author: McCORD, Acting Chief Judge. McCORD, Judge.

text:
    CHRYSLER MOTORS CORPORATION, Appellant, v. FLORIDA NATIONAL BANK AT GAINESVILLE, a corporation, and Recreational Enterprises Corporation, a corporation, Appellees.
    No. LL-12.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1979.
    As Corrected On Denial of Rehearing March 4, 1980.

      Delbridge L. Gibbs of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellant.
    James S. Quincey of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellees.
   McCORD, Acting Chief Judge.

This appeal is from a final judgment in a civil action for damages brought by appellant Chrysler Motors Corporation against Florida National Bank at Gainesville, hereinafter referred to as the Bank, and Recreational Enterprises Corporation, hereinafter referred to as REC. Chrysler sought damages against the Bank on account of its refusal to honor 16 drafts totaling $269,-910.57 drawn by Chrysler upon the Bank to obtain payment for 65 Dodge chassis, pursuant to letters of credit entitled “payment authorization” and “cash draft authorization” issued by the Bank. The trial court found that the Bank was required to pay only one of the 16 drafts and entered judgment only for the face amount of that one draft plus interest at 6% from November 5, 1974, totaling $28,896.06. Chrysler contends that the trial court erred in not awarding judgment on the remaining 15 drafts. We agree with Chrysler’s contention and reverse.

REC was a manufacturer of recreational vehicles. It purchased Dodge truck chassis and Dodge vans from Dodge dealers and by additions thereto converted them into recreational vehicles which it marketed. The sequence of events out of which this lawsuit arose began in 1972 when REC applied to Chrysler to establish a consignment pool of such chassis and vans. Chrysler declined to extend credit for that purpose to REC without a bank letter of credit. At that time, as a condition to the issuance of such a letter of credit to Chrysler for REC, the Bank required an assurance from Chrysler that if Chrysler exercised its rights under the letter of credit, the Bank would receive “clear statements of origin.” These “clear statements of origin” are certificates of origin (CO’s) which are the same as manufacturers statements of origin (MSO’s). The CO or MSO is the title to the vehicle. By letter dated July 27, 1972, Chrysler’s W. R. Dun-canson wrote the Bank’s then president, Clyde A. Martin, Jr., stating:

“Mr. N. C. Kinlund of Recreational Enterprises contacted us in reference to their proposed consignment agreement and the ‘Letter of Credit’ which you intend to execute for them.
“We offer the following assurance to the Florida National Bank:
“For each vehicle which Chrysler Motors Corporation collects payment from the Florida National Bank, as agreed upon in the aforementioned ‘Letter of Credit’ Chrysler Motors Corporation will forward to the Florida National Bank the applicable Certificate of Origin free and clear of all liens and/or encumbrances.”

Pursuant to Duncanson’s letter, the Bank, on August 31, 1972, issued its letter of credit in the amount of $100,000.

Shortly thereafter on September 11,1972, REC and Chrysler entered into an agreement entitled “Security Agreement — Wagons and/or Vans” and an amendment thereto which provided that Chrysler would ship chassis and vans to REC which would store them without charge to Chrysler; that title to the vehicles would remain in Chrysler while so stored; and that the vehicles would not be removed from storage nor be modified by REC until they were purchased through Dodge dealers by REC. Chrysler and REC executed and filed a financing statement (Form UCC-1) with the Secretary of State on September 21, 1972, to further protect Chrysler’s interest in the consigned inventory.

Under the agreement, when REC wished to purchase a chassis or van for conversion into a recreational vehicle, it would notify Chrysler, which would then sell the vehicle to, and transfer title to a Dodge dealer, who would in turn sell it to REC. Chrysler would be paid by issuing a draft on the Dodge dealer’s bank and the Dodge dealer would, in turn, be paid by REC for the chassis or van. As a condition to entering into this agreement, Chrysler required REC to furnish it the aforementioned $100,000 irrevocable letter of credit issued by the Bank. When it became apparent that $100,000 was insufficient to meet REC’s needs, the Bank furnished Chrysler an additional letter of credit for $150,000 dated December 21, 1972. These two letters of credit were each subsequently extended by the Bank for an additional period of time ending August 31, 1974.

During the period September 1, 1972, until August 1, 1974, Chrysler was paid by Dodge dealers for all vehicles consigned to REC and never drafted on the Bank under either of the two irrevocable letters of credit.

In March of 1974, Chrysler changed its method of marketing its recreational vehicle chassis (but not its vans) by selling them direct to R. V. Manufacturers (of which REC was one) rather than going through the former consignment process under which sales were made through Dodge dealers. It continued the consignment process as to vans. To effect this change, Chrysler and REC executed a further amendment to their original agreement. The amendment provided that REC would buy Dodge chassis directly from Chrysler and build R. V. bodies thereon; Chrysler would issue invoices and MSO’s to REC for the chassis when sold and shipped to REC; Chrysler would be paid for each such chassis when REC sold it and notified Chrysler of the sale, or 90 days after the date of Chrysler’s invoice to REC, whichever date occurred first; and payment for the chassis would be effected by Chrysler drawing a draft on REC’s bank pursuant to REC’s authorization (which was Exhibit A to amendment) and pursuant to the Bank’s payment authorization (letter of credit) dated April 1, 1974, by which the Bank expressly authorized Chrysler:

“ * * * to draw cash drafts on it for payment due Chrysler for motor vehicles sold, delivered, or shipped by Chrysler to the company named below (REC), in accordance with Chrysler’s agreement or agreements with said company.”

This letter of credit further provided that the Bank could terminate it “effective immediately” by wire or telephone, with a confirming registered letter, upon the following condition:

“ * * * However, we (Bank) agree to honor and pay all drafts covering motor vehicles for which payment is then owed to you by the above named company (REC) on the date such termination notice is given by us to Chrysler; provided that the maximum amount of draft that we shall be liable to pay upon such termination, representing the percent amount that may be owed to Chrysler, shall not exceed $250,000.00 dollar amount.”

A copy of the form draft (identical to the forms used by Chrysler for the drafts which the Bank subsequently refused to pay — the subject matter of this lawsuit) was attached as an exhibit to the amendment to Chrysler’s and REC’s original agreement. This same form was used by Chrysler in drafting on all of its dealers.

Under the new direct sales procedure for recreational vehicle chassis, the invoice and the MSO would go directly to REC, and Chrysler would draft on REC’s bank, the Florida National Bank at Gainesville. Chrysler, under this procedure, would be paid by the Bank when notified by REC of REC’s sale of the chassis, or 90 days after the date of Chrysler’s invoice, whether it had been sold or not, whichever occurred first.

Although the amendment providing for direct sale to REC stated that “Dodge (Chrysler) shall issue invoices and Manufacturer’s Statements of Origin (MSO’s) therefor to the body company (REC),” Chrysler continued to send MSO’s to the Bank in accordance with Mr. Duncanson’s determination that the MSO’s “would probably best go to the bank” and his written instructions for the MSO’s to be sent to the Bank.

In June, 1974, however, REC’s comptroller found it difficult to obtain MSO’s from the Bank because they were held exclusively under the control of the Bank’s then president, Clyde Martin, who was often busy and unavailable to deliver the MSO’s when REC made payment to it. As a result of this, on or about June 12, 1974, REC’s comptroller called Mr. Duncanson and asked whether arrangements could be made for REC to get the MSO’s directly from Chrysler. Duncanson advised him that such could be dome if the Bank approved, and the comptroller then requested that Dun-canson call the Bank about it. Duncanson called Clyde Martin, the Bank’s president, who agreed that the MSO’s could be sent directly to REC. Duncanson then caused instructions to be issued so that MSO’s would thereafter be mailed directly to REC.

