim against Williams (cause 1 above), and Allstate’s contractual duties to him (cause 3 above), the majority precludes Kelly from pursuing Allstate’s ultimate liability in tort for bad faith (cause 5 above). This agreement need not, and should not, be given this construction.

In Critz v. Farmers Insurance Group, 230 Cal.App.2d 788, 41 Cal.Rptr. 401, 12 A.L. R.3d 1142 (3rd Dist.Ct.App.1964) the appellant was injured in an auto accident caused by an insured of the appellee. Prior to any suit being filed, the appellant offered to settle for the policy limits; the appellee rejected this offer. The appellant then went directly to the insured and made a settlement agreement whereby the insured assigned to the appellant any cause of action for bad faith the insured might ultimately have against the insurance company and the appellant agreed to hold the insured free and harmless from all efforts to collect his contemplated judgment for damages from the insured personally. After this agreement was entered, the appellant filed suit against the insured and ultimately won a jury verdict far in excess of the policy limits. The appellant then filed suit against the insurance company based on the insured’s assignment of the bad faith claim. The trial court dismissed the case, holding the assignment was void. However, the appellate court ultimately held that the assignment was not void just because it was made before the institution of an action and the obtaining of a judgment against the insured. Thus, under Critz, an agreement that protects an insured from any ultimate liability does not foreclose the injured party from establishing his damages in a suit against the insured and does not vitiate the insurance company’s ultimate liability for bad faith settlement negotiations. This holding applies here. If the majority distinguishes Critz on the basis that that case involved a “covenant not to execute” while the instant case involves a “release,” then the distinction is not only overly technical but is fallacious. In the instant case, Kelly only agreed to execute a “Satisfaction of Judgment” in favor of the insured at some point after the conclusion of his case against her. In this respect the instant agreement was more in the nature of a “covenant not to execute” than a “release.” The agreements in Critz and in the instant case both guaranteed that the insureds would ultimately only incur liability up to the amount of their respective insurance policies; yet Critz was allowed to establish her damages and pursue a subsequent bad faith claim against the insurer and Kelly is not.

If the majority distinguishes Critz on the basis that Critz involved an assignment (which is no longer necessary in Florida), and the instant case does not, then it is a meaningless distinction and the above analysis still applies. The majority candidly admits that an assignment of the insured’s cause of action is no longer necessary in Florida since the supreme court’s decision in Thompson v. Commercial Union Insurance Company of New York. However, prior to Thompson, the only two bases upon which a victim/judgment creditor could proceed directly against an insurer on a claim of “bad faith” were: (1) where the insurance contract itself expressly provided for this procedure, or (2) where the victim/judgment creditor obtained an assignment of the insured/judgment debtor’s cause of action against its insurer. The majority focuses on the fact that Kelly ultimately releases Williams from any liability for the excess judgment and holds that this forecloses his potential bad faith claim. Yet prior to Thompson, such release clauses were routinely given to the judgment debtor as consideration for the agreement. See, e.g., Nationwide Mutual Insurance Company v. McNulty, 229 So.2d 585 (Fla.1969); accord Liberty Mutual Insurance Company v. Davis, 412 F.2d 475, 479 (5th Cir. 1969) (Florida diversity action). The assignment involved in McNulty is especially apropos. Prior to the supreme court affirmance, the Third District Court of Appeal stated:

The written assignment discloses that in return for the assignment of the cause of action to him, McNulty [the victim] agreed that at the expiration of six months (if suit were not brought thereon by him) or “upon the conclusion” of legal proceedings if brought thereon by him against Nationwide, he would “satisfy all amounts of the aforesaid judgments in excess of the coverage afforded.”

McNulty v. Nationwide Mutual Insurance Company, 221 So.2d 208, 210 (Fla.3d DCA), cert. discharged, 229 So.2d 585 (Fla.1969). The above clause is legally indistinguishable from the instant agreement, yet the supreme court did not view the clause as barring further action but the majority does.

Since I cannot agree with the necessity for the harsh result reached in the instant case or the law and pitfalls being established for litigants and counsel in the future, I respectfully dissent.

      . The stipulation encompassed the liability of Grace B. Williams individually, and as the personal representative of Larry Arthur Williams (her deceased husband) and his estate.

      . See American Fire & Cas. Co. v. Davis, 146 So.2d 615 (Fla. 1st DCA 1962).

      . Thompson v. Commercial Union Ins. Co. of N. Y., 250 So.2d 259 (Fla.1971).

      . Florida East Coast Railway Co. v. Thompson, 93 Fla. 30, 111 So. 525 (1927).

      . Dorson v. Dorson, 393 So.2d 632 (Fla. 4th DCA 1981).

      . While the refusal of an injured party’s offer to settle for an amount equal to or less than the policy limits is usually asserted as evidence of the insurance company’s “bad faith” in settlement negotiation, it is not the only evidence admissible. In certain circumstances, the insurance company can be liable on a bad faith claim even if the injured party has failed to ever make an offer of settlement for an amount covered by the insurance policy. See, e.g., General Accident Fire and Life Assurance Corp. Ltd. v. American Cas. Co., 390 So.2d 761 (Fla.3d DCA 1980), review denied, 399 So.2d 1142 (Fla.1981); Thomas v. Western World Ins. Co., 343 So.2d 1298 (Fla.2d DCA), cert. dismissed, 348 So.2d 955 (Fla.1977). Cf. Florida Bar News, August 25, 1981, at 3 (proposed revised jury instructions for bad faith claims so as to cover situation where no offer to settle was proposed); Florida Bar News, November 25, 1981, at 7 (clarification of previously proposed instructions).

      . The normal scenario in an “excess judgment” situation starts with the injured party, as plaintiff, bringing suit against the alleged tortfeasor and his insurer, as co-defendants. If the action results in a judgment for plaintiff in excess of the tortfeasor’s insurance coverage, the defendant tortfeasor is potentially accountable for such excess. When the insurance company has acted in “bad faith” during prejudgment settlement negotiations, the original defendant tortfeasor has a cause of action against the company for the amount of the original judgment in “excess” of the policy limits. American Fire and Cas. Co. v. Davis, 146 So.2d 615 (Fla. 1st DCA 1962) (cause 4 above).
      Often the defendant tortfeasor is judgment proof and the defendant’s cause of action back against the insurance company is of more value to the original plaintiff (judgment creditor by now) than the original judgment. Therefore, in the past, releases were often given in exchange for an assignment of the cause of action. See, e.g., Nationwide Mut. Ins. Co. v. McNulty, Co., 229 So.2d 585 (Fla.1969); Selfridge v. Allstate Ins. Co., 219 So.2d 127 (Fla. 4th DCA 1969). However, an assignment is no longer necessary since the judgment creditor is now allowed to assert a cause of action for bad faith settlement tactics under third-party beneficiary concepts. Thompson v. Commercial Union Ins. Co. of N. Y„ 250 So.2d 259 (Fla.1971).

      . It should be noted that a belated offer to settle does not necessarily foreclose a claim of bad faith negotiation on the insurer’s part and therefore an insurer can still be ultimately held liable for an excess judgment notwithstanding its late-hour attempt to settle for the policy limits. See, e.g., Boston Old Colony Ins. Co. v. Gutierrez, 360 So.2d 464 (Fla.3d DCA 1978), quashed on other grounds, 386 So.2d 783 (Fla.1980); accord, Hayes Bros., Inc. v. Economy Fire and Cas. Co., 634 F.2d 1119 (8th Cir. 1980); Critz v. Farmers Ins. Group, 230 Cal.App.2d 788, 41 Cal.Rptr. 401, 12 A.L.R.3d 1142 (3d Dist.Ct.App.1964).

      . Kelly’s potential cause of action for Allstate’s alleged bad faith does not mature until a judgment in excess of the policy limits is entered in the negligence action. 7C Appleman, Insurance Law and Practice, § 4712 (Berdel ed. 1979). Although Florida courts allow subsequent litigation of a bad faith claim in the same case as the negligence claim, see note 5 infra, see, e.g., Cotton States Mut. Ins. Co. v. Trevethan, 390 So.2d 724 (Fla. 5th DCA), review denied, 392 So.2d 1373 (Fla.1980), there is no bar to bringing a separate cause of action for bad faith after entry of final judgment against the insurer for the limits of the policy. See, e.g., Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.1980). Therefore, by agreeing to limit Allstate’s liability in the negligence action to the limits of the policy Kelly did not thereby limit Allstate’s potential liability for payment of an “excess over” judgment and did not moot the issue of Kelly’s damages in the negligence action.