In September, 1974, a new direct-sale-to-manufacturer agreement entitled “Sales Agreement — Special Vehicle Manufacturer” was executed by REC and Chrysler, which superseded all earlier agreements relating to the direct purchase by REC of Dodge chassis. As in the March, 1974, amendment, this new agreement provided for direct sales of chassis to REC and stated:

“DODGE will issue invoices and Manufacturers Statements of Origin (MSO’s) for Chassis purchased in MANUFACTURER’S (REC’s) name immediately following shipment thereof to MANUFACTURER. MSO’s shall only be sent direct to MANUFACTURER for deferred payment purchases upon (1) DODGE’s approval or (2) if MANUFACTURER’S bank fully and unconditionally guarantees payment for Chassis to DODGE and does not prohibit DODGE from sending said MSO’s direct to MANUFACTURER.”

Pursuant to the above-quoted provision, the Bank issued to Chrysler a letter of credit entitled “Cash Draft Authorization” dated August 30, 1974, which states:

“The bank acknowledges that Chrysler may sell, ship or deliver said vehicles to Manufacturer on a deferred payment basis, and the bank agrees that it will pay cash drafts drawn on it by Chrysler (1) when each vehicle is shipped by Manufacturer to its customer or (2) at the expiration of Chrysler’s deferred payment period or (3) as otherwise outlined in the aforementioned Sales Agreement. Each draft will show information specifying, among other things, that the vehieles(s) are sold to the Manufacturer, the invoice number, serial number, other identifying description and amount for each vehicle. The bank further acknowledges that vehicle shipments to Manufacturer will be made by Chrysler in full reliance on the bank’s commitment to pay Chrysler for vehicles so shipped. In this regard, the bank acknowledges that Chrysler will ship vehicles to Manufacturer on a revolving or continuing basis, in such quantities as shall be determined by Chrysler. Provided, however, that the bank’s commitment to pay Chrysler for said vehicles shall not exceed $300,000 at any one time.”

The deferred payment arrangement referred to in the Bank’s letter of credit is stated in the following provision of the September, 1974 agreement:

“In order to qualify for deferred payment, MANUFACTURER (REC) and its bank shall submit to DODGE (Chrysler) a bank cash draft authorization in a form acceptable to Dodge. Payment for Chassis sold on deferred payment is due and payable to DODGE on the date MANUFACTURER ships each Chassis from its production facility to its dealer, distributor or customer. MANUFACTURER shall notify DODGE’s Vehicle Releasing Department of such shipment in accordance with written instructions provided to MANUFACTURER by DODGE' for each Chassis by drawing a Cash Draft and/or Security Bill of Sale on MANUFACTURER’S bank. Provided, however, that DODGE shall automatically draw such drafts on MANUFACTURER’S bank in such manner which shall enable DODGE to effect payment for Chassis on the 90th day following the date of each Chassis invoice if MANUFACTURER has not previously reported the shipment thereof to DODGE. * * * ”

The letter of credit provided that it could be terminated by the Bank or REC by giving Chrysler 24 hours notice by wire or telephone and confirmed by registered letter and further provided:

“ * * * in the event of termination of this authorization, the bank agrees to honor and pay all drafts covering vehicles for which payment may then be owed to Chrysler. * * *”

Thus, the September, 1974, agreement and letter of credit carried on the substance of the March, 1974, amendment to the original agreement and its letter of credit except that the amount of the draft authority was raised to a total of $300,000. Under the agreement, title to the chassis passed to the purchaser (REC) when the chassis was turned over to the carrier and a bill of lading issued.

In October, 1974, Chrysler issued three cash drafts totalling $78,827 for chassis bought by REC. Those drafts were accepted and paid by the Bank and were then charged by the Bank to REC’s checking account. They were on forms identical to that attached to the amendment of March, 1974, and also identical to the forms used by Chrysler for the drafts which the Bank subsequently refused to pay.

On November 13, 1974, the Bank’s new president, Kenneth Tinsley, called Chrysler’s manager of dealer credit, Frank W. Knope, and stated that the former president (Martin) had “skipped to Mexico.” Tinsley stated that he had become aware of the August 30, 1974, letter of credit issued by the Bank in favor of Chrysler for REC, and he notified Chrysler through Knope that the Bank was terminating it. By letter of November 14, 1974, the Bank confirmed the telephone conversation and formally terminated the letter of credit.

Upon receiving this notification, Chrysler immediately stopped all further shipments of chassis to REC and also attempted to stop shipment of vehicles that had already left its truck plant but were still in the hands of carriers on their way to REC. It was able to stop and recover 10 such chassis which it sold to other parties. Chrysler then continued issuing drafts upon the Bank as the deferred payment became due for each chassis shipped to REC prior to the letter of credit termination — that is, 90 days after the invoice date for each such chassis.

By letter of November 27,1974, the Bank advised Chrysler that it would not honor Chrysler’s drafts. On December 19, 1974, Chrysler’s Mr. Creed went to Jacksonville and made formal demand for payment of 75 chassis shipped to REC, but not paid for, prior to the letter of credit termination. This included the 10 chassis above referred to which Chrysler recovered but which it later, by its amended complaint, deleted from its claim, thereby reducing the claim to payment for 65 chassis. The total amount of the drafts for the 65 chassis was $269,910.57. The Bank admits that Chrysler tendered to it and demanded payment of these drafts and that it refused to pay any of them.

Immediately following his visit to Jacksonville, Chrysler’s Mr. Creed went to REC’s Gainesville place of business. He stated that the primary purpose of this trip was to check on 28 vans which had been shipped to REC on consignment. (They were not involved in the draft procedure.) He stated that he observed certain chassis which were in production and located on REC’s premises, but that he did not perform an inspection or audit or take any other action “because we (Chrysler) looked to the Bank for payment under the letter of credit and had made demand on the 19th for that.”

The pertinent conclusions of the trial court in entering judgment against Chrysler for all but one of the drafts are as follows:

“B. The Bank was not required to honor the demand for payment-under the letters of credit and payment authorizations because all of the provisions for payment were not strictly complied with by Chrysler in making such demand for payment. C. Chrysler as beneficiary of the letters of credit and the draft authorizations had a duty to mitigate its damages and to minimize or eliminate its losses, and it failed to do so.
D. Chrysler placed the MSOs in the hands of REC along with possession of the vehicles and then took action only to recover ten of such vehicles. Chrysler made no attempt to recover possession and title to the remaining 65 vehicles although it had the right to do so under its agreement without legal process and the rights of a secured party under the UCC 1 Financing Statement with legal process. Chrysler is estopped to demand payment from the Bank.
E. The Bank wrongfully dishonored the draft (plaintiff’s Exhibit 19) when it returned said draft to Chrysler while funds were in REC’s account at the bank and thereafter diverted those funds to the unrelated indebtedness of REC at the Bank.”