      .Although the bad faith claim can be pursued in a separate cause of action, it is not necessarily required to be raised in this manner. The question usually arises in the original negligence action after a judgment in excess of the policy limits is entered against both the defendant insured and the defendant insurance company. The insurance company then files a post-judgment motion to limit the judgment against it to the amount of the policy limits. When the policy limits are in question, the Second District Court of Appeal requires the insurance company to raise the issue of limitation by pleading in the nature of a cross-claim served on the other parties (the insured and plaintiff/judgment creditor). Williams v. Banning, 259 So.2d 725 (Fla.2d DCA 1972). This procedure has also been used to raise the issue of bad faith settlement negotiating on an insurance company’s part. State ex rel. Unigard Ins. Co. v. Durrance, 276 So.2d 112 (Fla.2d DCA), cert. denied, 281 So.2d 505 (Fla.1973) (where appellant insurance company brought writ of prohibition to stay any lower court action on cross-claim of bad faith pending outcome of appeal from judgment, appellate court denied a writ and relinquished jurisdiction for limited purpose of deciding bad faith issue). Neither the Third nor the Fourth District Courts of Appeal require the Williams cross-claim procedure when there is no question of the insurance company’s potential liability for bad faith negotiations. See, e.g., Allstate Ins. Co. v. Shilling, 374 So.2d 611 (Fla. 4th DCA 1979); Quinn v. Millard, 358 So.2d 1378 (Fla.3d DCA 1978); Soler v. Kukula, 297 So.2d 600 (Fla.3d DCA 1974); Stella v. Craine, 281 So.2d 584 (Fla. 4th DCA 1973), cert. denied, 289 So.2d 731 (Fla.1974). However, where allegations of bad faith negotiations exist, the Third District Court has required the insurance company to file a Williams cross-claim, and thus has impliedly allowed the issue of bad faith settlement negotiations to be raised in the original negligence action. Kenilworth Ins. Co. v. Pizarro, 369 So.2d 995 (Fla.3d DCA 1979). Although in State ex rel. American Home Ins. Co. v. Sealy, 355 So.2d 822 (Fla. 4th DCA), cert, denied, 361 So.2d 835 (Fla.1978), the Fourth District issued a writ of prohibition prohibiting the trial court from proceeding on the post-judgment cross-claim of bad faith during the pendency of the appeal from the judgment (in disagreement with Durrance), it did not hold the cross-claim was improper in that action and presumably the claim was proceeded with after the appeal was rendered.
      These cases illustrate that the claim for bad faith can be pursued in the original negligence action, and therefore Kelly’s present cause of action still has disputed factual issues of damages and bad faith. Notwithstanding Kelly’s choice to proceed on the bad faith claim in a separate cause of action, the above cases still illustrate that a judgment in excess of the policy limits is a prerequisite for any future allegation of bad faith negotiating. See also 7C Appleman, Insurance Law and Practice, § 4712 (Berdel ed. 1979).

      . Thompson v. Commercial Union Ins. Co. of N. Y., 250 So.2d 259 (Fla.1971).

      . Of course, before the settlement Kelly was entitled to collect any excess over judgment from Williams without proof of any bad faith on anyone’s part. By his agreement Kelly gave up this right in exchange for the right to an immediate recovery of $50,000, reserving only his right to assert a future claim of bad faith negotiating on the part of Allstate. Such a settlement is not uncommon and agreements of this type have been made even before the negligence action was filed. See Critz v. Farmers Ins. Group, 230 Cal.App.2d 788, 41 Cal.Rptr. 401, 12 A.L.R.3d 1142 (3d Dist.Ct.App.1964).

      . This ruling came as a windfall to appellees. After the stipulated partial settlement dated June 22, 1979, the action remained pending until August 10, 1979, when the trial judge, sua sponte, ordered a supplemental pretrial conference specifically to determine “the legal effect and consequences of the stipulation dated June 22, 1979, and filed herein, and whether or not any justiciable issue remains for disposition by this court. At the time of said hearing, this court will entertain any and all motions heretofore or hereafter filed in this cause by any party.” No motion was then pending, but ap-pellees’ counsel took the hint and on August 24, 1979, filed a motion to dismiss, which was granted. The point is that counsel did not consider that the stipulation disposed of the pending action and moved for dismissal only after prompting by the trial judge.

      .Nothing herein is intended to suggest that appellees’ counsel acted other than in keeping with their good reputation as able, careful and ethical attorneys. See footnote 8, supra. The stipulation/settlement in this case was suggested and drawn by plaintiffs counsel. However, the unarticulated effect of the majority’s opinion is to hold that a plaintiff cannot partially settle causes of action 1 and 3 without necessarily settling cause of action 5. This harsh result denies the parties the ability to negotiate a partial settlement. It precludes such a settlement notwithstanding each party’s belief it is in their own best interest to enter such an agreement. If this is the intent of the majority’s opinion, they should forthrightly say so, so that counsel may be clearly aware of this legal limitation.

      . The nine paragraph agreement refers to the potential future suit for “bad faith” no less than nine separate times.

      . How could Kelly be expected to execute a “Satisfaction of Judgment” until after he had a judgment?