As to the trial court’s ruling that the Bank was not required to honor the drafts because Chrysler did not strictly comply with all the provisions for payment, Chrysler contends that it did fully comply. The Bank argues that Chrysler did not comply because it did not furnish MSO’s for the chassis to the Bank. It is clear, however, that the furnishing of MSO’s to the Bank, which was a requirement of the original letter of credit, was not a requirement of the August 30, 1974, letter of credit. Further, in June, 1974, the Bank’s former president, Clyde Martin, waived the previous requirement that the MSO’s be issued to the Bank, and such requirement was never thereafter reinstated. The Bank accepted and paid all drafts issued subsequent to Martin’s waiver without MSO’s being furnished to it until it received the drafts, which are the basis of this suit, after it had cancelled the letter of credit. These were the first drafts it declined to honor. It obviously did not honor them because it did not have money from REC with which to pay them (with the one exception noted in the trial judge’s judgment). When REC’s previous drafts arrived, it had REC’s money to cover them. The Bank contends it was authorized not to pay them under its letter of credit because language contained on the bank draft required Chrysler to convey to the Bank title to any vehicle for which payment was sought from the Bank under the draft. The language referred to states:

“In consideration of the payment of this draft, Chrysler Motors Corporation does hereby grant, sell and transfer to drawee, or if drawee is the above named dealer, then to the party designated in the 'Payable At’ space hereon, the motor vehicle^) described above, and all accessories, parts and equipment affixed thereto

The record shows that the above-quoted language is printed language which appears on all of Chrysler’s draft forms including those which were paid by the Bank. The above-quoted draft language is not part of the Bank’s letter of credit, however, and as previously stated, the Bank had waived its requirement that MSO’s (title) be furnished to the Bank as a condition for payment under its letters of credit. The effect of the above-quoted language was merely to convey to the Bank, upon its payment of the draft, whatever interest Chrysler had remaining in the chassis, which Chrysler had shipped to REC and for which, with the Bank’s approval, Chrysler had sent the MSO to REC.

The Bank contends, and the trial court ruled, that Chrysler had a duty to mitigate its damages by repossessing the 65 chassis which Chrysler had delivered along with the MSO’s to REC. The September 10, 1974, agreement between Chrysler (Dodge) and REC contains the following provision:

“MANUFACTURER agrees in the event of any default in the timely paynent for Chassis contained herein, or in the event of the dishonoring or return to DODGE by MANUFACTURER or its bank of payment documents, negotiable instruments, checks or cash drafts, DODGE may, with or without legal process, retake possession of all Chassis for which payment is in default or has been dishonored, together with any Bodies and/or equipment that may be attached thereto, and DODGE may also accelerate the payment for and retake possession of any and all other Chassis, together with any Body and/or equipment that may be attached thereto for which payment is then owing to DODGE, whether or not such payment is then due and payable to DODGE. DODGE may sell any or all of said repossessed Chassis, Bodies and/or equipment and apply the proceeds of said sale to any amounts owed by MANUFACTURER to DODGE. Any amount received from said sale in excess of amounts owed to DODGE shall be paid to MANUFACTURER.”

This provision for retaking possession is permissive and not mandatory, and the Bank was not a party to, nor named as a beneficiary of, such agreement. Chrysler relied upon the letter of credit given to it by the Bank rather than to attempt to retake the 65 chassis which were in the possession of REC in various stages of construction. While there was testimony that after REC completed constructing the chassis into a recreational vehicle it was more valuable than when delivered to REC by Chrysler, there was also testimony that at the time the drafts were presented for payment the bottom had dropped out of the market for recreational vehicles.

The opinion of the Supreme Court of Connecticut in New York Life Insurance Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 378 A.2d 562 (1977), illustrates the sanctity which should be attached to a letter of credit. There the Hartford Bank issued an irrevocable letter of credit to New York Life on behalf of TVC, a real estate developer. TVC borrowed construction money from Wachovia Realty Investments to construct an office complex for which New York Life made a commitment to provide a $9,000,000 permanent mortgage loan and was paid $90,000 therefor. One of the conditions of the mortgage loan commitment was that $180,000 be deposited with New York Life to satisfy a liquidated damages provision in the agreement, but in lieu of the cash deposit, New York Life agreed to accept a letter of credit issued by the Hartford Bank at TVC’s request. Under the terms of this letter of credit, the Hartford Bank promised to honor drafts drawn by New York Life on the sole condition that such drafts be accompanied by a “signed statement of the New York Life Insurance Company that the liquidated damages deposit is due to them under the provisions of this Letter of Credit.” TVC failed to meet the conditions of the mortgage loan commitment before it expired, and the loan was never made. New York Life presented the Hartford Bank with a sight draft for the $180,000, accompanied by the required statement. The Hartford Bank dishonored the draft, and New York Life brought suit. The trial court granted summary judgment- as to liability in favor of New York Life, but after hearing only awarded nominal damages. The trial court found that the subject matter of the transaction was the $9,000,000 that New York Life committed to TVC; that New York Life, upon default by TVC, had the opportunity to reinvest the $9,000,000 the return on which exceeded the face amount ($180,-000) of the letter of credit and draft; and that New York Life was, therefore, not damaged by the Hartford Bank’s wrongful dishonor of the draft. The Supreme Court of Connecticut reversed and remanded the case for a judgment for $180,000 in favor of New York Life. It found that the real issue was the damage New York Life sustained, not as a result of TVC’s default, but only as a result of the Hartford Bank’s dishonor of New York Life’s draft. The Supreme Court of Connecticut then went on to say:

“The court erred in its determination that the $9,000,000 was the ‘subject matter of the transaction’ (the letter of credit). See General Statutes § 42a-5-115. It has been said that the ‘hallmark’ of the letter of credit is that at a certain point it becomes ‘as good as cash.’ Verkuil, ‘Bank Solvency and Guaranty Letters of Credit,’ 25 Stanford L.Rev. 716, 720; Armstrong, ‘The Letter of Credit as a Lending Device in a Tight Money Market,’ 22 Bus.Law. 1105, 1109. * * * Upon TVC’s default and the proper presentation of documents, New York Life had a right to expect the letter of credit to become as good as the cash deposit which would otherwise have been available from TVC. The present litigation has thus far thwarted this expectation. The $9,000,000 was the subject of the underlying transaction (the mortgage loan commitment) which, as the court correctly found, was an entirely independent contract. The performance secured to New York Life by Hartford National’s letter of credit was not the performance by TVC of its obligations under the mortgage loan commitment, but solely the payment of damages, liquidated in advance by agreement between TVC and New York Life, which would result from TVC’s failure to take up the loan.”

In the case sub judice, Chrysler sustained its loss as a result of the Bank’s dishonor of its drafts. From the evidence, it is fair to conclude that Chrysler would not have sold the chassis to REC on credit had it not had the Bank’s letter of credit. The letter of credit from the Bank was as good as cash to Chrysler.

To the extent that it reasonably could, Chrysler stopped in transit the 10 chassis, which had not yet been altered by REC, and diverted them to other purchasers, thus minimizing the Bank’s liability under its letter of credit. It had no obligation to the Bank, however, to use methods which could have resulted in its becoming involved in a lawsuit to recover the vehicles which were in REC’s possession, and title to which had been transferred to REC with the Bank’s approval. It had no obligation to the Bank to recover the chassis in various stages of construction as recreational vehicles and then attempt to sell them in such state on a deflated market. Chrysler’s letter of credit from the Bank was as good as cash, and Chrysler had the right to rely upon it.

REVERSED and remanded with directions to enter final judgment in favor of Chrysler in the amount of $269,910.57, with interest thereon from December 19, 1974.

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

ON MOTION FOR REHEARING AND CLARIFICATION

McCORD, Judge.

Among other contentions, appellee Bank argues on motion for rehearing that we misconstrued its letter of credit as a “clean” letter of credit rather than a letter of credit for the sale of goods which requires that the issuing bank receive documents of title to the goods when it pays the beneficiary. Although here the letter of credit was issued in connection with the sale of goods (motor vehicle chassis), it was a “clean” letter of credit. While appellee Bank’s letter of credit (the cash draft authorization of August 30, 1974) required that the draft show on its face certain descriptive matter concerning the chassis for which it was drawn, the cash draft authorization is “clean” in that it does not require that the beneficiary (Chrysler) present documents of title or other documents with the draft before the bank will pay the beneficiary, as fully discussed in our foregoing opinion. The letter of credit here thus falls in the same category as the “clean” letter of credit issued in New York Life Insurance Company v. Hartford National Bank and Trust Company, 173 Conn. 492, 378 A.2d 562 (1977).

Rehearing denied,

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


source: Caselaw Access Project

author: OTT, Judge. GRIMES, Chief Judge,

license: Public Domain

text:
    PALM CITY CHRYSLER-PLYMOUTH, INC., Appellant, v. STATE of Florida, DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. 79-287.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1979.

      Wade H. Parsons, of Nuckolls, Parsons, Johnson & Fernandez, Ft. Myers, for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for appellee.
   OTT, Judge.

Appellant was notified that its unemployment compensation tax rate for the year 1978 was increased to 4.5%. Within two days of the receipt of that notice appellant mailed a letter to appellee requesting review of the new assessment. Appellant’s request was denied on the ground that the letter of protest did not contain the detail required by Department rule 8B-2.08(5)(a) of the Unemployment Compensation Code of Regulations. We reverse.

On the reverse side of the Notice of Tax Rate the Department gave various instructions and information to the taxpayer, among them the following:

A protest of this rate must be postmarked within 15 days from the date this notice was mailed. Reason for protest must be furnished. . . . Any benefit charges paid in accordance with a determination which has become final cannot be protested.

The request for review merely stated that the taxpayer “would like to register an appeal to protest our rate of 4.5%. We have reason to believe that many charges by employees were fraudulent and caused this higher rate. Adjustment rate factors were improperly administered.”

We think the request for review is in substantial compliance both with the provisions of Section 443.08, Florida Statutes and the instructions to the taxpayer that are found upon the reverse side of the Notice of Tax Rate; both require only that the taxpayer furnish his reason for the protest. We do not feel that the Department can levy a more stringent and formal pleading requirement by rule.

It is possible that one of the “reasons for protest” may very well be foreclosed as constituting a collateral attack upon a final determination of benefit charges that have been previously made and are now final or res judicata. Even this, however, should abide the offer of proof thereon that the taxpayer may produce at the hearing. The second reason- — adjustment rate improperly administered- — is quite general and nonspecific. We believe, however, that it constitutes sufficient compliance with the legislative mandate and the Department’s instructions on the reverse side of its notice.

The order denying review is reversed with instructions to the Department to proceed to review appellant’s protest in accordance with this opinion.

BOARDMAN, J., concurs.

GRIMES,- C. J., concurs specially with opinion.

GRIMES, Chief Judge,

concurring specially.

If the Department believed that the reasons for the protest were not sufficiently stated, it should have required the request to be amended rather than summarily denying any review.


author: RYDER, Judge. GRIMES, Chief Judge,

text:
    Robert P. VOMACKA, M. D., Petitioner, v. Alice HERVEY and David Hervey, Respondents.
    No. 79-1337.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1979.
    William C. Blake, Jr., of Blake & Associates, P. A., Tampa, for petitioner.
    John T. Allen, Jr., St. Petersburg, for respondents.
   RYDER, Judge.

Vomacka seeks certiorari to review an order denying his motion for partial summary judgment and granting respondents’ corresponding motion to strike affirmative defenses. We grant certiorari and vacate the challenged orders.

Respondents’ complaint was based on factual allegations that petitioner negligently diagnosed and treated respondent for breast cancer. The complaint alleged in two counts that petitioner had failed to secure Mrs. Hervey’s informed consent to cobalt treatments and that the treatments were administered improperly. Petitioner Vomacka filed a motion for partial summary judgment, arguing that under Section 768.44, Fla.Stat. (1977), respondents must submit the lack of consent claims to a medical liability mediation panel prior to filing their action in a court of law. Petitioner’s second affirmative defense was likewise grounded on failure to mediate the informed consent issue.

After a hearing, the trial court entered an order denying Vomacka’s motion for partial summary judgment and granting the Herveys’ corresponding motion to strike Vomacka’s second affirmative defense.

Section 768.44(l)(a), Fla.Stat. (1977), provides:

Any person or his representative claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization against whom he believes there is a reasonable basis for a claim shall submit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state.

Respondents correctly contend that a claim based on lack of informed consent can have its basis in technical assault and battery and, therefore, could be outside the purview of Chapter 768. See Brown v. Wood, 202 So.2d 125 (Fla.2d DCA 1967). However, in the instant case the counts alleging lack of informed consent are clearly allegations based on negligence, and therefore are the types of claims contemplated by Section 768.44(l)(a), Fla.Stat. (1977). It is thus our view that unless the claim for lack of informed consent was first submitted to a medical liability mediation panel as required by Section 768.44(l)(a), Fla.Stat. (1977), respondents cannot maintain the claim as a part of their suit. Mt. Sinai Hospital v. Wolfson, 327 So.2d 883 (Fla.3d DCA 1976).

In this case, the statement of claim filed with the mediation panel did not state an intention to resolve whether there was a breach of duty in failing to inform Mrs. Hervey of certain risks. From the record before us, we are unable to ascertain whether the question of informed consent was in fact considered by the medical liability mediation panel.

The petition for writ of certiorari is therefore granted, the order granting respondents’ motion to strike petitioner’s second affirmative defense is quashed and petitioner’s second affirmative defense is reinstated. We direct the trial court to determine whether the respondents submitted evidence of lack of informed consent to the mediation panel. If the trial court finds that the mediation panel heard evidence on informed consent, respondents shall be allowed to proceed with the claim for lack of informed consent and to have it decided on its merits. However, should the court below determine that informed consent was not submitted to the mediation panel, petitioner’s affirmative defense will preclude further consideration of the informed consent issue until such time as it is submitted for mediation.

BOARDMAN, J., concurs.

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

GRIMES, Chief Judge,

concurring specially.

While I agree with the substantive conclusion that claims in negligence grounded upon allegations of lack of informed consent must first be submitted to medical liability mediation panels, I have some qualms about whether the erroneous order cannot later be adéquately remedied by way of appeal. The petitioner argues that should the respondents obtain a jury verdict, it would be impossible to show whether the verdict was influenced by the improper introduction of evidence on informed consent. Perhaps .this is so, though the judicious use of special verdicts could go a long way toward obviating the problem. However, I am primarily persuaded to concur in the granting of the petition for certiorari in this case because of the further complication which requires the determination of whether the issue of lack of informed consent was submitted to the mediation panel. Unless the trial court considers this matter, there would in all probability be no record on which we could review this issue in an appeal taken at the end of the case. In short, because of our position on the law, justice dictates that this point be determined at this time.


author: RYDER, Judge.

text:
    Chester MARRS, Petitioner, v. STATE of Florida and the Circuit Court of Pinellas County, Florida, Respondents.
    No. 79-1803.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1979.
    Robert E. Jagger, Public Defender, and Stuart J. Freeman, Asst. Public Defender, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee , James T. Russell, State’s Atty., and Lawrence A. Jacobs, Asst. State’s Atty., St. Petersburg, for respondents.
   RYDER, Judge.