      .Historically, the only true practical distinction between a covenant not to sue and a release was its effect upon a joint tortfeasor, see 10 Fla.Jur.2d Compromise, Accord, and Release § 23 (1979), and even this distinction has been statutorily abrogated. See § 768.041, Fla.Stat. (1979). However, this does point up a fallacy in the majority’s reasoning. While the insured and the insurer are co-defendants in the case, they are not joint tortfeasors. Appellant’s claim against the insured is based on general negligence theory; however, appellant’s remaining claim against the insurance company is a completely separate tort of bad faith settlement negotiation. With respect to that cause of action the insurer is not a joint tortfeasor with the insured.

      . Compare Auto Mut. Indem. Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938) (insurance clause provided for direct suit by victim) with Canal Ins. Co. of Greenville, S. C. v. Sturgis, 122 So.2d 313 (Fla.1959) (absent insurance provision, direct suit by victim was barred).

      . See, e.g., Nationwide Mut. Ins. Co. v. McNulty, 229 So.2d 585 (Fla.1969); Selfridge v. Allstate Ins. Co., 219 So.2d 127 (Fla. 4th DCA 1969). Accord, Kuklis v. United Servs. Auto. Ass’n, 442 F.2d 1045 (5th Cir. 1971) (interpreting pre-Thompson Florida law). See generally 12 A.L.R.3d 1158 (1967) (assignability of insured’s right to recover over against liability insurer for rejection of settlement offer).


author: PER CURIAM. SHARP, Judge,

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Joseph William SPEWOCK, Appellee.
    No. 81-342.
    District Court of Appeal of Florida, Fifth District.
    March 3, 1982.
    Rehearing Denied March 29, 1982.
    Monroe E. McDonald of Sanders, McE-wan, Mims & McDonald, Orlando, for appellant.
    Mike Krasny of Storms, Krasny, Normile, Dettmer & Gillin, P. A., Melbourne, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Gillen v. United Services Automobile Association, 300 So.2d 3 (Fla.1974).

DAUKSCH, C. J., and ORFINGER, J., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case because I think the trial court erred in interpreting the uninsured motorist provisions of the automobile insurance policy pursuant to Florida law rather than Ohio law. The issue in this ease was whether or not the uninsured motorist provisions of the policy included the underinsured motorist as well as the uninsured motorist. The language only expressly covered the uninsured motorist.

The policy was issued and written in Ohio while the appellee was a resident of that state. It was stipulated and agreed that in Ohio there was no required statutory coverage for underinsured motorists. The policy also contained a provision, which does not appear applicable to the issues in this case, that if the insured had an accident in another state, and under that state’s law a “nonresident” was required to carry liability insurance of a greater amount than the policy was written for, the limits would be automatically extended to meet those requirements. After the policy was issued to the insured in Ohio, he moved to Florida, commenced steps to become a resident of this state, and was injured in an accident here shortly after his arrival. The tortfeasor had “insufficient” insurance coverage.

The majority opinion concludes that ap-pellee should have the benefit of section 627.727, Florida Statutes (1973), which mandates coverage for underinsured motorists, based primarily on Gillen v. United Services Automobile Association, 300 So.2d 3 (Fla.1974). In Gillen, the Florida Supreme Court applied Florida law in construing insurance policies issued in New Hampshire to persons then residents of that state, who at the time of the accident, had become Florida residents. The issue in that case was whether or not an “other insurance” clause in the policy should be. given any legal effect, as it would have been in New Hampshire. The Court held that it was contrary to the public policy of Florida to enforce “other insurance” clauses.

Public policy requires this Court to assert Florida’s paramount interest in protecting its own from inequitable insurance arrangements.

300 So.2d at 7.

I question whether the uninsured versus underinsured motorist issue rises to the level of public policy mandating application of the Florida statute to an insurance policy issued in another state to a resident of that state. The statute as expressly written does not apply to this insurance policy. In Eagle Star Insurance Co. v. Parker, 365 So.2d 780 (Fla. 4th DCA 1978), the court applied New York law to a New York uninsured motorist insurance policy when residents from that state were injured in Florida. Further, the fact that section 627.-727(1) expressly contemplates the possibility that an insured may elect against uninsured motorist coverage, indicates strongly that application of this statute is not mandated by the public policy of Florida.

      . The language of section 627.727 indicates Florida’s underinsured motorist coverage applies only to liability insurance “delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state § 627.727(1), Fla. Stat. (1973).


author: HOBSON, Acting Chief Judge.

text:
    James D. NEILL, Appellant/Cross-Appellee, v. Clare M. NEILL, Appellee/Cross-Appellant.
    No. 81-1388.
    District Court of Appeal of Florida, Second District.
    March 3, 1982.
    Rehearing Denied March 31, 1982.