This petition for writ of certiorari is taken from an order of the Circuit Court of Pinellas County sitting in its appellate capacity dismissing an appeal from the county court to the circuit court from petitioner’s conviction of D.W.I. The dismissal of the appeal recited that it was pursuant to the state’s motion to dismiss. The motion to dismiss was based on petitioner’s failure to supply the appellate court with a record of the county court proceedings. ■

Prior to the dismissal, petitioner had filed a motion and an amended motion for order directing court reporters to transcribe proceedings. Both motions were denied by a circuit judge other than the judge dismissing the appeal. At all relevant times, petitioner had been declared insolvent and was represented by the Public Defender of the Sixth Judicial Circuit.

Petitioner requests that this court issue its writ of certiorari quashing the order of dismissal and further that this court issue its writ of mandamus compelling the circuit court to provide petitioner with those portions of the transcript requested. Petition-, er points out that he did not request the entire trial transcript but only those portions dealing with the motion in limine, which was the subject of his appeal.

Respondents argue that “Judge Walker applied the presumption that the lower court was correct in properly dismissing the appeal, there being no showing of any error in the record on appeal.” As to the petition for writ of mandamus asking that the record be required to be sent, the State argues that an indigent is entitled only to so much of the transcript as is needed for the appeal and, additionally, that the appeal below was frivolous.

First, a procedural note. While petitioner has styled this petition as a petition for certiorari and mandamus, we treat the petition solely as a petition for certiorari. Certiorari is the accepted writ to review a decision of a circuit judge sitting in an appellate capacity. Once the final appellate decision (here, the' dismissal) is subject to review, preliminary orders (such as the orders denying'record) may be reviewed in the same case.

Going to the merits of the certio-rari petition, the State’s argument that petitioner was entitled to only so much of the

record as pertained to the appeal, while legally correct, is not applicable here because it was the State’s own motion to dismiss below which alleged that there was not sufficient record to decide petitioner’s points on appeal. Further, the motion to dismiss was granted with no other reason being given. Respondent’s argument that the appeal would have been frivolous also misses the target. Respondent cites one case, MeFadden v. United States, 463 F.2d 730 (8th Cir. 1972), for the proposition that a transcript need not be provided for a frivolous appeal. In that case, the appellate court had rejected the exact claim before and in a new appeal made a specific finding that the appeal was frivolous. Assuming, arguendo, that this is good law in Florida, there was no finding of frivolity in this case.

Although not cited by either party to this appeal, there is one analogous certiorari case. In Favors v. City of Tampa, 246 So.2d 172 (Fla. 2d DCA 1971), this court granted certiorari and quashed an order of a circuit court sitting in its appellate capacity dismissing an appeal because the record was not timely filed. In that case, it was found that the record was not filed due to the fault of the lower court clerk rather than the appellant’s fault. In this case, appellant attempted to procure the record, and the failure to file the record was due to the action of the circuit judge denying appellant’s request for record. As in Favors, supra, the order of dismissal was a departure from the essential requirements of law. Accordingly, the petition for writ of certio-rari is granted, the order of dismissal is quashed and the cause remanded for further proceedings.

GRIMES, C. J., and HOBSON, J., concur.


author: GRIMES, Chief Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Carl SHEPARD et al., Appellees.
    No. 79-25.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1979.
    Alan E. DeSerio, Kenneth M. Towcimak, David J. Baron and H. Reynolds Sampson of the Dept, of Transp., Tallahassee, for appellant.
    H. Rex Owen of Owen & McCrory, St. Petersburg, and Thomas M. Gallen of Miller, Gallen, Kaklis & Venable, Bradenton, for appellees.
   GRIMES, Chief Judge.

The issue in this case is whether a court should award interest under Section 74.061, Florida Statutes (1977), in the absence of a verdict.

The Department of Transportation commenced eminent domain proceedings against Carl Shepard to acquire his land for ■the reconstruction of a road in Manatee County, using Chapter 74, Florida Statutes (1977), in order to gain title and possession in advance of final judgment. The court entered an order of taking, after which the department deposited in the court the sum of $379,200, representing its good faith estimate of value as set forth in the declaration of taking. Mr. Shepard then withdrew this money.

The matter proceeded to trial, but after selection of a jury, the parties entered into settlement negotiations which culminated in an agreement that the department would pay Mr. Shepard $651,300 as full compensation for the taking of his property. However, the parties could not agree on whether Mr. Shepard should receive an additional sum representing interest on the excess of the settlement figure over the sum previously withdrawn. They finally agreed to submit this issue to the court for its determination, and the court discharged the jury.

The judge ultimately determined that Mr. Shepard was entitled to interest on $212,-100, which was the difference between the settlement figure, excluding $60,000 in business damages, and the amount of the good faith estimate of value.

The department correctly points out that the State of Florida cannot be required to pay interest except as provided by statute. Peeler v. Duval County, 70 So.2d 354 (Fla.1954). The applicable statute in this case is Section 74.061, Florida Statutes (1977), which reads as follows:

74.061 Vesting of title or interest sought. — Immediately upon the making of the deposit, the title or interest specified in the petition shall vest in the petitioner, and the said lands shall be deemed to be condemned and taken for the use of the petitioner, and the right to compensation for the same shall vest in the persons entitled thereto. Compensation shall be determined in accordance with the provisions of chapter 73, except that interest shall be allowed at the rate of 6 percent per annum from the date of surrender of possession to the date of payment on the amount that the verdict exceeds the estimate of value set forth in the declaration of taking. (Emphasis added.)

Because there was no verdict here, the department contends that the award of interest was error.

Mr. Shepard argues that the obvious purpose of Section 74.061 is to make one whose land the state has condemned in a “quick taking” proceeding whole where the estimate of value turns out to be too low. In other words, when a land owner finally receives compensation which is in excess of the estimate of value, he ought to be entitled to interest on the amount of money he should have received but didn’t at the time of the order of taking. Thus, Shepard submits, we should read the statute to accomplish this result.

The legislative history of Section 74.061 tends to undercut Mr. Shepard’s position. Prior to 1965, Section 74.06, Florida Statutes (1963), provided that where the court had entered an order of taking, the judgment for compensation should include interest “on the amount finally awarded as the value of the property, from the date of the surrender of possession to the date of payment, but interest shall not be allowed on so much thereof as may have been paid into the court.” Significantly, there was no reference to a “verdict” in this statute. Mr. Shepard suggests that the reason the legislature changed Section 74.06 was this court’s decision in Hillsborough County v. Bennett, 167 So.2d 800 (Fla. 2d DCA 1964), which held that interest could only be paid on the difference between the amount of the judgment and the amount of the deposit, even though the land owner had only been able to withdraw the amount of the good faith estimate of value which was less than the deposit. However, when the word “verdict” first appeared in Section 74.06 in 1965 the inequity highlighted by Bennett remained unchanged because the base figure upon which the differential was computed continued to be the deposit. It was not until 1967 that the legislature amended the statute to provide that the property owner should receive interest on the amount in excess of the good faith estimate of value set forth in the declaration of. taking, and the 1967 amendment retained the reference to the “verdict” which has remained in the statute until the present date.

We believe that this case falls within the principle announced in Heredia v. Allstate Insurance Company, 358 So.2d 1353 (Fla. 1978), when our supreme court said:

In matters requiring statutory construction, courts always seek to effectuate legislative intent. Where the words selected by the Legislature are clear and unambiguous, however, judicial interpretation is not appropriate to displace the expressed intent. Foley v. State ex rel. Gordon, 50 So.2d 179, 184 (Fla.1951); Platt v. Lanier, 127 So.2d 912, 913 (Fla. 2d DCA 1961). It is neither the function nor prerogative of the courts to speculate on constructions more or less reasonable, when the language itself conveys an unequivocal meaning.

358 So.2d at 1354-55.

Thus it is that Section 74.061 requires that there be a verdict before interest may be paid to the property owner. For Mr. Shepard to obtain any interest, it would have had to be included in the total compromise figure. We do not need to reach Mr. Shepard’s contention that the word verdict could contemplate a judge’s verdict as well as a jury verdict because it is clear that in this case the judge did not purport to make a determination of the full compensation to be paid for the taking of the property. He simply entered a consent judgment upon the agreed amount. Likewise, it is unnecessary for us to theorize what might have happened if the judge had directed the jury to return a verdict in the amount of the compromise figure because this also did not take place.

REVERSED.

OTT, J., concurs.

HOBSON, J., dissents.


author: PER CURIAM. PER CURIAM.

text:
    Vernon Wayne BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-286.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1979.
    On Rehearing March 14, 1980.
    Wilbur C. Smith, III, of Smith, Johnson, Carta & Mockler, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed.

HOBSON, Acting C. J., and OTT and RYDER, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellant Beasley was charged with, tried and convicted of possession of over 100 pounds of cannabis. He was sentenced to 15 years in the state prison.

His appeal challenges the validity of various pretrial and trial proceedings in the court below. We initially determined that none of his arguments had real merit, although there was support from certain decisions from the First District Court of Appeal for his assertion that prior to the 1979 legislative changes mere possession of cannabis, even in an amount in excess of 100 pounds, was a third degree felony punishable by not more than five years in prison. See Schueren v. State, 370 So.2d 83 (Fla. 1st DCA 1979); Chewning v. State, 366 So.2d 144 (Fla. 1st DCA 1979) and Aylin v. State, 362 So.2d 435 (Fla. 1st DCA 1978). However, we declined to follow our sister court and, accordingly, affirmed appellant’s sentence without opinion.

On petition for rehearing appellant points out that another panel of this court recently elected to follow Schueren, Chewning, and Aylin. Reinersman v. State, 370 So.2d 83 (Fla.2d DCA 1979). In response the state calls to our attention that the fourth district also has refused to adopt the reasoning of Schueren, Chewning et a 1. State v. Brady, 379 So.2d 1294 (Fla. 4th DCA 1980).

In the interest of preserving uniformity, at least within this court, we now hold that mere possession of cannabis is at most a third degree felony. Accordingly, we vacate appellant’s sentence and remand the ease to the circuit court for resentencing in accordance with this opinion.

However, in view of the conflict in opinion among the district courts, and because the subject is of widespread importance to the entire state, we certify the following question to the Supreme Court of Florida:

As Section 893.13 of the Florida Statutes read prior to the changes effected by 1979 legislation, was the unlawful possession, per se, of more than 100 pounds of cannabis a felony of the second or- third degree?

HOBSON, Acting C. J., and OTT and RYDER, JJ., concur.


text:
    Don JONES, G. Patrick Iley, Jeanne Malchon, Charles E. Rainey, and Cliff Stephens, as members of and constituting the Board of County Commissioners of Pinellas County, Florida, Appellants, v. U. S. STEEL CREDIT CORPORATION, Appellee.
    No. 79-81.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1979.
    Rehearing Denied March 12, 1980.
    Andrew J. Rodnite, Asst. County Atty., Clearwater, for appellants.
    Thomas F. Icard, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellee.
   PER CURIAM.

AFFIRMED.

BOARDMAN, Acting C. J., and OTT and RYDER, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellants’ motion for rehearing is denied. However, in order to avoid any misinterpretation óf our opinion, we offer the following in clarification.

We hold that, under the extraordinary facts of this case, appellee U. S. Steel Corporation stands in the shoes of the owner of the real property involved and, as the trial court found, is entitled to injunctive relief permanently enjoining the enforcement of the ordinance that downzoned the subject property. The facts which dictate this result are that appellants, the members of the Board of County Commissioners of Pinellas County, upzoned the property on July 31, 1973, at the request of the original owner of the property, who obtained the upzoning in order to complete the sale of the property to Walter Harvey Corp. (Harvey), which sale was contingent upon upzoning being obtained. On September 19, 1973, less than two months later, on the basis of the upzon-ing, appellee loaned Harvey $2,300,000, secured, by a note and mortgage, for acquisition of the land. (The market value of the land prior to the upzoning was only $475,-000.) Appellants were made aware of ap-pellee’s plans prior to completion of the transaction and reaffirmed their rezoning decision. On October 6, 1975, appellee filed a foreclosure action against Harvey. During the pendency of that action, on November 18, 1975, appellants downzoned the property. Appellee prevailed in its foreclosure action on April 6, 1976, and subsequently filed the instant complaint for in-junctive relief, which the trial court granted following a bench trial.

We agree with the trial court’s decision that, under the compelling facts before the court, the doctrine of equitable estoppel, as set forth in Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975), although by its terms available only to property owners, in equity and good conscience should be applicable here. As the trial judge stated in ruling on the case, the fact that appellee is a lienor or a successor in title under foreclosure should make no difference as long as appellee has justifiably and in good faith relied upon appellants’ official actions, as it clearly did here.

BOARDMAN, Acting C. J., and OTT and RYDER, JJ., concur.

      . The doctrine of equitable estoppel is applicable to a local government exercising its zoning power when a property owner
      (1) relying in good faith
      (2) upon some act or omission of the government
      (3)has made such a substantial change in position or incurred such extensive obligations and expenses
      that it would be highly inequitable and unjust to destroy the rights he has acquired.

        Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 572 (Fla. 2d DCA 1975).


author: PER CURIAM,

text:
    Herbert SONNENKLAR, Appellant, v. Joseph GIVENS, Appellee.
    No. 79-877.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1979.
    Grand, Krupnick & Miller and Scott F. Barnett, Hallandale, for appellant.
    Jeffrey M. Feuer, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM,

The trial judge’s findings and judgment are supported by substantial competent evidence. Under these circumstances the appellate court must affirm. Jovanovich v. Aero-Tech, Inc., 277 So.2d 555 (Fla.3d DCA 1973); Apeco Marina, Inc. v. St. Paul Fire & Marine Insurance Company, 301 So.2d 136 (Fla.3d DCA 1974); Metropolitan Dade County v. Bleaufontaine, 332 So.2d 143 (Fla.3d DCA 1976). See also Famco Electric, Inc. v. Hernandez, 293 So.2d 755 (Fla.3d DCA 1974).

Affirmed.


author: GRIMES, Chief Judge. GRIMES, Chief Judge.

text:
    Hugh MacDONALD, Jr., Appellant, v. Mary Norene MacDONALD, Appellee.
    No. 79-757.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1980.
    On Rehearing March 19, 1980.
    Paul Sidney Elliott, Tampa, for appellant.
    Stuart W. Umbarger of Umbarger & Stoddard, Brandon, for appellee.
   GRIMES, Chief Judge.

The husband raises several points in his appeal from a judgment of dissolution. The only point of merit involves his contention that the court erred in awarding the jointly owned marital home and the furnishings therein to the wife as lump sum alimony.