      Stuart W. Umbarger of Umbarger & Stoddard, P.A., Brandon, for appellant/cross-appellee.
    Robert M. Chambers of Stanley, Wines & Smith, P.A., Auburndale, for appellee/cross-appellant.
   HOBSON, Acting Chief Judge.

Both appellant husband and cross-appellant wife appeal a final judgment of dissolution of marriage. We reverse only paragraph 3 of the final judgment which holds:

That the Husband shall pay an attorney’s fee of $750.00 to Robert M. Chambers, Attorney-at-law, ... as a contribution to the Wife’s attorney’s fees and costs, within 90 days of the date of Judgment.

We affirm the remainder of the final judgment.

The record reflects that the only testimony regarding the wife’s attorney fees was her testimony that she had retained her attorney, paid him $150 and could not afford to pay more. An award of attorney fees must be based on competent, substantial evidence as to the value of services rendered. The factors to be considered are set out in Disciplinary Rule 2-106{B), Code of Professional Responsibility.

For reasons stated above, we remand this cause so that the trial court may receive testimony in order to properly determine the issue of the wife’s attorney fees.

AFFIRMED IN PART, REVERSED IN PART and REMANDED for further proceedings not inconsistent with this opinion.

DANAHY and CAMPBELL, JJ., concur.


text:
    Johnnie R. COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 82-255.
    District Court of Appeal of Florida, Second District.
    March 3, 1982.
   PER CURIAM.

Affirmed without prejudice to appellant raising the issues again in a Florida Rule of Criminal Procedure 3.850 motion. The motion appealed from was insufficient on its face. See Fla.R.Crim.P. 3.850(a-e).

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


author: BOARDMAN, Acting Chief Judge.

text:
    Robert E. KING, M.D., Appellant, v. Roland S. HARRINGTON and Jane Harrington, husband and wife, Appellees.
    No. 81-956.
    District Court of Appeal of Florida, Second District.
    March 5, 1982.
    Rehearing Denied March 19, 1982.

      Andrew D. Owens, Jr. of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellant.
    Richard A. Bokor, Tampa, for appellees.
   BOARDMAN, Acting Chief Judge.

Defendant Robert E. King, M.D., appeals the trial court’s order granting plaintiffs/appellees Roland and Jane Harrington’s motion for relief from an original judgment in appellant’s favor. We reverse.

On June 24, 1975, appellees filed a complaint against appellant for medical malpractice, alleging failure to timely diagnose Mr. Harrington’s retinal detachment in 1974. A jury trial in December 1979 resulted in a verdict in favor of appellant, and final judgment was entered on December 18, 1979, in accordance therewith. Appel-lees took an appeal to this court which was subsequently stayed pending the outcome of this appeal.

On April 22, 1980, appellees filed a motion for relief from the judgment on the basis of newly discovered evidence. The trial court granted this motion, and this appeal followed timely.

Appellant, a Board-certified ophthalmologist, testified at trial that he had treated Harrington for various eye problems beginning in 1972. In January, 1974, appellant operated on Harrington’s left eye. As part of his follow-up care, appellant saw Harrington on January 31, 1974, February 8, 1974, and February 13, 1975. On February 20, 1974, appellant refracted both of Harrington’s eyes. Harrington did not have a detached retina in his right eye at this time. Appellant next saw Harrington on March 4, 1974, and both eyes were very good. Appellant next saw Harrington on April 1, 1974, when Harrington complained of a black spot in the vision in his right eye. Appellant dilated Harrington’s eyes and examined his retinas. Appellant found vitreous floaters, but no retinal holes or detachment.

Dr. Frederick K. Allen, Harrington’s general practitioner, testified that he saw Harrington on April 25, 1974, at which time Harrington complained that he had no vision in his right eye.

Appellant testified that Harrington had an appointment with him on April 29, 1974, but did not show. Appellant next saw Harrington on June 7, 1974, a Friday, when he complained of lost vision in his right eye, and appellant found a retinal detachment. Appellant referred him to Dr. Sever, and an operation was performed the following Monday.

Harrington testified that he made and presented drawings of his visual field to appellant on four occasions, twice in February, 1974, and on April 1, 1974, and June 7, 1974. Mrs. Harrington testified that she was present on two occasions when her husband made drawings for appellant.

Appellant testified that neither appellee ever gave him any drawings such as those shown to him at trial. He agreed, however, that such drawings would have represented a retinal detachment until proven otherwise, and that if an ophthalmologist ignored such drawings, he would be negligent.