The wife was able to obtain fulltime employment after suit was filed, and the husband’s income as a contractor is subject to substantial fluctuations because of the volatile nature of the building industry. Nevertheless, the record supports the conclusion that in view of the parties’ prior standard of living the wife had the need for a modest amount of alimony, and the husband had the ability to pay it. We can understand why the judge preferred to grant no permanent alimony and simply award to the wife the husband’s interest in the home as lump sum alimony, thereby avoiding the possibility of subsequent disputes over the support of the wife. The only problem is that the record fails to reflect the positive showing of the necessity for lump sum alimony on the wife’s part which recent supreme court decisions have held to be a prerequisite for such an award. Meridith v. Meridith, 366 So.2d 425 (Fla.1978); Cummings v. Cummings, 330 So.2d 134 (FIa.1976).

Accordingly, we vacate the award of lump sum alimony with directions to the trial court to grant to the wife the use and occupancy of the marital home until all the parties’ children reach their majority. The court should make such provisions for the mortgage, insurance, taxes and related expenses as may be equitable. At the same time the court may revisit the issue of permanent alimony since our opinion has thwarted the award of lump sum alimony. In all other respects, we affirm the judgment.

BOARDMAN, J., and ULMER, RAY E., Jr., Associate Judge, concur.

ON MOTION FOR REHEARING

GRIMES, Chief Judge.

Less than a week before we rendered our decision in this case, the supreme court, unbeknown to us, issued its decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). In that opinion, which contained a comprehensive analysis of the law on lump sum alimony, the court emphasized that a trial judge has discretion to “award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.” At 1201. Thus, while not referring to the cases by name, the court clearly tempered the requirement of a positive showing of necessity for lump sum alimony which it announced in Meridith v. Meridith, 366 So.2d 425 (Fla.1978), and Cummings v. Cummings, 330 So.2d 134 (Fla. 1976), the two cases upon which we based our decision here.

The award of the husband’s interest in the home to the wife as lump sum alimony meets the standards of Canakaris. We note that it is also consistent with the new criteria for the granting of alimony established by the legislature in its recent amendment to Section 61.08, Florida Statutes (1979). See Collinsworth v. Collinsworth, No. PP-154 (Fla. 1st DCA Feb. 15, 1980). Accordingly, we hereby grant the motion for rehearing and affirm the final judgment of dissolution in all respects.

BOARDMAN, J., and ULMER, RAY E., Jr., Associate Judge, concur.


author: PER CURIAM. BOOTH, Judge, PER CURIAM. BOOTH, Judge,

text:
    DUNN LUMBER & SUPPLY COMPANY and Iowa National Mutual Insurance Company, Appellants, v. Gary Robert ROY, Appellee.
    No. QQ-57.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1980.
    On Motion For Clarification April 8, 1980.
    Robert J. Felice of Akerman, Senterfitt & Eidson, Orlando, for appellants.

      Sylvan A. Wells of Stern & Wells, Dayto-na Beach, for appellee.
   PER CURIAM.

This appeal from an order of the judge of industrial claims presents five issues. After carefully considering the briefs and record, we affirm the order to the extent that it found the appellee sustained a compensable accident, and further affirm the award of medical fees, costs, and the appellee’s entitlement to a reasonable attorney’s fee.

However, we do find error in failure to rule on the issue of appellee’s entitlement to temporary disability benefits. The record indicates that temporary disability benefits were claimed, included in the application for hearing, and presented for adjudication at the hearing below. The judge of industrial claims had a duty to adjudicate the issue of appellee’s entitlement to temporary disability benefits since it was properly presented and ripe for disposition. Deauville Hotel v. Weaver, 8 FCR 87, cert, denied, 288 So.2d 565 (Fla.1973).

Accordingly, the order is affirmed in part and reversed in part and remanded to the judge for further consideration and proceedings consistent with this opinion.

SHAW and WENTWORTH, JJ., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

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

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

ON MOTION FOR CLARIFICATION

PER CURIAM.

Appellants’ motion for clarification is addressed to the opinion filed on February 18, 1980, wherein the order appealed was “affirmed in part and reversed in part and remanded to the judge for further consideration. . . .” Such “further consideration” shall be upon the existing record, and the opinion of February 18, 1980, is hereby amended to so reflect.

As amended, the opinion heretofore filed is affirmed and the cause remanded for further consideration upon the existing record.

SHAW and WENTWORTH, JJ., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

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

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


author: SCHWARTZ, Judge.

text:
    Harvey BLUM, Appellant, v. Carmen BLUM, Appellee. Carmen BLUM, Appellant, v. Harvey BLUM, Appellee.
    Nos. 79-507, 79-1193, 79-1404, 79-1412, 79-2000 and 79-2001.
    District Court of Appeal of Florida, Third District.
    March 4, 1980.
    Rehearing Denied April 30, 1980.

      Joseph Pardo, Miami, for Harvey Blum.
    Edward C. Vining, Jr., Miami, for Carmen Blum.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

On January 25, 1979, the lower court entered a final judgment of dissolution which imposed extremely onerous financial obligations on the husband, Dr. Harvey Blum. Thereafter, three other judges considered various attempts by Mrs. Blum to enforce, and Dr. Blum to relieve himself of the burden of those provisions. In this opinion, we consider the husband's plenary appeal from the final judgment, as well as five separate “interlocutory” appeals under Fla.R.App.P. 9.130(a)(4) — three filed by Dr. Blum and two by Mrs. Blum — from orders entered in the post-final judgment skirmishing.

I

The parties were married in November, 1967, and had two boys, 11 and 9, and a girl, who was 5 at the time of the dissolution. Dr. Blum is an osteopathic physician. As shown by his income tax return and the testimony of his CPA, his gross income less his tax liability resulted in a net disposable income, or “take home” pay, of approximately $3,300 per month during 1978; the projected 1979 figure was $4,200 per month. Of these amounts, he was required by court order to pay $300 for the support of a child by a previous marriage. At the time of the final hearing, he had virtually no cash on hand and was living in a $265 a month apartment. Apart from the Professional Association which operated the osteopathic practice from which he derived his income, and interests in two pieces of realty which were in default and foreclosure, his only real asset was his interest in the family domicile, a townhouse owned by the entire-ties with Mrs. Blum. The home was valued at approximately $80,000, with an equity of about half that amount; the total of the monthly mortgage payment and condominium dues came to $541.00. In addition, Dr. Blum owned a 1976 four-door Mercedes which was used by his wife and children, while he drove a two-door Mercedes, titled solely in the name of his wife.

Mrs. Blum was 31 when the dissolution was granted. Prior to her marriage, she had part-time employment as a medical assistant, but she had not worked outside the home thereafter. After 'the parties separated, she began a course in interior decorating at Miami-Dade Community College. In a financial affidavit filed in support of a motion for temporary relief, she claimed total monthly expenses for herself and the children, including half the mortgage payment on the condominium, of $3,307.00 per month. On September 18', 1978, the court granted the motion, requiring Dr. Blum to pay $1,400 per month in temporary alimony and support, in addition to the utilities, the entire mortgage payment and the $456 monthly payments on the four-door Mercedes. Dr. Blum was also required to keep his existing life and hospitalization policies in effect. The total of the sums provided by the order' granting temporary relief was about $2,600 per month, an amount which, while perhaps not excessive, was certainly generous.