Appellee’s motion for relief from judgment alleged in pertinent part:

1. That the critical issue presented herein revolved around whether or not Mr. Harrington was true and correct in his remembering that drawings were presented to the Defendant, ROBERT E. KING, M.D., showing that he had dark spots and/or curtains going over his right eye and Dr. King’s position was that no such drawings were ever presented.
2. That apprxoimately [sic] the last week in March, 1980, the undersigned counsel discovered Mary L. Cruse [sic], who was an opthalmic [sic] assistant in Dr. King’s office and knew certain factors regarding the existence of the drawings critical to this cause.
3. That on April 1, 1980, the undersigned took a sworn statement from Mary L. Cruse [sic].
4. That said Mary L. Cruse [sic] remembers seeing drawings on more than one occasion describing those factors which were described by Mr. Harrington in his lawsuit and facts which were denied by Dr. King.

Kruse’s sworn statement was appended thereto.

In that statement, Kruse said she had contacted appellees’ counsel a week earlier as a result of having recently seen Dr. Holley, the expert called by the Harring-tons at the trial in this case. Holley mentioned the case, which Kruse had heard of, and Kruse told Holley appellant had lied about the drawings. Kruse had worked for appellant from April 1973 to May 1976 and specifically recalled Harrington by name and symptoms; “I remember him so distinctly, because of the way he was and the different things that I had done for him while I worked with him.” Harrington had showed her two to four drawings, and she had indicated the information he gave her verbally and in the April 1,1974, drawing in the notes she made and gave appellant that day. Kruse had left appellant’s employ because her position was unavailable at the end of a six-month medical leave of absence; she had not been fired, and there was no personal animosity between her and appellant.

The trial court found as follows:

1. That the critical issues presented at the trial concerned themselves with whether or not the Plaintiff Roland Harrington’s memory was accurate when he stated that he presented drawings to the Defendant, ROBERT E. KING, M.D., showing certain dark spots and/or curtains going over his right eye.
2. That the position of the Defendant, ROBERT E. KING, M.D., was that no such drawings were ever presented.
3. That MARY (sic) L. KRUSE, who worked for Dr. King in 1974, and on pages 4 and 5 of her 16 page Sworn Statement, remembered the pictures that Mr. Harrington did present.
4. That evidence of these pictures through Merry [sic] Kruse was not readily available to the Plaintiffs at trial since Merry [sic] Kruse was not working for Dr. King at the time of the trial as she left the employment of Dr. King in May of 1976.
5. That had Merry [sic] Kruse been present at the trial of this cause and had presented her testimony in accordance with her Statement taken the results of the trial probably would have been different.

Appellees sought a new trial pursuant to Florida Rule of Civil Procedure 1.540(b)(2) and (3). There is no evidence of fraud or any finding of fraud by the trial court. Appellees have made no showing that appellant knowingly testified falsely. The order granting a new trial was based solely on newly discovered evidence.

A new trial based on newly discovered evidence must be cautiously granted and is looked upon with disfavor. Vining v. American Bakeries Co., 121 Fla. 116, 163 So. 396 (1935); Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla. 3d DCA), cert. denied, 135 So.2d 746 (Fla.1961).

Under Florida law, a motion for new trial based on newly discovered evidence will not be granted unless the evidence will probably change the result if a new trial is granted, has been discovered since the trial, could not have been discovered before trial by the exercise of due diligence, is material, and is not merely cumulative or impeaching. Mitchell v. State, 43 Fla. 584, 31 So. 242 (1901); Dade National Bank of Miami v. Kay, supra.

It is the movant’s burden to establish the exercise of due diligence. It is not sufficient to merely show that the evidence was not discovered or known to counsel until after trial.

“... The party applying must make his vigilance apparent; for if it is left even doubtful that he knew of the evidence, or that he might, but for the negligence, have known of and produced it, he will not succeed in his application.” Milton v. Blackshear, 8 Fla. 161; Coker v. Merritt’s Ex’r, 16 Fla. 416.

Mitchell v. State, 43 Fla. at 590-591, 31 So. at 244.

Appellees were aware well in advance of trial of appellant’s position that drawings were not presented to him. Kruse was an employee of appellant’s for approximately two years after the alleged malpractice occurred and for approximately one year after this litigation was commenced. Her testimony could presumably have been easily discovered during this period, since there is neither an allegation nor any indication that appellees sought and were unable to locate Kruse. The trial court’s finding to the contrary is not supported by the evidence. Assuming her sworn statement is true, Harrington had to have been aware that someone in appellant’s office in addition to appellant had seen his drawings and could corroborate his testimony. Due diligence on Harrington’s part would dictate that he so advise his attorney. By the same token, due diligence on trial counsel’s part would require that he inquire as to the existence of any employee of appellant who may have seen Harrington’s drawings. We can only speculate that this somehow never occurred to Harrington or his attorney. The cases appellees rely on are factually distinguishable.