The final judgment now under review, however, required Dr. Blum to make payments of over $4,000 per month! The financial requirements imposed upon the husband, which cumulatively had this effect, included (a) $1,400 per month in permanent periodic alimony plus the separate requirement that Dr. Blum pay his wife's college expenses of about $100 monthly for three years or until she graduated; (b) $1,500 monthly for child support, plus up to $100 monthly for the children’s “sports activities,” plus their medical ($75) and orthodontic ($200) expenses, plus private schooling for the youngest child ($132); (c) $271 per month, representing half the mortgage and condominium payments on the home, which was to be held in common, but the exclusive possession of which was granted to the wife until she remarried or the youngest child reached 18; (d) $456 per month for the payments on the four-door Mercedes, which was awarded to the wife and (e) $121 per month for the premiums to meet a requirement for a $150,000 life insurance policy with the children as beneficiaries. In addition, Dr. Blum was required to pay for a four year college education for each of the children.

In his appeal from this judgment, Dr. Blum challenges virtually all of these provisions as either totally unjustified, grossly excessive, or both. We are in almost complete agreement with his position. First, although we find no error in granting permanent, rather than rehabilitative alimony, it is obvious that the total amounts of the various awards to the wife, as well as those for the support of the children, are egregiously wrong. Applying the standards for the review of the ruling of a trial court in domestic cases recently enunciated in Canakaris v. Canakaris, 382 So.2d 1197, (Fla.1980), we find that those made in the case at bar amounted to a clear and undoubted abuse of discretion. Compliance with their requirements would leave the husband with next to nothing — about $50 a week — to live on himself, without discharging any of his other responsibilities and obligations. Our research has failed to reveal any Florida lower court ruling which so clearly disregards the basic rule that allowances for alimony and support may not exceed the ability to pay them. Cana-karis v. Canakaris, supra; Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). Accordingly, each of the alimony and support provisions of the judgment must be reversed. See, e. g., Nicholson v. Nicholson, 372 So.2d 178 (Fla. 2d DCA 1979), and cases cited.

Other aspects of the judgment likewise may not be approved. While it was appropriate, since she had been using it, to award the four-door car to Mrs. Blum, it was entirely unfair and inequitable to decline reciprocally to grant to Dr. Blum, the wife’s two-door, which he was driving. See note 5, supra. The revised judgment to be entered on remand shall therefore provide that the two-door Mercedes is to be conveyed to the husband, as lump sum alimony. Canakaris v. Canakaris, supra; Bul-lard v. Bullard, 380 So.2d 1090 (Fla. 3d DCA 1980). It is true that provisions formally designated as “alimony” awards would thus be required both from husband to wife and from wife to husband. We think, however, that such a result is authorized, and, in a situation like this, required by Canakaris. That decision seems sub silentio to have departed from the decisions, e. g., Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974), cert, discharged, 312 So.2d 733 (Fla. 1975), which had held that the courts were not permitted simply to divide fairly the parties’ assets and thus, in effect, to “make a property settlement agreement” on their behalf.

Finally, there is no basis whatever for requiring Dr. Blum to provide a university education for his children. His statement at the trial that he hoped to be able to send them to college hardly constitutes the binding contractual undertaking to do so which is an indispensable precondition for such an order. E. g., Perla v. Perla, 58 So.2d 689 (Fla.1952); Genoe v. Genoe, 373 So.2d 940 (Fla. 4th DCA 1979), and cases cited; Kowalski v. Kowalski, 315 So.2d 497 (Fla. 2d DCA 1975), cert, dismissed, 319 So.2d 31 (Fla.1975).

To summarize, those portions of the final judgment under review in Case no. 79-507 which dissolve the marriage, award child custody, declare the parties tenants in common as to the marital home and provide for its possession by the wife, and award her attorney’s fees and the four-door Mercedes are affirmed. The judgment is otherwise reversed and the cause is remanded for a substantial downward adjustment of the amounts of permanent periodic alimony and child support. In reconsidering these issues, the court may utilize the record developed below while the appeal was pending and may also, in its discretion, take still further testimony. The lower court should also redetermine the advisability of requiring the husband to maintain life insurance in the light of the other provisions of the revised judgment and the principles stated in Lindley v. Lindley, 84 So.2d 17 (Fla. 1955); Waskin v. Waskin, 346 So.2d 1060 (Fla. 3d DCA 1977); and Fleming v. Fleming, 177 So.2d 384 (Fla. 3d DCA 1965), cert, denied, 183 So.2d 214 (Fla.1965). Upon remand, the court is directed to provide for the transfer of the two-door car to Dr. Blum, and to eliminate the provision for college education for the children.

II

The issues raised by the several appeals from post-trial orders may be quickly disposed of. In cases 79-1193 and 79-1404 Dr. Blum claims error in the entry of two separate, successive orders holding him in contempt and committing him to jail because, quite understandably, he was unable to meet the requirements of the final judgment. These orders are reversed (a) because of our reversal, supra, of those provisions of the judgment itself, see Winner v. Winner, 376 So.2d 924 (Fla. 3d DCA 1979); and (b) because neither order contains, and the record of course does not justify, the determination required by Faircloth v. Fair-cloth, 339 So.2d 650 (Fla.1976) to support a finding of contempt. See also Hammond v. Sandstrom, 376 So.2d 466 (Fla. 3d DCA 1979), and cases cited.

Cases 79-2000 and 79-2001 are appeals by Mrs. Blum from two other orders which purported to modify the final judgment to her disadvantage. Since the trial court proceeded, without our consent, while the appeal from the final judgment was pending in this court, it had no jurisdiction to enter these orders and they are therefore vacated and set aside. E. g., Goodner v. Shapiro, 367 So.2d 1110 (Fla. 3d DCA 1979); Stack v. Okaloosa County, 347 So.2d 145 (Fla. 1st DCA 1977); Fla.R.App.P. 9.600(b), (c).

Affirmed in part, reversed in part and remanded with directions; post-judgment orders reversed.

      . This figure included $100 per month in college expenses, as well as $200 per month for orthodontia for the two boys although Mrs. Blum admitted that the children had never received any such treatment. In addition, several other items, including $600 month for “[r]ecreation, tennis lessons, etc.” were at least subject to some justified skepticism.

      . The trial judge who granted temporary relief was the predecessor in the family division of the one who entered the final judgment. Thus, no less than five different trial judges have — so far — passed upon the Blums’ marital and financial difficulties.

      . Since Mrs. Blum did not own the car, she had not included this expense in her financial affidavit.

      . While we doubt that this punctuation mark has been frequently employed in appellate decisions, we think its use in this instance is entirely justified.

      . The final judgment did not, however, grant the two-door vehicle which had been in the wife’s name to the husband. The result was that Mrs. Blum had two Mercedes and Dr. Blum, who had paid or was required to pay for both of them, owned none.

      . E. g., Canakaris v. Canakaris, 382 So.2d 1197, (Fla.1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979), adopting 352 So.2d 867 (Fla. App.) (Hubbart, J., dissenting); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979).

      . Indeed, the amounts awarded seem also to be beyond even the claimed needs of Mrs. Blum and her children. See note 1, supra, and accompanying text.

      . The effect of this determination is the reinstatement, at least for the time being, of the applicable provisions of the temporary award of September 18, 1978.

      . Although this seems to have initially come about through a misunderstanding by the trial judge as to the state of the titles to the vehicles, he declined to correct the situation when it was brought to his attention.

      .See Duncan v. Duncan, 379 So.2d 949 (Fla. 1980).

      . See Canakaris v. Canakaris, supra.

      . See also Lithgow v. Lithgow, 340 So.2d 1283 (Fla. 3d DCA 1977), and cases cited.

      . Case 79-1412, in which Dr. Blum appealed a number of incidental post-trial rulings, has been abandoned.