Accordingly, the trial court’s order granting appellees’ motion for relief from judgment is REVERSED and the cause REMANDED with directions to reinstate the original judgment.

DANAHY and SCHOONOVER, JJ., concur.


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

text:
    MID VALLEY, INC. and United States Fidelity and Guaranty Co., Appellants, v. Paul J. ACKEL, Appellee.
    No. AD-38.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    Rehearing Denied April 13, 1982.
    W. Robert Mann, of Mann & Fay, Chartered, Bradenton, for appellants.
    Harry G. Goodheart III, of Goodheart & Logan, Bradenton, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

United States Fidelity and Guaranty Company, the carrier, and Ackel’s employer appeal the deputy commissioner’s order directing USF&G to reimburse claimant’s counsel about $50, the amount he paid to transcribe USF&G’s lengthy cross-examination of claimant’s physician during his deposition taken by claimant. We affirm.

Claimant sought reimbursement for the cross-examination transcript because it was lengthy and was prepared at the demand of USF&G’s counsel over the objection of claimant’s attorney. When notified the deputy had set a hearing on the motion, USF&G’s counsel sent a written objection that the deputy lacked jurisdiction due to a pending appeal on other issues [contra, Fla. W.C.R.P. 20(b)(3) ] and that:

2. There are no pending Motions which present any justiciable issue upon which the Deputy Commissioner can either rule or enter any Order which could be enforced or be of any consequence to the parties.
3. With the exception of the Employer/Carrier’s Motion to Tax Costs, the labors attempted to be imposed upon the Deputy Commissioner in setting the hearing, sending out the Notice, and entertaining any pending Motions, would be a complete waste of time.

USF&G’s counsel next failed to show up at the hearing to argue the merits of awarding claimant this cost. The deputy imposed the transcript cost on the carrier ostensibly as a sanction for this non-appearance.

It is incorrect to impose sanctions for failure to attend any chapter 440 proceeding except a pretrial conference. See Chittick v. Eastern Air Lines, 410 So.2d 598 (Fla. 1st DCA 1982). However, we decline to disturb the deputy’s conclusion, in effect, that the carrier should pay for a share of the transcript cost. Indeed, it is appellants who argue that the deputy did just this.

The notice of hearing sent to USF&G’s counsel on the motion to tax this cost asked him for a reasoned response to claimant’s assertion that the cost was due. Instead, the deputy first received a reply to the effect that the deputy could not enter an order of any consequence and that hearing the motion would be a “complete waste of time.” Next, when carrier’s attorney failed to appear at the hearing, silence was the only response to claimant’s argument on the merits. Forced to rule on an inadequately opposed motion, the deputy determined to impose the cost. Since the carrier’s attorney openly scorned his opportunity to argue the merits before the deputy, we will not entertain his debate on this issue here.

At a time when Florida appellate courts and this Court particularly are struggling to manage caseloads among the highest in the nation, we are somewhat disappointed that USF&G authorized or acquiesced in counsel’s decision to take this appeal over a $50 cost item. This case involves no money of any significance (at least not until now), nor any principle of great importance to the workers’ compensation system. The chief purpose of this appeal appears to be the vindication of counsel’s opinion that claimant’s motion was so groundless as to merit his pronouncing the deputy’s hearing “a complete waste of time.” USF&G and the people who pay USF&G insurance premiums may decide for themselves whether that purpose justified USF&G’s expenditures for filing fees, record preparation costs, and fees for legal services, and the public’s expenditures for the operation of this Court.

The deputy’s order is AFFIRMED and appellee’s motion for attorney’s fees is GRANTED in the amount of $2,000.

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


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

text:
    AMERICAN GRINDING & EQUIPMENT, and Lumbermens Mutual Casualty Company, Appellants, v. Angel RODMAN and the Division of Workers’ Compensation, Appellees.
    No. AC-274.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    Rehearing Denied April 16, 1982.
    Summers Warden, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellees.
   PER CURIAM.

Upon review of the briefs and record in this worker’s compensation appeal we find no reversible error presented, with exception of that portion of the deputy commissioner’s order for payment of various medical bills by the employer/carrier. Ap-pellee concedes that it was error to order payment of Dr. Miller’s bill, and no request was made for payment of Dr. Mayer’s bill.

We reverse the order for payment of the medical bills of Drs. Dooley, Sprier, Ray, Swerdlow, Holder and Barry. These bills were never introduced into evidence. See Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). A bill from the Baptist Hospital of Miami, Inc., which was introduced into evidence, reflects total charges of $746.45. Whether there were additional charges by the hospital is not clear from the record. There is no bill for the TNS Stimulator in the record, and again, the record is unclear on how much appellee paid for it. All doubt and uncertainty concerning the amount of these charges can and should be removed on remand by the submission of written bills or statements to be received and marked as exhibits in the case.

According to the deputy commissioner’s view of the evidence the E/C improperly failed to authorize the medical care provided by the above named doctors and the pain center, which was reasonable and necessary for treatment of claimant’s injuries sustained in the accident, and of benefit to his recovery. We will not second-guess the finding of the deputy commissioner on this issue. However, it is necessary for the deputy commissioner to further find “good cause” to excuse non-compliance with the reporting requirements of Section 440.13(1), Florida Statutes, before ordering payment by the E/C. See Cedars of Lebannon Health Care Center, Inc. v. Summerset, 409 So.2d 185 (Fla. 1st DCA 1982), 1982.

We reverse the order for payment of the medical bills specified and remand for further proceedings and findings with respect to payment of these bills.

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

ROBERT P. SMITH, Jr., Chief Judge, concurs and dissents with written opinion.

ROBERT P. SMITH, Jr., Chief Judge,

concurring and dissenting.

Otherwise I concur, but I dissent from the Court’s reversing the award of medical benefits to be paid treating physicians and remanding the case for a hearing where their bills may physically be introduced in evidence. If the issue here were simply whether medical bills must be put in evidence on timely objection by the employer/carrier to testimony or other forms of proof, I would agree that such a formalism seems to be required by a regrettable trend of recent decisions by this Court. But since there was no objection before the deputy to that other common form of proof, testimony concerning by the doctors or the claimant, I think the only question is whether that testimony formed a substantial competent basis for the deputy’s award.

Chapter 440 is encrusted with enough formalisms and compulsory figures without our adding more. This particular one became entrenched beginning with Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980), which uttered this requirement without explaining it, citing Industrial Relations Commission decisions holding only that a causal relationship between the compensable injury and the medical benefits sought should be shown through some competent evidence, be it testimony or bills or both. Doty Exterminating Co. v. Jones, IRC Order 2-2617 (December 6, 1974); E. C. Ernest & Co., Inc. v. Grimmett, IRC Order 2-2882 (November 21, 1975), cert. den., 336 So.2d 600 (Fla.1976). This wholly reasonable standard has now been transformed into a wooden necessity that medical expenses be evidenced by bills instead of other forms of evidence, including perhaps ledger sheets or testimony, which the deputy commissioner may find satisfactory. See Exxon Co., U.S.A. v. Rodriguez, 410 So.2d 571 (Fla. 1st DCA 1982); Iacobelli Contracting, Inc. v. Griffin, 409 So.2d 1206 (Fla. 1st DCA 1982).

Some of the doctors who treated this claimant testified as to the amount of their bills and their causal relationship to the compensable injury. At no time did the carrier’s counsel object that this testimony was not competent; at no time did he demand that the doctors or the claimant produce bills as a condition precedent to their testimony. He did not even ask for the bills in cross-examination. Nor did the deputy in this case award payment of medical bills in any particular amount. He simply determined that appellants were liable for certain doctors’ medical care, determined to be related to the compensable injury. Because there was no dispute over the introduction of bills below, or their amount or reasonableness, I heartily agree that their introduction into evidence does “not appear to be indispensable.” Griffin, supra (Went-worth, J., dissenting in part and concurring in part).

A retroactive procedural requirement that medical bills be physically introduced in every case offers little of benefit to the operation of the worker’s compensation system. It does promise this Court an unnecessary increase in its workload, already approaching staggering proportions. Only rarely is the amount or reasonableness of medical bills an issue before the deputy. These matters generally will be worked out by the parties or their counsel. Or at least they should be. If, as is usually the case, there is testimonial or other expert testimony about the causal relationship between bills and the compensable injury, the deputy does not need slips of paper in the record to determine the carrier’s liability, his principal concern. While it would sometimes be handy for this Court to have the bills themselves in the record, that preference, announced retrospectively as though their omission until now were error, comes too late to commend this procedural nicety to the deputies in cases already decided and, presumably, already on their way to this Court.

The benefits of requiring introduction of medical bills are dubious and the disadvantages to this Court and the worker’s compensation system are all too clear. I cannot agree that claimant’s failure to introduce medical bills requires reversal and remand.